Title 28—Judicial Administration--Volume 2

§ 80.1 Purpose.

These procedures enable issuers and domestic concerns to obtain an opinion of the Attorney General as to whether certain specified, prospective—not hypothetical—conduct conforms with the Department's present enforcement policy regarding the antibribery provisions of the Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. 78dd-1 and 78dd-2. An opinion issued pursuant to these procedures is a Foreign Corrupt Practices Act opinion (hereinafter FCPA Opinion).

§ 80.2 Submission requirements.

A request for an FCPA Opinion must be submitted in writing. An original and five copies of the request should be addressed to the Assistant Attorney General in charge of the Criminal Division, Attention: FCPA Opinion Group. The mailing address is P.O. Box 28188, Central Station, Washington, DC 20038. The address for hand delivery is room 2424, Bond Building, 1400 New York Avenue, NW., Washington, DC 20005.

§ 80.3 Transaction.

The entire transaction which is the subject of the request must be an actual—not a hypothetical—transaction but need not involve only prospective conduct. However, a request will not be considered unless that portion of the transaction for which an opinion is sought involves only prospective conduct. An executed contract is not a prerequisite and, in most—if not all—instances, an opinion request should be made prior to the requestor's commitment to proceed with a transaction.

§ 80.4 Issuer or domestic concern.

The request must be submitted by an issuer or domestic concern within the meaning of 15 U.S.C. 78dd-1 and 78dd-2, respectively, that is also a party to the transaction which is the subject of the request.

§ 80.5 Affected parties.

An FCPA Opinion shall have no application to any party which does not join in the request for the opinion.

§ 80.6 General requirements.

Each request shall be specific and must be accompanied by all relevant and material information bearing on the conduct for which an FCPA Opinion is requested and on the circumstances of the prospective conduct, including background information, complete copies of all operative documents, and detailed statements of all collateral or oral understandings, if any. The requesting issuer or domestic concern is under an affirmative obligation to make full and true disclosure with respect to the conduct for which an opinion is requested. Each request on behalf of a requesting issuer or corporate domestic concern must be signed by an appropriate senior officer with operational responsibility for the conduct that is the subject of the request and who has been designated by the requestor's chief executive officer to sign the opinion request. In appropriate cases, the Department of Justice may require the chief executive officer of each requesting issuer or corporate domestic concern to sign the request. All requests of other domestic concerns must also be signed. The person signing the request must certify that it contains a true, correct and complete disclosure with respect to the proposed conduct and the circumstances of the conduct.

§ 80.7 Additional information.

If an issuer's or domestic concern's submission does not contain all of the information required by § 80.6, the Department of Justice may request whatever additional information or documents it deems necessary to review the matter. The Department must do so within 30 days of receipt of the opinion request, or, in the case of an incomplete response to a previous request for additional information, within 30 days of receipt of such response. Each issuer or domestic concern requesting an FCPA Opinion must promptly provide the information requested. A request will not be deemed complete until the Department of Justice receives such additional information. Such additional information, if furnished orally, shall be promptly confirmed in writing, signed by the same person or officer who signed the initial request and certified by this person or officer to be a true, correct and complete disclosure of the requested information. In connection with any request for an FCPA Opinion, the Department of Justice may conduct whatever independent investigation it believes appropriate.

§ 80.8 Attorney General opinion.

The Attorney General or his designee shall, within 30 days after receiving a request that complies with the foregoing procedure, respond to the request by issuing an opinion that states whether the prospective conduct, would, for purposes of the Department of Justice's present enforcement policy, violate 15 U.S.C. 78dd-1 and 78dd-2. The Department of Justice may also take such other positions or action as it considers appropriate. Should the Department request additional information, the Department's response shall be made within 30 days after receipt of such additional information.

§ 80.9 No oral opinion.

No oral clearance, release or other statement purporting to limit the enforcement discretion of the Department of Justice may be given. The requesting issuer or domestic concern may rely only upon a written FCPA Opinion letter signed by the Attorney General or his designee.

§ 80.10 Rebuttable presumption.

In any action brought under the applicable provisions of 15 U.S.C. 78dd-1 and 78dd-2, there shall be a rebuttable presumption that a requestor's conduct, which is specified in a request, and for which the Attorney General has issued an opinion that such conduct is in conformity with the Department's present enforcement policy, is in compliance with those provisions of the FCPA. Such a presumption may be rebutted by a preponderance of the evidence. In considering the presumption, a court, in accordance with the statute, shall weigh all relevant factors, including but not limited to whether information submitted to the Attorney General was accurate and complete and whether the activity was within the scope of the conduct specified in any request received by the Attorney General.

§ 80.11 Effect of FCPA Opinion.

Except as specified in § 80.10, an FCPA Opinion will not bind or obligate any agency other than the Department of Justice. It will not affect the requesting issuer's or domestic concern's obligations to any other agency, or under any statutory or regulatory provision other than those specifically cited in the particular FCPA Opinion.

§ 80.12 Accounting requirements.

Neither the submission of a request for an FCPA Opinion, its pendency, nor the issuance of an FCPA Opinion, shall in any way alter the responsibility of an issuer to comply with the accounting requirements of 15 U.S.C. 78m(b)(2) and (3).

§ 80.13 Scope of FCPA Opinion.

An FCPA Opinion will state only the Attorney General's opinion as to whether the prospective conduct would violate the Department's present enforcement policy under 15 U.S.C. 78dd-1 and 78dd-2. If the conduct for which an FCPA Opinion is requested is subject to approval by any other agency, such FCPA Opinion shall in no way be taken to indicate the Department of Justice's views on the legal or factual issues that may be raised before that agency, or in an appeal from the agency's decision.

§ 80.14 Disclosure.

(a) Any document or other material which is provided to, received by, or prepared in the Department of Justice or any other department or agency of the United States in connection with a request by an issuer or domestic concern under the foregoing procedure shall be exempt from disclosure under 5 U.S.C. 552 and shall not, except with the consent of the issuer or domestic concern, be made publicly available, regardless of whether the Attorney General responds to such a request or the issuer or domestic concern withdraws such request before receiving a response.

(b) Nothing contained in paragraph (a) of this section shall limit the Department of Justice's right to issue, at its discretion, a release describing the identity of the requesting issuer or domestic concern, the identity of the foreign country in which the proposed conduct is to take place, the general nature and circumstances of the proposed conduct, and the action taken by the Department of Justice in response to the FCPA Opinion request. Such release shall not disclose either the identity of any foreign sales agents or other types of identifying information. The Department of Justice shall index such releases and place them in a file available to the public upon request.

(c) A requestor may request that the release not disclose proprietary information.

§ 80.15 Withdrawal.

A request submitted under the foregoing procedure may be withdrawn prior to the time the Attorney General issues an opinion in response to such request. Any request so withdrawn shall have no force or effect. The Department of Justice reserves the right to retain any FCPA Opinion request, documents and information submitted to it under this procedure or otherwise and to use them for any governmental purposes, subject to the restrictions on disclosures in § 80.14.

§ 80.16 Additional requests.

Additional requests for FCPA Opinions may be filed with the Attorney General under the foregoing procedure regarding other prospective conduct that is beyond the scope of conduct specified in previous requests.

§ 81.1 Purpose.

The regulations in this subpart designate the agencies that are authorized to receive and investigate reports of child abuse under the provisions of section 226 of the Victims of Child Abuse Act of 1990, Public Law 101-647, 104 Stat. 4806, codified at 42 U.S.C. 13031.

[Order No. 2009-96, 61 FR 7706, Feb. 29, 1996, as amended by Order No. 2692-2003, 68 FR 62372, Nov. 4, 2003]

§ 81.2 Submission of reports; designation of agencies to receive reports of child abuse.

Reports of child abuse required by 42 U.S.C. 13031 shall be made to the local law enforcement agency or local child protective services agency that has jurisdiction to investigate reports of child abuse or to protect child abuse victims in the land area or facility in question. Such agencies are hereby respectively designated as the agencies to receive and investigate such reports, pursuant to 42 U.S.C. 13031(d), with respect to federal lands and federally operated or contracted facilities within their respective jurisdictions, provided that such agencies, if non-federal, enter into formal written agreements to do so with the Attorney General, her delegate, or a federal agency with jurisdiction for the area or facility in question. If the child abuse reported by the covered professional pursuant to 42 U.S.C. 13031 occurred outside the federal area or facility in question, the designated local law enforcement agency or local child protective services agency receiving the report shall immediately forward the matter to the appropriate authority with jurisdiction outside the federal area in question.

§ 81.3 Designation of Federal Bureau of Investigation.

For federal lands, federally operated facilities, or federally contracted facilities where no agency qualifies for designation under § 81.2, the Federal Bureau of Investigation is hereby designated as the agency to receive and investigate reports of child abuse made pursuant to 42 U.S.C. 13031 until such time as another agency qualifies as a designated agency under § 81.2.

§ 81.4 Referral of reports where the designated agency is not a law enforcement agency.

Where a report of child abuse received by a designated agency that is not a law enforcement agency involves allegations of sexual abuse, serious physical injury, or life-threatening neglect of a child, that agency shall immediately report such occurrence to a law enforcement agency with authority to take emergency action to protect the child.

§ 81.5 Definitions.

Local child protective services agency means that agency of the federal government, of a state, of a tribe or of a local government that has the primary responsibility for child protection within a particular portion of the federal lands, a particular federally operated facility, or a particular federally contracted facility in which children are cared for or reside.

Local law enforcement agency means that federal, state, tribal or local law enforcement agency that has the primary responsibility for the investigation of an instance of alleged child abuse occurring within a particular portion of the federal lands, a particular federally operated facility, or a particular federally contracted facility in which children are cared for or reside.

§ 81.11 Purpose.

The regulations in this subpart B designate the agencies that are authorized to receive and investigate reports of child pornography that are forwarded from the National Center for Missing and Exploited Children under the provisions of 42 U.S.C. 13032.

§ 81.12 Submission of reports to the “Cyber Tipline” at the National Center for Missing and Exploited Children.

(a) When a provider of electronic communications services or remote computing services to the public (“provider”) obtains knowledge of facts or circumstances concerning an apparent violation of Federal child pornography statutes designated by 42 U.S.C. 13032(b)(1), it shall, as soon as reasonably possible, report all such facts or circumstances to the “Cyber Tipline” at the National Center for Missing and Exploited Children Web site (http://www.CyberTipline.com), which contains a reporting form for use by providers.

(b) A provider should initially call the National Center for Missing and Exploited Children to receive an identification number and a password that will enable it to log on to the section of the “Cyber Tipline” that is designed for provider reporting.

§ 81.13 Submission of reports by the National Center for Missing and Exploited Children to designated agencies; designation of agencies.

When the National Center for Missing and Exploited Children receives a report from a provider concerning an apparent violation of Federal child pornography statutes specified in 42 U.S.C. 13032(b)(1), it shall immediately forward that report, to the Federal Bureau of Investigation, the Bureau of Immigration and Customs Enforcement, the United States Postal Inspection Service, and the United States Secret Service, designated pursuant to 42 U.S.C. 13032(b)(2).

§§ 81.14-81.50 [Reserved]

§ 81.51 Child Pornography Victims Reserve.

The Child Pornography Victims Reserve (“Reserve”) was established on December 7, 2018, to provide a source of defined monetary assistance for eligible victims of trafficking in child pornography, pursuant to 18 U.S.C. 2259(d). Pursuant to the authority of the Department of Justice (“the Department”) to administer the Reserve, the Department will—

(a) Accept a request that the Department seek a court order for a determination of eligibility for defined monetary assistance from a claimant who chooses to proceed through the Department;

(b) Process such request and use reasonable efforts to follow up with such claimant to obtain information sufficient for a court to determine the claimant's eligibility for defined monetary assistance;

(c) Upon confirming that the request to the Department is complete and not duplicative of a previously received request, use reasonable efforts to identify a Federal child pornography trafficking case in which an image of the identified victim appears and in which the Department may present an application for court determination of the claimant's eligibility; and

(d) Pay a claimant (or an authorized representative, if applicable) pursuant to a Federal court order determining that such claimant is eligible to receive defined monetary assistance.

§ 81.52 Definitions.

(a) If a term is not defined in this section, the statutory definition at 18 U.S.C. 2256, 2259, 2259A, or 2259B applies to the submission and processing of requests to the Department.

(b) Authorized representative means an attorney or legal guardian (for claimants under age 18, incompetent, or incapacitated) of a claimant, the personal representative of a deceased claimant's estate, any other person appointed as a representative of a claimant by a Federal court pursuant to 18 U.S.C. 2259(c)(4), or a personal representative designated by the claimant to act on the claimant's behalf.

(c) Claimant means the person who claims to be a victim of trafficking in child pornography and to be eligible for the defined monetary assistance at 18 U.S.C. 2259(d).

(d) Reserve means the Child Pornography Victims Reserve set forth in 34 U.S.C. 20101(d)(6). The Department may also refer to the Reserve as the Defined Monetary Assistance Victims Reserve.

(e) Victim or victim of trafficking in child pornography means a person whom a Federal court has determined, under 18 U.S.C. 2259(d)(1)(B), to be a victim of trafficking in child pornography.

§ 81.53 Eligibility.

(a) Presentment of claims for payment to Federal courts. If a claimant chooses to submit a request to the Department, the Department shall review a properly submitted request and, as necessary, ask the claimant (or the claimant's authorized representative, if applicable) for additional information to support the request. Once the Department confirms the request is complete and not duplicative of a previously received request, the Department will use reasonable efforts to find an appropriate case in which to present the claim by means of an application for an order of payment of defined monetary assistance in a Federal court. An appropriate case may be an open or closed case. If the Department is unable to locate an appropriate case, it will notify the claimant and may decline to present the claim. If the Department presents the claimant's application to a court, the Department may include a recommendation as to whether the court should grant or deny the application.

(b) Determination by a court. A Federal court will make the determination, under 18 U.S.C. 2259(d)(1)(B), as to whether a claimant is entitled to defined monetary assistance from the Reserve and, if so, shall order payment in the amount specified in 18 U.S.C. 2259(d)(1)(D). This amount is $35,000 as adjusted for inflation from December 7, 2018, based on the date of the court's order, in accordance with 18 U.S.C. 2259(d)(1)(D).

(c) Payment. The Department shall pay to the victim (or the victim's authorized representative, if applicable) from the Reserve the defined monetary assistance set forth in 18 U.S.C. 2259, in accordance with the applicable Federal court order and consistent with 18 U.S.C. 2259B(b).

(d) Exclusions. (1) A victim may obtain defined monetary assistance under 18 U.S.C. 2259(d) only once. See 18 U.S.C. 2259(d)(2)(A).

(2) In no event shall an individual who is convicted of an act described in 18 U.S.C. chapter 110, with respect to the victim, receive any defined monetary assistance from the Reserve on behalf of the victim. See 18 U.S.C. 2259(c)(4).

(3) Claimants who have collected restitution payments in excess of $35,000 (as adjusted for inflation from December 7, 2018) pursuant to 18 U.S.C. 2259 are not eligible to receive defined monetary assistance under this program. See 18 U.S.C. 2259(d)(3).

(e) Effect on restitution. If a victim has received defined monetary assistance and, after receiving that defined monetary assistance, seeks restitution, the amount the victim received in defined monetary assistance must be deducted when determining the full amount of the victim's losses for purposes of restitution. See 18 U.S.C. 2259(d)(2)(C).

§ 81.54 Submission of requests to the Department.

(a) Requests submitted to the Department must be submitted in the form and manner, and supported by documentation, specified from time to time by the Department. The Department's website will contain directions on how to access the claims system for defined monetary assistance.

(b) Requests may be submitted to the Department at any time. The Department may decline to present to a court any application based on a request that duplicates a previously received request. A request duplicates a previously received request if it is submitted by or in connection with the same claimant and is premised on the same conduct as the previously received request. If a claimant obtains new information relevant to a claim after submitting a request, the claimant should amend that request rather than submitting a new request. If the Department has already returned the request to the claimant, the claimant may submit a new request, so long as such request contains material, additional information supporting the claimant's eligibility for defined monetary assistance.

(c) If a claimant is represented by an authorized representative, the request to the Department and any supporting information may be submitted to the Department by that authorized representative. The authorized representative must submit a separate request on behalf of each represented claimant.

§ 81.55 Supporting information.

(a) As part of a request to the Department, the claimant should submit information as instructed by the Department. The Department's website will provide instruction about what information is required in support of a claim. Failure to submit all required information may result in delay or a decision by the Department not to present the claimant's application to a court.

(b) All information supporting the request should be updated as necessary while the request to the Department is pending, including the amounts of any restitution collected, address changes, changes to information needed to process payment to the claimant, and any other pertinent information that may be relevant to the request.

(c) To avoid a potential violation of Federal law, claimants (or authorized representatives, if applicable) shall not send images or videos of child pornography when providing supporting information.

§ 81.56 Procedures for determining the personal representative of an estate.

(a) In general. For any request to the Department by the estate of a deceased claimant, the personal representative of the estate, who will be the authorized representative for purposes of defined monetary assistance from the Reserve, shall be determined as follows:

(1) First preference will be given to an individual appointed by a court of competent jurisdiction as the personal representative of the deceased claimant or as the executor or administrator of the deceased claimant's will or estate.

(2) In the event that no personal representative or executor or administrator has been appointed by any court of competent jurisdiction, and such issue is not the subject of pending litigation or other dispute, the next preferred personal representative for purposes of defined monetary assistance from the Reserve will be the person named by the deceased claimant in the deceased claimant's will as the executor or administrator of the deceased claimant's estate.

(3) In the event that no will exists, the next preference for personal representative for purposes of defined monetary assistance from the Reserve will be the first person in the line of succession for inheritance established by the laws of the deceased claimant's domicile governing intestacy. In the case where State law provides for two or more persons to inherit in equal shares (e.g., parents or siblings), the defined monetary assistance payment will be split accordingly.

(4) In the event that none of the individuals described in paragraphs (a)(1) through (3) of this section are available to serve as personal representative, any other person may seek to be appointed by a court of competent jurisdiction as the personal representative for purposes of defined monetary assistance from the Reserve. Upon appointment, that person will serve as personal representative.

(b) Notice to beneficiaries. (1) Any purported personal representative must, before submitting a request to the Department, provide written notice of the intent to submit a request and the procedures in paragraph (c) of this section to object to such status as personal representative to the immediate family of the deceased claimant; to the executor, administrator, and beneficiaries of the deceased claimant's will; and to any other persons who may reasonably be expected to assert an interest in an award or to have a cause of action to recover damages relating to the wrongful death of the deceased claimant.

(2) Personal delivery or transmission by certified mail, return receipt requested, shall be deemed sufficient notice under this subpart. The purported personal representative must certify that such notice (or other notice that the Department deems appropriate) has been given.

(c) Objections to personal representatives. Objections to the authority of an individual to file as the personal representative of a deceased claimant may be submitted to the Department, as instructed on the Department's website for this program, by parties who assert a financial interest in the award. Any such objection must be submitted within 30 days following receipt of notice by the personal representative as defined under this section. If timely submitted, such objections shall be treated as evidence of a “dispute” under paragraph (d) of this section.

(d) Disputes as to the identity of the personal representative. The Department will not, and shall not be required to, arbitrate, litigate, or otherwise resolve any dispute as to the identity of the personal representative. In the event of a dispute over the appropriate personal representative, the Department may suspend or return a request to the claimant without prejudice to its later resubmission and may withhold any payment until the dispute is resolved either by agreement of the disputing parties or by a court of competent jurisdiction. Alternatively, the disputing parties may agree in writing to the identity of a personal representative to act on their behalf, who may seek and accept defined monetary assistance from the Reserve while the disputing parties work to settle their dispute.

§ 81.57 Request and order processing.

(a) Upon receipt of a request to the Department, the Department will review it and may follow up with the claimant (or authorized representative, if applicable) to resolve any gaps in the request's supporting information.

(b) The Department will then use reasonable efforts to identify an open or closed Federal criminal case involving the claimant to present the claimant's application (with supporting information, as appropriate) for a court to determine the claimant's eligibility to receive defined monetary assistance. If the Department is unable to locate such a case, it will notify the claimant (or the claimant's authorized representative, if applicable). If the Department presents the claimant's application to a court, in its sole discretion, the Department may or may not present the claim with an accompanying recommendation that the court order payment or not. If the Department determines that it will recommend against the court ordering payment, the Department will make reasonable efforts to inform the claimant (or the claimant's authorized representative, if applicable) of such recommendation prior to any presentation of the application to the court.

(c) If a court issues an order requiring payment to any claimant, the Department will process payment of defined monetary assistance to the claimant or, where appropriate, to the claimant's authorized representative, in accordance with the order in the amount specified therein, upon receipt of the order and the requisite information from the claimant following instructions on the Department's website for this program. Failure to submit all required information to the Department may result in delay of payment.

(d) If the court issues an order denying eligibility based on an application submitted by the Department, the Department will notify the claimant (or the claimant's authorized representative, if applicable). The Department may decide to seek appellate review of a ruling by a district court regarding a claimant's eligibility for defined monetary assistance. The Department will make reasonable efforts to consult with the claimant (or the claimant's authorized representative, if applicable) on the issue of appellate review.

§ 81.58 Signatures and certifications.

A request to the Department will be deemed submitted when it is submitted online at the Department's website for this program; or, as provided in accordance with § 81.54, consistent with the instructions on the claim form. By submitting the request, the claimant (or, if submitted by an authorized representative, the authorized representative) acknowledges and certifies as to each of the following:

(a) Veracity of request. The claimant certifies, under oath, subject to penalty of perjury or in a manner that meets the requirements of 28 U.S.C. 1746, that the information provided in the request and any documents submitted in support of the request are true and accurate to the best of the claimant's knowledge, and the claimant agrees that any defined monetary assistance paid from the Reserve is expressly conditioned upon the truthfulness and accuracy of the information and documentation submitted in support of the request. Where a claimant is represented by an authorized representative, that representative must have authority to certify the request on behalf of the claimant.

(b) Potential criminal penalties. The claimant understands that false statements or claims made in connection with the request may result in fines, imprisonment, and any other remedy available by law to the Federal Government, including fines and imprisonment as provided in 18 U.S.C. 1001 and treble damages and civil penalties under the False Claims Act, 31 U.S.C. 3729, et seq. Requests that appear to be potentially fraudulent or to contain false information may be forwarded to Federal, State, and local law enforcement authorities for possible investigation and prosecution.

(c) Limitation on attorney fees. If a claimant is represented by counsel, no attorney shall charge, receive, or collect any payment of fees and costs that in the aggregate exceeds 15 percent of any defined monetary assistance paid on such application. An attorney who violates this provision is subject to fine, imprisonment of up to one year, or both.

§ 81.59 Privacy.

The Department will not disclose to the public the names of the claimants (or their authorized representatives, if applicable) who have requested defined monetary assistance from the Reserve under this program, or their other personally identifiable information, except as necessary to process a request or application or pursuant to law or court order.

§ 83.100 What does this part do?

This part carries out the portion of the Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also applies the provisions of the Act to cooperative agreements and other financial assistance awards, as a matter of Federal Government policy.

§ 83.105 Does this part apply to me?

(a) Portions of this part apply to you if you are either—

(1) A recipient of an assistance award from the Department of Justice; or

(2) A(n) Department of Justice awarding official. (See definitions of award and recipient in §§ 83.605 and 83.660, respectively.)

(b) The following table shows the subparts that apply to you:

If you are . . . | see subparts . . .

(1) A recipient who is not an individual | A, B and E.

(2) A recipient who is an individual | A, C and E.

(3) A(n) Department of Justice awarding official | A, D and E.

§ 83.110 Are any of my Federal assistance awards exempt from this part?

This part does not apply to any award that the Attorney General or designee determines that the application of this part would be inconsistent with the international obligations of the United States or the laws or regulations of a foreign government.

§ 83.115 Does this part affect the Federal contracts that I receive?

It will affect future contract awards indirectly if you are debarred or suspended for a violation of the requirements of this part, as described in § 83.510(c). However, this part does not apply directly to procurement contracts. The portion of the Drug-Free Workplace Act of 1988 that applies to Federal procurement contracts is carried out through the Federal Acquisition Regulation in chapter 1 of Title 48 of the Code of Federal Regulations (the drug-free workplace coverage currently is in 48 CFR part 23, subpart 23.5).

§ 83.200 What must I do to comply with this part?

There are two general requirements if you are a recipient other than an individual.

(a) First, you must make a good faith effort, on a continuing basis, to maintain a drug-free workplace. You must agree to do so as a condition for receiving any award covered by this part. The specific measures that you must take in this regard are described in more detail in subsequent sections of this subpart. Briefly, those measures are to—

(1) Publish a drug-free workplace statement and establish a drug-free awareness program for your employees (see §§ 83.205 through 83.220); and

(2) Take actions concerning employees who are convicted of violating drug statutes in the workplace (see § 83.225).

(b) Second, you must identify all known workplaces under your Federal awards (see § 83.230).

§ 83.205 What must I include in my drug-free workplace statement?

You must publish a statement that—

(a) Tells your employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in your workplace;

(b) Specifies the actions that you will take against employees for violating that prohibition; and

(c) Lets each employee know that, as a condition of employment under any award, he or she:

(1) Will abide by the terms of the statement; and

(2) Must notify you in writing if he or she is convicted for a violation of a criminal drug statute occurring in the workplace and must do so no more than five calendar days after the conviction.

§ 83.210 To whom must I distribute my drug-free workplace statement?

You must require that a copy of the statement described in § 83.205 be given to each employee who will be engaged in the performance of any Federal award.

§ 83.215 What must I include in my drug-free awareness program?

You must establish an ongoing drug-free awareness program to inform employees about—

(a) The dangers of drug abuse in the workplace;

(b) Your policy of maintaining a drug-free workplace;

(c) Any available drug counseling, rehabilitation, and employee assistance programs; and

(d) The penalties that you may impose upon them for drug abuse violations occurring in the workplace.

§ 83.220 By when must I publish my drug-free workplace statement and establish my drug-free awareness program?

If you are a new recipient that does not already have a policy statement as described in § 83.205 and an ongoing awareness program as described in § 83.215, you must publish the statement and establish the program by the time given in the following table:

If . . . | then you . . .

(a) The performance period of the award is less than 30 days | must have the policy statement and program in place as soon as possible, but before the date on which performance is expected to be completed.

(b) The performance period of the award is 30 days or more | must have the policy statement and program in place within 30 days after award.

(c) You believe there are extraordinary circumstances that will require more than 30 days for you to publish the policy statement and establish the awareness program | may ask the Department of Justice awarding official to give you more time to do so. The amount of additional time, if any, to be given is at the discretion of the awarding official.

§ 83.225 What actions must I take concerning employees who are convicted of drug violations in the workplace?

There are two actions you must take if an employee is convicted of a drug violation in the workplace:

(a) First, you must notify Federal agencies if an employee who is engaged in the performance of an award informs you about a conviction, as required by § 83.205(c)(2), or you otherwise learn of the conviction. Your notification to the Federal agencies must—

(1) Be in writing;

(2) Include the employee's position title;

(3) Include the identification number(s) of each affected award;

(4) Be sent within ten calendar days after you learn of the conviction; and

(5) Be sent to every Federal agency on whose award the convicted employee was working. It must be sent to every awarding official or his or her official designee, unless the Federal agency has specified a central point for the receipt of the notices.

(b) Second, within 30 calendar days of learning about an employee's conviction, you must either—

(1) Take appropriate personnel action against the employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or

(2) Require the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for these purposes by a Federal, State or local health, law enforcement, or other appropriate agency.

§ 83.230 How and when must I identify workplaces?

(a) You must identify all known workplaces under each Department of Justice award. A failure to do so is a violation of your drug-free workplace requirements. You may identify the workplaces_

(1) To the Department of Justice official that is making the award, either at the time of application or upon award; or

(2) In documents that you keep on file in your offices during the performance of the award, in which case you must make the information available for inspection upon request by Department of Justice officials or their designated representatives.

(b) Your workplace identification for an award must include the actual address of buildings (or parts of buildings) or other sites where work under the award takes place. Categorical descriptions may be used (e.g., all vehicles of a mass transit authority or State highway department while in operation, State employees in each local unemployment office, performers in concert halls or radio studios).

(c) If you identified workplaces to the Department of Justice awarding official at the time of application or award, as described in paragraph (a)(1) of this section, and any workplace that you identified changes during the performance of the award, you must inform the Department of Justice awarding official.

§ 83.300 What must I do to comply with this part if I am an individual recipient?

As a condition of receiving a(n) Department of Justice award, if you are an individual recipient, you must agree that—

(a) You will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance in conducting any activity related to the award; and

(b) If you are convicted of a criminal drug offense resulting from a violation occurring during the conduct of any award activity, you will report the conviction:

(1) In writing.

(2) Within 10 calendar days of the conviction.

(3) To the Department of Justice awarding official or other designee for each award that you currently have, unless § 83.301 or the award document designates a central point for the receipt of the notices. When notice is made to a central point, it must include the identification number(s) of each affected award.

§ 83.301 [Reserved]

§ 83.400 What are my responsibilities as a(n) Department of Justice awarding official?

As a(n) Department of Justice awarding official, you must obtain each recipient's agreement, as a condition of the award, to comply with the requirements in—

(a) Subpart B of this part, if the recipient is not an individual; or

(b) Subpart C of this part, if the recipient is an individual.

§ 83.500 How are violations of this part determined for recipients other than individuals?

A recipient other than an individual is in violation of the requirements of this part if the Attorney General or designee determines, in writing, that—

(a) The recipient has violated the requirements of subpart B of this part; or

(b) The number of convictions of the recipient's employees for violating criminal drug statutes in the workplace is large enough to indicate that the recipient has failed to make a good faith effort to provide a drug-free workplace.

§ 83.505 How are violations of this part determined for recipients who are individuals?

An individual recipient is in violation of the requirements of this part if the Attorney General or designee determines, in writing, that—

(a) The recipient has violated the requirements of subpart C of this part; or

(b) The recipient is convicted of a criminal drug offense resulting from a violation occurring during the conduct of any award activity.

§ 83.510 What actions will the Federal Government take against a recipient determined to have violated this part?

If a recipient is determined to have violated this part, as described in § 83.500 or § 83.505, the Department of Justice may take one or more of the following actions—

(a) Suspension of payments under the award;

(b) Suspension or termination of the award; and

(c) Suspension or debarment of the recipient under 28 CFR Part 67, for a period not to exceed five years.

§ 83.515 Are there any exceptions to those actions?

The Attorney General may waive with respect to a particular award, in writing, a suspension of payments under an award, suspension or termination of an award, or suspension or debarment of a recipient if the Attorney General determines that such a waiver would be in the public interest. This exception authority cannot be delegated to any other official.

§ 83.605 Award.

Award means an award of financial assistance by the Department of Justice or other Federal agency directly to a recipient.

(a) The term award includes:

(1) A Federal grant or cooperative agreement, in the form of money or property in lieu of money.

(2) A block grant or a grant in an entitlement program, whether or not the grant is exempted from coverage under the Governmentwide rule 28 CFR Part 70 that implements OMB Circular A-102 (for availability, see 5 CFR 1310.3) and specifies uniform administrative requirements.

(b) The term award does not include:

(1) Technical assistance that provides services instead of money.

(2) Loans.

(3) Loan guarantees.

(4) Interest subsidies.

(5) Insurance.

(6) Direct appropriations.

(7) Veterans' benefits to individuals (i.e., any benefit to veterans, their families, or survivors by virtue of the service of a veteran in the Armed Forces of the United States).

§ 83.610 Controlled substance.

Controlled substance means a controlled substance in schedules I through V of the Controlled Substances Act (21 U.S.C. 812), and as further defined by regulation at 21 CFR 1308.11 through 1308.15.

§ 83.615 Conviction.

Conviction means a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes.

§ 83.620 Cooperative agreement.

Cooperative agreement means an award of financial assistance that, consistent with 31 U.S.C. 6305, is used to enter into the same kind of relationship as a grant (see definition of grant in § 83.650), except that substantial involvement is expected between the Federal agency and the recipient when carrying out the activity contemplated by the award. The term does not include cooperative research and development agreements as defined in 15 U.S.C. 3710a.

§ 83.625 Criminal drug statute.

Criminal drug statute means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, use, or possession of any controlled substance.

§ 83.630 Debarment.

Debarment means an action taken by a Federal agency to prohibit a recipient from participating in Federal Government procurement contracts and covered nonprocurement transactions. A recipient so prohibited is debarred, in accordance with the Federal Acquisition Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, Government-wide Debarment and Suspension (Nonprocurement), that implements Executive Order 12549 and Executive Order 12689.

§ 83.635 Drug-free workplace.

Drug-free workplace means a site for the performance of work done in connection with a specific award at which employees of the recipient are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance.

§ 83.640 Employee.

(a) Employee means the employee of a recipient directly engaged in the performance of work under the award, including—

(1) All direct charge employees;

(2) All indirect charge employees, unless their impact or involvement in the performance of work under the award is insignificant to the performance of the award; and

(3) Temporary personnel and consultants who are directly engaged in the performance of work under the award and who are on the recipient's payroll.

(b) This definition does not include workers not on the payroll of the recipient (e.g., volunteers, even if used to meet a matching requirement; consultants or independent contractors not on the payroll; or employees of subrecipients or subcontractors in covered workplaces).

§ 83.645 Federal agency or agency.

Federal agency or agency means any United States executive department, military department, government corporation, government controlled corporation, any other establishment in the executive branch (including the Executive Office of the President), or any independent regulatory agency.

§ 83.650 Grant.

Grant means an award of financial assistance that, consistent with 31 U.S.C. 6304, is used to enter into a relationship—

(a) The principal purpose of which is to transfer a thing of value to the recipient to carry out a public purpose of support or stimulation authorized by a law of the United States, rather than to acquire property or services for the Federal Government's direct benefit or use; and

(b) In which substantial involvement is not expected between the Federal agency and the recipient when carrying out the activity contemplated by the award.

§ 83.655 Individual.

Individual means a natural person.

§ 83.660 Recipient.

Recipient means any individual, corporation, partnership, association, unit of government (except a Federal agency) or legal entity, however organized, that receives an award directly from a Federal agency.

§ 83.665 State.

State means any of the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States.

§ 83.670 Suspension.

Suspension means an action taken by a Federal agency that immediately prohibits a recipient from participating in Federal Government procurement contracts and covered nonprocurement transactions for a temporary period, pending completion of an investigation and any judicial or administrative proceedings that may ensue. A recipient so prohibited is suspended, in accordance with the Federal Acquisition Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, Government-wide Debarment and Suspension (Nonprocurement), that implements Executive Order 12549 and Executive Order 12689. Suspension of a recipient is a distinct and separate action from suspension of an award or suspension of payments under an award.

§ 85.1 In general.

(a) For violations occurring on or before November 2, 2015, and for civil penalties assessed before August 1, 2016, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department of Justice and listed in section 85.3 are adjusted as set forth in that section, in accordance with the requirements of the Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 104-410, 104 Stat. 890, in effect prior to November 2, 2015.

(b) For civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department of Justice are adjusted as set forth in section 85.5, in accordance with the requirements of the Bipartisan Budget Act of 2015, Public Law 114-74, section 701 (Nov. 2, 2015), 28 U.S.C. 2461 note.

[AG Order No. 3690-2016, 81 FR 42500, June 30, 2016]

§ 85.2 [Reserved]

§ 85.3 Adjustments to penalties for violations occurring on or before November 2, 2015.

For all violations occurring on or before November 2, 2015, and for assessments made before August 1, 2016, for violations occurring after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the respective components of the Department, as set forth in paragraphs (a) through (d) of this section, are adjusted as provided in this section in accordance with the inflation adjustment procedures prescribed in section 5 of the Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410, as in effect prior to November 2, 2015. The adjusted penalties set forth in paragraphs (a), (c), and (d) of this section are effective for violations occurring on or after September 29, 1999, and on or before November 2, 2015, and for assessments made before August 1, 2016, for violations occurring after November 2, 2015. For civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, see the adjusted penalty amounts in section 85.5.

(a) Civil Division. (1) 5 U.S.C. App. 4 102(f)(6)(C)(i), Ethics in Government Act of 1978, knowing and willful disclosure, solicitation, or receipt of information with respect to blind trusts: from $10,000 to $11,000.

(2) 5 U.S.C. App. 4 102(f)(6)(C)(ii), Ethics in Government Act of 1978, negligent disclosure, solicitation, or receipt of information with respect to blind trusts: from $5,000 to $5,500.

(3) 5 U.S.C. App. 4 104(a), Ethics in Government Act of 1978, falsification or failure to file required reports: from $10,000 to $11,000.

(4) 5 U.S.C. App. 4 105(c)(2), Ethics in Government Act of 1978, unlawful acquisition or use of public reports: from $10,000 to $11,000.

(5) 5 U.S.C. App. 4 504(a), Ethics Reform Act of 1989, violations of limitations on outside earned income and employment: from $10,000 to $11,000.

(6) 12 U.S.C. 1833a(b)(1), Financial Institutions Reform, Recovery, and Enforcement Act of 1989, violation: from $1,000,000 to $1,100,000.

(7) 12 U.S.C. 1833a(b)(2), Financial Institutions Reform, Recovery, and Enforcement Act of 1989, continuing violations (per day): minimum from $1,000,000 to $1,100,000; maximum from $5,000,000 to $5,500,000.

(8) 22 U.S.C. 2399b(a)(3)(A), Foreign Assistance Act of 1961, fraudulent claim for assistance: from $2,000 to $2,200.

(9) 31 U.S.C. 3729(a), False Claims Act, violations: minimum from $5,000 to $5,500; maximum from $10,000 to $11,000.

(10) 31 U.S.C. 3802(a)(1), Program Fraud Civil Remedies Act, violation involving false claim: from $5,000 to $5,500.

(11) 31 U.S.C. 3802(a)(2), Program Fraud Civil Remedies Act, violation involving false statement: from $5,000 to $5,500.

(12) 40 U.S.C. 489(b)(1), Federal Property and Administrative Services Act of 1949, violation involving surplus government property: from $2,000 to $2,200.

(13) 41 U.S.C. 55(a)(1)(B), Anti-Kickback Act of 1986, violation involving kickbacks: from $10,000 to $11,000.

(b) Civil Rights Division. (1) 18 U.S.C. 248(c)(2)(B), Freedom of Access to Clinic Entrances Act of 1994 (Nonviolent Physical Obstruction):

(i) The civil monetary penalty amount for a first order for nonviolent physical obstruction, initially set at $10,000, is adjusted to $11,000 for a violation occurring on or after September 29, 1999, and before April 28, 2014, and is adjusted to $16,000 for a violation occurring on or after April 28, 2014.

(ii) The civil monetary penalty amount for a subsequent order for nonviolent physical obstruction, initially set at $15,000, is adjusted to $16,500 for a violation occurring on or after April 28, 2014.

(2) 18 U.S.C. 248(c)(2)(B), Freedom of Access to Clinic Entrances Act of 1994 (Other Violations):

(i) The civil monetary penalty amount for a first order other than for nonviolent physical obstruction, initially set at $15,000, is adjusted to $16,500 for a violation occurring on or after April 28, 2014.

(ii) The civil monetary penalty amount for a subsequent order other than for nonviolent physical obstruction, initially set at $25,000, is adjusted to $27,500 for a violation occurring on or after September 29, 1999, and before April 28, 2014, and is adjusted to $37,500 for a violation occurring on or after April 28, 2014.

(3) 42 U.S.C. 3614(d)(1)(C), Fair Housing Act of 1968, as amended (Pattern or Practice Violation):

(i) The civil monetary penalty amount for a first order, initially set at $50,000, is adjusted to $55,000 for a violation occurring on or after September 29, 1999, and before April 28, 2014, and is adjusted to $75,000 for a violation occurring on or after April 28, 2014.

(ii) The civil monetary penalty amount for a subsequent order, initially set at $100,000, is adjusted to $110,000 for a violation occurring on or after September 29, 1999, and before April 28, 2014, and is adjusted to $150,000 for a violation occurring on or after April 28, 2014.

(4) 50 U.S.C. App. 597(b)(3), Servicemembers Civil Relief Act of 2003, as amended:

(i) The civil monetary penalty amount for a first violation, initially set at $55,000, is adjusted to $60,000 for a violation occurring on or after April 28, 2014.

(ii) The civil monetary penalty amount for a subsequent violation, initially set at $110,000, is adjusted to $120,000 for a violation occurring on or after April 28, 2014.

(c) Criminal Division. 18 U.S.C. 216(b), Ethics Reform Act of 1989, violation: from $50,000 to $55,000.

(d) Drug Enforcement Administration. 21 U.S.C. 961(1), Controlled Substances Import Export Act, transshipment and in-transit shipment of controlled substances: from $25,000 to $27,500.

[Order No. 2249-99, 64 FR 47103, Aug. 30, 1999, as amended by AG Order No. 3324-2014, 79 FR 17436, Mar. 28, 2014; AG Order 3690-2016, 81 FR 42500, June 30, 2016]

§ 85.5 Adjustments to penalties for violations occurring after November 2, 2015.

(a) For civil penalties assessed after July 3, 2025, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department are adjusted as set forth in the fifth column of table 1 to this section.

(b) For civil penalties assessed after February 12, 2024, and on or before July 3, 2025 whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department are adjusted as set forth in the fourth column of table 1 to this section.

(c) All figures set forth in table 1 to this section are maximum penalties, unless otherwise indicated.

Table 1 to § 85.5

U.S.C. citation | Name/description | CFR citation | DOJ penalty assessed after 2/12/2024 1 ($) | DOJ penalty assessed after July 3, 2025 2 ($)

ATF

18 U.S.C. 922(t)(5) | Brady Law—Nat'l Instant Criminal Check System (NICS); Transfer of firearm without checking NICS | 10,557 | 10,831

18 U.S.C. 924(p) | Child Safety Lock Act; Secure gun storage or safety device, violation | 3,861 | 3,961

Civil Division

12 U.S.C. 1833a(b)(1) | Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) Violation | 28 CFR 85.3(a)(6) | 2,449,575 | 2,513,215

12 U.S.C. 1833a(b)(2) | FIRREA Violation (continuing) (per day) | 28 CFR 85.3(a)(7) | 2,449,575 | 2,513,215

12 U.S.C. 1833a(b)(2) | FIRREA Violation (continuing) | 28 CFR 85.3(a)(7) | 12,247,886 | 12,566,086

22 U.S.C. 2399b(a)(3)(A) | Foreign Assistance Act; Fraudulent Claim for Assistance (per act) | 28 CFR 85.3(a)(8) | 7,114 | 7,299

31 U.S.C. 3729(a) | False Claims Act; 3 Violations | 28 CFR 85.3(a)(9) | Min 13,946, Max 27,894 | Min 14,308, Max 28,619

31 U.S.C. 3802(a)(1) | Program Fraud Civil Remedies Act; Violations Involving False Claim (per claim) | 28 CFR 71.3(a) | 13,946 | 14,308

31 U.S.C. 3802(a)(2) | Program Fraud Civil Remedies Act; Violation Involving False Statement (per statement) | 28 CFR 71.3(f) | 13,946 | 14,308

40 U.S.C. 123(a)(1)(A) | Federal Property and Administrative Services Act; Violation Involving Surplus Government Property (per act) | 28 CFR 85.3(a)(12) | 7,114 | 7,299

41 U.S.C. 8706(a)(1)(B) | Anti-Kickback Act; Violation Involving Kickbacks 4 (per occurrence) | 28 CFR 85.3(a)(13) | 27,894 | 28,619

18 U.S.C. 2723(b) | Driver's Privacy Protection Act of 1994; Prohibition on Release and Use of Certain Personal Information from State Motor Vehicle Records—Substantial Non-compliance (per day) | 10,289 | 10,556

18 U.S.C. 216(b) | Ethics Reform Act of 1989; Penalties for Conflict of Interest Crimes 5 (per violation) | 28 CFR 85.3(c) | 122,480 | 125,662

41 U.S.C. 2105(b)(1) | Office of Federal Procurement Policy Act; 6 Violation by an individual (per violation) | 127,983 | 131,308

41 U.S.C. 2105(b)(2) | Office of Federal Procurement Policy Act; 6 Violation by an organization (per violation) | 1,279,819 | 1,313,069

42 U.S.C. 5157(d) | Disaster Relief Act of 1974; 7 Violation (per violation) | 16,170 | 16,590

Civil Rights Division (excluding immigration-related penalties)

18 U.S.C. 248(c)(2)(B)(i) | Freedom of Access to Clinic Entrances Act of 1994 (“FACE Act”); Nonviolent physical obstruction, first violation | 28 CFR 85.3(b)(1)(i) | 20,516 | 21,049

18 U.S.C. 248(c)(2)(B)(ii) | FACE Act; Nonviolent physical obstruction, subsequent violation | 28 CFR 85.3(b)(1)(ii) | 30,868 | 31,670

18 U.S.C. 248(c)(2)(B)(i) | FACE Act; Violation other than a nonviolent physical obstruction, first violation | 28 CFR 85.3(b)(2)(i) | 30,868 | 31,670

18 U.S.C. 248(c)(2)(B)(ii) | FACE Act; Violation other than a nonviolent physical violation) | 28 CFR 85.3(b)(2)(ii) | 51,449 | 52,786

42 U.S.C. 3614(d)(1)(C)(i) | Fair Housing Act of 1968; first violation | 28 CFR 85.3(b)(3)(i) | 127,983 | 131,308

42 U.S.C. 3614(d)(1)(C)(ii) | Fair Housing Act of 1968; subsequent violation | 28 CFR 85.3(b)(3)(ii) | 255,964 | 262,614

42 U.S.C. 12188(b)(2)(C)(i) | Americans With Disabilities Act; Public accommodations for individuals with disabilities, first violation | 28 CFR 36.504(a)(3)(i) | 115,231 | 118,225

42 U.S.C. 12188(b)(2)(C)(ii) | Americans With Disabilities Act; Public accommodations for individuals with disabilities subsequent violation | 28 CFR 36.504(a)(3)(ii) | 230,464 | 236,451

50 U.S.C. 4041(b)(3) | Servicemembers Civil Relief Act of 2003; first violation | 28 CFR 85.3(b)(4)(i) | 77,370 | 79,380

50 U.S.C. 4041(b)(3) | Servicemembers Civil Relief Act of 2003; subsequent violation | 28 CFR 85.3(b)(4)(ii) | 154,741 | 158,761

Criminal Division

18 U.S.C. 983(h)(1) | Civil Asset Forfeiture Reform Act of 2000; Penalty for Frivolous Assertion of Claim | Min 442, Max 8,842 | Min 453, Max 9,072

18 U.S.C. 1956(b) | Money Laundering Control Act of 1986; Violation 8 | 27,894 | 28,619

DEA

21 U.S.C. 844a(a) | Anti-Drug Abuse Act of 1988; Possession of small amounts of controlled substances (per violation) | 28 CFR 76.3(a) | 25,597 | 26,262

21 U.S.C. 961(1) | Controlled Substance Import Export Act; Drug abuse, import or export | 28 CFR 85.3(d) | 88,934 | 91,245

21 U.S.C. 842(c)(1)(A) | Controlled Substances Act (“CSA”); Violations of 842(a)—other than (5), (10), (16) and (17)—Prohibited acts re: controlled substances (per violation) | 80,850 | 82,950

21 U.S.C. 842(c)(1)(B)(i) | CSA; Violations of 842(a)(5), (10), and (17)—Prohibited acts re: controlled substances | 18,759 | 19,246

21 U.S.C. 842(c)(1)(B)(ii) | SUPPORT for Patients and Communities Act; Violations of 842(b)(ii)—Failures re: opioids | 121,664 | 124,825

21 U.S.C. 842(c)(1)(C) | CSA; Violation of 825(e) by importer, exporter, manufacturer, or distributor—False labeling of anabolic steroids (per violation) | 647,907 | 664,740

21 U.S.C. 842(c)(1)(D) | CSA; Violation of 825(e) at the retail level—False labeling of anabolic steroids (per violation) | 1,296 | 1,330

21 U.S.C. 842(c)(2)(C) | CSA; Violation of 842(a)(11) by a business—Distribution of laboratory supply with reckless disregard 9 | 485,893 | 498,517

21 U.S.C. 842(c)(2)(D) | SUPPORT for Patients and Communities Act; Violations of 842(a)(5), (10) and (17) by a registered manufacture or distributor of opioids. Failures re: opioids | 608,319 | 624,123

21 U.S.C. 856(d) | Illicit Drug Anti-Proliferation Act of 2003; Maintaining drug-involved premises 10 | 448,047 | 459,687

Immigration-Related Penalties

8 U.S.C. 1324a(e)(4)(A)(i) | Immigration Reform and Control Act of 1986 (“IRCA”); Unlawful employment of aliens, first order (per unauthorized alien) | 28 CFR 68.52(c)(1)(i) | Min 698, Max 5,579 | Min 716, Max 5,724

8 U.S.C. 1324a(e)(4)(A)(ii) | IRCA; Unlawful employment of aliens, second order (per such alien) | 28 CFR 68.52(c)(1)(ii) | Min 5,579, Max 13,946 | Min 5,724, Max 14,308

8 U.S.C. 1324a(e)(4)(A)(iii) | IRCA; Unlawful employment of aliens, subsequent order (per such alien) | 28 CFR 68.52(c)(1)(iii) | Min 8,369, Max 27,894 | Min 8,586, Max 28,619

8 U.S.C. 1324a(e)(5) | IRCA; Paperwork violation (per relevant individual) | 28 CFR 68.52(c)(5) | Min 281, Max 2,789 | Min 288, Max 2,861

8 U.S.C. 1324a (note) | IRCA; Violation relating to participating employer's failure to notify of final nonconfirmation of employee's employment eligibility (per relevant individual) | 28 CFR 68.52(c)(6) | Min 973, Max 1,942 | Min 998, Max 1,992

8 U.S.C. 1324a(g)(2) | IRCA; Violation/prohibition of indemnity bonds (per violation) | 28 CFR 68.52(c)(7) | 2,789 | 2,861

8 U.S.C. 1324b(g)(2)(B)(iv)(I) | IRCA; Unfair immigration-related employment practices, first order (per individual discriminated against) | 28 CFR 68.52(d)(1)(viii) | Min 575, Max 4,610 | Min 590, Max 4,730

8 U.S.C. 1324b(g)(2)(B)(iv)(II) | IRCA; Unfair immigration- related employment practices, second order (per individual discriminated against) | 28 CFR 68.52(d)(1)(ix) | Min 4,610, Max 11,524 | Min 4,730, Max 11,823

8 U.S.C. 1324b(g)(2)(B)(iv)(III) | IRCA; Unfair immigration-related employment practices, subsequent order (per individual discriminated against) | 28 CFR 68.52(d)(1)(x) | Min 6,913, Max 23,048 | Min 7,093, Max 23,647

8 U.S.C. 1324b(g)(2)(B)(iv)(I V) | IRCA; Unfair immigration-related employment practices, unfair documentary practices (per individual discriminated against) | 28 CFR 68.52(d)(1)(xii) | Min 230, Max 2,304 | Min 236, Max 2,364

8 U.S.C. 1324c(d)(3)(A) | IRCA; Document fraud, first order—for violations described in U.S.C. 1324c(a)(1)-(4) (per document) | 28 CFR 68.52(e)(1)(i) | Min 575, Max 4,610 | Min 590, Max 4,730

8 U.S.C. 1324c(d)(3)(B) | IRCA; Document fraud, subsequent order—for violations described in U.S.C. 1324c(a)(1)-(4) (per document) | 28 CFR 68.52(e)(1)(iii) | Min 4,610, Max 11,524 | Min 4,730, Max 11,823

8 U.S.C. 1324c(d)(3)(A) | IRCA; Document fraud, first order—for violations described in U.S.C. 1324c(a)(5)-(6) (per document) | 28 CFR 68.52(e)(1)(ii) | Min 487, Max 3,887 | Min 500, Max 3,988

8 U.S.C. 1324c(d)(3)(B) | IRCA; Document fraud, subsequent order—for violations described in U.S.C. 1324c(a)(5)-(6) (per document) | 28 CFR 68.52(e)(1)(iv) | Min 3,887, Max 9,718 | Min 3,988, Max 9,970

FBI

49 U.S.C. 30505(a) | National Motor Vehicle Title Identification System; Violation (per violation) | 2,058 | 2,111

Office of Justice Programs

34 U.S.C. 10231(d) | Confidentiality of information; State and Local Criminal History Record Information Systems—Right to Privacy Violation | 28 CFR 20.25 | 35,574 | 36,498

1 The figures set forth in this column represent the penalty as last adjusted by Department of Justice regulation on February 12, 2024.

2 All figures set forth in this table are maximum penalties, unless otherwise indicated.

3 Section 3729(a)(1) of Title 31 provides that any person who violates this section is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990, plus 3 times the amount of damages which the Government sustains because of the act of that person. 31 U.S.C. 3729(a)(1) (2015). Section 3729(a)(2) permits the court to reduce the damages under certain circumstances to not less than 2 times the amount of damages which the Government sustains because of the act of that person. Id. section 3729(a)(2). The adjustment made by this regulation is only applicable to the specific statutory penalty amounts stated in subsection (a)(1), which is only one component of the civil penalty imposed under section 3729(a)(1).

4 Section 8706(a)(1) of Title 41 provides that the Federal Government in a civil action may recover from a person that knowingly engages in conduct prohibited by section 8702 of Title 44 a civil penalty equal to twice the amount of each kickback involved in the violation and not more than $10,000 for each occurrence of prohibited conduct. 41 U.S.C. 8706(a)(1) (2015). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (a)(1)(B), which is only one component of the civil penalty imposed under section 8706.

5 Section 216(b) of Title 18 provides that the civil penalty should be no more than $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, whichever amount is greater. 18 U.S.C. 216(b) (2015). Therefore, the adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (b), which is only one aspect of the possible civil penalty imposed under section 216(b).

6 Section 2105(b) of Title 41 provides that the Attorney General may bring a civil action in an appropriate district court of the United States against a person that engages in conduct that violates section 2102, 2103, or 2104 of Title 41. 41 U.S.C. 2105(b) (2015). Section 2105(b) further provides that on proof of that conduct by a preponderance of the evidence, an individual is liable to the Federal Government for a civil penalty of not more than $50,000 for each violation plus twice the amount of compensation that the individual received or offered for the prohibited conduct, and an organization is liable to the Federal Government for a civil penalty of not more than $500,000 for each violation plus twice the amount of compensation that the organization received or offered for the prohibited conduct. Id. section 2105(b). The adjustments made by this regulation are only applicable to the specific statutory penalty amounts stated in subsections (b)(1) and (b)(2), which are each only one component of the civil penalties imposed under sections 2105(b)(1) and (b)(2).

7 The Attorney General has authority to bring a civil action when a person has violated or is about to violate a provision under this statute. 42 U.S.C. 5157(b) (2015). The Federal Emergency Management Agency has promulgated regulations regarding this statute and has adjusted the penalty in its regulation. 44 CFR 206.14(d) (2015). The Department of Health and Human Services (HHS) has also promulgated a regulation regarding the penalty under this statute. 42 CFR 38.8 (2015).

8 Section 1956(b)(1) of Title 18 provides that whoever conducts or attempts to conduct a transaction described in subsection (a)(1) or (a)(3), or section 1957, or a transportation, transmission, or transfer described in subsection (a)(2), is liable to the United States for a civil penalty of not more than the greater of the value of the property, funds, or monetary instruments involved in the transaction; or $10,000. 18 U.S.C. 1956(b)(1) (2015). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (b)(1)(B), which is only one aspect of the possible civil penalty imposed under section 1956(b).

9 Section 842(c)(2)(C) of Title 21 provides that in addition to the penalties set forth elsewhere in the subchapter or subchapter II of the chapter, any business that violates paragraph (11) of subsection (a) of the section shall, with respect to the first such violation, be subject to a civil penalty of not more than $250,000, but shall not be subject to criminal penalties under the section, and shall, for any succeeding violation, be subject to a civil fine of not more than $250,000 or double the last previously imposed penalty, whichever is greater. 21 U.S.C. 842(c)(2)(C) (2015). The adjustment made by this regulation regarding the penalty for a succeeding violation is only applicable to the specific statutory penalty amount stated in subsection (c)(2)(C), which is only one aspect of the possible civil penalty for a succeeding violation imposed under section 842(c)(2)(C).

10 Section 856(d)(1) of Title 21 provides that any person who violates subsection (a) of the section shall be subject to a civil penalty of not more than the greater of $250,000; or 2 times the gross receipts, either known or estimated, that were derived from each violation that is attributable to the person. 21 U.S.C. 856(d)(1) (2015). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (d)(1)(A), which is only one aspect of the possible civil penalty imposed under section 856(d)(1).

11 The SUPPORT for Patients and Communities Act, Public Law 115-221 was enacted Oct. 24, 2018.

[90 FR 29447, July 3, 2025]

§ 90.1 General.

(a) This part implements certain provisions of the Violence Against Women Act (VAWA), and subsequent legislation as follows:

(1) The Violence Against Women Act (VAWA), Title IV of the Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322 (Sept. 13, 1994);

(2) The Violence Against Women Act of 2000 (VAWA 2000), Division B of the Victims of Trafficking and Violence Protection Act of 2000, Public Law 106-386 (Oct. 28, 2000);

(3) The Violence Against Women Office Act, Title IV of the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273 (Nov. 2, 2002);

(4) The Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162 (January 5, 2006); and,

(5) The Violence Against Women Reauthorization Act of 2013 (VAWA 2013), Public Law 113-4 (Mar. 7, 2013).

(b) Subpart B of this part defines program eligibility criteria and sets forth requirements for application for and administration of formula grants to States to combat violent crimes against women. This program is codified at 42 U.S.C. 3796gg through 3796gg-5 and 3796gg-8.

(c) Subpart C of this part was removed on September 9, 2013.

(d) Subpart D of this part defines program eligibility criteria and sets forth requirements for the discretionary Grants to Encourage Arrest Policies and Enforcement of Protection Orders Program.

(e) Subpart A of this part applies to all grants made by OVW and subgrants made under the STOP Violence Against Women Formula Program (STOP Program) and the Sexual Assault Services Formula Grant Program after the effective date of this rule. Subpart B of this part applies to all STOP Program grants issued by OVW after the effective date of the rule and to all subgrants issued by states under the STOP Program after the effective date of the rule, even if the underlying grant was issued by OVW prior to the effective date of the rule.

[81 FR 85891, Nov. 29, 2016]

§ 90.2 Definitions.

(a) In addition to the definitions in this section, the definitions in 42 U.S.C. 13925(a) apply to all grants awarded by the Office on Violence Against Women and all subgrants made under such awards.

(b) The term “community-based program” has the meaning given the term “community-based organization” in 42 U.S.C. 13925(a).

(c) The term “forensic medical examination” means an examination provided to a victim of sexual assault by medical personnel to gather evidence of a sexual assault in a manner suitable for use in a court of law.

(1) The examination should include at a minimum:

(i) Gathering information from the patient for the forensic medical history;

(ii) Head-to-toe examination of the patient;

(iii) Documentation of biological and physical findings; and

(iv) Collection of evidence from the patient.

(2) Any costs associated with the items listed in paragraph (c)(1) of this section, such as equipment or supplies, are considered part of the “forensic medical examination.”

(3) The inclusion of additional procedures (e.g., testing for sexually transmitted diseases) may be determined by the State, Indian tribal government, or unit of local government in accordance with its current laws, policies, and practices.

(d) The term “prevention” includes both primary and secondary prevention efforts. “Primary prevention” means strategies, programming, and activities to stop both first-time perpetration and first-time victimization. Primary prevention is stopping domestic violence, dating violence, sexual assault, and stalking before they occur. “Secondary prevention” is identifying risk factors or problems that may lead to future domestic violence, dating violence, sexual assault, or stalking and taking the necessary actions to eliminate the risk factors and the potential problem. “Prevention” is distinguished from “outreach,” which has the goal of informing victims and potential victims about available services.

(e) The term “prosecution” means any public agency charged with direct responsibility for prosecuting criminal offenders, including such agency's component bureaus (such as governmental victim services programs). Public agencies that provide prosecution support services, such as overseeing or participating in Statewide or multi-jurisdictional domestic violence, dating violence, sexual assault, or stalking task forces, conducting training for State, tribal, or local prosecutors or enforcing victim compensation and domestic violence, dating violence, sexual assault, or stalking-related restraining orders also fall within the meaning of “prosecution” for purposes of this definition.

(f) The term “public agency” has the meaning provided in 42 U.S.C. 3791.

(g) For the purpose of this part, a “unit of local government” is any city, county, township, town, borough, parish, village, or other general purpose political subdivision of a State. The following are not considered units of local government for purposes of this part:

(1) Police departments;

(2) Pre-trial service agencies;

(3) District or city attorneys' offices;

(4) Sheriffs' departments;

(5) Probation and parole departments;

(6) Shelters;

(7) Nonprofit, nongovernmental victim service agencies including faith-based or community-based organizations; and

(8) Universities.

(h) The term “victim services division or component of an organization, agency, or government” refers to a division within a larger organization, agency, or government, where the division has as its primary purpose to assist or advocate for domestic violence, dating violence, sexual assault, or stalking victims and has a documented history of work concerning such victims.

[81 FR 85891, Nov. 29, 2016]

§ 90.3 Participation by faith-based organizations.

The funds provided under this part shall be administered in compliance with the standards set forth in part 38 (Equal Treatment for Faith-based Organizations) of this chapter.

[Order No. 2703-2004, 69 FR 2841, Jan. 21, 2004]

§ 90.4 Grant conditions.

(a) Applicability. In addition to the grant conditions in paragraphs (b) and (c) of this section, the grant conditions in 42 U.S.C. 13925(b) apply to all grants awarded by the Office on Violence Against Women and all subgrants made under such awards.

(b) Nondisclosure of confidential or private information—(1) In general. In order to ensure the safety of adult, youth, and child victims of domestic violence, dating violence, sexual assault, or stalking and their families, grantees and subgrantees under this part shall protect the confidentiality and privacy of persons receiving services.

(2) Nondisclosure. (i) Subject to paragraph (b)(3) of this section, grantees and subgrantees shall not disclose any personally identifying information or individual information collected in connection with services requested, utilized, or denied through grantees' and subgrantees' programs, regardless of whether the information has been encoded, encrypted, hashed, or otherwise protected.

(ii) This paragraph applies whether the information is being requested for a Department of Justice grant program or another Federal agency, State, tribal, or territorial grant program. This paragraph also limits disclosures by subgrantees to grantees, including disclosures to Statewide or regional databases.

(iii) This paragraph also applies to disclosures from the victim services divisions or components of an organization, agency, or government to other non-victim service divisions within an organization, agency, or government. It also applies to disclosures from victim services divisions or components of an organization, agency, or government to the leadership of the organization, agency, or government (e.g., executive director or chief executive). Such executives shall have access without releases only in extraordinary and rare circumstances. Such circumstances do not include routine monitoring and supervision.

(3) Release. (i) Personally identifying information or individual information that is collected as described in paragraph (b)(2) of this section may not be released except under the following circumstances:

(A) The victim signs a release as provided in paragraph (b)(3)(ii) of this section;

(B) Release is compelled by statutory mandate, which includes mandatory child abuse reporting laws; or

(C) Release is compelled by court mandate, which includes a legal mandate created by case law, such as a common-law duty to warn.

(ii) Victim releases must meet the following criteria—

(A) Releases must be written, informed, and reasonably time-limited. Grantees and subgrantees may not use a blanket release and must specify the scope and limited circumstances of any disclosure. At a minimum, grantees and subgrantees must: Discuss with the victim why the information might be shared, who would have access to the information, and what information could be shared under the release; reach agreement with the victim about what information would be shared and with whom; and record the agreement about the scope of the release. A release must specify the duration for which information may be shared. The reasonableness of this time period will depend on the specific situation.

(B) Grantees and subgrantees may not require consent to release of information as a condition of service.

(C) Releases must be signed by the victim unless the victim is a minor who lacks the capacity to consent to release or is a legally incapacitated person and has a court-appointed guardian. Except as provided in paragraph (b)(3)(ii)(D) of this section, in the case of an unemancipated minor, the release must be signed by the minor and a parent or guardian; in the case of a legally incapacitated person, it must be signed by a legally-appointed guardian. Consent may not be given by the abuser of the minor or incapacitated person or the abuser of the other parent of the minor. If a minor is incapable of knowingly consenting, the parent or guardian may provide consent. If a parent or guardian consents for a minor, the grantee or subgrantee should attempt to notify the minor as appropriate.

(D) If the minor or person with a legally appointed guardian is permitted by law to receive services without the parent's or guardian's consent, the minor or person with a guardian may consent to release information without additional consent.

(iii) If the release is compelled by statutory or court mandate, grantees and subgrantees must make reasonable efforts to notify victims affected by the disclosure and take steps necessary to protect the privacy and safety of the affected persons.

(4) Fatality reviews. Grantees and subgrantees may share personally identifying information or individual information that is collected as described in paragraph (b)(2) of this section about deceased victims being sought for a fatality review to the extent permitted by their jurisdiction's law and only if the following conditions are met:

(i) The underlying objectives of the fatality review are to prevent future deaths, enhance victim safety, and increase offender accountability;

(ii) The fatality review includes policies and protocols to protect identifying information, including identifying information about the victim's children, from further release outside the fatality review team;

(iii) The grantee or subgrantee makes a reasonable effort to get a release from the victim's personal representative (if one has been appointed) and from any surviving minor children or the guardian of such children (but not if the guardian is the abuser of the deceased parent), if the children are not capable of knowingly consenting; and

(iv) The information released is limited to that which is necessary for the purposes of the fatality review.

(5) Inadvertent release. Grantees and subgrantees are responsible for taking reasonable efforts to prevent inadvertent releases of personally identifying information or individual information that is collected as described in paragraph (b)(2) of this section.

(6) Confidentiality assessment and assurances. Grantees and subgrantees are required to document their compliance with the requirements of this paragraph. All applicants for Office on Violence Against Women funding are required to submit a signed acknowledgement form, indicating that they have notice that, if awarded funds, they will be required to comply with the provisions of this paragraph, will mandate that subgrantees, if any, comply with this provision, and will create and maintain documentation of compliance, such as policies and procedures for release of victim information, and will mandate that subgrantees, if any, will do so as well.

(c) Victim eligibility for services. Victim eligibility for direct services is not dependent on the victim's immigration status.

(d) Reports. An entity receiving a grant under this part shall submit to the Office on Violence Against Women reports detailing the activities undertaken with the grant funds. These reports must comply with the requirements set forth in 2 CFR 200.328 and provide any additional information that the Office on Violence Against Women requires.

[81 FR 85891, Nov. 29, 2016]

§ 90.10 STOP (Services * Training * Officers * Prosecutors) Violence Against Women Formula Grant Program—general.

The purposes, criteria, and requirements for the STOP Violence Against Women Formula Grant Program are established by 42 U.S.C. 3796gg et seq. Eligible applicants for the program are the 50 States, American Samoa, Guam, Puerto Rico, Northern Mariana Islands, U.S. Virgin Islands, and the District of Columbia, hereinafter referred to as “States.”

§ 90.11 State office.

(a) Statewide plan and application. The chief executive of each participating State shall designate a State office for the purposes of:

(1) Certifying qualifications for funding under this program;

(2) Developing a Statewide plan for implementation of the STOP Violence Against Women Formula Grants as described in § 90.12; and

(3) Preparing an application to receive funds under this program.

(b) Administration and fund disbursement. In addition to the duties specified by paragraph (a) of this section, the State office shall administer funds received under this program, including receipt, review, processing, monitoring, progress and financial report review, technical assistance, grant adjustments, accounting, auditing, and fund disbursements.

(c) Allocation requirement. (1) The State office shall allocate funds as provided in 42 U.S.C. 3796gg-1(c)(4) to courts and for law enforcement, prosecution, and victim services (including funds that must be awarded to culturally specific community-based organizations).

(2) The State office shall ensure that the allocated funds benefit law enforcement, prosecution and victim services and are awarded to courts and culturally specific community-based organizations. In ensuring that funds benefit the appropriate entities, if funds are not subgranted directly to law enforcement, prosecution, and victim services, the State must require demonstration from the entity to be benefitted in the form of a memorandum of understanding signed by the chief executives of both the entity and the subgrant recipient, stating that the entity supports the proposed project and agrees that it is to the entity's benefit.

(3) Culturally specific allocation: 42 U.S.C. 13925 defines “culturally specific” as primarily directed toward racial and ethnic minority groups (as defined in 42 U.S.C. 300u-6(g)). An organization will qualify for funding for the culturally specific allocation if its primary mission is to address the needs of racial and ethnic minority groups or if it has developed a special expertise regarding services to address the demonstrated needs of a particular racial and ethnic minority group. The organization must do more than merely provide services to the targeted group; rather, the organization must provide culturally competent services designed to meet the specific needs of the target population. This allocation requires States to set aside a minimum of ten percent (within the thirty-percent allocation for victim services) of STOP Program funds for culturally specific services, but States are encouraged to provide higher levels of funding to address the needs of racial and ethnic minority groups. States should tailor their subgrant application process to assess the qualifications of applicants for the culturally specific set aside, such as reviewing the mission statement of the applicant, the make-up of the board of directors or steering committee of the applicant (with regard to knowledge and experience with relevant cultural populations and language skills), and the history of the organization.

(4) Sexual assault set aside: As provided in 42 U.S.C. 3796gg-1(c)(5), the State must also award at least 20 percent of the total State award to projects in two or more allocations in 42 U.S.C. 3796gg-1(c)(4) that meaningfully address sexual assault. States should evaluate whether the interventions are tailored to meet the specific needs of sexual assault victims including ensuring that projects funded under the set aside have a legitimate focus on sexual assault and that personnel funded under such projects have sufficient expertise and experience on sexual assault.

(d) Pass-through administration. The State office has broad latitude in structuring its administration of the STOP Violence Against Women Formula Grant Program. STOP Program funding may be administered by the State office itself or by other means, including the use of pass-through entities (such as State domestic violence or sexual assault coalitions) to make determinations regarding award distribution and to administer funding. States that opt to use a pass-through entity shall ensure that the total sum of STOP Program funding for administrative and training costs for the State and pass-through entity is within the limit established by § 90.17(b), the reporting of activities at the subgrantee level is equivalent to what would be provided if the State were directly overseeing sub-awards, and an effective system of monitoring sub-awards is used. States shall report on the work of the pass-through entity in such form and manner as OVW may specify from time to time.

§ 90.12 Implementation plans.

(a) In general. Each State must submit a plan describing its identified goals under this program and how the funds will be used to accomplish those goals. The plan must include all of the elements specified in 42 U.S.C. 3796gg-1(i). The plan will cover a four-year period. In years two through four of the plan, each State must submit information on any updates or changes to the plan, as well as updated demographic information.

(b) Consultation and coordination. In developing and updating this plan, a State must consult and coordinate with the entities specified in 42 U.S.C. 3796gg-1(c)(2).

(1) This consultation process must include at least one sexual assault victim service provider and one domestic violence victim service provider and may include other victim service providers.

(2) In determining what population specific organizations, representatives from underserved populations, and culturally specific organizations to include in the consultation process, States should consider the demographics of their State as well as barriers to service, including historical lack of access to services, for each population. The consultation process should involve any significant underserved and culturally specific populations in the State, including organizations working with lesbian, gay, bisexual, and transgender (LGBT) people and organizations that focus on people with limited English proficiency. If the State does not have any culturally specific or population specific organizations at the State or local level, the State may use national organizations to collaborate on the plan.

(3) States must invite all State or federally recognized tribes to participate in the planning process. Tribal coalitions and State or regional tribal consortia may help the State reach out to the tribes but cannot be used as a substitute for consultation with all tribes.

(4) States are encouraged to include survivors of domestic violence, dating violence, sexual assault, and stalking in the planning process. States that include survivors should address safety and confidentiality considerations in recruiting and consulting with such survivors.

(5) States should include probation and parole entities in the planning process.

(6) As provided in 42 U.S.C. 3796gg-1(c)(3), States must coordinate the plan with the State plan for the Family Violence Prevention and Services Act (42 U.S.C. 10407), the State Victim Assistance Formula Grants under the Victims of Crime Act (42 U.S.C. 10603), and the Rape Prevention and Education Program (42 U.S.C. 280b-1b). The purposes of this coordination process are to provide greater diversity of projects funded and leverage efforts across the various funding streams.

(7) Although all of the entities specified in 42 U.S.C. 3796gg-1(c)(2) must be consulted, they do not all need to be on the “planning committee.” The planning committee must include the following, at a minimum:

(i) The State domestic violence and sexual assault coalitions as defined by 42 U.S.C. 13925(a)(32) and (33) (or dual coalition)

(ii) A law enforcement entity or State law enforcement organization

(iii) A prosecution entity or State prosecution organization

(iv) A court or the State Administrative Office of the Courts

(v) Representatives from tribes, tribal organizations, or tribal coalitions

(vi) Population specific organizations representing the most significant underserved populations and culturally specific populations in the State other than tribes, which are addressed separately.

(8) The full consultation should include more robust representation than the planning committee from each of the required groups as well as all State and Federally recognized tribes.

(c) Documentation of consultation. As part of the implementation plan, the State must either submit or retain documentation of collaboration with all the entities specified in paragraph (b) of this section and in 42 U.S.C. 3796gg-1(c)(2), as provided in this paragraph.

(1) States must retain all of the following documentation but are not required to submit it to OVW as part of the implementation plan:

(i) For in-person meetings, a sign-in sheet with name, title, organization, which of the required entity types (e.g., tribal government, population specific organization, prosecution, court, state coalition) the person is representing, phone number, email address, and signature;

(ii) For online meetings, the web reports or other documentation of who participated in the meeting;

(iii) For phone meetings, documentation of who was on the call, such as a roll call or minutes; and

(iv) For any method of document review that occurred outside the context of a meeting, information such as to whom the draft implementation plan was sent, how it was sent (for example, email versus mail), and who responded.

(2) States must submit all of the following documentation to OVW as part of the implementation plan:

(i) A summary of major concerns that were raised during the planning process and how they were addressed or why they were not addressed, which should be sent to the planning committee along with any draft implementation plan and the final plan;

(ii) Documentation of collaboration for each planning committee member that documents, at a minimum:

(A) Which category the participant represents of the entities listed in 42 U.S.C. 3796gg-1(c)(2), such as law enforcement, state coalition, or population specific organization;

(B) Whether they were informed about meetings;

(C) Whether they attended meetings;

(D) Whether they were given drafts of the implementation plan to review;

(E) Whether they submitted comments on the draft;

(F) Whether they received a copy of the final plan and the summary of major concerns; and

(G) Any significant concerns with the final plan;

(iii) A description of efforts to reach tribes, if applicable;

(iv) An explanation of how the State determined which underserved and culturally specific populations to include.

(d) Equitable distribution. The implementation plan must describe, on an annual or four-year basis, how the State, in disbursing monies, will:

(1) Give priority to areas of varying geographic size with the greatest showing of need based on the range and availability of existing domestic violence and sexual assault programs in the population and geographic area to be served in relation to the availability of such programs in other such populations and geographic areas, including Indian reservations;

(2) Determine the amount of subgrants based on the population and geographic area to be served;

(3) Equitably distribute monies on a geographic basis including nonurban and rural areas of various geographic sizes;

(4) Recognize and meaningfully respond to the needs of underserved populations and ensure that monies set aside to fund linguistically and culturally specific services and funds for underserved populations are distributed equitably among culturally specific and other underserved populations; and

(5) Take steps to ensure that eligible applicants are aware of the STOP Program funding opportunity, including applicants serving different geographic areas and culturally specific and other underserved populations.

(e) Underserved populations. Each State may determine the methods it uses for identifying underserved populations within the State, which may include public hearings, needs assessments, task forces, and United States Census Bureau data. The implementation plan must include details regarding the methods used and the results of those methods. It must also include information on how the State plans to meet the needs of identified underserved populations, including, but not limited to, culturally specific populations, victims who are underserved because of sexual orientation or gender identity, and victims with limited English proficiency.

(f) Goals and objectives for reducing domestic violence homicide. As required by 42 U.S.C. 3796gg-1(i)(2)(G), State plans must include goals and objectives for reducing domestic violence homicide.

(1) The plan must include available statistics on the rates of domestic violence homicide within the State.

(2) As part of the State's consultation with law enforcement, prosecution, and victim service providers, the State and these entities should discuss and document the perceived accuracy of these statistics and the best ways to address domestic violence homicide.

(3) The plan must identify specific goals and objectives for reducing domestic violence homicide, based on these discussions, which include challenges specific to the State and how the plan can overcome them.

(g) Additional contents. State plans must also include the following:

(1) Demographic information regarding the population of the State derived from the most recent available United States Census Bureau data including population data on race, ethnicity, age, disability, and limited English proficiency.

(2) A description of how the State will reach out to community-based organizations that provide linguistically and culturally specific services.

(3) A description of how the State will address the needs of sexual assault victims, domestic violence victims, dating violence victims, and stalking victims, as well as how the State will hold offenders who commit each of these crimes accountable.

(4) A description of how the State will ensure that eligible entities are aware of funding opportunities, including projects serving underserved populations as defined by 42 U.S.C. 13925(a).

(5) Information on specific projects the State plans to fund.

(6) An explanation of how the State coordinated the plan as described in paragraph (b)(6) and the impact of that coordination on the contents of the plan.

(7) If applicable, information about whether the State has submitted an assurance, a certification, or neither under the Prison Rape Elimination Act (PREA) standards (28 CFR part 115) and, if an assurance, how the State plans to spend STOP funds set aside for PREA compliance.

(8) A description of how the State will identify and select applicants for subgrant funding, including whether a competitive process will be used.

(h) Deadline. State plans will be due at application. If the Office on Violence Against Women determines the submitted plan is incomplete, the State will receive the award, but will not be able to access funding until the plan is completed and approved. The State will have 60 days from the award date to complete the plan. If the State does not complete it in that time, then the funds may be deobligated and the award closed.

§ 90.13 Forensic medical examination payment requirement.

(a) To be eligible for funding under this program, a State must meet the requirements at 42 U.S.C. 3796gg-4(a)(1) with regard to incurring the full out-of-pocket costs of forensic medical examinations for victims of sexual assault.

(b) “Full out-of-pocket costs” means any expense that may be charged to a victim in connection with a forensic medical examination for the purpose of gathering evidence of a sexual assault (e.g., the full cost of the examination, an insurance deductible, or a fee established by the facility conducting the examination). For individuals covered by insurance, full out-of-pocket costs means any costs that the insurer does not pay.

(c) Coverage of the cost of additional procedures (e.g., testing for sexually transmitted diseases) may be determined by the State or governmental entity responsible for paying the costs.

(d) States are strongly discouraged from billing a victim's private insurance and may only do so as a source of payment for the exams if they are not using STOP Program funds to pay for the cost of the exams. In addition, any expenses not covered by the insurer must be covered by the State or other governmental entity and cannot be billed to the victim. This includes any deductibles or denial of claims by the insurer.

(e) The State or other governmental entity responsible for paying the costs of forensic medical exams must coordinate with health care providers in the region to notify victims of sexual assault of the availability of rape exams at no cost to the victims. States can meet this obligation by partnering with associations that are likely to have the broadest reach to the relevant health care providers, such as forensic nursing or hospital associations. States with significant tribal populations should also consider reaching out to local Indian Health Service facilities.

§ 90.14 Judicial notification requirement.

(a) To be eligible for funding under this program, a State must meet the requirements of 42 U.S.C. 3796gg-4(e) with regard to judicial notification to domestic violence offenders of Federal prohibitions on their possession of a firearm or ammunition in 18 U.S.C. 922(g)(8) and (9) and any applicable related Federal, State, or local laws..

(b) A unit of local government shall not be eligible for subgrants from the State unless it complies with the requirements of 42 U.S.C. 3796gg-4(e) with respect to its judicial administrative policies and practices.

§ 90.15 Costs for criminal charges and protection orders.

(a) To be eligible for funding under this program, a State must meet the requirements of 42 U.S.C. 3796gg-5 with regard to not requiring victims to bear the costs for criminal charges and protection orders in cases of domestic violence, dating violence, sexual assault, or stalking.

(b) An Indian tribal government, unit of local government, or court shall not be eligible for subgrants from the State unless it complies with the requirements of 42 U.S.C. 3796gg-5 with respect to its laws, policies, and practices not requiring victims to bear the costs for criminal charges and protection orders in cases of domestic violence, dating violence, sexual assault, or stalking.

§ 90.16 Polygraph testing prohibition.

(a) For a State to be eligible for funding under this program, the State must meet the requirements of 42 U.S.C. 3796gg-8 with regard to prohibiting polygraph testing of sexual assault victims.

(b) An Indian tribal government or unit of local government shall not be eligible for subgrants from the State unless it complies with the requirements of 42 U.S.C. 3796gg-8 with respect to its laws, policies, or practices prohibiting polygraph testing of sexual assault victims.

§ 90.17 Subgranting of funds.

(a) In general. Funds granted to qualified States are to be further subgranted by the State to agencies, offices, and programs including, but not limited to, State agencies and offices; State and local courts; units of local government; public agencies; Indian tribal governments; victim service providers; community-based organizations; and legal services programs to carry out programs and projects to develop and strengthen effective law enforcement and prosecution strategies to combat violent crimes against women, and to develop and strengthen victim services in cases involving violent crimes against women, and specifically for the purposes listed in 42 U.S.C. 3796gg(b) and according to the allocations specified in 42 U.S.C. 3796gg-1(c)(4) for law enforcement, prosecution, victim services, and courts.

(b) Administrative costs. States are allowed to use up to ten percent of the award amount for each allocation category under 42 U.S.C. 3796gg-1(c)(4) (law enforcement, prosecution, courts, victim services, and discretionary) to support the State's administrative costs. Amounts not used for administrative costs should be used to support subgrants.

(1) Funds for administration may be used only for costs directly associated with administering the STOP Program. Where allowable administrative costs are allocable to both the STOP Program and another State program, the STOP Program grant may be charged no more than its proportionate share of such costs.

(2) Costs directly associated with administering the STOP Program generally include the following:

(i) Salaries and benefits of State office staff and consultants to administer and manage the program;

(ii) Training of State office staff, including, but not limited to, travel, registration fees, and other expenses associated with State office staff attendance at technical assistance meetings and conferences relevant to the program;

(iii) Monitoring compliance of STOP Program subgrantees with Federal and State requirements, provision of technical assistance, and evaluation and assessment of program activities, including, but not limited to, travel, mileage, and other associated expenses;

(iv) Reporting and related activities necessary to meet Federal and State requirements;

(v) Program evaluation, including, but not limited to, surveys or studies that measure the effect or outcome of victim services;

(vi) Program audit costs and related activities necessary to meet Federal audit requirements for the STOP Program grant;

(vii) Technology-related costs, generally including for grant management systems, electronic communications systems and platforms (e.g., Web pages and social media), geographic information systems, related equipment (e.g., computers, software, facsimile and copying machines, and TTY/TDDs) and related technology support services necessary for administration of the program;

(viii) Memberships in organizations that support the management and administration of violence against women programs, except if such organizations engage in lobbying, and publications and materials such as curricula, literature, and protocols relevant to the management and administration of the program;

(ix) Strategic planning, including, but not limited to, the development of strategic plans, both service and financial, including conducting surveys and needs assessments;

(x) Coordination and collaboration efforts among relevant Federal, State, and local agencies and organizations to improve victim services;

(xi) Publications, including, but not limited to, developing, purchasing, printing, distributing training materials, victim services directories, brochures, and other relevant publications; and

(xii) General program improvements—enhancing overall State office operations relating to the program and improving the delivery and quality of STOP Program funded services throughout the State.

§ 90.18 Matching funds.

(a) In general. Subject to certain exclusions, States are required to provide a 25-percent non-Federal match. This does not apply to territories. This 25-percent match may be cash or in-kind services. States are expected to submit written documentation that identifies the source of the match. Funds awarded to victim service providers for victim services or to tribes are excluded from the total award amount for purposes of calculating match. This includes funds that are awarded under the “discretionary” allocation for victim services purposes and funds that are reallocated from other categories to victim services.

(b) In-kind match. In-kind match may include donations of expendable equipment; office supplies; workshop or education and training materials; work space; or the monetary value of time contributed by professional and technical personnel and other skilled and unskilled labor, if the services provided are an integral and necessary part of a funded project. Value for in-kind match is guided by 2 CFR 200.306. The value placed on loaned equipment may not exceed its fair rental value. The value placed on donated services must be consistent with the rate of compensation paid for similar work in the organization or the labor market. Fringe benefits may be included in the valuation. Volunteer services must be documented and, to the extent feasible, supported by the same valuation methods used by the recipient organization for its own employees. The value of donated space may not exceed the fair rental value of comparable space, as established by an independent appraisal of comparable space and facilities in a privately owned building in the same locality. The value for donated supplies shall be reasonable and not exceed the fair market value at the time of the donation. The basis for determining the value of personal services, materials, equipment, and space must be documented.

(c) Tribes and victim services providers. States may not require match to be provided in subgrants for Indian tribes or victim services providers.

(d) Waiver. States may petition the Office on Violence Against Women for a waiver of match if they are able to adequately demonstrate financial need.

(1) State match waiver. States may apply for full or partial waivers of match by submitting specific documentation of financial need. Documentation must include the following:

(i) The sources of non-Federal funds available to the State for match and the amount available from each source, including in-kind match and match provided by subgrantees or other entities;

(ii) Efforts made by the State to obtain the matching funds, including, if applicable, letters from other State agencies stating that the funds available from such agencies may not be used for match;

(iii) The specific dollar amount or percentage waiver that is requested;

(iv) Cause and extent of the constraints on projected ability to raise violence against women program matching funds and changed circumstances that make past sources of match unavailable; and

(v) If applicable, specific evidence of economic distress, such as documentation of double-digit unemployment rates or designation as a Federal Emergency Management Agency-designated disaster area.

(vi) In a request for a partial waiver of match for a particular allocation, the State could provide letters from the entities under that allocation attesting to their financial hardship.

(2) Demonstration of ability to provide violence against women matching funds. The State must demonstrate how the submitted documentation affects the State's ability to provide violence against women matching funds. For example, if a State shows that across the board budget cuts have directly reduced violence against women funding by 20 percent, that State would be considered for a 20 percent waiver, not a full waiver. Reductions in Federal funds are not relevant to State match unless the State can show that the reduced Federal funding directly reduced available State violence against women funds.

(e) Accountability. All funds designated as match are restricted to the same uses as the program funds as set forth in 42 U.S.C. 3796gg(b) and must be expended within the grant period. The State must ensure that match is identified in a manner that guarantees its accountability during an audit.

§ 90.19 Application content.

(a) Format. Applications from the States for the STOP Program must be submitted as described in the annual solicitation. The Office on Violence Against Women will notify each State office as designated pursuant to § 90.11 when the annual solicitation is available. The solicitation will include guidance on how to prepare and submit an application for grants under this subpart.

(b) Requirements. The application shall include all information required under 42 U.S.C. 3796gg-1(d).

§ 90.21 Evaluation.

(a) Recipients of funds under this subpart must agree to cooperate with Federally-sponsored evaluations of their projects.

(b) Recipients of STOP Program funds are strongly encouraged to develop a local evaluation strategy to assess the impact and effectiveness of the program funded under the STOP Program. Funds may not be used for conducting research or evaluations. Applicants should consider entering into partnerships with research organizations that are submitting simultaneous grant applications to the National Institute of Justice for this purpose.

§ 90.22 Review of State applications.

(a) General. The provisions of Part T of the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3796gg et seq., and of this subpart provide the basis for review and approval or disapproval of State applications and amendments.

(b) Intergovernmental review. This program is covered by Executive Order 12372 (Intergovernmental Review of Federal Programs) and implementing regulations at 28 CFR part 30. A copy of the application submitted to the Office on Violence Against Women should also be submitted at the same time to the State's Single Point of Contact, if there is a Single Point of Contact.

§ 90.23 Annual grantee and subgrantee reporting.

Subgrantees shall complete annual progress reports and submit them to the State, which shall review them and submit them to OVW or as otherwise directed. In addition, the State shall complete an annual progress report, including an assessment of whether or not annual goals and objectives were achieved.

§ 90.24 Activities that may compromise victim safety and recovery.

Because of the overall purpose of the STOP Program to enhance victim safety and offender accountability, grant funds may not be used to support activities that compromise victim safety and recovery. The grant program solicitation each year will provide examples of such activities.

§ 90.25 Reallocation of funds.

This section implements 42 U.S.C. 3796gg-1(j), regarding reallocation of funds.

(a) Returned funds. A State may reallocate funds returned to the State, within a reasonable amount of time before the award end date.

(b) Insufficient eligible applications. A State may also reallocate funds if the State does not receive sufficient eligible applications to award the full funding under the allocations in 42 U.S.C. 3796gg-1(c)(4). An “eligible” application is one that is from an eligible entity that has the capacity to perform the proposed services, proposes activities within the scope of the program, and does not propose significant activities that compromise victim safety. States should have the following information on file to document the lack of sufficient eligible applications:

(1) A copy of their solicitation;

(2) Documentation on how the solicitation was distributed, including all outreach efforts to entities from the allocation in question, which entities the State reached out to that did not apply, and, if known, why those entities did not apply;

(3) An explanation of their selection process;

(4) A list of who participated in the selection process (name, title, and employer);

(5) Number of applications that were received for the specific allocation category;

(6) Information about the applications received, such as what agency or organization they were from, how much money they were requesting, and any reasons the applications were not funded;

(7) If applicable, letters from any relevant State-wide body explaining the lack of applications, such as from the State Court Administrator if the State is seeking to reallocate money from courts; and

(8) For the culturally specific allocation, in addition to the items in paragraphs (b)(1) through (7) of this section, demographic statistics of the relevant racial and ethnic minority groups within the State and documentation that the State has reached out to relevant organizations within the State or national organizations.

§ 90.30 Definitions.

The definitions in 25 U.S.C. 1304(a) apply to the Reimbursement to Tribal Governments for Expenses Incurred in Exercising Special Tribal Criminal Jurisdiction (hereinafter referred to as “the Tribal Reimbursement Program” or “this program”).

§ 90.31 Eligibility.

(a) Tribal governments eligible to seek reimbursement under this program are the governments of Tribal entities recognized by and eligible for funding and services from the Bureau of Indian Affairs by virtue of their status as Indian Tribes, that exercise Special Tribal Criminal Jurisdiction (STCJ), as defined by 25 U.S.C. 1304(a)(14) or section 812(5) of Public Law 117-103 (“participating Tribes”).

(b) Tribes that are in the planning phases prior to implementing STCJ are not eligible for reimbursement of planning costs from this program.

(c) Participating Tribes that are currently exercising jurisdiction over non-Indian offenders who commit any covered crime, as defined by 25 U.S.C. 1304(a)(5), and are in the planning phase to exercise jurisdiction over additional covered crimes are eligible for reimbursement with regard to the cases for which they already are exercising jurisdiction but not for planning costs.

§ 90.32 Reimbursement request.

Each year for which funds are available for the Tribal Reimbursement Program, the Office on Violence Against Women (OVW) will issue a Notice of Reimbursement Opportunity with instructions on how to apply for the maximum allowable reimbursement. The reimbursement request for each participating Tribe will include a certification that the participating Tribe meets the eligibility requirements of § 90.31. It will also include a list of expenses that the participating Tribe incurred in exercising STCJ in the previous year, in categories such as law enforcement, prosecution, indigent defense, pre-trial services, corrections, and probation. If a participating Tribe has newly implemented tribal criminal jurisdiction over non-Indians and therefore cannot submit 12 months' worth of expenses for the prior year, the participating Tribe may use estimated amounts for each category of expenses.

§ 90.33 Division of funds: maximum allowable reimbursement and waivers.

OVW will set aside for this program up to 40 percent of funds appropriated pursuant to 25 U.S.C. 1304(j), unless otherwise provided by law. The funds set aside for the Tribal Reimbursement Program will be divided into two parts: one part that will guarantee the availability of funds for each participating Tribe that requests reimbursement up to the maximum allowable reimbursement, and one part that will fund waivers of the maximum. In the first year that OVW administers appropriated funds for this program, OVW will allot 25 percent of Tribal Reimbursement Program funds for maximum allowable reimbursements. In subsequent years, OVW may adjust this percentage, based on the appropriations available, the number of participating Tribes, the extent to which participating Tribes expend the maximum allowable reimbursement in the prior year, and the total dollar amount of waivers requested during the prior year. OVW also may consider whether demand for grant funds under the Tribal Jurisdiction Program warrants adjusting this percentage.

§ 90.34 Annual maximum allowable reimbursement per participating Tribe.

Each participating Tribe will receive access to an equal portion of the funds set aside for maximum allowable reimbursements under § 90.33 (e.g., 25 percent of the total funds available for the Tribal Reimbursement Program), unless their prior year expenses were less than the maximum amount, in which case they will be limited to the actual amount of their prior year expenses. Over the course of a calendar year, participating Tribes may draw down funds from the maximum allowable reimbursement as needed for eligible expenses as described in § 90.36. Participating Tribes are not required to provide documentation at the time they draw down from the maximum allowable reimbursement. Participating Tribes must provide a summary of eligible expenses at the end of the calendar year, which must identify actual expenditures eligible for reimbursement, including dollar amounts for each expenditure and how they were calculated, and must keep documentation on file to support each claimed expense. Such documentation must be sufficient to meet the standards that 2 CFR part 200 provides for grants.

§ 90.35 Conditions for waiver of annual maximum.

(a) If participating Tribes incur eligible expenses in excess of their annual maximum allowable reimbursement, they may request a waiver of the annual maximum at the end of the calendar year. Requests for a waiver must include the summary of eligible expenses required by section 90.34 that shows how the maximum allowable reimbursement funds were spent and an additional summary of eligible expenses that identifies actual expenditures eligible for reimbursement in excess of the maximum, including dollar amounts for each expenditure and how they were calculated. Participating Tribes are not required to provide documentation at the end of the calendar year when they submit their waiver request but must keep documentation on file to support each claimed expense. Such documentation must be sufficient to meet the standards that 2 CFR part 200 provides for grants.

(b) Waivers will be calculated at the end of the calendar year based on available funds. If there are not sufficient funds available to reimburse the total eligible expenses requested by all participating Tribes, each Tribe will get the same percentage of their additional costs met. This percentage will be calculated by comparing the funds available and the total amount requested for waivers.

§ 90.36 Categories of expenses eligible for reimbursement.

Participating Tribes may apply for the maximum allowable reimbursement and waiver funds for the following expenses associated with the exercise of STCJ for each calendar year. For an expense to be eligible, the cost must be incurred in response to a report of a covered crime committed by a non-Indian, but there does not need to be an arrest or a prosecution for the offense. The summary of eligible expenses submitted each year must demonstrate how costs were calculated. Following are examples of types of eligible costs that participating Tribes may include and basis for calculations.

(a) Law enforcement expenses such as officer time (including response, interviews, follow-up, report writing, and court time); sexual assault kits or other evidentiary supplies; and testing, analysis, and storage of evidence. Requests for reimbursement must be based on actual costs attributed to SCTJ cases.

(b) Incarceration expenses such as prison and jail costs and prisoner transportation costs, whether through contract or Tribally owned facilities. Requests for reimbursement must be based on actual costs attributed to STCJ cases and may be based on per diem costs for housing non-Indian offenders.

(c) Offender medical and dental expenses not otherwise covered by insurance policies or federal sources such as Medicaid, including costs for insurance for offenders. Requests for reimbursement must be based on actual costs attributed to STCJ cases.

(d) Prosecution expenses such as staff time (including meetings, interviews, filings, research, preparation, court, and other time that can be demonstrated as allocable to prosecuting a covered crime); expert witness fees; exhibits; witness costs; and copying costs. Requests for reimbursement must be based on actual costs attributed to STCJ cases.

(e) Defense counsel expenses such as staff time (including meetings, interviews, filings, research, preparation, court, and other time that can be demonstrated as allocable to defending one or more non-Indian offenders charged with one or more covered crimes); competency evaluations; expert witness fees; exhibits; witness costs; and copying costs. Requests for reimbursement must be based on actual cost. If the defense counsel is provided by contract, then the reimbursement amount can be based on the invoiced cost to the participating Tribe.

(f) Court expenses such as judge and court staff time; postage for summoning jurors; jury fees; witness costs; and competency evaluation or other mental health evaluations ordered by the court. Requests for reimbursement must be based on actual costs attributed to STCJ cases.

(g) Community supervision/re-entry expenses such as probation, parole, or other staff time; electronic or other monitoring fees; chemical dependency testing; batterer or sex offender evaluation and treatment; and pre-sentence investigation costs. Requests for reimbursement must be based on actual costs attributed to STCJ cases.

(h) Indirect costs based on a current federally approved indirect cost rate agreement.

(i) Other costs incurred in, relating to, or associated with exercising STCJ. Participating Tribes requesting reimbursement for costs in this category must demonstrate that the cost is incurred in, relating to, or associated with exercise of STCJ.

§ 90.37 Ineligible expenses.

Participating Tribes are not permitted to request reimbursement for the following:

(a) Planning: Expenses associated with planning to exercise STCJ, such as code drafting.

(b) Training, including costs for training criminal justice personnel, court personnel, or others.

(c) Any expenses not incurred in, relating to, or associated with exercising STCJ.

§ 90.38 Collection of expenses from offenders.

If a participating Tribe recoups expenses related to exercise of STCJ from the convicted offenders prior to receiving reimbursement for such expenses, then the recouped funds shall be used prior to seeking reimbursement through the Tribal Reimbursement Program. If a participating Tribe recoups expenses related to exercise of STCJ from the convicted offenders subsequent to receiving reimbursement for such expenses, such funds must be used toward exercise of STCJ.

§ 90.39 Expenses documentation.

Documentation of expenses retained on file by participating Tribes pursuant to sections 90.34 and 90.35 must be adequate for an audit. At a minimum, participating Tribes must retain the general accounting ledger and all supporting documents, including invoices, sales receipts, or other proof of expenses incurred for those expenses reimbursed by the Tribal Reimbursement Program. Such records must be retained for a period of three years from the end of the calendar year during which the participating Tribe sought reimbursement. All financial records pertinent to the Tribal Reimbursement Program, including the general accounting ledger and all supporting documents, are subject to agency review during the calendar year in which reimbursement is sought, during any audit, and for the three-year retention period.

§ 90.40 Other sources of funding.

If there are other sources of federal funding available to pay for a particular cost associated with the exercise of STCJ, participating Tribes must expend funds from those sources before seeking reimbursement from this program. Examples include existing Department of Justice grant funds, Medicare/Medicaid, and Bureau of Indian Affairs funding.

§ 90.41 Denial of specific expenses for reimbursement.

If reimbursement of specific expenses is denied, the participating Tribe may request review of the denial via a letter to the OVW Director stating the reason why the denied expense was eligible for reimbursement. OVW must receive the letter within 30 calendar days of the denial. The OVW Director will review the letter and notify the participating Tribe of a final decision within 30 days of receipt of the letter.

§ 90.42 Monitoring and audit.

Tribes receiving reimbursement of expenses under the Tribal Reimbursement Program will be subject to regular monitoring and audits to ensure that expenses are properly documented and are allocable to the exercise of STCJ.

§ 90.43 Corrective action.

Reimbursement requests later found not to meet statutory, regulatory, or other program requirements may result in a corrective action plan and/or recovery/recoupment. Participating Tribes that fail to submit the required summary of eligible expenses under §§ 90.34 and 90.35, respond to requests for information during monitoring or auditing, or follow a corrective action plan or return funds expended on ineligible expenses will be deemed ineligible for additional Tribal Reimbursement Program funds, in the same or another calendar year, until such deficiencies are remedied.

§ 90.60 Scope.

The eligibility criteria, purpose areas, application requirements, and statutory priorities for this program are established by 42 U.S.C. 3796hh et seq.

§ 90.61 Definitions and grant conditions.

(a) In general. For purposes of this subpart, the definitions and grant conditions in 42 U.S.C. 13925 apply.

(b) Unit of local government. For the purpose of this subpart, a unit of local government is any city, county, township, town, borough, parish, village, or other general purpose political subdivision of a State. The following are not considered units of local government for purposes of this subpart:

(1) Police departments;

(2) Pre-trial service agencies;

(3) District or city attorneys' offices;

(4) Sheriffs' departments;

(5) Probation and parole departments;

(6) Shelters;

(7) Nonprofit, nongovernmental victim service providers; and

(8) Universities.

§ 90.62 Purposes.

(a) Purpose areas for the program are provided by 42 U.S.C. 3796hh(b).

(b) Grants awarded for these purposes must demonstrate meaningful attention to victim safety and offender accountability.

§ 90.63 Eligibility.

(a) Eligible entities. Eligible entities are described in 42 U.S.C. 3796hh(c).

(b) Certifications—(1) State, local, and tribal governments. State, local, and tribal government applicants must certify that they meet the requirements of 42 U.S.C. 3796hh(c)(A)-(E) or that they will meet the requirements by the statutory deadline.

(2) Courts. Court applicants must certify that they meet the requirements of 42 U.S.C. 3796hh(c)(C)-(E) or that they will meet the requirements by the statutory deadline.

(3) State, tribal, or territorial domestic violence or sexual assault coalitions or victim service providers. Applicants that are domestic violence or sexual assault coalitions or other victim service providers must partner with a State, local, or tribal government. The partner government must certify that it meets the requirements of 42 U.S.C. 3796hh(c)(A)-(E) or that it will meet the requirements by the statutory deadline.

(4) Letters. Eligible applicants or partners must submit a letter with proper certifications signed by the chief executive officer of the State, local government, or tribal government participating in the project, in order to satisfy these statutory requirements. OVW will not accept submission of statutes, laws or policies in lieu of such a letter.

(c) Partnerships—(1) Governments and courts. All State, local, and tribal government and court applicants are required to enter into a formal collaboration with victim service providers and, as appropriate, population specific organizations. Sexual assault, domestic violence, dating violence, or stalking victim service providers must be involved in the development and implementation of the project. In addition to the requirements of 42 U.S.C. 13925, victim service providers should meet the following criteria:

(i) Address a demonstrated need in their communities by providing services that promote the dignity and self-sufficiency of victims, improve their access to resources, and create options for victims seeking safety from perpetrator violence; and

(ii) Do not engage in or promote activities that compromise victim safety.

(2) Coalitions and victim service providers. All State, tribal, or territorial domestic violence or sexual assault coalition and other victim service provider applicants are required to enter into a formal collaboration with a State, Indian tribal government or unit of local government, and, as appropriate, population specific organizations.

§ 90.64 Speedy notice to victims.

(a) In general. A State or unit of local government shall not be entitled to 5 percent of the funds allocated under this subpart, unless the State or unit of local government certifies that it meets the requirements regarding speedy notice to victims provided in 42 U.S.C. 3796hh(d).

(b) Units of local governments. (1) Units of local government grantees may certify based on State or local law, policy, or regulation.

(2) In the event that a unit of local government does not have authority to prosecute “crime[s] in which by force or threat of force the perpetrator compels the victim to engage in sexual activity[,]” the unit of local government may submit a letter from an appropriate legal authority in the jurisdiction certifying that the jurisdiction does not have the authority to prosecute “crime[s] in which by force or threat of force the perpetrator compels the victim to engage in sexual activity” and that therefore the certification is not relevant to the unit of local government in question.

§ 90.65 Application content.

(a) Format. Applications from eligible entities must be submitted as described in the relevant program solicitation developed by the Office on Violence Against Women and must include all the information required by 42 U.S.C. 3796hh-1(a).

(b) Certification. Each eligible applicant must certify that all the information contained in the application is correct. All submissions will be treated as a material representation of fact upon which reliance will be placed, and any false or incomplete representation may result in suspension or termination of funding, recovery of funds provided, and civil and/or criminal sanctions.

§ 90.66 Evaluation.

(a) Recipients of Arrest Program funds must agree to cooperate with federally-sponsored research and evaluation studies of their projects at the direction of the Office on Violence Against Women.

(b) Grant funds may not be used for purposes of conducting research or evaluations. Recipients of Arrest Program funds are, however, strongly encouraged to develop a local evaluation strategy to assess the impact and effectiveness of their projects. Applicants should consider entering into partnerships with research organizations that are submitting simultaneous grant applications to the National Institute of Justice or other research funding sources for this purpose.

§ 90.67 Review of applications.

The provisions of 42 U.S.C. 3796 et seq. and this subpart provide the basis for review and approval or disapproval of applications and amendments in whole or in part.

§ 91.1 Purpose.

The Attorney General, through the Assistant Attorney General for the Office of Justice Programs, will make grants to states and to states organized as multi-state compacts to construct, develop, expand, operate or improve correctional facilities, including boot camp facilities and other alternative correctional facilities that can free conventional space for the confinement of violent offenders, to:

(a) Ensure that prison space is available for the confinement of violent offenders; and

(b) Implement truth in sentencing laws for sentencing violent offenders.

§ 91.2 Definitions.

(a) Violent offender. [Reserved]

(b) Serious drug offense means an offense involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in Section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of 10 years or more is prescribed by state law.

(c) Part 1 violent crimes means murder and non-negligent manslaughter, forcible rape, robbery, and aggravated assault as reported to the Federal Bureau of Investigation for purposes of the Uniform Crime Reports. If such data is unavailable, Bureau of Justice Statistics (BJS) publications may be utilized. See, e.g., “Census of State and Federal Correctional Facilities, 1990.” (”Part 1 violent crimes” are defined here solely as the statutorily prescribed basis for the formula allocation of funding.)

(d) Recipient means individual states or multi-state compacts awarded funds under this part.

(e) State means a State, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, American Samoa, Guam and the Northern Mariana Islands.

(f) Comprehensive correctional plan means a plan which represents an integrated approach to the management and operation of adult and juvenile correctional facilities and programs and which includes diversion programs, particularly drug diversion programs, community corrections programs, a prisoner screening and security classification system, appropriate professional training for corrections officers in dealing with violent offenders, prisoner rehabilitation and treatment programs, prisoner work activities (including to the extent practicable, activities relating to the development, expansion, modification, or improvement of correctional facilities) and job skills programs, educational programs, a pre-release prisoner assessment to provide risk reduction management, post-release assistance and an assessment of recidivism rates.

(g) Correctional facilities includes boot camps and other alternative correctional facilities for adults or juveniles that can free conventional bed space for the confinement of violent offenders.

(h) Boot camp means a corrections program for adult or juvenile offenders of not more than six-months confinement (not including time in confinement prior to assignment to the boot camp) involving:

(1) Assignment for participation in the program, in conformity with state law, by prisoners other than prisoners who have been convicted at any time for a violent felony;

(2) Adherence by inmates to a highly regimented schedule that involves strict discipline, physical training, and work;

(3) Participation by inmates in appropriate education, job training, and substance abuse counseling or treatment; and

(4) Post-incarceration aftercare services for participants that are coordinated with the program carried out during the period of imprisonment.

(i) Truth in sentencing laws means laws that:

(1) Ensure that violent offenders serve a substantial portion of sentences imposed;

(2) Are designed to provide sufficiently severe punishment for violent offenders, including violent juvenile offenders; and

(3) The prison time served is appropriately related to the determination that the inmate is a violent offender and for a period of time deemed necessary to protect the public.

§ 91.3 General eligibility requirements.

(a) Recipients must be individual states, or states organized as multi-state compacts.

(b) Application requirements. To be eligible to receive either a formula or a discretionary grant under subtitle A, an applicant must submit an application which includes:

(1) Assurances that the state(s) have implemented, or will implement, correctional policies and programs, including truth in sentencing laws. No specific requirements for complying with this condition are prescribed by this interim rule for fiscal 1995 funding because of the need for further review of the status of truth in sentencing laws and the impact and needs requirements relating to reform in state systems.

(2) Assurances that the state(s) have implemented or will implement policies that provide for the recognition of the rights and needs of crime victims.

States are not required to adopt any specific set of victims rights measures for compliance, but the adoption by a state of measures which are comparable to or exceed those applied in federal proceedings will be deemed sufficient compliance for eligibility for funding. If the state has not adopted victims rights measures which are comparable to or exceed federal law, the adequacy of compliance will be determined on a case-by-case basis. States will be afforded a reasonable amount of time to achieve compliance. States may comply with this condition by providing recognition of the rights and needs of crime victims in the following areas:

(i) Providing notice to victims concerning case and offender status;

(ii) Providing an opportunity for victims to be present at public court proceedings in their cases;

(iii) Providing victims the opportunity to be heard at sentencing and parole hearings;

(iv) Providing for restitution to victims; and

(v) Establishing administrative or other mechanisms to effectuate these rights.

(3) Assurances that funds received under this section will be used to construct, develop, expand, operate or improve correctional facilities to ensure that secure space is available for the confinement of violent offenders.

(4) Assurances that the state(s) has a comprehensive correctional plan in accordance with the definition elements in § 91.2. If the state(s) does not have an adequate comprehensive correctional plan, technical assistance will be available for compliance. States will be afforded a reasonable amount of time to develop their plans.

(5) Assurances that the state(s) has involved counties and other units of local government, when appropriate, in the construction, development, expansion, modification, operation or improvement of correctional facilities designed to ensure the incarceration of violent offenders and that the state(s) will share funds received with counties and other units of local government, taking into account the burden placed on these units of government when they are required to confine sentenced prisoners because of overcrowding in state prison facilities.

(6) Assurances that funds received under this section will be used to supplement, not supplant, other federal, state, and local funds.

(7) Assurances that the state(s) has implemented, or will implement within 18 months after the date of the enactment of the Violent Crime Control and Law Enforcement Act of 1994 (September 13, 1994), policies to determine the veteran status of inmates and to ensure that incarcerated veterans receive the veterans benefits to which they are entitled.

(8) Assurances that correctional facilities will be made accessible to persons conducting investigations under the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. 1997.

(9) If applicable, documentation of the multi-state compact agreement that specifies the construction, development, expansion, modification, operation, or improvement of correctional facilities.

(10) If applicable, a description of the eligibility criteria for participation in any boot camp that is to be funded.

(c) States, and states organized as multi-state compacts, which can demonstrate affirmative responses to the assurances outlined above will be eligible to receive funds.

(d) Each state application for such funds must be accompanied by a comprehensive correctional plan. The plan shall be developed in consultation with representatives of appropriate state and local units of government, shall include both the adult and juvenile correctional systems, and shall provide an assessment of the state and local correctional needs, and a long-range implementation strategy for addressing those needs.

(e) Local units of government, i.e., any city, county, town, township, borough, parish, village or other general purpose subdivision of a state, or Indian tribe which performs law enforcement functions as determined by the secretary of the Interior, are in turn eligible to receive subgrants from a participating state(s). Such subgrants shall be made for the purpose(s) of carrying out the implementation strategy, consistent with state(s) comprehensive correctional plan.

(f) In awarding grants, consideration shall be given to the special burden placed on states which incarcerate a substantial number of inmates who are in the United States illegally. States will not be required to submit additional information on numbers of criminal aliens. The Bureau of Justice Assistance (BJA) and the Immigration and Naturalization Service (INS) are currently working together to implement the State Criminal Alien Assistance Program (SCAAP) to assist the states with the costs of incarcerating criminal aliens. The Office of Justice Programs will coordinate with the SCAAP program to obtain the relevant information.

(g) The funds provided under this part shall be administered in compliance with the standards set forth in part 38 (Equal Treatment for Faith-based Organizations) of this chapter.

[59 FR 63019, Dec. 7, 1994, as amended by Order No. 2703-2004, 69 FR 2841, Jan. 21, 2004]

§ 91.4 Truth in Sentencing Incentive Grants.

(a) Half of the total amount of funds appropriated to carry out subtitle A for each of the fiscal years 1996, 1997, 1998, 1999 and 2000 will be made available for Truth in Sentencing Incentive Grants.

(b) Eligibility. To be eligible to receive such a grant, a state, or states organized as multi-state compacts, must meet the requirements of § 91.3 and must demonstrate that the state(s)—

(1) Has in effect laws which require that persons convicted of violent crimes serve not less than 85% of the sentence imposed; or

(2) Since 1993—

(i) Has increased the percentage of convicted violent offenders sentenced to prison;

(ii) Has increased the average prison time which will be served in prison by convicted violent offenders sentenced to prison;

(iii) Has increased the percentage of sentence which will be served in prison by violent offenders sentenced to prison; and

(iv) Has in effect at the time of application laws requiring that a person who is convicted of a violent crime shall serve not less than 85% of the sentence imposed if—

(A) The person has been convicted on 1 or more prior occasions in a court of the United States or of a state of a violent crime or a serious drug offense; and

(B) Each violent crime or serious drug offense was committed after the defendant's conviction of the preceding violent crime or serious drug offense.

(c) Formula allocation. The amount available to carry out this section for any fiscal year will be allocated to each eligible state in the ratio that the number of Part 1 violent crimes reported by such state to the Federal Bureau of Investigation for 1993 bears to the number of Part 1 violent crimes reported by all states to the Federal Bureau of Investigation for 1993.

(d) Transfer of unused funds. On September 30 of each fiscal years 1996, 1998, 1999 and 2000, the Attorney General will transfer to the funds to be allocated under the Violent Offender Incarceration Grant formula allocation (section 91.5) any funds made available to carry out this section that are not allocated to an eligible state under paragraph (b) of this section.

§ 91.5 Violent Offender Incarceration Grants.

(a) Half of the total amount of funds appropriated to carry out this subtitle for each of fiscal years 1996, 1997, 1998, 1999 and 2000 will be made available for Violent Offender Incarceration Grants.

(b) Eligibility. To be eligible to receive such a grant, a state, or states organized as multi-state compacts, must meet the requirements of section 91.3(b).

(c) Allocation of violent offender incarceration funds—(1) Formula allocation. 85% of the sum of the amount available for grants under this section for any fiscal year and any amount transferred as described in § 91.4(c) for that fiscal year will be allocated as follows:

(i) 0.25% will be allocated to each eligible state except that the United States Virgin Islands, American Samoa, Guam and the Northern Mariana Islands shall each be allocated 0.05%.

(ii) The amount remaining after application of paragraph (c)(1)(i) of this section will be allocated to each eligible state in the ratio that the number of Part 1 violent crimes reported by such state to the Federal Bureau of Investigation for 1993 bears to the number of Part 1 violent crimes reported by all states to the Federal Bureau of Investigation for 1993.

(2) Discretionary allocation. Fifteen percent of the sum of the amount available for Violent Offender Incarceration Grants for any fiscal year under this subsection and any amount transferred as described in § 91.4(c) for that fiscal year will be allocated at the discretion of the Assistant Attorney General for OJP to states that have demonstrated:

(i) The greatest need for such grants, and

(ii) The ability to best utilize the funds to meet the objectives of the grant program and ensure that secure cell space is available for the confinement of violent offenders.

(d) Transfer of unused funds. On September 30 of each fiscal years 1996, 1997, 1998, 1999 and 2000, the Assistant Attorney General will transfer to the discretionary program under paragraph (c)(2) of this section any funds made available under paragraph (c)(1) of this section that are not allocated to an eligible state under paragraph (c)(1) of this section.

§ 91.6 Matching requirement.

(a) The federal share of a grant received under this subtitle may not exceed 75 percent of the costs of a proposal described in an application approved under this subtitle. The matching requirement can only be met through a hard cash match, and must be satisfied by the end of the project period. A certification to that effect will be required of each recipient of grant funds and must be submitted to the Office of Justice Programs with the application.

(b) [Reserved]

§ 91.10 General.

(a) Scope of boot camp program. Funding is appropriated in fiscal year 1995 to provide grants to states and multi-state compacts to plan, develop, construct and expand correctional boot camps for adults and juveniles.

(b) Adult and juvenile boot camps, referred to as “correctional boot camps,” are programs that “provide a structured environment for delivering non-traditional corrections programs to criminal offenders.”

(c) With respect to this program, the mandates of the Juvenile Justice and Delinquency Prevention Act (42 U.S.C. 5601 et seq.) shall apply.

(d) Eligibility. (1) Funding is available for both adult and juvenile boot camps. To be eligible for the funding of boot camps, states must comply with the general assurances in § 91.3(b) or demonstrate steps taken toward compliance. While the majority of assurances are applicable to the adult correctional system, those states applying for grants for juvenile boot camps must include the juvenile system in the state comprehensive correctional plan and demonstrate how construction of the boot camp will make secure space available to house violent juvenile offenders.

(2) For purposes of the FY '95 boot camp program, a “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or an act of juvenile delinquency that would be punishable by imprisonment for such term if committed by an adult, that:

(i) Involves the use or attempted use of a firearm or other dangerous weapon against another person, or

(ii) Results in death or serious bodily injury to another person.

(3) States must document that the boot camp program does not involve more than six-months confinement (not including confinement prior to assignment to the boot camp) and includes:

(i) Assignment for participation in the program, in conformity with state law, by prisoners other than prisoners who have been convicted at any time of a violent felony;

(ii) Adherence by inmates to a highly regimented schedule that involves strict discipline, physical training and work;

(iii) Participation by inmates in appropriate education, job training, and substance abuse counseling or treatment; and

(iv) Post-incarceration aftercare services for participants that are coordinated with the program carried out during the period of imprisonment.

(4) States must provide assurances that boot camp construction will free up secure institutional bed space for violent offenders.

(e) Evaluation. (1) Recipients will be required to cooperate with a national evaluation team throughout the planning and implementation process. Recipients are also strongly encouraged to provide for an independent evaluation of the impact and effectiveness of the funded program.

(2) Jurisdictions are strongly encouraged to engage in systematic planning activities and to develop and evaluate boot camps as part of a comprehensive and integrated correctional plan.

(f) Limitation on funds. Grant funds cannot be used for operating costs. States will be required to show how operating expenses will be provided.

(g) Matching requirement. The federal share of a grant received may not exceed 75 percent of the costs of the proposed boot camp program described in the appoved application. The matching requirement can only be met through a hard cash match, and must be satisfied by the end of the project period; facility operating expenses may not be used to meet the match requirement for the construction project supported. Match may be made through grantee contribution of construction-related costs. A certification to that effect will be required of each recipient of grant funds.

(h) Innovative boot camp programs. Jurisdictions are encouraged to explore the development of “innovative” boot camp programs which incorporate principles based on the accumulation of research and practical experience, and reflect sound and effective correctional practice.

§ 91.21 Purpose.

This part sets forth requirements and procedures to award grants to Indian Tribes for purposes of constructing jails on tribal lands for the incarceration of offenders subject to tribal jurisdiction.

§ 91.22 Definitions.

(a) The Act means the Violent Crime Control and Law Enforcement Act of 1994, Subtitle A of Title II, Public Law 103-322, 108 Stat. 1796 (September 13, 1994) as amended by the Fiscal Year 1996 Omnibus Consolidated Rescissions and Appropriations Act, Public Law 104-134 (April 26, 1996), codified at 42 U.S.C. 13701 et. seq.

(b) Assistant Attorney General means the Assistant Attorney General for the Office of Justice Programs.

(c) Tribal lands means:

(1) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation;

(2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State; and

(3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of way running through the same.

(d) Indian Tribe means an eligible Native American tribe as defined by the Indian Self Determination Act, 25 U.S.C. 450b(e).

(e) Construction means the erection, acquisition, renovation, repair, remodeling, or expansion of new or existing buildings or other physical facilities, and the acquisition or installation of fixed furnishings and equipment. It includes facility planning (including environmental impact analysis), pre-architectural programming, architectural design, preservation, construction, administration, construction management, or project management costs. Construction does not include the purchase of land.

[61 FR 49970, Sept. 24, 1996, as amended at 69 FR 2299, Jan. 15, 2004]

§ 91.23 Grant authority.

(a) The Assistant Attorney General may make grants to Indian tribes for programs that involve constructing jails on tribal lands for the incarceration of offenders subject to tribal jurisdiction.

(b) Applications for grants under this program shall be made at such times and in such form as may be specified by the Assistant Attorney General. Applications will be evaluated according to the statutory requirements of the Act and programmatic goals.

(c) Grantees must comply with all statutory and program requirements applicable to grants under this program.

(d) The funds provided under this part shall be administered in compliance with the standards set forth in part 38 (Equal Treatment for Faith-based Organizations) of this chapter.

[61 FR 49970, Sept. 24, 1996, as amended by Order No. 2703-2004, 69 FR 2841, Jan. 21, 2004]

§ 91.24 Grant distribution.

(a) From the amounts appropriated under section 20108 of the Act to carry out sections 20103 and 20104 of the Act, the Assistant Attorney General shall reserve, to carry out this program—

(1) 0.3 percent in each fiscal years 1996 and 1997; and

(2) 0.2 percent in each of fiscal years 1998, 1999 and 2000.

(b) From the amounts reserved under paragraph (a) of this section, the Assistant Attorney General may exercise discretion to award or supplement grants to such Indian Tribes and in such amounts as would best accomplish the purposes of the Act.

§ 91.50 Purpose.

The purpose of this subpart is to inform grant recipients under the Violent Offender Incarceration and Truth-in-Sentencing Incentive (VOI/TIS) Formula Grant Program of OJP's procedures for complying with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et. seq., and related environmental impact review requirements.

§ 91.51 Policy.

(a) NEPA Policy. NEPA policy requires that Federal agencies, to the fullest extent possible:

(1) Implement procedures to make the NEPA process more useful to decision-makers and the public; reduce paperwork and the accumulation of extraneous background data; and emphasize real environmental issues and alternatives. Environmental impact statements shall be concise, clear, and to the point, and shall be supported by evidence that agencies have made the necessary environmental analyses.

(2) Integrate the requirements of NEPA with other planning and environmental review procedures required by law and by agency practice so that all such procedures run concurrently rather than consecutively.

(3) Encourage and facilitate public involvement in decisions which affect the quality of the human environment.

(4) Use the NEPA process to identify and assess reasonable alternatives to proposed actions that will avoid or minimize adverse effects of these actions upon the quality of the human environment.

(5) Use all practicable means to restore and enhance the quality of the human environment and avoid or minimize any possible adverse effects of the actions upon the quality of the human environment.

(b) OJP's policy to minimize harm to the environment. It is OJP's policy to minimize harm to the environment. Consequently, OJP can reject proposals or prohibit a State from using formula grant funds for a project that would have a substantial adverse impact on the human environment. Additionally, federal law prohibits the implementation of a project that jeopardizes the continued existence of an endangered species or that violates certain regulations related to water quality. Generally, though, where an EA or EIS reveals that a project will have adverse environmental impacts, OJP will work with the State grantee to identify ways to modify the project to mitigate any adverse impacts, or will encourage the State to consider an alternative site.

(c) Mitigation. OJP may require the following mitigation measures to reduce or eliminate a project's adverse environmental impacts:

(1) Avoiding the impact altogether by not taking certain action or part of an action.

(2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.

(3) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.

(4) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.

(5) Compensating for the impact by replacing or providing substitute resources or environments.

(d) Use of grant funds. In accordance with OJP's general policy of providing the States with the maximum amount of control and flexibility over the use of formula grant funds, the States can use VOI/TIS grant funds to pay for the costs of preparing environmental documents, to implement mitigation measures to reduce adverse environmental impacts, and to cover the costs of construction delays or other project changes resulting from compliance with the NEPA process. However, any funds used for these purposes must be included as a portion of the State's grant which requires a State match.

§ 91.52 Definitions.

The definitions supplied by the Council on Environmental Quality in its Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, 40 CFR Parts 1500 through 1508, (CEQ Regulations), shall apply to the terms in this subpart.

§ 91.53 Other guidance.

The Department of Justice has also published NEPA procedures that incorporate the CEQ regulations at 28 CFR part 61. Additionally, the Office of Justice Programs' Corrections Program Office has prepared a handbook for VOI/TIS grantees, Program Guidance on Environmental Protection Requirements. This publication and other relevant documents can be found at http://www.ojp.usdoj.gov/cpo.

§ 91.54 Applicability.

(a) Major Federal action. NEPA's requirements apply to any proposal for legislation or other major federal action that might significantly impact the quality of the human environment. The CEQ regulations in 40 CFR 1508.18 define “major federal actions” as actions with effects that may be major and which are potentially subject to Federal control and responsibility. The CEQ regulations categorize “major federal actions” as, among other things, the “[a]pproval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as Federal and Federally assisted activities.” (40 CFR 1508.18(b)(4)).

(b) VOI/TIS construction grants subject to NEPA. This subpart applies to all proposed, new and partially completed VOI/TIS projects (including projects on tribal lands) initiated by state or local units of government with grant funding from OJP that involve construction, expansion, renovation, facility planning, site selection, site preparation, security or facility upgrades or other activities that may significantly impact the environment.

(c) Projects. Although VOI/TIS money cannot be used for a project's operations expenses, the definition of “project” or “proposal” for NEPA review purposes is defined as both the construction and the long-term operation of correctional facilities and related components such as all off-site projects to accommodate the needs of the correctional facilities project (e.g., road and utility construction or expansion, projects offered to the affected community as an incentive to accept the correctional facility construction or expansion, and other reasonably foreseeable future actions regardless of what agency or third party undertakes such action). Reasonably foreseeable actions include future prison construction phases, especially when either current acreage requirements or design capacities for utilities are based on needs stemming from future phases.

§ 91.55 Categorical exclusions.

Activities undertaken by State, local, or tribal entities using VOI/TIS funds that are consistent with any of the following categories are presumed not to have a significant effect on the human environment and thus, are categorically excluded from the preparation of either an EA or an EIS. Although these activities are excluded from environmental reviews under NEPA, they are not excluded from compliance with other applicable local, State, or Federal environmental laws. Additionally, an otherwise excluded activity loses its exclusion and is subject to environmental review if it either would be located within or potentially affect any of the following: a 100-year flood plain, a wetland, important farmland, a proposed or listed endangered or threatened species, a proposed or listed critical habitat, a property that is listed or eligible for listing on the National Register of Historic Places, an area within an approved State Coastal Zone Management Program, a coastal barrier or a portion of a barrier within the Coastal Barrier Resources System, a river or portion of a river included in or designated for potential addition to the Wild and Scenic Rivers System, a designated or proposed Wilderness Area, or a sole source aquifer recharge area designated by the Environmental Protection Agency (EPA). The resulting environmental review for those activities that lose their exclusion status shall focus on the factor or factors that caused the loss of the exclusion.

(a) Minor renovations. Projects for minor renovations within an existing facility, unless the renovation would impact a structure which is on the National Register of Historic Places, or is eligible for listing on the register.

(b) Limited expansion. Projects for the expansion of an existing facility or within an existing correctional complex, which does not add more than 50 beds or increase the capacity of the facility by more than 50 percent whichever is smaller. This exclusion does not apply to either a phased project that exceeds these numerical thresholds or projects to expand facilities that:

(1) Are located in a floodplain;

(2) Will affect a wetland;

(3) Will affect a facility on the National Register of Historic Places or that is eligible for listing on the register;

(4) Will affect a federally proposed or listed endangered or threatened species or its habitat;

(5) Is controversial for environmental reasons; or

(6) Would not be served by adequate sewage treatment, solid waste disposal, or water facilities.

(c) Expansion of support facilities. Projects for the expansion of bed space within an existing facility (e.g., double bunking or conversion of non-cell space) which are using grant funds to expand or add support facilities, such as a kitchen, medical facilities, recreational space, or program space, to accommodate the increased number of inmates. This does not include projects to increase capacity for support facilities which might pose a threat to the environment, such as solid waste and waste water management, new roads, new or upgraded utilities coming into the facility, or prison industry programs that involve the use of chemicals and produce hazardous waste or water or air pollution.

(d) Security upgrades. Security upgrades of an existing facility which are inside the existing perimeter fence or involve the upgrade of the existing perimeter fence. This exclusion does not include such upgrades as adding lethal fences or increasing height or lighting of a perimeter fence in a residential area or other areas sensitive to the visual impacts resulting from height or lighting changes.

(e) Privatization. Projects that involve the leasing of bed space (which may include operational costs) from a facility operated by a private correctional corporation or that contract with a private correctional corporation for the operation of a state facility or program. This exclusion does not apply if the correctional agency has contracted with the private vendor to build the facility, operate the facility, or lease beds to the correctional agency using federal grant funds.

(f) Drug testing and treatment. Projects that use grant funds to implement drug treatment, testing, sanctions, or interdiction programs.

§ 91.56 Actions that normally require the preparation of an environmental assessment.

(a) Renovation or expansion of existing correctional facility. Renovation or expansion activities not categorically excluded under § 91.55 require an environmental assessment (EA). An environmental assessment is generally prepared when a project is not expected to have a significant impact on the environment. Since projects for the renovation or expansion of an existing facility or the construction of a new facility within an existing correctional complex may have limited impact on the environment, preparing an EA may be sufficient.

(b) Proposed construction of a new correctional facility. The proposed construction of a new correctional facility will require the preparation of an environmental assessment unless the proposal will clearly have a significant environmental impact in which case an environmental impact statement can be initiated immediately without the preparation of an environmental assessment.

§ 91.57 Actions that normally require the preparation of an environmental impact statement.

Significant impact. For the proposed construction of a new correctional facility or the proposed expansion of an existing facility, if the proposal is large or complex and/or controversial because of the nature of possible environmental impacts, and/or if any EA determines that the project will have a significant impact on the environment, an environmental impact statement (EIS) will be required. For those projects that clearly will have significant environmental impact, a grantee can save time and resources by initiating the EIS immediately without going through the EA process.

§ 91.58 Timing of the environmental review process.

(a) Initial planning and site selection phase. The NEPA procedures must be initiated as part of the planning and site selection phase of all new construction, expansion, and renovation projects and completed before the construction or renovation on the project can begin.

(b) Early consultation with OJP. As grantees identify proposed, new projects, the grantees must inform OJP and after consulting OJP's Program Guidance on Environmental Protection Requirements, must recommend to OJP whether:

(1) The proposed project meets the criteria of a categorical exclusion;

(2) An environmental assessment should be initiated;

(3) Because of the project size and/or anticipated environmental impacts, an environmental impact statement should be initiated.

(c) Design phase. Projects currently in the planning and design phase must complete the NEPA procedures and no further decisions or new commitments of resources can be made on these projects by the State or local entity that would either have an adverse impact on the environment or limit the choice of reasonable alternative sites.

(d) Prohibited pre-analysis activities. None of the following actions can be taken until the NEPA analysis is completed for the affected project:

(1) Starting construction;

(2) Accepting construction bids;

(3) Advertising for construction bids;

(4) Initiating the development of or approving final plans and specifications; or

(5) Purchasing property.

(e) Ongoing or completed construction projects. For grant-funded projects under construction, OJP will work with the States to determine what environmental analysis has been done, making every effort to limit disruption to projects under construction. For completed grant-funded projects, OJP will work with the States to determine whether those projects may pose continuing environmental problems. For example, NEPA issues may exist due to excessive noise, light pollution, excessive water consumption or draw down on an important stream, or adverse visual impact due to an inappropriate facade color in an environmentally scenic area. Consequently, performing an analysis for those VOI/TIS VOI/TIS projects for which construction is completed may still serve the useful purpose of determining the extent of a project's continuing adverse environmental impacts, and the feasibility of mitigation measures.

(f) Avoiding duplication of efforts. If an EA or EIS was completed on an original structure, any environmental research that was conducted at the time the original structure was being planned and is still relevant need not be duplicated in any required environmental impact analysis for proposed modifications or additions to that structure.

§ 91.59 OJP's responsibilities.

(a) In general. All NEPA decisions such as determining the adequacy of assessments, the need for environmental impact statements, and their adequacy must, by statute, remain with OJP. Therefore, OJP, as the Federal agency sponsoring the major federal action, shall determine if a proposed project qualifies for a categorical exclusion, if a finding of no significant impact can be issued based on the EA, or if an EIS will be required.

(b) Specific duties. As part of its role in the NEPA process, OJP shall:

(1) Issue guidance on the preparation of environmental documents and the NEPA process.

(2) Review all draft documents.

(3) Participate in giving notice to state and federal agencies, as well as to the public, and attend public meetings with the grantee, as appropriate.

(4) Identify and solicit appropriate state, local, and tribal agencies to be a cooperating or joint lead agency, as appropriate.

(5) Prepare a written assessment of any environmental impacts that another state or federal land management or environmental protection agency believes have not been adequately addressed through the NEPA process.

(6) Monitor implementation by the states to ensure the completion of any required mitigation measures.

(7) Develop a sample Statement of Work for preparing an EIS that States employing their own contractor can use to ensure that the services provided meet the requirements.

§ 91.60 Grantee's responsibilities.

Specific duties. As part of its role in the NEPA process, the grantee agency must:

(a) Work closely with OJP on the development and review of the environmental documents, and follow the NEPA process, with the full participation of OJP.

(b) Issue the documents for public comment jointly with OJP.

(c) Solicit comment from other state and federal agencies, interested organizations, and the public.

(d) Refrain from purchasing land, beginning bidding process, or starting construction on any project until all environmental work has been completed.

(e) Complete a project Status Report form for all projects under construction or completed prior to the effective date of this subpart.

(f) Ensure that appropriate environmental analysis, as determined by OJP, is completed for all projects and that appropriate alternatives are considered and mitigation measures are implemented to reduce the impact of identified environmental impacts, if any.

(g) Identify and inform OJP of all applicable state and local environmental impact review requirements.

(h) Notify all subgrantees of the requirements of this subpart in the initial planning and site selection phase.

§ 91.61 Subgrantee's responsibilities.

If delegated by the grantee, the subgrantee shall:

(a) Prepare (if the required expertise exists) or contract for the preparation of an environmental assessment (EA); and

(b) Submit all environmental assessments through the grantee to OJP for review and the issuance of a draft finding of no significant impact (FONSI) or a determination that an environmental impact statement (EIS) is required. If OJP issues a draft FONSI, the grantee agency shall make the draft FONSI and the underlying EA available for public comment.

§ 91.62 Preparing an Environmental Assessment.

(a) In general. An Environmental Assessment (EA) is a concise public document that provides sufficient evidence and analysis for determining whether OJP should issue a Finding of No Significant Environmental Impact (FONSI) or prepare an Environmental Impact Statement (EIS). It is designed to help public officials make decisions that are based on an understanding of the human and physical environmental consequences of the proposed project and take actions, in the location and design of the project, that protect, restore and enhance the environment. Completing an EA requires considering all potential impacts associated with the construction of the correctional facility project, its operation and maintenance, any related projects including those off-site, and the attainment of the project's major objectives. The latter requires an analysis of the environmental impacts of any training and vocational activities to be conducted by the inmates.

(b) Project planning and site selection. During the planning phase of the project, OJP and the grantee jointly define the project, explore the various alternatives and identify a proposed site for the construction or renovation project. In order to identify possible environmental concerns and reduce the likelihood of later opposition to the project, the grantee should involve other interested parties at this stage through public meetings which allow affected or interested parties to learn about the need for the action, the scope of the proposed action, and any alternatives being considered. These public meetings should also provide interested parties an opportunity to express comments or concerns about potential consequences of the action. Additionally, minority and low-income populations as well as Indian tribes that may be affected by the proposal should be consulted at this early stage. The grantee should obtain their views on proposed sites and mitigation measures as an important step in meeting the environmental justice goals of Executive Order 12898.

(c) Draft environmental assessment. The grantee should prepare an EA after identifying the proposed site, but before reaching a final decision to proceed with the effort at that location. The grantee may prepare the EA or contract for the preparation of all or parts of the EA. In order to adequately assess all of the potential environmental impacts, a multi-disciplinary team must be used to perform the environmental analysis. Any state or local environmental impact review requirements should also be incorporated into the EA process. The amount of analysis and detail provided must be commensurate with the magnitude of the expected impact. At a minimum, an EA should include a brief discussion of the need for the proposal, the alternatives considered, the environmental impacts of the proposed action and alternatives considered, and a list of agencies and persons consulted. VOI/TIS grant funds may be used to pay the costs of preparing the environmental assessment.

(d) OJP's Review of the Draft EA. The Office of Justice Programs will review the EA for the following:

(1) Has the need for the proposed action been established?

(2) Have the relevant areas of environmental concern been identified?

(3) Have other agencies with an interest been consulted?

(4) Has the grantee provided opportunities for public involvement?

(5) Have reasonable alternatives and mitigation measures been considered and implemented where possible, including the costs and resources to operate the facility?

(6) Has a convincing case been made that the project as presently conceived will have only insignificant impacts on each of the identified areas of environmental concern?

(7) Has the grantee adequately documented compliance with other related federal environmental laws and regulations as well as similar state and local environmental impact review requirements.

(e) Draft Finding of No Significant Impact (FONSI) or determination that EIS is required. If the EA satisfies all the factors in OJP's seven-part review set forth in the previous paragraph, OJP will issue a draft FONSI. If OJP's review of the EA results in a response of “no” to any of the questions, except question 6, then the EA is incomplete and will be returned for further work. If the only “no” is in response to question 6, then OJP will issue a determination requiring an EIS for that particular project at that site. Given the cost and time required to complete an EIS, the grantee may wish to explore another alternative site at this point.

(f) Circulate EA and draft FONSI for public comment. The grantee must provide public notice of availability of a Finding of No Significant Impact. The notice must be timed so that interested agencies and the public have 30 days for review and comment on the draft EA.

(g) Review comments and modify plans, as appropriate. The grantee must review any public or agency comments received as a result of review of the EA and draft FONSI, and should modify its plans, if appropriate. Modification may include modifying the project to mitigate the environmental impact of the proposed project, or abandoning the proposed site and selecting an alternative that will have a less significant impact on the environment. The grantee must submit the comments, responses to these comments, and any revisions to the proposed plan to OJP for review. If the grantee recommends proceeding with the project in light of adverse comments on the environmental impact, the grantee must include the rationale for its recommendation.

(h) Final action on EA. Unless a significant environmental impact surfaces through the public comments or other means, OJP will issue the FONSI and authorize the grantee to begin the purchase of land, the bidding process, the development of final plans and specifications, and the construction work.

§ 91.63 Preparing an Environmental Impact Statement

(a) Initial determination. OJP will determine whether a proposed project may have a significant impact on the quality of the human environment, thereby requiring the preparation of an environmental impact statement (EIS). This determination will be made either:

(1) On the basis of an environmental assessment (EA) prepared for the proposed project or

(2) Without the preparation of an EA, but based on the extensive size of the proposed facility and the resulting variety of environmental impacts, the sensitive environmental nature of the proposed site, and/or the existence of highly controversial environmental impacts.

(b) CEQ regulations. The CEQ regulations in 40 CFR parts 1500 through 1508 govern the preparation of the EIS. The Corrections Program Office's Handbook on Environmental Protection Requirements offers further guidance.

(c) EIS preparation team. (1) Once OJP determines that an EIS is needed, the grantee shall notify OJP in writing about the contracting method that the grantee will use to complete the EIS. The grantee shall establish an EIS preparation team or entity that meets the requirements for an interdisciplinary approach. The team must not have any interest, financial or otherwise, in the outcome of the proposed projected or any related projects.

(2) If the grantee decides to use an alternate method to contracting out for preparation of the EIS (such as using a team of experts from various state agencies or a university), the grantee must submit a written proposal to OJP demonstrating that the team has the necessary interdisciplinary skills and experience in preparing EISs for similar projects. The proposal must include a completion schedule demonstrating that the alternate method will not result in significant delay. The proposal must also document that all members of the team, other than the grantee's employees, do not have any interest, financial or otherwise, in the outcome of the proposed project or any related projects.

(3) The grantee must use an OJP-approved statement of work (SOW) in conducting the EIS.

(4) Any consultant or contractor hired by OJP or the grantee to prepare an EIS must execute a disclosure statement specifying that it has no financial or other interest in the outcome of the project or any related projects.

(d) Notice of intent. OJP will publish a notice in the Federal Register to announce its intent to prepare the EIS. The grantee shall be responsible for drafting this notice. This notice must state the date, time and place of the scoping meeting and briefly describe the purpose of the meeting. The grantee should schedule the meeting at least 30 days from the date that the grantee submits the draft Federal Register notice to OJP.

(e) Scoping. The scoping process shall be conducted in accordance with 40 CFR 1501.7 of the CEQ regulations. The purpose of scoping is to identify and consult with affected federal, state and local agencies, Indian tribes, interested organizations and persons, including minority and low-income populations. The grantee and OPD shall conduct two distinct scoping meetings to assist in identifying both major and less important issues for the draft EIS. At the end of the scoping process, a brief report will be prepared summarizing the results, listing the participants, and attaching the meeting minutes.

(f) Draft EIS. The grantee and OJP will prepare the draft EIS in accordance with the requirements of the CEQ regulations in 40 CFR parts 1500 through 1508. The draft EIS must represent the best analysis reasonably possible. The grantee must submit the draft EIS to OJP and any cooperating agencies for internal review and comment. The revised draft must be submitted to OJP and any cooperating agency for approval.

(g) Public comment. The grantee, with OJP approval, must establish a distribution list and must mail the draft EIS to those parties. OJP will then submit the approved draft EIS to the Environmental Protection Agency (EPA) and will request EPA to publish a notice of the availability of the draft in the Federal Register. The grantee must publish a similar notice in a newspaper of general circulation in the area of the proposed action. Additionally, the grantee and OJP shall conduct a public information meeting to answer questions and receive comments on the draft EIS.

(h) Final EIS. The grantee and OJP will prepare the final EIS, including a copy of all comments on the draft and a summary of the public information meeting. The grantee shall submit the final EIS to OJP and any cooperating agencies for internal review. The grantee and OJP will circulate the final EIS to all parties on the distribution list, to any agency or person that requests a copy, and to EPA for publication in the Federal Register. The grantee must also announce the availability of the final EIS locally.

(i) Record of decision. When the waiting period for circulation of the final EIS expires, OJP shall prepare the record of decision in accordance with 40 CFR 1505.2 of the CEQ regulations and in consultation with the grantee. This record of decision shall determine the allowable uses of the grantee's VOI/TIS fund with respect to the proposed action or its alternatives.

(j) Final action on EIS. In proceeding with the proposed action, the grantee must implement any mitigation measures or other conditions established in the Record of Decision. As part of any mitigation, the grantee must report back to OJP on the status of implementing the mitigation.

§ 91.64 Supplemental EA or EIS.

(a) OJP's duty to supplement. OJP shall prepare supplements to either completed environmental assessments or draft or final environmental impact statements if the grantee proposes to make substantial changes in the proposed action that are relevant to previously assessed environmental concerns; or there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. Additionally, OJP shall include the supplement in its formal administrative record.

(b) Grantee's duty to supplement. A grantee has a duty to inform OJP if it plans to make substantial changes in the proposed action that are relevant to environmental concerns; or if it learns of significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

§ 91.65 Responsible OJP officials.

(a) Corrections Program Office Director. The Director of the Corrections Program Office is primarily responsible for ensuring the completion of these procedures and for working with grantees to ensure that grantees and subgrantees meet their responsibilities under this subpart. The Director also has the authority to execute on behalf of OJP all FONSIs required under this subpart.

(b) Assistant Attorney General. The Assistant Attorney General of OJP is responsible for executing all records of decisions resulting from the completion of environmental impact statements on projects subject to this subpart.

§ 91.66 Public participation.

Environmental impact documents are public documents and the public should be provided an opportunity to review and comment on them.

(a) Early project planning stages. During the early planning stages of a project, the grantee should make reasonable efforts to meet with the affected public and other interested parties in order to obtain their views and any concerns regarding the potential environmental impacts of the proposed project.

(b) Environmental assessment process—(1) Newspaper notice. At a minimum, the grantee must provide public notice of the availability of the draft EA and draft Finding of No Significant Impact (FONSI) for review and comment. The grantee must publish this notice in the non-legal section of at least two consecutive editions of the newspaper of general circulation in the affected community or area. The notice must:

(i) Explain how and where a copy of the assessment can be accessed or obtained for review;

(ii) Include a request for comments; and

(iii) Provide at least a thirty-day comment period that begins from the date of the last published notice.

(2) Post Office notice. If the project area is not served by a regularly published local or area-wide newspaper, the notice described in paragraph (b)(1) of this section must be prominently displayed at the local post office.

(3) Site notice. The grantee must send a copy of the notice to owners and occupants of properties that are nearby or directly affected by the proposed project. Additionally, the grantee must place or post the notice on the site of the proposed project.

(4) Distribution of the draft EA. At the same time that the grantee provides the public notice of the availability of the EA for review and comment, the grantee must mail a copy of the draft EA and FONSI to any individuals and groups that have expressed an interest in the planned project to either the grantee or OJP and also to appropriate local, state, and Federal agencies. OJP will advise the grantee of the identities of any parties who have directly requested project information from OJP.

(5) Public information meeting. A public information meeting is not required for each environmental assessment. Rather, OJP will decide if a public meeting would be helpful in those cases in which the public comments either reflect a serious misunderstanding of the proposed project and its potential environmental impacts or raise substantial questions or issues concerning the content of the draft EA. If OJP determines that a meeting is necessary, the grantee must schedule and hold a public meeting. An OJP representative will attend.

(c) EIS process—(1) Scoping meeting. As one of the first steps in the preparation of a draft EIS, OJP and the grantee will sponsor a public meeting in the area(s) that would be affected by the proposed project and the alternative sites under consideration. This meeting is referred to as a scoping meeting and is intended to identify the proposed project's environmental impacts that are:

(i) Of most concern to the affected public and local, state, and federal agencies and

(ii) Of least concern to the affected public and agencies.

(2) Review and comment process for draft EIS. OJP's procedures require the grantee to obtain the public's comments on the draft EIS by:

(i) Publishing a notice of availability of the draft EIS in the newspaper(s) serving the area(s) that would be impacted by the proposed project and the alternatives sites;

(ii) Distributing copies of the draft EIS to all interested agencies, organizations, and individuals for their review and comment;

(iii) Holding near the site of the proposed project a public information meeting in order to obtain the comments of the attendees; and

(iv) Allowing, at a minimum, a forty-five day review and comment period for the draft EIS. Grantees should refer to OJP's Guidance Handbook for further information on how to conduct these public review and comment procedures.

(3) Distribution of final EIS. Any interested person or group can request a copy of the final EIS and will be provided a copy.

§ 91.67 State Environmental Policy Acts.

(a) Coordination. OJP will coordinate with grantees to ensure that any state, local, or tribal environmental impact review requirements similar to the Federal NEPA procedures will be met concurrently, to the extent possible, through requesting the appropriate non-federal agency(ies) to be a joint lead agency(ies). This effort would involve joint analyses, public involvement and documentation. Grantees are responsible for identifying the application of and informing OJP of these state and local requirements.

(b) Completed analysis. For projects that had state or local environmental impact analysis completed prior the implementation of these procedures, OJP will review the documents prepared to meet the state and local requirements. In order to minimize any duplication of analysis, OJP will advise the State on whether additional environmental impact review is required.

§ 91.68 Compliance with other Federal environmental statutes, regulations and executive orders.

(a) Other Federal environmental laws. All projects initiated by State or local units of government with VOI/TIS grant funding are also subject, where applicable, to the environmental impact analysis requirements of the following statutes, their implementing regulations, and the relevant executive orders:

(1) Archeological and Historical Preservation Act,

(2) Coastal Zone Management Act,

(3) Coastal Barrier Resources Act,

(4) Clean Air Act,

(5) Safe Drinking Water Act,

(6) Federal Water Pollution Control Act,

(7) Endangered Species Act,

(8) Wild and Scenic Rivers Act,

(9) National Historic Preservation Act,

(10) Wilderness Act,

(11) Farmland Protection Policy Act,

(12) Flood Disaster Protection Act

(13) Executive Order on Floodplain Management,

(14) Executive Order on Wetland Protection,

(15) Executive Order on Environmental Justice, and

(16) Executive Order on Protection and Enhancement of the Cultural Environment.

(b) Combined requirements. Documenting compliance with the environmental requirements in paragraph (a) of this section does not normally require separate documents or separate processes. Rather, documenting compliance with all of these requirements is generally accomplished by incorporating them into the NEPA documents. For example, one category of environmental impacts that must be addressed in a NEPA analysis is potential impacts to historic properties. The National Historic Preservation Act, as well as the Advisory Council on Historic Preservation's regulations at 36 CFR part 800, also contain Federal requirements for addressing the impacts on historic properties from Federal actions. In order to avoid duplicate compliance procedures, the NEPA document traditionally becomes the process for meeting the requirements of both laws.

§ 92.1 Scope.

This subpart sets forth guidance on the eligibility for and selection to participate in the Police Corps. The Police Corps offers scholarships and educational expense reimbursements to individuals who agree to serve as a State or local police officer or sheriff's deputy for four years. In addition, Police Corps participants receive sixteen weeks of training in basic law enforcement, including vigorous physical and mental training to teach self-discipline and organizational loyalty and to impart knowledge and understanding of legal processes and law enforcement.

§ 92.2 Am I eligible to apply to participate in the Police Corps?

(a) You should consider applying to the Police Corps if you are seeking an undergraduate or graduate degree, and are willing to commit to four years of service as a member of a State or local police force. To be eligible to participate in a State Police Corps program, an individual also must:

(1) Be a citizen of the United States or an alien lawfully admitted for permanent residence in the United States as of the date of application;

(2) Meet the requirements for admission as a trainee of the State or local police force to which the participant will be assigned if selected, including achievement of satisfactory scores on any applicable examination, except that failure to meet the age requirement for a trainee of the State or local police force shall not disqualify the applicant if the applicant will be of sufficient age upon completing an undergraduate course of study;

(3) Possess the necessary mental and physical characteristics to discharge effectively the duties of a law enforcement officer;

(4) Be of good character and demonstrate sincere motivation and dedication to law enforcement and public service;

(5) In the case of an undergraduate, agree in writing that the participant will complete an educational course of study leading to the award of a baccalaureate degree and will then accept an appointment and complete four years of service as an officer in the State police or in a local police department within the State;

(6) In the case of a participant desiring to undertake or continue graduate study, agree in writing that the participant will accept an appointment and complete 4 years of service as an officer in the State police or in a local police department within the State before undertaking or continuing graduate study;

(7) Contract, with the consent of the participant's parent or guardian if the participant is a minor, to serve four years as an officer in the State police or in a local police department, if an appointment is offered; and

(8) Except as provided in paragraph (a)(8)(i) of this section, be without previous law enforcement experience.

(i) Until September 13, 1999, up to ten percent of the applicants accepted into the State Police Corps program may be persons who have had some law enforcement experience and/or have demonstrated special leadership potential and dedication to law enforcement.

(b) According to the Debt Collection Procedures Act (Pub. L. 101-647 as amended), 28 U.S.C. 3201, persons who have incurred a court judgment in favor of the United States creating a lien against their property arising from a civil or criminal proceeding regarding a debt are precluded from receiving Federal funds (including Police Corps funds) until the judgment lien has been paid in full or otherwise satisfied.

(c) Educational assistance under the Police Corps Act for any course of study also is available to a dependent child of a law enforcement officer:

(1) Who is a member of a State or local police force or is a Federal criminal investigator or uniformed police officer;

(2) Who is not a participant in the Police Corps program, but

(3) Who serves in a State for which the Director has approved a Police Corps plan, and

(4) Who is killed in the course of performing policing duties.

(i) For purposes of this assistance, a dependent child means a natural or adopted child or stepchild of a law enforcement officer who at the time of the officer's death was no more than 21 years old or, if older than 21 years, was in fact dependent on the child's parents for at least one-half of the child's support (excluding educational expenses), as determined by the Director based on a review of any available documentation.

(ii) The educational assistance available under this subsection is subject to the same dollar limitations set forth in § 92.4, but carries no police service obligation, repayment contingencies, or requirement for approval of a course of study.

§ 92.3 How and when should I apply to participate in the Police Corps?

(a) The application and selection process occurs at the State level. An applicant may apply to participate in more than one State Police Corps program, provided that the applicant is prepared to commit to serve as a law enforcement officer in the State to which application is made. Application forms should be obtained from the State Police Corps agencies.

(b) Applicants may seek admission to the Police Corps either before commencement of or during the applicant's course of undergraduate or graduate study. However, acceptance into the Police Corps will be conditioned on matriculation in or acceptance for admission at a four-year institution of higher education. Specific application deadlines will be established by State Police Corps agencies.

§ 92.4 How will participants be selected from applicants?

(a) Applicants should be selected competitively based upon selection criteria developed by the State Police Corps agency pursuant to this subsection. Appropriate application materials should be developed by the State Police Corps agency to obtain the information reasonably needed to make selection and assignment decisions and to provide required information to the Director.

(b) The State Police Corps agency should develop selection criteria in consultation with local law enforcement officials, representatives of police labor organizations and police management organizations, and other appropriate State and local agencies. Selection criteria should seek to attract highly qualified individuals with backgrounds and characteristics likely to assure effective participation in the Police Corps. Criteria should include consideration of factors bearing on the statutory eligibility requirements set forth in § 92.1, and may include (without limitation) consideration of:

(1) Scholastic record;

(2) Work experience;

(3) Extracurricular and/or community involvement;

(4) Letters of recommendation;

(5) Demonstrated interest in policing as a career.

(c) After selection, the State Police Corps agency will forward to the Director, Office of the Police Corps and Law Enforcement Education a list of persons selected for admission to the Police Corps. With respect to each person, the list should set forth:

(1) Name;

(2) Address;

(3) Social security number;

(4) Name and location of law enforcement agency to which the person has been assigned;

(5) Educational institution in which the person is enrolled or has been accepted for admission, and course of study;

(6) Date on which the person is expected to commence his/her service;

(7) Certification that the person has been found to meet the statutory selection criteria at 42 U.S.C. § 14096;

(8) A Police Corps Agreement signed by the applicant; and

(9) An itemization of the educational expenses that the person is eligible to receive through scholarship and/or reimbursement.

(i) With respect to individuals identified to receive educational assistance under § 92.2(c), the list should contain the information in paragraphs (c) (1), (2), (3), (5) and (9) of this section.

(ii) With respect to the list in the aggregate, a summary of the racial and gender distribution of the individuals.

(d) After selection, the State Policy Corps agency should notify applicants of their selection, their agency assignment, and their assignment to a training class. However, admission to the Police Corps is not final until the Police Corps Agreement has been signed both by the applicant and the Director.

§ 92.5 What educational expenses does the Police Corps cover, and how will they be paid?

(a) Educational expenses are paid either in the form of a scholarship or a reimbursement. Scholarships will be paid where Police Corps participants are currently enrolled in an approved course of study in an institution of higher education. Reimbursements will be paid to participants for educational expenses incurred prior to admission to the Police Corps. In certain circumstances, a Police Corps participant may receive a reimbursement for past expenses and a scholarship for current expenses.

(b) Requests for payment of educational expenses by a Police Corps participant should be submitted to the Director through the State Police Corps agency.

(1) Educational expenses are expenses that are directly attributable to a course of education leading to the award of either a baccalaureate or graduate degree, and may include:

(i) Tuition, in an amount billed by the institution of higher education;

(ii) Fees, in an amount billed by the institution of higher education;

(iii) Cost of books required to be purchased pursuant to the curriculum in which the candidate is enrolled;

(iv) Cost of transportation from the candidate's home to school, calculated at actual cost or the current prevailing rate for mileage reimbursement for federal travel;

(v) Cost of room and board;

(vi) Miscellaneous expenses not to exceed $250 per academic semester.

(2) A participant receiving a scholarship may submit payment requests prior to the commencement of each subsequent academic year in which he/she is enrolled in an institution of higher education.

(3) For participants currently enrolled in an institution of higher education, each payment request must be accompanied by:

(i) A certification from the institution that the participant is maintaining satisfactory academic progress;

(ii) A certification by or on behalf of the State or local police force to which the participant will be assigned that the participant's course of study includes appropriate preparation for police service.

(4) The maximum Police Corps payment per participant per academic year, whether in the form of scholarship or reimbursement, is $7,500. In the case of a participant who is pursuing a course of educational study during substantially an entire calendar year, the maximum payment will be $10,000 per such calendar year.

(5) The total of all Police Corps scholarship or reimbursement payments to any one participant shall not exceed $30,000.

(6) Police Corps scholarship payments will be made directly to the institution of higher education that the student is attending. Each institution of higher education receiving a Police Corps scholarship payment shall remit to such student any funds in excess of the costs of tuition, fees, and room and board payable to the institution.

(7) Reimbursements for past expenses will be made directly to the Police Corps participant. One half of the reimbursement will be paid after the participant is sworn in and starts the first year of required service. The remainder will be paid upon successful completion of the first year of required service. The Director may, upon a showing of good cause, advance the date of the first reimbursement payment to an individual participant.

[61 FR 49972, Sept. 24, 1996, as amended at 64 FR 33018, June 21, 1999]

§ 92.6 What colleges or universities can I attend under the Police Corps?

(a) The choice of institution is up to the participant, as long as the institution meets the definition of an “institution of higher deduction.” As defined in 20 U.S.C. 1141(a), an “institution of higher education” means an educational institution in any State which:

(1) Admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate,

(2) Is legally authorized within such State to provide a program of education beyond secondary education,

(3) Provides an educational program for which it awards a bachelor's degree or provides not less than a two-year program which is acceptable for full credit toward such a degree,

(4) Is a public or other nonprofit institution, and

(5) Is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary (of Education) for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

(b) Such term also includes any school which provides not less than a one-year program of training to prepare students for gainful employment in a recognized occupation and which meets the provisions of paragraphs (a) (1), (2), (4), and (5) of this section. Such term also includes a public or nonprofit educational institution in any State which, in lieu of the requirement in paragraph (a)(1) of this section, admits as regular students persons who are beyond the age of compulsory school attendance in the State in which the institution is located.

(c) A Police Corps scholarship only may be used to attend a four-year institution of higher education, except that:

(1) A scholarship may be used for graduate and professional study; and

(2) If a participant has enrolled in the Police Corps upon or after transfer to a four-year institution of higher education, the Director may reimburse the participant for prior educational expenses.

§ 92.7 Scope.

(a) The Police Recruitment program offers funds to qualified community organizations to assist in meeting the costs of programs which are designed to recruit and train police applicants from a variety of neighborhoods and localities.

(b) Individual participants encountering problems throughout the police department application process shall receive counseling, tutorials, and other academic assistance as necessary to assist them in the application process of a police department.

(c) Program goals should include increasing the retention in the hiring process for police applicants participating in the program.

(d) Programs funded under the Police Recruitment program will have a one-year grant period, with allowances for two additional years of no-cost extensions.

§ 92.8 Providing recruitment services.

The non-profit community organizations that wish to receive a grant under this program should provide for an overall program design with the objective of recruiting and retaining applicants from a variety of populations to a police department. The recruitment strategies employed may include:

(a) A process for recruiting applicants for employment by a police department. These processes should include working in cooperation with a local law enforcement department to develop selection criteria for the participants. The selection criteria may include, but are not limited to:

(1) Demonstrated interest in policing as a career;

(2) Scholastic record (except that failure to meet the satisfactory academic scores shall not disqualify the applicant since the program is designed to provide tutorial service so to help applicant pass the required examinations);

(3) Background screening;

(4) Work experience;

(5) Letters of recommendation.

(b) The recruitment services must ensure that applicants possess the necessary mental and physical capabilities and emotional characteristics to be an effective law enforcement officer.

§ 92.9 Publicizing the Police Recruitment Program.

Participating organizations should have experience in or an ability to develop procedures to publicize the availability of like programs. These programs should be widely publicized throughout the affected geographic area. The methods for publicizing the Police Recruitment programs may include, but are not limited to:

(a) Sending press releases to community bulletins, college and local newspapers, and television stations, as well as public service announcements to local and college radio stations;

(b) Sending information to and/or making presentations at:

(1) Local community colleges;

(2) Colleges and universities serving populations in the geographic area of the program;

(3) Local nonprofit groups;

(4) Academic counseling departments within public and private nonprofit colleges and universities;

(5) Academic counseling departments within public and private nonprofit high schools;

(6) High school and college student associations;

(7) Local religious groups;

(8) Local social services agencies.

(c) Disseminating press releases and/or translated materials to non-English language newspapers and magazines; and

(d) Maintaining toll-free or other easy-access telephone numbers for obtaining application materials.

§ 92.10 Providing tutorials and other academic assistance programs.

(a) The program designed by the community organization must include academic counseling, tutorials and other academic assistance programs to enable individuals to meet police force academic requirements, pass entrance examinations, and meet other requirements. The program should include:

(1) Processes for evaluating educational assistance needs of young adults and adults. These processes should include, but are not limited to: screening procedures and testing batteries to assess individual needs;

(2) Tutorial programs designed to meet the specific and varied academic needs of individual applicants; and

(3) Academic and guidance counseling for adults. Specific counseling programs must be designed for individuals who encounter problems with passing the entrance examinations, and may include specialized counseling in self discipline, study habits, taking written and oral exams, and physical fitness.

(b) These tutorial and academic assistance programs must be provided by individuals or groups that have experience in developing and providing tutorial programs for young adults and adults.

(c) The program provider must also have experience in providing counseling for participants who encounter other problems with the police department application process.

§ 92.11 Content of the recruitment and retention programs.

Applicants must describe in detail the intended program strategies for providing academic and guidance counseling activities for members of the community, as described in §§ 92.2 through 92.4. A review of mandatory topics to be addressed in a detailed concept paper/application to be provided by all applicants follows.

(a) Applicants must address program strategies for responding to program and applicant needs throughout the recruitment process. The process should be based on an examination and understanding of the needs of the population in meeting the qualification requirements of the police department. The project strategy should subsequently be tailored based on the understanding of the current and anticipated problems in meeting police department requirements.

(b) Applicants must describe the manner in which academic services and tutorials, and guidance counseling programs that would assist applicants to pass the entrance examination and related tests will be provided. This should also include the anticipated length of the academic and guidance counseling programs, qualifications of the counselors, and the content of the counseling programs.

(c) Applicants must provide retention services to assist in keeping individuals in the application process of a police department. These may include:

(1) Counseling programs aimed at meeting the needs of potential police applicants before they are eligible to apply for a sworn position;

(2) Pre-police employment programs, such as junior police cadet programs, reserve programs, and police volunteer activities and

(3) Mentoring activities utilizing sworn officers.

(d) Applicants must estimate the number of police applicants to be served by the prospective program, along with an estimation of the total number of potential or actual applicants who will be successfully hired and eventually deployed as police officers.

§ 92.12 Program funding length.

Funding for these programs will be for one year only, but will allow for two additional years of no-cost extension.

§ 92.13 Program eligibility.

(a) Eligible organizations for the Police Recruitment program grant are certified nonprofit organizations that have training and/or experience in:

(1) Working with a police department and with teachers, counselors, and similar personnel;

(2) Providing services to the community in which the organization is located;

(3) Developing and managing services and techniques to recruit and train individuals, and in assisting such individuals in meeting requisite standards and provisions;

(4) Developing and managing services and techniques to assist in the retention of applicants to like programs; and

(5) Developing other programs that contribute to the community.

(b) A program is qualified to receive a grant if:

(1) The overall design of the program is to recruit and retain applicants to a police department;

(2) The program provides recruiting services that include tutorial programs to enable individuals to meet police force academic requirements and to pass entrance examinations;

(3) The program provides counseling to applicants to police departments who may encounter problems throughout the application process; and

(4) The program provides retention services to assist in retaining individuals to stay in the application process of the police department.

(c) To qualify for funding under the Police Recruitment program, the intended activities must support the recruitment services, tutorial and other academic assistance programs, and retention services for individuals. The qualified non-profit organization must submit an application which identifies the law enforcement department with which it will work and includes documentation showing:

(1) The need for the grant;

(2) The intended use of the funds;

(3) Expected results from the use of grant funds;

(4) Demographic characteristics of the population to be served, including age, disability, race, ethnicity, and languages used;

(5) Status as a non-profit organization; and

(6) Contains satisfactory assurances that the program for which the grant is made will meet the applicable requirements of the program guidelines prescribed in this document.

§ 93.1 Purpose.

This part sets forth requirements and procedures to ensure that grants to States, State courts, local courts, units of local government, and Indian tribal governments, acting directly or through agreements with other public or private entities, exclude violent offenders from participation in programs authorized and funded under this part.

§ 93.2 Statutory authority.

This program is authorized under the Violent Crime Control and Law Enforcement Act of 1994, Title V, Public Law 103-322, 108 Stat. 1796, (September 13, 1994), 42 U.S.C. 3796ii-3796ii-8.

§ 93.3 Definitions.

(a) State has the same meaning as set forth in section 901(a)(2) of the Omnibus Crime Control and Safe Streets Act of 1968, as amended.

(b) Unit of Local Government has the same meaning as set forth in section 901(a)(3) of the Omnibus Crime Control and Safe Streets Act of 1968, as amended.

(c) Assistant Attorney General means the Assistant Attorney General for the Office of Justice Programs.

(d) Violent offender means a person who either—

(1) Is currently charged with or convicted of an offense during the course of which:

(i) The person carried, possessed, or used a firearm or other dangerous weapon; or

(ii) There occurred the use of force against the person of another; or

(iii) There occurred the death of, or serious bodily injury to, any person; without regard to whether proof of any of the elements described herein is required to convict; or

(2) Has previously been convicted of a felony crime of violence involving the use or attempted use of force against a person with the intent to cause death or serious bodily harm.

§ 93.4 Grant authority.

(a) The Assistant Attorney General may make grants to States, State courts, local courts, units of local government, and Indian tribal governments, acting directly or through agreements with other public or private entities, for programs that involve:

(1) Continuing judicial supervision over offenders with substance abuse problems who are not violent offenders, and

(2) The integrated administration of other sanctions and services, which shall include—

(i) Mandatory periodic testing for the use of controlled substances or other addictive substances during any period of supervised release or probation for each participant;

(ii) Substance abuse treatment for each participant;

(iii) Diversion, probation, or other supervised release involving the possibility of prosecution, confinement, or incarceration based on noncompliance with program requirements or failure to show satisfactory progress; and

(iv) Programmatic, offender management, and aftercare services such as relapse prevention, health care, education, vocational training, job placement, housing placement, and child care or other family support services for each participant who requires such services.

(b) Applications for grants under this program shall be made at such times and in such form as may be specified in guidelines or notices published by the Assistant Attorney General. Applications will be evaluated according to the statutory requirements of the Act and the programmatic goals specified in the applicable guidelines. Grantees must comply with all statutory and program requirements applicable to grants under this program.

(c) The funds provided under this part shall be administered in compliance with the standards set forth in part 38 (Equal Treatment for Faith-based Organizations) of this chapter.

[60 FR 32105, June 20, 1995, as amended by Order No. 2703-2004, 69 FR 2841, Jan. 21, 2004]

§ 93.5 Exclusion of violent offenders.

(a) The Assistant Attorney General will ensure that grants to States, State courts, local courts, units of local government, and Indian tribal governments, acting directly or through agreements with other public or private entities, exclude violent offenders from programs authorized and funded under this part.

(b) No recipient of a grant made under the authority of this part shall permit a violent offender to participate in any program receiving funding pursuant to this part.

(c) Applicants must certify as part of the application process that violent offenders will not participate in programs authorized and funded under this part. The required certification shall be in such form and contain such assurances as the Assistant Attorney General may require to carry out the requirements of this part.

(d) If the Assistant Attorney General determines that one or more violent offenders are participating in a program receiving funding under this part, such funding shall be promptly suspended, pending the termination of participation by those persons deemed ineligible to participate under the regulations in this part.

(e) The Assistant Attorney General may carry out or make arrangements for evaluations and request information from programs that receive support under this part to ensure that violent offenders are excluded from participating in programs hereunder.

§ 94.11 Purpose; construction and severability.

(a) The purpose of this subpart is to implement the provisions of VOCA, Title II, Sec. 1404C (34 U.S.C. 20106), which authorize the Director (Director), Office for Victims of Crime (OVC), a component of the Office of Justice Programs (OJP), to establish a program to reimburse eligible victims of acts of international terrorism that occur outside the United States, for expenses associated with that victimization.

(b) Any provision of this part held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable from this part and shall not affect the remainder thereof or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances.

[71 FR 52451, Sept. 6, 2006, as amended at 88 FR 3656, Jan. 20, 2023]

§ 94.12 Definitions.

The following definitions shall apply to this subpart:

(a) Child means any biological or legally-adopted child, or any stepchild, of a deceased victim, who, at the time of the victim's death, is—

(1) Younger than 18 years of age; or

(2) Over 18 years of age and a student, as defined in 5 U.S.C. 8101.

(b) Claimant means a victim, or his representative, who is authorized to sign and submit an application, and receive payment for reimbursement, if appropriate.

(c) Collateral sources means sources that provide reimbursement for specific expenses compensated under this subpart, including property, health, disability, or other insurance for specific expenses; Medicare or Medicaid; workers' compensation programs; military or veterans' benefits of a compensatory nature; vocational rehabilitation benefits; restitution; and other state, Federal, foreign, and international compensation programs: except that any reimbursement received under this subpart shall be reduced by the amount of any lump sum payment whatsoever, received from, or in respect of the United States or a foreign government, unless the claimant can show that such payment was for a category of expenses not covered under this subpart. To the extent that a claimant has an unsatisfied judgment against a foreign government based on the same act of terrorism, the value of that unsatisfied judgment shall be counted as a lump sum payment for expenses covered under this subpart, unless the claimant agrees to waive his right to sue the United States government for satisfaction of that judgment.

(d) Deceased means individuals who are dead, or are missing and presumed dead.

(e) Dependent has the meaning given in 26 U.S.C. 152. If the victim was not required by law to file a U.S. Federal income tax return for the year prior to the act of international terrorism, an individual shall be deemed to be a victim's dependent if he was reliant on the income of the victim for over half of his support in that year.

(f) Employee of the United States Government means any person who—

(1) Is an employee of the United States government under Federal law; or

(2) Receives a salary or compensation of any kind from the United States Government for personal services directly rendered to the United States, similar to those of an individual in the United States Civil Service, or is a contractor of the United States Government (or an employee of such contractor) rendering such personal services.

(g) Funeral and burial means those activities involved in the disposition of the remains of a deceased victim, including preparation of the body and body tissue, refrigeration, transportation, cremation, procurement of a final resting place, urns, markers, flowers and ornamentation, costs related to memorial services, and other reasonably-associated activities, including travel for not more than two family members.

(h) Incapacitated means substantially impaired by mental illness or deficiency, or by physical illness or disability, to the extent that personal decision-making is impossible.

(i) Incompetent means unable to care for oneself because of mental illness or disability, mental retardation, or dementia.

(j) International terrorism has the meaning given in 18 U.S.C. 2331. As of the date of these regulations, the statute defines the term to mean “activities that—

(1) Involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;

(2) Appear to be intended—

(i) To intimidate or coerce a civilian population;

(ii) To influence the policy of a government by intimidation or coercion; or

(iii) To affect the conduct of a government by mass destruction, assassination, or kidnaping; and

(3) Occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.”

(k) Legal guardian means legal guardian, as the term is defined under the laws of the jurisdiction of which the ward is or was a legal resident, except that if the ward is or was a national of the United States, the legal guardianship must be pursuant to an order of a court of competent jurisdiction of or within the United States.

(l) Medical expenses means costs associated with the treatment, cure, or mitigation of a disease, injury, or mental or emotional condition that is the result of an act of international terrorism. Allowable medical expenses include reimbursement for eyeglasses or other corrective lenses, dental services, rehabilitation costs, prosthetic or other medical devices, prescription medication, and other services rendered in accordance with a method of healing recognized by the jurisdiction in which the medical care is administered.

(m) Mental health care means mental health care provided by an individual who meets professional standards to provide these services in the jurisdiction in which the care is administered.

(n) National of the United States has the meaning given in section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)). As of the date of these regulations, the statute defines the term to mean “(A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.”

(o) Officer of the United States government has the meaning given in 5 U.S.C. 2104.

(p) Outside the United States means outside any state of the United States, the District of Columbia, the U.S. Virgin Islands, the Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other possession or territory of the United States.

(q) Parent means a biological or legally-adoptive parent, or a step-parent, unless his parental rights have been terminated in the jurisdiction where the child is or was a legal resident, except that if the child or either parent is a national of the United States, the termination must be pursuant to an order of a court of competent jurisdiction of or within the United States.

(r) Property loss refers to items of personal property (other than medical devices, which are included in the category of “medical expenses”) that are lost, destroyed, or held as evidence.

(s) Rehabilitation costs includes reasonable costs for the following: physiotherapy; occupational therapy; counseling, and workplace, vehicle, and home modifications.

(t) Representative means a family member or legal guardian authorized to file a claim on behalf of a victim who is younger than 18 years of age, incompetent, incapacitated, or deceased, except that no individual who was criminally culpable for the act of international terrorism shall be considered a representative. In the event that no family member or legal guardian is available to file a claim for an interim emergency payment on behalf of a victim, under § 94.41, a U.S. consular officer or U.S. embassy official within the country may act as a representative, consistent with any limitation on his authority contained in 22 CFR 92.81(b).

(u) Victim has the meaning given in 34 U.S.C. 20106(a)(3)(A), it being understood that the term “person” in that section means the following:

(1) (i) An individual who was present during the act of terrorism;

(ii) An individual who was present during the immediate aftermath of the act of terrorism; or

(iii) An emergency responder who assisted in efforts to search for and recover other victims; and

(2) The spouse, children, parents, and siblings of a victim described in paragraph (u)(1) of this Section, and other persons, at the discretion of the Director, shall be considered “victims”, when the person described in such paragraph—

(i) Dies as a result of the act of terrorism;

(ii) Is younger than 18 years of age (or is incompetent or incapacitated) at the time of the act of terrorism, or;

(iii) Is rendered incompetent or incapacitated as a result of the act of terrorism.

[71 FR 52451, Sept. 6, 2006, as amended at 88 FR 3656, Jan. 20, 2023]

§ 94.13 Terms.

The first three provisions of 1 U.S.C. 1 (rules of construction) shall apply to this subpart.

§ 94.21 Eligibility.

(a) Except as provided in paragraphs (b) and (c) of this section, reimbursement of qualified expenses under this subpart is available to a victim of international terrorism or his representative, pursuant to 34 U.S.C. 20106(a)(3)(A). For purposes of eligibility for this program only, the Attorney General shall determine whether there is a reasonable indication that an act was one of international terrorism, within the meaning of that section.

(b) Reimbursement shall be denied to any claimant if the Director, in consultation with appropriate Department of Justice (DOJ) officials, determines that there is a reasonable indication that either the victim with respect to whom the claim is made, or the claimant, was criminally culpable for the act of international terrorism.

(c) Reimbursement may be reduced or denied to a claimant if the Director, in consultation with appropriate DOJ officials, determines that the victim with respect to whom the claim is made contributed materially to his own death or injury by—

(1) Engaging in conduct that violates U.S. law or the law of the jurisdiction in which the act of international terrorism occurred;

(2) Acting as a mercenary or “soldier of fortune”;

(3) (As a non-U.S. Government employee), acting as an advisor, consultant, employee, or contractor, in a military or political capacity—

(i) For a rebel or paramilitary organization;

(ii) For a government not recognized by the United States; or

(iii) In a country in which an official travel warning issued by the U.S. Department of State related to armed conflict was in effect at the time of the act of international terrorism; or

(4) Engaging in grossly reckless conduct.

[71 FR 52451, Sept. 6, 2006, as amended at 88 FR 3656, Jan. 20, 2023]

§ 94.22 Categories of expenses.

The following categories of expenses, generally, may be reimbursed, with some limitations, as noted in § 94.23: medical care; mental health care; property loss; funeral and burial; and miscellaneous expenses (including temporary lodging, emergency travel, and transportation). Under this subpart, the Director shall not reimburse for attorneys' fees, lost wages, or non-economic losses (such as pain and suffering, loss of enjoyment of life, loss of consortium, etc.).

§ 94.23 Amount of reimbursement.

Different categories of expenses are capped, as set forth in the chart below. Those caps may be adjusted, from time to time, by rulemaking. The cap in effect within a particular expense category, at the time that the application is received, shall apply to the award.

§ 94.24 Determination of award.

After review of each application, the Director shall determine the eligibility of the victim or representative and the amount, if any, eligible for reimbursement, specifying the reasons for such determination and the findings of fact and conclusions of law supporting it. A copy of the determination shall be mailed to the claimant at his last known address.

§ 94.25 Collateral sources.

(a) The amount of expenses reimbursed to a claimant under this subpart shall be reduced by any amount that the claimant receives from a collateral source in connection with the same act of international terrorism. In cases in which a claimant receives reimbursement under this subpart for expenses that also will or may be reimbursed from another source, the claimant shall subrogate the United States to the claim for payment from the collateral source up to the amount for which the claimant was reimbursed under this subpart.

(b) Notwithstanding paragraph (a) of this section, when a collateral source provides supplemental reimbursement for a specific expense, beyond the maximum amount reimbursed for that expense under this subpart, the claimant's award under this subpart shall not be reduced by the amount paid by the collateral source, nor shall the claimant be required to subrogate the United States to the claim for payment from the collateral source, except that in no event shall the combined reimbursement under this subpart and any collateral source exceed the actual expense.

§ 94.31 Application procedures.

(a) To receive reimbursement, a claimant must submit a completed application under this program requesting payment based on an itemized list of expenses, and must submit original receipts.

(b) Notwithstanding paragraph (a) of this Section, in cases involving incidents of terrorism preceding the establishment of this program where claimants may not have original receipts, and in cases in which the claimant certifies that the receipts have been destroyed or lost, the Director may, in his discretion, accept an itemized list of expenses. In each such case, the claimant must certify that original receipts are unavailable and attest that the items and amounts submitted in the list are true and correct to the best of his knowledge. In the event that it is later determined that a fraudulent certification was made, the United States may take action to recover any payment made under this section, and pursue criminal prosecution, as appropriate.

§ 94.32 Application deadline.

For claims related to acts of international terrorism that occurred after October 6, 2006, the deadline to file an application is three years from the date of the act of international terrorism. For claims related to acts of international terrorism that occurred between December 21, 1988, and October 6, 2006, the deadline to file an application is October 6, 2009. At the discretion of the Director, the deadline for filing a claim may be tolled or extended upon a showing of good cause.

[76 FR 19910, Apr. 11, 2011]

§ 94.33 Investigation and analysis of claims.

The Director may seek an expert examination of claims submitted if he believes there is a reasonable basis for requesting additional evaluation. The claimant, in submitting an application for reimbursement, authorizes the Director to release information regarding claims or expenses listed in the application to an appropriate body for review. If the Director initiates an expert review, no identifying information for the victim or representative shall be released.

§ 94.41 Interim emergency payment.

Claimants may apply for an interim emergency payment, prior to a determination under § 94.21(a). If the Director determines that such payment is necessary to avoid or mitigate substantial hardship that may result from delaying reimbursement until complete and final consideration of an application, such payment may be made to cover immediate expenses such as those of medical care, funeral and burial, short-term lodging, and emergency transportation. The amount of an interim emergency payment shall be determined on a case-by-case basis, and shall be deducted from the final award amount.

§ 94.42 Repayment and waiver of repayment.

A victim or representative shall reimburse the program upon a determination by the Director that an interim emergency award or final award was: Made to an ineligible victim or claimant; based on fraudulent information; or an overpayment. Except in the case of ineligibility pursuant to a determination by the Director, in consultation with appropriate DOJ officials, under § 94.21(b), the Director may waive such repayment requirement in whole or in part, for good cause, upon request.

§ 94.51 Request for reconsideration.

A victim or representative may, within thirty (30) days after receipt of the determination under § 94.24, appeal the same to the Assistant Attorney General for the Office of Justice Programs, by submitting a written request for review. The Assistant Attorney General may conduct a review and make a determination based on the material submitted with the initial application, or may request additional documentation in order to conduct a more thorough review. In special circumstances, the Assistant Attorney General may determine that an oral hearing is warranted; in such cases, the hearing shall be held at a reasonable time and place.

§ 94.52 Final agency decision.

In cases that are not appealed under § 94.51, the Director's determination pursuant to § 94.24 shall be the final agency decision. In all cases that are appealed, the Assistant Attorney General shall issue a notice of final determination, which shall be the final agency decision, setting forth the findings of fact and conclusions of law supporting his determination.

§ 94.101 Purpose and scope; future guidance; construction and severability; compliance date.

(a) Purpose and scope. This subpart implements the provisions of VOCA, at 34 U.S.C. 20103, which, as of July 8, 2016, authorize the Director to make an annual grant to the chief executive of each State for the financial support of eligible crime victim assistance programs. VOCA sets out the statutory requirements governing these grants, and this subpart should be read in conjunction with it. Grants under this program also are subject to the government-wide grant rules in 2 CFR part 200, as implemented by the Department of Justice at 2 CFR part 2800, and the DOJ Grants Financial Guide.

(b) Future guidance. The Director may, pursuant to 34 U.S.C. 20110(a), prescribe guidance for grant recipients and sub-recipients under this program on the application of this subpart.

(c) Construction and severability. Any provision of this subpart held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable from this part and shall not affect the remainder thereof or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances.

(d) Compliance date. This subpart applies to all grants under this program made by OVC after August 8, 2016, except for funds that the SAA obligated before August 8, 2016 (i.e. pre-award funds under grants made in 2016). SAAs may permit the use of funds that are unobligated as of August 8, 2016 for activities permitted by this subpart, but not by the Guidelines.

[81 FR 44528, July 8, 2016, as amended at 88 FR 3656, Jan. 20, 2023]

§ 94.102 Definitions.

As used in this subpart:

Crime victim or victim of crime means a person who has suffered physical, sexual, financial, or emotional harm as a result of the commission of a crime.

Director means the Director of OVC.

Direct services or services to victims of crime means those services described in 34 U.S.C. 20103(d)(2), and efforts that—

(1) Respond to the emotional, psychological, or physical needs of crime victims;

(2) Assist victims to stabilize their lives after victimization;

(3) Assist victims to understand and participate in the criminal justice system; or

(4) Restore a measure of security and safety for the victim.

OVC means the Office for Victims of Crime, within the United States Department of Justice's Office of Justice Programs.

Project means the direct services project funded by a grant under this program, unless context indicates otherwise.

Spousal abuse includes domestic and intimate partner violence.

State Administering Agency or SAA is the governmental unit designated by the chief executive of a State to administer grant funds under this program.

Sub-recipient means an entity that is eligible to receive grant funds under this program from a State under this subpart.

Victim of child abuse means a victim of crime, where such crime involved an act or omission considered to be child abuse under the law of the relevant SAA jurisdiction. In addition, for purposes of this program, victims of child abuse may include, but are not limited to, child victims of: Physical, sexual, or emotional abuse; child pornography-related offenses; neglect; commercial sexual exploitation; bullying; and/or exposure to violence.

Victim of federal crime means a victim of an offense in violation of a federal criminal statute or regulation, including, but not limited to, offenses that occur in an area where the federal government has jurisdiction, whether in the United States or abroad, such as Indian reservations, national parks, federal buildings, and military installations.

VOCA means the Victims of Crime Act of 1984, Public Law 98-473 (Oct. 12, 1984), as amended.

VOCA funds or VOCA funding means grant funds (or grant funding) under this program.

VOCA grant means the annual grant from OVC to a State under this program.

[81 FR 44528, July 8, 2016, as amended at 88 FR 3656, Jan. 20, 2023]

§ 94.103 General.

(a) Direct services. SAAs may use VOCA funds to provide direct services through sub-recipients or in their own projects, and to cover administrative and training costs of the SAA. SAAs have sole discretion to determine which organizations will receive funds, and in what amounts, subject to the minimum requirements set forth in VOCA and this subpart. SAAs must ensure that projects provide services to victims of federal crimes on the same basis as to victims of crimes under State or local law. SAAs may fund direct services regardless of a victim's participation in the criminal justice process. Victim eligibility under this program for direct services is not dependent on the victim's immigration status.

(b) SAA eligibility certification. Each SAA must certify that it will meet the criteria set forth in VOCA, at 34 U.S.C. 20103(a)(2), and in this subpart . This certification shall be submitted by the chief executive of the State (or a designee) annually in such form and manner as OVC specifies from time to time. As of July 8, 2016, VOCA requires the chief executive to certify that—

(1) Priority will be given to programs providing assistance to victims of sexual assault, spousal abuse, or child abuse;

(2) Funds will be made available to programs serving underserved victims;

(3) VOCA funds awarded to the State, and by the State to eligible crime victim assistance programs, will not be used to supplant State and local government funds otherwise available for crime victim assistance.

(c) Pass-through administration. SAAs have broad latitude in structuring their administration of VOCA funding. VOCA funding may be administered by the SAA itself, or by other means, including the use of pass-through entities (such as coalitions of victim service providers) to make determinations regarding award distribution and to administer funding. SAAs that opt to use a pass-through entity shall ensure that the total sum of VOCA funding for administrative and training costs for the SAA and pass-through entity is within the VOCA limit, the reporting of activities at the direct-service level is equivalent to what would be provided if the SAA were directly overseeing sub-awards, and an effective system of monitoring sub-awards is used. SAAs shall report on the pass-through entity in such form and manner as OVC may specify from time to time.

(d) Strategic planning. SAAs are encouraged to develop a funding strategy, which should consider the following: The range of direct services throughout the State and within communities; the sustainability of such services; the unmet needs of crime victims; the demographic profile of crime victims; the coordinated, cooperative response of community organizations in organizing direct services; the availability of direct services throughout the criminal justice process, as well as to victims who are not participating in criminal justice proceedings; and the extent to which other sources of funding are available for direct services.

(e) Coordination. SAAs are encouraged to coordinate their activities with their jurisdiction's VOCA compensation programs, STOP Violence Against Women Formula Grant Program administrator, victim assistance coalitions, federal agencies, and other relevant organizations.

(f) Compliance with other rules and requirements. SAAs shall comply (and ensure sub-recipient compliance) with all applicable provisions of VOCA, this subpart, and any guidance issued by OVC, as well as all applicable provisions of the DOJ Grants Financial Guide and government-wide grant rules.

(g) Access to records. SAAs shall, upon request, and consistent with 2 CFR 200.337, permit OVC access to all records related to the use of VOCA funding.

[81 FR 44528, July 8, 2016, as amended at 88 FR 3656, Jan. 20, 2023]

§ 94.104 Allocation of sub-awards.

(a) Directed allocation of forty percent overall. Except as provided in paragraph (d) of this section, each SAA shall allocate each year's VOCA grant as specified below in paragraphs (b) and (c) of this section. Where victims of priority category crimes are determined to be underserved as well, an SAA may count funds allocated to projects serving such victims in either the priority category or the underserved category, but not both.

(b) Priority categories of crime victims (thirty percent total). SAAs shall allocate a minimum of ten percent of each year's VOCA grant to each of the three priority categories of victims specified in the certification requirement in VOCA, at 34 U.S.C. 20103(a)(2)(A), which, as of July 8, 2016, includes victims of—

(1) Sexual assault,

(2) Spousal abuse and

(3) Child abuse.

(c) Previously underserved category (ten percent total). SAAs shall allocate a minimum of ten percent of each year's VOCA grant to underserved victims of violent crime, as specified in VOCA, at 34 U.S.C. 20103(a)(2)(B). To meet this requirement, SAAs shall identify which type of crime victim a service project assists by the type of crime they have experienced or the demographic characteristics of the crime victim, or both.

(d) Exceptions to required allocations. The Director may approve an allocation different from that specified in paragraphs (b) and (c) of this section, pursuant to a written request from the SAA that demonstrates (to the satisfaction of the Director) that there is good cause therefor.

(e) Sub-award process: Documentation, conflicts of interest, and competition of funding to sub-recipients. (1) SAAs have sole discretion to determine which organizations will receive funds, and in what amounts, subject to the requirements of VOCA, this subpart, and the provisions in the DOJ Grants Financial Guide relating to conflicts of interest. SAAs must maintain a documented methodology for selecting all competitive and non-competitive sub-recipients.

(2) SAAs are encouraged to award funds through a competitive process, when feasible. Typically, such a process entails an open solicitation of applications and a documented determination, based on objective criteria set in advance by the SAA (or pass-through entity, as applicable).

(f) Direct-service projects run by SAAs. An SAA may use no more than ten percent of its annual VOCA grant to fund its own direct service projects, unless the Director grants a waiver.

[81 FR 44528, July 8, 2016, as amended by at FR 3656, Jan. 20, 2023]

§ 94.105 Reporting requirements.

(a) Subgrant award reports. SAAs shall submit, at such times and in such form and manner as OVC may specify from time to time, subgrant award reports to OVC for each project that receives VOCA funds. If an SAA awards funds to a pass-through entity, the SAA also shall submit a report on the pass-through entity, at such times and in such form and manner as OVC may specify from time to time.

(b) Performance report. SAAs shall submit, in such form and manner as OVC may specify from time to time, performance reports to OVC on a quarterly basis.

(c) Obligation to report fraud, waste, abuse, and similar misconduct. SAAs shall—

(1) Promptly notify OVC of any formal allegation or finding of fraud, waste, abuse, or similar misconduct involving VOCA funds;

(2) Promptly refer any credible evidence of such misconduct to the Department of Justice Office of the Inspector General; and

(3) Apprise OVC, in timely fashion, of the status of any on-going investigations

§ 94.106 Monitoring requirements.

(a) Monitoring plan. Unless the Director grants a waiver, SAAs shall develop and implement a monitoring plan in accordance with the requirements of this section and 2 CFR 200.332. The monitoring plan must include a risk assessment plan.

(b) Monitoring frequency. SAAs shall conduct regular desk monitoring of all sub-recipients. In addition, SAAs shall conduct on-site monitoring of all sub-recipients at least once every two years during the award period, unless a different frequency based on risk assessment is set out in the monitoring plan.

(c) Recordkeeping. SAAs shall maintain a copy of site visit results and other documents related to compliance.

[81 FR 44528, July 8, 2016, as amended at 88 FR 3657, Jan. 20, 2023]

§ 94.107 Administration and training.

(a) Amount. No SAA may use more than the amount prescribed by VOCA, at 34 U.S.C. 20103(b)(3), for training and administration. As of July 8, 2016, the amount is five percent of a State's annual VOCA grant.

(b) Notification. An SAA shall notify OVC of its decision to use VOCA funds for training or administration, either at the time of application for the VOCA grant or within thirty days of such decision. Such notification shall indicate what portion of the amount will be allocated for training and what portion for administration. If VOCA funding will be used for administration, the SAA shall follow the rules and submit the certification required in § 94.108 regarding supplantation .

(c) Availability. SAAs shall ensure that each training and administrative activity funded by the VOCA grant occurs within the award period.

(d) Documentation. SAAs shall maintain sufficient records to substantiate the expenditure of VOCA funds for training or administration.

(e) Volunteer training. SAAs may allow sub-recipients to use VOCA funds to train volunteers in how to provide direct services when such services will be provided primarily by volunteers. Such use of VOCA funds will not count against the limit described in paragraph (a) of this section.

[81 FR 44528, July 8, 2016, as amended at 88 FR 3657, Jan. 20, 2023]

§ 94.108 Prohibited supplantation of funding for administrative costs.

(a) Non-supplantation requirement. SAAs may not use VOCA funding to supplant State administrative support for the State crime victim assistance program. Consistent with the DOJ Grants Financial Guide, such supplantation is the deliberate reduction of State funds because of the availability of VOCA funds. Where a State decreases its administrative support for the State crime victim assistance program, the SAA must submit, upon request from OVC, an explanation for the decrease.

(b) Baseline for administrative costs. In each year in which an SAA uses VOCA funds for administration, it shall—

(1) Establish and document a baseline level of non-VOCA funding required to administer the State victim assistance program, based on SAA expenditures for administrative costs during that fiscal year and the previous fiscal year, prior to expending VOCA funds for administration; and

(2) Submit the certification required by 34 U.S.C. 20110(h), which, as of July 8, 2016, requires an SAA to certify here that VOCA funds will not be used to supplant State funds, but will be used to increase the amount of such funds that would, in the absence of VOCA funds, be made available for administrative purposes.

[81 FR 44528, July 8, 2016, as amended at 88 FR 3657, Jan. 20, 2023]

§ 94.109 Allowable administrative costs.

(a) Funds for administration may be used only for costs directly associated with administering a State's victim assistance program. Where allowable administrative costs are allocable to both the crime victim assistance program and another State program, the VOCA grant may be charged no more than its proportionate share of such costs. SAAs may charge a federally-approved indirect cost rate to the VOCA grant, provided that the total amount charged does not exceed the amount prescribed by VOCA for training and administration.

(b) Costs directly associated with administering a State victim assistance program generally include the following:

(1) Salaries and benefits of SAA staff and consultants to administer and manage the program;

(2) Training of SAA staff, including, but not limited to, travel, registration fees, and other expenses associated with SAA staff attendance at technical assistance meetings and conferences relevant to the program;

(3) Monitoring compliance of VOCA sub-recipients with federal and State requirements, support for victims' rights compliance programs, provision of technical assistance, and evaluation and assessment of program activities, including, but not limited to, travel, mileage, and other associated expenses;

(4) Reporting and related activities necessary to meet federal and State requirements;

(5) Program evaluation, including, but not limited to, surveys or studies that measure the effect or outcome of victim services;

(6) Program audit costs and related activities necessary to meet federal audit requirements for the VOCA grant;

(7) Technology-related costs, generally including for grant management systems, electronic communications systems and platforms (e.g., Web pages and social media), geographic information systems, victim notification systems, and other automated systems, related equipment (e.g., computers, software, fax and copying machines, and TTY/TDDs) and related technology support services necessary for administration of the program;

(8) Memberships in crime victims' organizations and organizations that support the management and administration of victim assistance programs, and publications and materials such as curricula, literature, and protocols relevant to the management and administration of the program;

(9) Strategic planning, including, but not limited to, the development of strategic plans, both service and financial, including conducting surveys and needs assessments;

(10) Coordination and collaboration efforts among relevant federal, State, and local agencies and organizations to improve victim services;

(11) Publications, including, but not limited to, developing, purchasing, printing, distributing training materials, victim services directories, brochures, and other relevant publications; and

(12) General program improvements—Enhancing overall SAA operations relating to the program and improving the delivery and quality of program services to crime victims throughout the State.

§ 94.110 Allowable training costs.

VOCA funds may be used only for training activities that occur within the award period, and all funds for training must be obligated prior to the end of such period. Allowable training costs generally include, but are not limited to, the following:

(a) Statewide/regional training of personnel providing direct assistance and allied professionals, including VOCA funded and non-VOCA funded personnel, as well as managers and Board members of victim service agencies; and

(b) Training academies for victim assistance.

§ 94.111 Eligible crime victim assistance programs.

SAAs may award VOCA funds only to crime victim assistance programs that meet the requirements of VOCA, at 34 U.S.C. 20103(b)(1), and this subpart. Each such program shall abide by any additional criteria or reporting requirements established by the SAA.

[81 FR 44528, July 8, 2016, as amended at 88 FR 3657, Jan. 20, 2023]

§ 94.112 Types of eligible organizations and organizational capacity.

(a) Eligible programs. Eligible programs are not limited to entities whose sole purpose is to provide direct services. There are special considerations for certain types of entities, as described below:

(1) Faith-based and neighborhood programs. SAAs may award VOCA funds to otherwise eligible faith-based and neighborhood programs, but in making such awards, SAAs shall ensure that such programs comply with all applicable federal law, including, but not limited to, part 38 of this chapter.

(2) Crime victim compensation programs. SAAs may provide VOCA victim assistance funding to compensation programs only for the purpose of providing direct services that extend beyond the essential duties of the staff administering the compensation program, which services may include, but are not limited to, crisis intervention; counseling; and providing information, referrals, and follow-up for crime victims.

(3) Victim service organizations located in an adjacent State. SAAs may award VOCA funds to otherwise eligible programs that are physically located in an adjacent State, but in making such awards, the SAA shall provide notice of such award to the SAA of the adjacent State, and coordinate, as appropriate, to ensure effective provision of services, monitoring, auditing of federal funds, compliance, and reporting.

(4) Direct service programs run by the SAA. SAAs may fund their own direct services programs, but, under § 94.104(f), may allocate no more than ten percent of the VOCA grant to such programs, and each such program shall adhere to the allowable/unallowable cost rules for sub-recipient projects set out in this subpart at §§ 94.119 through 94.122.

(b) Organizational capacity of the program. For purposes of VOCA, at 34 U.S.C. 20103(b)(1)(B), the following shall apply:

(1) Record of effective services to victims of crime and support from sources other than the Crime Victims Fund. A program has demonstrated a record of effective direct services and support from sources other than the Crime Victims Fund when, for example, it demonstrates the support and approval of its direct services by the community, its history of providing direct services in a cost-effective manner, and the breadth or depth of its financial support from sources other than the Crime Victims Fund.

(2) Substantial financial support from sources other than the Crime Victims Fund. A program has substantial financial support from sources other than the Crime Victims Fund when at least twenty-five percent of the program's funding in the year of, or the year preceding the award comes from such sources, which may include other federal funding programs. If the funding is non-federal (or meets the DOJ Grants Financial Guide exceptions for using federal funding for match), then a program may count the used funding to demonstrate non-VOCA substantial financial support toward its project match requirement.

[81 FR 44528, July 8, 2016, as amended at 88 FR 3657, Jan. 20, 2023]

§ 94.113 Use of volunteers, community efforts, compensation assistance.

(a) Mandated use of volunteers; waiver. Programs shall use volunteers, to the extent required by the SAA, in order to be eligible for VOCA funds. The chief executive of the State, who may act through the SAA, may waive this requirement, provided that the program submits written documentation of its efforts to recruit and maintain volunteers, or otherwise demonstrate why circumstances prohibit the use of volunteers, to the satisfaction of the chief executive.

(b) Waiver of use of volunteers. SAAs shall maintain documentation supporting any waiver granted under VOCA, at 34 U.S.C. 20103(b)(1)(C), relating to the use of volunteers by programs.

(c) Promotion of community efforts to aid crime victims. Community served coordinated public and private efforts to aid crime victims may include, but are not limited to, serving on federal, State, local, or tribal work groups to oversee and recommend improvements to community responses to crime victims, and developing written agreements and protocols for such responses.

(d) Assistance to victims in applying for compensation. Assistance to potential recipients of crime victim compensation benefits (including potential recipients who are victims of federal crime) in applying for such benefits may include, but are not limited to, referring such potential recipients to an organization that can so assist, identifying crime victims and advising them of the availability of such benefits, assisting such potential recipients with application forms and procedures, obtaining necessary documentation, monitoring claim status, and intervening on behalf of such potential recipients with the crime victims' compensation program.

[81 FR 44528, July 8, 2016, as amended at 88 FR 3657, Jan. 20, 2023]

§ 94.114 Prohibited discrimination.

(a) The VOCA non-discrimination provisions specified at 34 U.S.C. 20110(e) shall be implemented in accordance with 28 CFR part 42.

(b) In complying with VOCA, at 34 U.S.C. 20110(e), as implemented by 28 CFR part 42, SAAs and sub-recipients shall comply with such guidance as may be issued from time to time by the Office for Civil Rights within the Office of Justice Programs.

[81 FR 44528, July 8, 2016, as amended at 88 FR 3657, Jan. 20, 2023]

§ 94.115 Non-disclosure of confidential or private information.

(a) Confidentiality. SAAs and sub-recipients of VOCA funds shall, to the extent permitted by law, reasonably protect the confidentiality and privacy of persons receiving services under this program and shall not disclose, reveal, or release, except pursuant to paragraphs (b) and (c) of this section—

(1) Any personally identifying information or individual information collected in connection with VOCA-funded services requested, utilized, or denied, regardless of whether such information has been encoded, encrypted, hashed, or otherwise protected; or

(2) Individual client information, without the informed, written, reasonably time-limited consent of the person about whom information is sought, except that consent for release may not be given by the abuser of a minor, incapacitated person, or the abuser of the other parent of the minor. If a minor or a person with a legally appointed guardian is permitted by law to receive services without a parent's (or the guardian's) consent, the minor or person with a guardian may consent to release of information without additional consent from the parent or guardian.

(b) Release. If release of information described in paragraph (a)(2) of this section is compelled by statutory or court mandate, SAAs or sub-recipients of VOCA funds shall make reasonable attempts to provide notice to victims affected by the disclosure of the information, and take reasonable steps necessary to protect the privacy and safety of the persons affected by the release of the information.

(c) Information sharing. SAAs and sub-recipients may share—

(1) Non-personally identifying data in the aggregate regarding services to their clients and non-personally identifying demographic information in order to comply with reporting, evaluation, or data collection requirements;

(2) Court-generated information and law-enforcement-generated information contained in secure governmental registries for protection order enforcement purposes; and

(3) Law enforcement- and prosecution-generated information necessary for law enforcement and prosecution purposes.

(d) Personally identifying information. In no circumstances may—

(1) A crime victim be required to provide a consent to release personally identifying information as a condition of eligibility for VOCA-funded services;

(2) Any personally identifying information be shared in order to comply with reporting, evaluation, or data-collection requirements of any program;

(e) Mandatory reporting. Nothing in this section prohibits compliance with legally mandated reporting of abuse or neglect.

§ 94.116 Purpose of VOCA-funded projects.

VOCA funds shall be available to sub-recipients only to provide direct services and supporting and administrative activities as set out in this subpart. SAAs shall ensure that VOCA sub-recipients obligate and expend funds in accordance with VOCA and this subpart. Sub-recipients must provide services to victims of federal crimes on the same basis as to victims of crimes under State or local law. Sub-recipients may provide direct services regardless of a victim's participation in the criminal justice process. Victim eligibility under this program for direct services is not dependent on the victim's immigration status.

§ 94.117 Cost of services; sub-recipient program income.

(a) Cost of services. Sub-recipients shall provide VOCA-funded direct services at no charge, unless the SAA grants a waiver allowing the sub-recipient to generate program income by charging for services. Program income, where allowed, shall be subject to federal grant rules and the requirements of the DOJ Grants Financial Guide, which, as of July 8, 2016, require in most cases that any program income be restricted to the same uses as the sub-award funds and expended during the grant period in which it is generated.

(b) Considerations for waiver. In determining whether to grant a waiver under this section, the SAA should consider whether charging victims for services is consistent with the project's victim assistance objectives and whether the sub-recipient is capable of effectively tracking program income in accordance with financial accounting requirements.

§ 94.118 Project match requirements.

(a) Project match amount. Sub-recipients shall contribute (i.e., match) not less than twenty percent (cash or in-kind) of the total cost of each project, except as provided in paragraph (b) of this section.

(b) Exceptions to project match requirement. The following are not subject to the requirement set forth in paragraph (a) of this section:

(1) Sub-recipients that are federally-recognized American Indian or Alaska Native tribes, or projects that operate on tribal lands;

(2) Sub-recipients that are territories or possessions of the United States (except for the Commonwealth of Puerto Rico), or projects that operate therein; and

(3) Sub-recipients other than those described in paragraphs (b)(1) and (2) of this section, that have applied (through their SAAs) for, and been granted, a full or partial waiver from the Director. Waiver requests must be supported by the SAA and justified in writing. Waivers are entirely at the Director's discretion, but the Director typically considers factors such as local resources, annual budget changes, past ability to provide match, and whether the funding is for new or additional activities requiring additional match versus continuing activities where match is already provided.

(c) Sources of project match. Contributions under paragraph (a) of this section shall be derived from non-federal sources, except as may be provided in the DOJ Grants Financial Guide, and may include, but are not limited to, the following:

(1) Cash; i.e., the value of direct funding for the project;

(2) Volunteered professional or personal services, the value placed on which shall be consistent with the rate of compensation (which may include fringe benefits) paid for similar work in the program, but if the similar work is not performed in the program, the rate of compensation shall be consistent with the rate found in the labor market in which the program competes;

(3) Materials/Equipment, but the value placed on lent or donated equipment shall not exceed its fair market value;

(4) Space and facilities, the value placed on which shall not exceed the fair rental value of comparable space and facilities as established by an independent appraisal of comparable space and facilities in a privately-owned building in the same locality; and

(5) Non-VOCA funded victim assistance activities, including but not limited to, performing direct service, coordinating, or supervising those services, training victim assistance providers, or advocating for victims.

(d) Discounts. Any reduction or discount provided to the sub-recipient shall be valued as the difference between what the sub-recipient paid and what the provider's nominal or fair market value is for the good or service.

(e) Use of project match. Contributions under paragraph (a) of this section are restricted to the same uses, and timing deadlines for obligation and expenditure, as the project's VOCA funding.

(f) Recordkeeping for project match. Each sub-recipient shall maintain records that clearly show the source and amount of the contributions under paragraph (a) of this section, and period of time for which such contributions were allocated. The basis for determining the value of personal services, materials, equipment, and space and facilities shall be documented. Volunteer services shall be substantiated by the same methods used by the sub-recipient for its paid employees (generally, this should include timesheets substantiating time worked on the project).

§ 94.119 Allowable direct service costs.

Direct services for which VOCA funds may be used include, but are not limited to, the following:

(a) Immediate emotional, psychological, and physical health and safety—Services that respond to immediate needs (other than medical care, except as allowed under paragraph (a)(9) of this section) of crime victims, including, but not limited to:

(1) Crisis intervention services;

(2) Accompanying victims to hospitals for medical examinations;

(3) Hotline counseling;

(4) Safety planning;

(5) Emergency food, shelter, clothing, and transportation;

(6) Short-term (up to 45 days) in-home care and supervision services for children and adults who remain in their own homes when the offender/caregiver is removed;

(7) Short-term (up to 45 days) nursing-home, adult foster care, or group-home placement for adults for whom no other safe, short-term residence is available;

(8) Window, door, or lock replacement or repair, and other repairs necessary to ensure a victim's safety;

(9) Costs of the following, on an emergency basis (i.e., when the State's compensation program, the victim's (or in the case of a minor child, the victim's parent's or guardian's) health insurance plan, Medicaid, or other health care funding source, is not reasonably expected to be available quickly enough to meet the emergency needs of a victim (typically within 48 hours of the crime): Non-prescription and prescription medicine, prophylactic or other treatment to prevent HIV/AIDS infection or other infectious disease, durable medical equipment (such as wheel-chairs, crutches, hearing aids, eyeglasses), and other healthcare items are allowed; and

(10) Emergency legal assistance, such as for filing for restraining or protective orders, and obtaining emergency custody orders and visitation rights;

(b) Personal advocacy and emotional support—Personal advocacy and emotional support, including, but not limited to:

(1) Working with a victim to assess the impact of the crime;

(2) Identification of victim's needs;

(3) Case management;

(4) Management of practical problems created by the victimization;

(5) Identification of resources available to the victim;

(6) Provision of information, referrals, advocacy, and follow-up contact for continued services, as needed; and

(7) Traditional, cultural, and/or alternative therapy/healing (e.g., art therapy, yoga);

(c) Mental health counseling and care—Mental health counseling and care, including, but not limited to, out-patient therapy/counseling (including, but not limited to, substance-abuse treatment so long as the treatment is directly related to the victimization) provided by a person who meets professional standards to provide these services in the jurisdiction in which the care is administered;

(d) Peer-support—Peer-support, including, but not limited to, activities that provide opportunities for victims to meet other victims, share experiences, and provide self-help, information, and emotional support;

(e) Facilitation of participation in criminal justice and other public proceedings arising from the crime—The provision of services and payment of costs that help victims participate in the criminal justice system and in other public proceedings arising from the crime (e.g., juvenile justice hearings, civil commitment proceedings), including, but not limited to:—

(1) Advocacy on behalf of a victim;

(2) Accompanying a victim to offices and court;

(3) Transportation, meals, and lodging to allow a victim who is not a witness to participate in a proceeding;

(4) Interpreting for a non-witness victim who is deaf or hard of hearing, or with limited English proficiency;

(5) Providing child care and respite care to enable a victim who is a caregiver to attend activities related to the proceeding;

(6) Notification to victims regarding key proceeding dates (e.g., trial dates, case disposition, incarceration, and parole hearings);

(7) Assistance with Victim Impact Statements;

(8) Assistance in recovering property that was retained as evidence; and

(9) Assistance with restitution advocacy on behalf of crime victims.

(f) Legal assistance—Legal assistance services (including, but not limited to, those provided on an emergency basis), where reasonable and where the need for such services arises as a direct result of the victimization. Such services include, but are not limited to:

(1) Those (other than criminal defense) that help victims assert their rights as victims in a criminal proceeding directly related to the victimization, or otherwise protect their safety, privacy, or other interests as victims in such a proceeding;

(2) Motions to vacate or expunge a conviction, or similar actions, where the jurisdiction permits such a legal action based on a person's being a crime victim; and

(3) Those actions (other than tort actions) that, in the civil context, are reasonably necessary as a direct result of the victimization;

(g) Forensic medical evidence collection examinations—Forensic medical evidence collection examinations for victims to the extent that other funding sources such as State appropriations are insufficient. Forensic medical evidence collection examiners are encouraged to follow relevant guidelines or protocols issued by the State or local jurisdiction. Sub-recipients are encouraged to provide appropriate crisis counseling and/or other types of victim services that are offered to the victim in conjunction with the examination. Sub-recipients are also encouraged to use specially trained examiners such as Sexual Assault Nurse Examiners;

(h) Forensic interviews—Forensic interviews, with the following parameters:

(1) Results of the interview will be used not only for law enforcement and prosecution purposes, but also for identification of needs such as social services, personal advocacy, case management, substance abuse treatment, and mental health services;

(2) Interviews are conducted in the context of a multi-disciplinary investigation and diagnostic team, or in a specialized setting such as a child advocacy center; and

(3) The interviewer is trained to conduct forensic interviews appropriate to the developmental age and abilities of children, or the developmental, cognitive, and physical or communication disabilities presented by adults.

(i) Transportation—Transportation of victims to receive services and to participate in criminal justice proceedings;

(j) Public awareness—Public awareness and education presentations (including, but not limited to, the development of presentation materials, brochures, newspaper notices, and public service announcements) in schools, community centers, and other public forums that are designed to inform crime victims of specific rights and services and provide them with (or refer them to) services and assistance.

(k) Transitional housing—Subject to any restrictions on amount, length of time, and eligible crimes, set by the SAA, transitional housing for victims (generally, those who have a particular need for such housing, and who cannot safely return to their previous housing, due to the circumstances of their victimization), including, but not limited to, travel, rental assistance, security deposits, utilities, and other costs incidental to the relocation to such housing, as well as voluntary support services such as childcare and counseling; and

(l) Relocation—Subject to any restrictions on amount, length of time, and eligible crimes, set by the SAA, relocation of victims (generally, where necessary for the safety and well-being of a victim), including, but not limited to, reasonable moving expenses, security deposits on housing, rental expenses, and utility startup costs.

§ 94.120 Allowable costs for activities supporting direct services.

Supporting activities for which VOCA funds may be used include, but are not limited to, the following:

(a) Coordination of activities—Coordination activities that facilitate the provision of direct services, include, but are not limited to, State-wide coordination of victim notification systems, crisis response teams, multi-disciplinary teams, coalitions to support and assist victims, and other such programs, and salaries and expenses of such coordinators;

(b) Supervision of direct service providers—Payment of salaries and expenses of supervisory staff in a project, when the SAA determines that such staff are necessary and effectively facilitate the provision of direct services;

(c) Multi-system, interagency, multi-disciplinary response to crime victim needs—Activities that support a coordinated and comprehensive response to crime victims needs by direct service providers, including, but not limited to, payment of salaries and expenses of direct service staff serving on child and adult abuse multi-disciplinary investigation and treatment teams, coordination with federal agencies to provide services to victims of federal crimes and/or participation on Statewide or other task forces, work groups, and committees to develop protocols, interagency, and other working agreements;

(d) Contracts for professional services—Contracting for specialized professional services (e.g., psychological/psychiatric consultation, legal services, interpreters), at a rate not to exceed a reasonable market rate, that are not available within the organization;

(e) Automated systems and technology—Subject to the provisions of the DOJ Grants Financial Guide and government-wide grant rules relating to acquisition, use and disposition of property purchased with federal funds, procuring automated systems and technology that support delivery of direct services to victims (e.g., automated information and referral systems, email systems that allow communications among victim service providers, automated case-tracking and management systems, smartphones, computer equipment, and victim notification systems), including, but not limited to, procurement of personnel, hardware, and other items, as determined by the SAA after considering—

(1) Whether such procurement will enhance direct services;

(2) How any acquisition will be integrated into and/or enhance the program's current system;

(3) The cost of installation;

(4) The cost of training staff to use the automated systems and technology;

(5) The ongoing operational costs, such as maintenance agreements, supplies; and

(6) How additional costs relating to any acquisition will be supported;

(f) Volunteer trainings—Activities in support of training volunteers on how to provide direct services when such services will be provided primarily by volunteers; and

(g) Restorative justice—Activities in support of opportunities for crime victims to meet with perpetrators, including, but not limited to, tribal community-led meetings and peace-keeping activities, if such meetings are requested or voluntarily agreed to by the victim (who may, at any point, withdraw) and have reasonably anticipated beneficial or therapeutic value to crime victims. SAAs that plan to fund this type of service should closely review the criteria for conducting these meetings, and are encouraged to discuss proposals with OVC prior to awarding VOCA funds for this type of activity. At a minimum, the following should be considered:—

(1) The safety and security of the victim;

(2) The cost versus the benefit or therapeutic value to the victim;

(3) The procedures for ensuring that participation of the victim and offenders are voluntary and that the nature of the meeting is clear;

(4) The provision of appropriate support and accompaniment for the victim;

(5) Appropriate debriefing opportunities for the victim after the meeting; and

(6) The credentials of the facilitators.

§ 94.121 Allowable sub-recipient administrative costs.

Administrative costs for which VOCA funds may be used by sub-recipients include, but are not limited to, the following:

(a) Personnel costs—Personnel costs that are directly related to providing direct services and supporting activities, such as staff and coordinator salaries expenses (including fringe benefits), and a prorated share of liability insurance;

(b) Skills training for staff—Training exclusively for developing the skills of direct service providers, including paid staff and volunteers (both VOCA-funded and not), so that they are better able to offer quality direct services, including, but not limited to, manuals, books, videoconferencing, electronic training resources, and other materials and resources relating to such training.

(c) Training-related travel—Training-related costs such as travel (in-State, regional, and national), meals, lodging, and registration fees for paid direct-service staff (both VOCA-funded and not);

(d) Organizational Expenses—Organizational expenses that are necessary and essential to providing direct services and other allowable victim services, including, but not limited to, the prorated costs of rent; utilities; local travel expenses for service providers; and required minor building adaptations necessary to meet the Department of Justice standards implementing the Americans with Disabilities Act and/or modifications that would improve the program's ability to provide services to victims;

(e) Equipment and furniture—Expenses of procuring furniture and equipment that facilitate the delivery of direct services (e.g., mobile communication devices, telephones, braille and TTY/TDD equipment, computers and printers, beepers, video cameras and recorders for documenting and reviewing interviews with children, two-way mirrors, colposcopes, digital cameras, and equipment and furniture for shelters, work spaces, victim waiting rooms, and children's play areas), except that the VOCA grant may be charged only the prorated share of an item that is not used exclusively for victim-related activities;

(f) Operating costs—Operating costs include but are not limited to—

(1) Supplies;

(2) Equipment use fees;

(3) Property insurance;

(4) Printing, photocopying, and postage;

(5) Courier service;

(6) Brochures that describe available services;

(7) Books and other victim-related materials;

(8) Computer backup files/tapes and storage;

(9) Security systems;

(10) Design and maintenance of Web sites and social media; and

(11) Essential communication services, such as web hosts and mobile device services.

(g) VOCA administrative time—Costs of administrative time spent performing the following:

(1) Completing VOCA-required time and attendance sheets and programmatic documentation, reports, and statistics;

(2) Collecting and maintaining crime victims' records;

(3) Conducting victim satisfaction surveys and needs assessments to improve victim services delivery in the project; and

(4) Funding the prorated share of audit costs.

(h) Leasing or purchasing vehicles—Costs of leasing or purchasing vehicles, as determined by the SAA after considering, at a minimum, if the vehicle is essential to the provision of direct services;

(i) Maintenance, repair, or replacement of essential items—Costs of maintenance, repair, and replacement of items that contribute to maintenance of a healthy or safe environment for crime victims (such as a furnace in a shelter; and routine maintenance, repair costs, and automobile insurance for leased vehicles), as determined by the SAA after considering, at a minimum, if other sources of funding are available; and

(j) Project evaluation—Costs of evaluations of specific projects (in order to determine their effectiveness), within the limits set by SAAs.

§ 94.122 Expressly unallowable sub-recipient costs.

Notwithstanding any other provision of this subpart, no VOCA funds may be used to fund or support the following:

(a) Lobbying—Lobbying or advocacy activities with respect to legislation or to administrative changes to regulations or administrative policy (cf. 18 U.S.C. 1913), whether conducted directly or indirectly;

(b) Research and studies—Research and studies, except for project evaluation under § 94.121(j);

(c) Active investigation and prosecution of criminal activities—The active investigation and prosecution of criminal activity, except for the provision of victim assistance services (e.g., emotional support, advocacy, and legal services) to crime victims, under § 94.119, during such investigation and prosecution;

(d) Fundraising—Any activities related to fundraising, except for fee-based, or similar, program income authorized by the SAA under this subpart.

(e) Capital expenses—Capital improvements; property losses and expenses; real estate purchases; mortgage payments; and construction (except as specifically allowed elsewhere in this subpart).

(f) Compensation for victims of crime—Reimbursement of crime victims for expenses incurred as a result of a crime, except as otherwise allowed by other provisions of this subpart;

(g) Medical care—Medical care, except as otherwise allowed by other provisions of this subpart; and

(h) Salaries and expenses of management—Salaries, benefits, fees, furniture, equipment, and other expenses of executive directors, board members, and other administrators (except as specifically allowed elsewhere in this subpart).

§ 97.1 Purpose.

This part implements the provisions of The Interstate Transportation of Dangerous Criminals Act of 2000, Public Law 106-560, 114 Stat. 2784 (42 U.S.C. 13726b) (enacted December 21, 2000) (“the Act”), to provide minimum security and safety standards for private companies that transport violent prisoners on behalf of State and local jurisdictions.

§ 97.2 Definitions.

(a) Crime of violence. The term “crime of violence” has the same meaning as in section 924(c)(3) of title 18, United States Code. Section 924(c)(3) states that the term crime of violence means an offense that is a felony and has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

(b) Private prisoner transport company. The term “private prisoner transport company” (“company”) means any entity, other than the United States, a State, or an inferior political subdivision of a State, that engages in the business of transporting for compensation individuals committed to the custody of any State or of an inferior political subdivision of a State, or any attempt thereof.

(c) Violent prisoner. The term “violent prisoner” means any individual in the custody of a State or an inferior political subdivision of a State who has previously been convicted of or is currently charged with a crime of violence or any similar statute of a State or the inferior political subdivisions of a State, or any attempt thereof.

§ 97.11 Pre-employment screening.

Private prisoner transport companies must adopt pre-employment screening measures for all potential employees. The pre-employment screening measures must include a background check and a test for use of controlled substances. The failure of a potential employee to pass either screening measure will act as a bar to employment.

(a) Background checks must include:

(1) A fingerprint-based criminal background check that disqualifies persons with either a prior felony conviction or a State or Federal conviction for a misdemeanor crime of domestic violence as defined in 18 U.S.C. 921;

(2) A Credit Report check;

(3) A physical examination; and

(4) A personal interview.

(b) Testing for controlled substances. (1) Pre-employment testing for controlled substances must be in accordance with applicable State law.

(2) In the event that there is no applicable State law, pre-employment testing for controlled substances must be in accordance with the provisions of Department of Transportation regulations at 49 CFR 382.301 which will apply regardless of whether a private prisoner transport company is covered by Department of Transportation regulations.

(c) The criminal background check references in paragraph (a)(1) of this section may not be submitted directly to the FBI or any other Federal agency. The private prisoner transport companies must arrange the procedures for accomplishing the criminal background checks with their contracting governmental agencies. In the event that the private prisoner transport company is contracting with a privately run incarceration facility, and not directly with a governmental entity, the private prisoner transport company will have to make arrangements through the private incarceration facility to have the checks completed by the governmental entity ultimately requesting the transport.

§ 97.12 Employee training.

Private prisoner transport companies must require the completion of a minimum of 100 hours of employee training before an employee may transport violent prisoners. Training must include instruction in each of these six areas:

(a) Use of restraints;

(b) Searches of prisoners;

(c) Use of force, including use of appropriate weapons and firearms;

(d) Cardiopulmonary resuscitation (CPR);

(e) Map reading; and

(f) Defensive driving.

§ 97.13 Maximum driving time.

Companies covered under this part must adhere to the maximum driving time provisions applicable to commercial motor vehicle operators, as set forth in Department of Transportation regulations at 49 CFR 395.3 which will apply regardless of whether a private prisoner transport company is covered by Department of Transportation regulations.

§ 97.14 Guard-to-prisoner ratio.

Companies covered under this part must adhere to certain minimum standards with respect to the number of employees required to monitor violent prisoners during transportation. Private prisoner transport companies must ensure that at least one guard be on duty for every six violent prisoners transported. This requirement does not preclude a contracting entity from establishing more stringent guard-to-prisoner ratios.

§ 97.15 Employee uniforms and identification.

(a) Employee uniforms. Uniforms used by private prisoner transport companies must meet the following requirements:

(1) Uniforms must be readily distinguishable in style and color from official uniforms worn by United States Department of Justice employees who transport violent offenders;

(2) Uniforms must prominently feature a badge or insignia that identifies the employee as a prisoner transportation employee; and

(3) Uniforms must be worn at all times while the employee is engaged in the transportation of violent prisoners.

(b) Employee identification. Identification utilized by private prisoner transport companies must meet the following requirements:

(1) The identification credentials must clearly identify the employee as a transportation employee. The credentials must have a photograph of the employee that is at least one inch square, a printed personal description of the employee including the employee's name, the signature of the employee, and date of issuance; and

(2) The employee must display proper identification credentials on his or her uniform and ensure that the identification is visible at all times during the transportation of violent prisoners.

§ 97.16 Clothing requirements for transported violent prisoners.

Companies covered under this part must ensure that all violent prisoners they transport are clothed in brightly colored clothing that clearly identifies them as violent prisoners, unless security or other specific considerations make such a requirement inappropriate.

§ 97.17 Mandatory restraints to be used while transporting violent prisoners.

Companies covered under this part must, at a minimum, require that violent prisoners be transported wearing handcuffs, leg irons, and waist chains unless the use of all three restraints would create a serious health risk to the prisoner, or extenuating circumstances (such as pregnancy or physical disability) make the use of all three restraints impracticable.

§ 97.18 Notification of local law enforcement prior to scheduled stops.

When transporting violent prisoners, private prisoner transport companies are required to notify local law enforcement officials 24 hours in advance of any scheduled stops in their jurisdiction. For the purposes of this part, a scheduled stop is defined as a predetermined stop at a State, local, or private correctional facility for the purpose of loading or unloading prisoners or using such facilities for overnight, meal, or restroom breaks. Scheduled stops do not include routine fuel stops or emergency stops.

§ 97.19 Immediate notification of local law enforcement in the event of an escape.

Private prisoner transport companies must be sufficiently equipped to provide immediate notification to law enforcement in the event of a prisoner escape. Law enforcement officials must receive notification no later than 15 minutes after an escape is detected unless the company can demonstrate that extenuating circumstances necessitated a longer delay. In the event of the escape of a violent prisoner, a private prisoner transport company must:

(a) Ensure the safety and security of the remaining prisoners;

(b) Provide notification within 15 minutes to the appropriate State and local law enforcement officials;

(c) Provide notification as soon as practicable to the governmental entity or the privately run incarceration facility that contracted with the transport company; and

(d) Provide complete descriptions of the escapee and the circumstances surrounding the escape to State and local law enforcement officials if needed.

§ 97.20 Standards to ensure the safety of violent prisoners during transport.

Companies covered under this section must comply with applicable State and federal laws that govern the safety of violent prisoners during transport. In addition, companies covered under this section are to ensure that:

(a) Protective measures are in place to ensure that all vehicles are safe and well-maintained;

(b) Vehicles are equipped with efficient communications systems that are capable of immediately notifying State and local law enforcement officials in the event of a prisoner escape;

(c) Policies, practices, and procedures are in effect to ensure the health and physical safety of the prisoners during transport, including a first-aid kit and employees who are qualified to dispense medications and administer CPR and emergency first-aid;

(d) Policies, practices, and procedures are in effect to prohibit the mistreatment of prisoners, including prohibitions against covering a prisoner's mouth with tape, the use of excessive force, and sexual misconduct;

(e) Policies, practices, and procedures are in effect to ensure that juvenile prisoners are separated from adult prisoners during transportation, where practicable;

(f) Policies, practices, and procedures are in effect to ensure that female prisoners are separated from male prisoners during transportation, where practicable;

(g) Policies, practices, and procedures are in effect to ensure that female guards are on duty to supervise the transportation of female violent prisoners, where practicable;

(h) Staff are well trained in the handling and restraint of prisoners, including the proper use of firearms and other restraint devices, and have received specialized training in the area of sexual harassment; and

(i) Private transport companies are responsible for taking reasonable measures to insure the well being of the prisoners in their custody including, but not limited to, necessary stops for restroom use and meals, proper heating and ventilation of the transport vehicle, climate-appropriate uniforms, and prohibitions on the use of tobacco, in any form, in the transport vehicle.

§ 97.22 No pre-emption of federal, State, or local laws or regulations.

The regulations in this part implement the Act and do not pre-empt any applicable federal, State, or local law that may impose additional obligations on private prisoner transport companies or otherwise regulate the transportation of violent prisoners. All federal laws and regulations governing interstate commerce will continue to apply to private prisoner transport companies including, but not limited to: federal laws regulating the possession of weapons, Federal Aviation Administration or Transportation Security Administration rules and regulations governing travel on commercial aircraft, and all applicable federal, State, or local motor carrier regulations. The regulations in this part in no way pre-empt, displace, or affect the authority of States, local governments, or other federal agencies to address these issues.

§ 97.24 No civil defense created.

The regulations in this part on private prisoner transport companies are not intended to create a defense to any civil action, whether initiated by a unit of government or any other party. Compliance with the regulations in this part is not intended to and does not establish a defense against an allegation of negligence or breach of contract. Regardless of whether a contractual agreement establishes minimum precautions, the companies affected by the regulations in this part will remain subject to the standards of care that are imposed by constitutional, statutory, and common law upon their activities (or other activities of a similarly hazardous nature).

§ 97.30 Enforcement.

Any person who is found in violation of the regulations in this part will:

(a) Be liable to the United States for a civil penalty in an amount not to exceed $10,000 for each violation;

(b) Be liable to the United States for the costs of prosecution; and

(c) Make restitution to any entity of the United States, of a State, or of an inferior political subdivision of a State, that expends funds for the purpose of apprehending any violent prisoner who escapes from a prisoner transport company as the result, in whole or in part, of a violation of the regulations in this part promulgated pursuant to the Act.

§ 100.9 General.

These Cost Recovery Regulations were developed to define allowable costs and establish reimbursement procedures in accordance with section 109(e) of Communications Assistance for Law Enforcement Act (CALEA) (Public Law 103-414, 108 Stat. 4279, 47 U.S.C. 1001-1010). Reimbursement of costs is subject to the availability of funds, the reasonableness of costs, and an agreement by the Attorney General or designee to reimburse costs prior to the carrier's incurrence of said costs.

§ 100.10 Definitions.

Allocable means chargeable to one or more cost objectives and can be distributed to them in reasonable proportion to the benefits received.

Business unit means any segment of an organization for which cost data are routinely accumulated by the carrier for tracking and measurement purposes.

Cooperative agreement means the legal instrument reflecting a relationship between the government and a party when—

(1) The principal purpose of the relationship is to reimburse the carrier to carry out a public purpose of support or stimulation authorized by a law of the United States; and

(2) Substantial involvement is expected between the government and carrier when carrying out the activity contemplated in the agreement.

Cost element means a distinct component or category of costs (e.g. materials, direct labor, allocable direct costs, subcontracting costs, other costs) which is assigned to a cost objective.

Cost objective means a function, organizational subdivision, contract, or other work unit for which cost data are desired and for which provision is made to accumulate and measure the cost of processes, products, jobs, capitalized projects, etc.

Cost pool means groupings of incurred costs identified with two or more cost objectives, but not identified specifically with any final cost objective.

Direct supervision means immediate or first-level supervision.

Directly allocable cost means any cost that is directly chargeable to one or more cost objectives and can be distributed to them in reasonable proportion to the benefits received.

Directly assignable cost means any cost that can be wholly attributed to a cost objective.

Directly associated cost means any directly assignable cost or directly allocable cost which is generated solely as a result of incurring another cost, and which would not have been incurred had the said cost not been incurred.

Final cost objective means a cost objective that has allocated to it, both assignable and allocable costs and, in the carrier's accumulation system, is one of the final accumulation points.

Installed or deployed means that, on a specific switching system, equipment, facilities, or services are operable and available for use by the carrier's customers.

Labor cost means the sum of the payroll cost, payroll taxes, and directly associated benefits.

Network operations costs means all directly associated costs related to the ongoing management and maintenance of a telecommunications carrier's network.

Plant costs means the directly associated costs related to the modifications of specific kinds of telecommunications plants, such as switches, intelligent peripherals and other network elements. These costs shall include the costs of inspecting, testing and reporting on the condition of telecommunications plant to determine the need for replacements, rearranges and changes; rearranging and changing the location of plant not retired; inspecting after modifications have been made; the costs of modifying equipment records, such as administering trunking and circuit layout work; modifying operating procedures; property held for future telecommunications use; provisioning costs; network operations costs; and receiving training to perform plant work. Also included are the costs of direct supervision and office support of this work.

Provisioning costs means all costs directly associated with the resources expended within a telecommunications carrier's network to provide a connection and/or service to an end user of the telecommunications service.

Trade secrets/proprietary information means information which is in the possession of a carrier but not generally available to the public, which that carrier desires to protect against unrestricted disclosure or competitive use, and which is clearly identified as such at the time of its disclosure to the government.

Unit cost means the directly associated cost of a single unit of a good or service which is included in a cost element.

§ 100.11 Allowable costs.

(a) Costs that are eligible for reimbursement under section 109(e) CALEA are:

(1) All reasonable plant costs directly associated with the modifications performed by carriers in connection with equipment, facilities, and services installed or deployed on or before January 1, 1995, to establish the capabilities necessary to comply with section 103 of CALEA, until the equipment, facility, or service is replaced or significantly upgraded or otherwise undergoes major modifications;

(2) Additional reasonable plant costs directly associated with making the assistance capability requirements found in section 103 of CALEA reasonably achievable with respect to equipment, facilities, or services installed or deployed after January 1, 1995, in accordance with the procedures established in CALEA section 109(b); and

(3) Reasonable plant costs directly associated with modifications to any of a carrier's systems or services, as identified in the Carrier Statement required by CALEA section 104(d), that do not have the capacity to accommodate simultaneously the number of interceptions, pen registers, and trap and trace devices set forth in the Capacity Notice(s) published in accordance with CALEA section 104.

(b) Allowable plant costs shall include:

(1) The costs of installation, inspection, and testing of the telecommunications plant, and inspection after modifications have been made; and

(2) The costs of direct supervision and office support for this work for plant costs.

(c) In the case of any modification that may be used for any purpose other than lawfully authorized electronic surveillance by a government law enforcement agency, this part permits recovery of only the incremental cost of making the modification suitable for such law enforcement purposes.

(d) Reasonable costs that are directly associated with the modifications performed by a carrier as described in § 100.11(a) are recoverable. These allowable costs are limited to directly assignable and directly allocable costs incurred by the business units whose efforts are expended on the implementation of CALEA requirements.

§ 100.12 Reasonable costs.

(a) A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person in the conduct of competitive business. Reasonableness of specific costs must be examined with particular care in connection with the carrier or its separate divisions that may not be subject to effective competitive restraints.

(1) No presumption of reasonableness shall be attached to the incurrence of costs by a carrier.

(2) The burden of proof shall be upon the carrier to justify that such cost is reasonable under this part.

(b) Reasonableness depends upon considerations and circumstances, including, but not limited to:

(1) Whether a cost is of the type generally recognized as ordinary and necessary for the conduct of the carrier's business or the performance of this obligation; or

(2) Whether it is a generally accepted sound business practice, arm's-length bargaining or the result of Federal or State laws and/or regulations.

(c) It is the carrier's responsibility to inform the Government of any deviation from the carrier's established practices.

§ 100.13 Directly assignable costs.

(a) A cost is directly assignable to the CALEA compliance effort if it is a plant cost incurred specifically to meet the requirements of CALEA sections 103 and 104.

(1) A cost which has been incurred for the same purpose, in like circumstances, and which has been included in any allocable cost pool to be assigned to any final cost objective other than the CALEA compliance effort, shall not be assigned to the CALEA compliance effort (or any portion thereof).

(2) Costs identified specifically with the work performed are directly assignable costs to be charged directly to the CALEA compliance effort. All costs specifically identified with other projects, business units, or cost objectives of the carrier shall not be charged to the CALEA compliance effort, directly or indirectly.

(3) The burden of proof shall be upon the carrier to justify that such cost is an assignable cost under this part.

(b) For reasons of practicality, any directly assignable cost may be treated as a directly allocable cost if the accounting treatment is consistently applied within the carrier's accounting system and the application produces substantially the same results as treating the cost as a directly assignable cost.

§ 100.14 Directly allocable costs.

(a) A cost is directly allocable to the CALEA compliance effort:

(1) If it is a plant cost incurred specifically to meet the requirements of CALEA sections 103 and 104; or

(2) If it benefits both the CALEA compliance effort and other work, and can be distributed to them in reasonable proportion to the benefits received.

(b) The burden of proof shall be upon the carrier to justify that such cost is an allocable cost under this part.

(c) An allocable cost shall not be assigned to the CALEA compliance effort if other costs incurred for the same purpose in like circumstances have been included as a direct cost of that, or any other, cost objective.

(d) The accumulation of allocable costs shall be as follows:

(1) Allocable costs shall be accumulated by logical cost groupings with due consideration of the reasons for incurring such costs.

(i) Each grouping should be determined so as to permit distribution of the grouping on the basis of the benefits accruing to the multiple cost objectives.

(ii) Similarly, the particular case may require subdivision of these groupings (e.g., building occupancy costs might be separable from those of personnel administration within the engineering group).

(2) Such allocation necessitates selecting a distribution base common to all cost objectives to which the grouping is to be allocated. The base should be selected so as to permit allocation of the grouping on the basis of the benefits accruing to the multiple cost objectives.

(3) When substantially the same results can be achieved through less precise methods, the number and composition of cost groupings should be governed by practical considerations and should not unduly complicate the allocation.

(4) Once a methodology for determining an appropriate base for distributing allocable costs has been agreed to, it shall not be modified without written approval of the FBI, if that modification affects the level of reimbursement from the government. All items properly includable in an allocable cost base should bear a pro rata share of allocable costs irrespective of their acceptance as reimbursable under this part.

(5) The carrier's method of allocating allocable costs shall be in accordance with the accounting principles used by the carrier in the preparation of their externally audited financial statements and consistently applied, to the extent that the expenses are allowable under there regulations. The method may require further examination when:

(i) Substantial differences occur between the cost patterns of work under CALEA compliance effort and the carrier's other work;

(ii) Significant changes occur in the nature of the business, the extent of subcontracting, fixed-asset improvement programs, inventories, the volume of sales and production, manufacturing processes, the carrier's products, or other relevant circumstances; or

(iii) Allocable cost groupings developed for a carrier's primary location are applied to off-site locations. Separate cost groupings for costs allocable to off-site locations may be necessary to permit equitable distribution of costs on the basis of the benefits accruing to the multiple cost objectives.

(6) The base period for allocating allocable costs is the cost accounting period during which such costs are incurred and accumulated for distribution to work performed in that period. The base period for allocating allocable costs will normally be the carrier's fiscal year. A shorter period may be appropriate when performance involves only a minor portion of the fiscal year, or when it is general practice to use a shorter period. When the compliance effort is performed over an extended period, as many base periods shall be used as are required to accurately represent the period of performance.

§ 100.15 Disallowed costs.

(a) General and Administrative (G&A) costs are disallowed. G&A costs include, but are not limited to, any management, financial, and other expenditures which are incurred by or allocated to a business unit as a whole. These include, but are not limited to:

(1) Accounting and Finance, External Relations, Human Resources, Information Management, Legal, Procurement; and

(2) Other general administrative activities such as library services, food services, archives, and general security investigation services.

(b) Customer Service costs are disallowed. These costs include, but are not limited to, any Marketing, Sales, Product Management, and Advertising expenses.

(c) Plant costs that are not directly associated with the modifications identified in § 100.11 are disallowed. These include, but are not limited to, repairing materials for reuse, performing routine work to prevent trouble; expenses related to property held for future telecommunications use; provisioning costs; network operations costs; and depreciation and amortization expenses.

(d) Costs that have already been recovered from any governmental or nongovernmental entity are disallowed.

(e) Costs that cannot be either directly assigned or directly allocated are disallowed.

(f) Additional costs that are incurred due to the carrier's failure to complete the CALEA compliance effort in the time frame agreed to by the government and the carrier are disallowed.

(g) Costs associated with modifications of any equipment, facility or service installed or deployed after January 1, 1995 which are deemed reasonably achievable by the Federal Communications Commission under section 109(b) of CALEA are disallowed.

(h) To ensure that the Government does not reimburse carriers for disallowed costs, the following provisions are included:

(1) Costs that are expressly disallowed or mutually agreed to be disallowed, including mutually agreed to be disallowed directly associated costs, shall be excluded from any billing, claim, or proposal applicable to reimbursement under CALEA. When a disallowed cost is incurred, its directly associated costs are also disallowed.

(2) Disallowed costs involved in determining rates used for standard costs, or for allocable cost proposals or billing, need be identified only at the time rates are proposed, established, revised, or adjusted. These requirements may be satisfied by any form of cost identification which is adequate for purposes of cost determination and verification.

§ 100.16 Cost estimate submission.

(a) The carrier shall provide sufficient cost data at the time of proposal submission to allow adequate analysis and evaluation of the estimated costs. The FBI reserves the right to request additional cost data from carriers in order to ensure compliance with this part.

(b) The requirement for submission of cost data is met if, as determined by the FBI, all cost data reasonably available to the carrier are either submitted or identified in writing by the date of agreement on the costs.

(c) If cost data and information to explain the estimating process are required by the FBI and the carrier refuses to provide necessary data, or the FBI determines that the data provided are so deficient as to preclude adequate analysis and evaluation, the FBI will attempt to obtain the data and/or elicit corrective action.

(d) Instructions for submission of the cost data for the estimate are as follows:

(1) The carrier shall submit to the FBI estimated costs by line item with supporting information.

(2) A cost element breakdown as described in § 100.16(h) shall be attached for each proposed line item.

(3) Supporting breakdowns shall be furnished for each cost element, consistent with the carrier's cost accounting system.

(4) When more than one line item is proposed, summary total amounts covering all line items shall be furnished for each cost element.

(5) Depending on the carrier's accounting system, the carrier shall provide breakdowns for the following categories of cost elements, as applicable:

(i) Materials. Provide a consolidated cost summary of individual material quantities included in the various tasks, orders, or agreement line items being proposed and the basis upon which they were developed (vendor quotes, invoice prices, etc.). Include raw materials, parts, software, components, and assemblies. For all items proposed, identify the item, source, quantity, and cost.

(ii) Direct labor. Provide a time-phased (e.g., monthly, quarterly) breakdown of labor hours, rates, and costs by appropriate category, and furnish the methodologies used in developing estimates.

(iii) Allocable direct costs. Indicate how allocable costs are computed and applied, including cost breakdowns that provide a basis for evaluating the reasonableness of proposed rates.

(iv) Subcontracting costs. For any subcontractor costs submitted for reimbursement, the carrier is responsible for ensuring that documentation requirements set forth herein are passed on to any and all subcontractors utilized in the carrier's efforts to meet CALEA requirements.

(v) Other costs. List all other costs not otherwise included in the categories described above (e.g., special tooling, travel, computer and consultant services) and provide bases for costs.

(e) As part of the specific information required, the carrier shall submit with its cost estimate and clearly identify as such, costs that are verifiable and factual. In addition, the carrier shall submit information reasonably required to explain its estimating process, including:

(1) The judgmental factors applied, such as trends or budgetary data, and the mathematical or other methods used in the estimate, including those used in projecting from known data; and

(2) The nature and amount of any contingencies included in the proposed estimate.

(f) There is a clear distinction between submitting cost data and merely making available books, records, and other documents without identification. The requirement for submission of cost data is met when all accurate cost data reasonably available to the carrier have been submitted, either actually or by specific identification, to the FBI.

(g) In submitting its estimate, the carrier must include an index, appropriately referenced, of all the cost data and information accompanying or identified in the estimate. In addition, any future additions and/or revisions, up to the date of agreement on the costs, must be annotated in a supplemental index.

(h) Headings for submission are as follows:

(1) Total Project Cost: Summary.

(i) Cost Elements (Enter appropriate cost elements.)

(ii) Proposed Cost Estimate—Total Cost (Enter those necessary and reasonable costs that in the carrier's judgment will properly be incurred in efficient completion of CALEA requirements. When any of the costs in this have already been incurred (e.g., under a letter contract), describe them on an attached supporting schedule.)

(iii) Proposed Cost Estimate—Unit Cost (Enter the unit costs for each cost element.)

(iv) Supporting Material (Identify the attachment in which the information supporting the specific cost element may be found.)

(2) Total Project Costs: Detail (at Switch Level or Project Level, as appropriate).

(i) Cost Elements (Enter appropriate cost elements.)

(ii) Proposed Cost Estimate—Total Cost (Enter those necessary and reasonable costs that in the carrier's judgment will properly be incurred in efficient completion of CALEA requirements. When any of the costs in this have already been incurred (e.g., under a letter contract), describe them on an attached supporting schedule.)

(iii) Proposed Cost Estimate—Unit Cost (Enter the unit costs for each cost element.)

(iv) Supporting Material (Identify the attachment in which the information supporting the specific cost element may be found.)

§ 100.17 Request for payment.

(a) The carrier shall provide sufficient supporting documentation at the time of submission of request for payment to allow adequate analysis and evaluation of the incurred costs. The FBI reserves the right to request additional cost data from carriers in order to ensure compliance with this part.

(b) Instructions for submission of the supporting documentation for the request for payment are as follows:

(1) The carrier shall submit to the FBI incurred costs by line item with supporting information.

(2) A cost element breakdown as described in § 100.17(f) shall be attached for each agreed upon line item.

(3) Supporting breakdowns shall be furnished for each cost element, consistent with the carrier's cost accounting system.

(c) When more than one line item has been agreed upon, summary total amounts covering all line items shall be furnished for each cost element. Depending on the carrier's accounting system, breakdowns shall be provided to the FBI for the following categories of cost elements, as applicable:

(1) Materials. Provide a consolidated cost summary of individual material quantities included in the various tasks, orders, or agreement line items and the basis upon which they were determined (vendor invoices, time sheets, payroll records, etc.). Include raw materials, parts, software, components, and assemblies. For all reimbursable items, identify the item, source, quantity, and cost.

(2) Direct labor. Provide a breakdown of labor hours, rates, and cost by appropriate category, and furnish the methodologies used in identifying these costs. Have available for audit, in accordance with § 100.18, time sheet and labor rate calculation justification for all direct labor charged to the agreement.

(3) Allocable direct costs. Indicate how allocable costs are computed and applied, including cost breakdowns, comparing estimates to actual data as a basis for evaluating the reasonableness of actual costs.

(4) Subcontracting costs. For any subcontractor costs submitted for reimbursement, along with a copy of the invoice, the carrier must have available for audit in accordance with § 100.18, documentation that costs incurred are just and reasonable.

(5) Other costs. List all other costs not otherwise included in the categories described above (e.g., special tooling, travel, computer and consultant services) and have available for audit in accordance with § 100.18, documentation that costs incurred are just and reasonable.

(d) There is a clear distinction between submitting cost data and merely making available books, records, and other documents without identification.

(1) The requirement for submission of cost data is met when all accurate cost data reasonably available to the carrier have been submitted, either actually or by specific identification of the data that are available for review in the carrier's files, to the FBI.

(2) Should later information which affects the level of reimbursement come into the carrier's possession, it must be promptly submitted to the FBI.

(3) The requirement for submission of cost data continues up to the time of final reimbursement.

(e) In submitting its invoice, the carrier must include an index, which cross references the actual cost data submitted with the cost estimate.

(f) Headings for submission are as follows:

(1) Total Project Cost: Summary.

(i) Cost Elements (Enter appropriate cost elements.)

(ii) Actual Costs Incurred—Total Cost (Enter those necessary and reasonable costs that were incurred in the efficient completion of CALEA requirements.)

(iii) Actual Costs Incurred—Unit Cost (Enter the unit costs for each cost element.)

(iv) Supporting Material (Identify the attachment in which the information supporting the specific cost element may be found.)

(2) Total Project Costs: Detail (at Switch Level or Project Level, as appropriate.)

(i) Cost Elements (Enter appropriate cost elements.)

(ii) Actual Costs Incurred—Total Cost (Enter those necessary and reasonable costs that were incurred in the efficient completion of CALEA requirements.)

(iii) Actual Costs Incurred—Unit Cost (Enter the unit costs for each cost element.)

(iv) Supporting Material (Identify the attachment in which the information supporting the specific cost element may be found.)

§ 100.18 Audit.

(a) General. In order to evaluate the accuracy, completeness, and timeliness of the cost data, the FBI or other representatives of the Government shall have the right to examine and audit all of the carrier's supporting materials.

(1) These materials include, but are not limited to books, records, documents, and other data, regardless of form (e.g., machine readable media such as disk, tape) or type (e.g., data bases, applications software, data base management software, utilities), including computations and projections related to proposing, negotiating, costing, or performing CALEA compliance efforts or modifications.

(2) The right of examination shall extend to all documents necessary to permit adequate evaluation of the cost data submitted, along with the computations and projections used.

(b) Audits of request for payment. The carrier shall maintain and the FBI or representatives of the Government shall have the right to examine and audit supporting materials.

(1) These materials include, but are not limited to, books, records, documents, and other evidence and accounting procedures and practices, regardless of form (e.g., machine readable media such as disk, tape) or type (e.g., date bases, applications software, data base management software, utilities), sufficient to reflect properly all costs claimed to have been incurred, or anticipated to be incurred, in performing the CALEA compliance effort.

(2) This right of examination shall include inspection at all reasonable times of the carrier's plants, or parts of them, engaged in performing the effort.

(c) Reports. If the carrier is required to furnish cost, funding, or performance reports, the FBI or representatives of the Government shall have the right to examine and audit books, records, other documents, and supporting materials, for the purpose of evaluating the effectiveness of the carrier's policies and procedures to produce data compatible with the objectives of these reports and the data reported.

(d) Availability. The carrier shall make available at its office at all reasonable times the costs and support material described herein, for examination, audit, or reproduction, until three (3) years after final reimbursement payment. In addition,

(1) If the CALEA compliance effort is completely or partially terminated, the records relating to the work terminated shall be made available for three (3) years after any resulting final termination settlement; and

(2) Records relating to appeals, litigation or the settlement of claims arising under or relating to the CALEA compliance effort shall be made available until such appeals, litigation, or claims are disposed of.

(e) Subcontractors. The carrier shall ensure that all terms and conditions herein are incorporated in any agreement with a subcontractor that may be utilized by the carrier to perform any or all portions of the agreement.

§ 100.19 Adjustments to agreement estimate.

(a) Adjustments prior to the incurrence of a cost. (1) In accordance with § 100.17(d)(2), the carrier shall notify the FBI when any change affecting the level of reimbursement occurs.

(2) Upon such notification, if the adjustment results in an increase in the estimated reimbursement, the FBI will review the submission and determine if

(i) Funds are available;

(ii) The adjustment is justified and necessary to accomplish the goals of the agreement; and

(iii) It is in the best interest of the government to approve the expenditure.

(3) The FBI will provide the decision as to the acceptability of any increase to the carrier in writing.

(b) Adjustments after the incurrence of a cost. Any cost incurred that exceeds the provision in § 100.16(e)(2) will be reviewed by the FBI to determine reasonability, allowability, and if it is in the best interest of the government to approve the expenditure for reimbursement.

(c) Reduction for defective cost data. (1) The cost shall be reduced accordingly and the agreement shall be modified to reflect the reduction if any cost estimate negotiated in connection with the CALEA compliance effort, or any cost reimbursable under the effort is increased because:

(i) The carrier or a subcontractor furnished cost data to the government that were not complete, accurate, and current;

(ii) A subcontractor or prospective subcontractor furnished the cost data to the carrier that were not complete, accurate, and current; or

(iii) Any of these parties furnished data of any description that were not accurate.

(2) Any reduction in the negotiated cost under § 100.19(c)(1) due to defective data from a prospective subcontractor that was not subsequently awarded the subcontract shall be limited to the amount by which either the actual subcontract or the actual cost to the carrier, if there was no subcontract, was less than the prospective subcontract cost estimate submitted by the carrier, provided that the actual subcontract cost was not itself affected by defective cost data.

(3) If the FBI determines under § 100.19(c)(1) that a cost reduction should be made, the carrier shall not raise the following matters as a defense:

(i) The carrier or subcontractor was a sole source supplier or otherwise was in a superior bargaining position and thus the costs of the agreement would not have been modified even if accurate, complete, and current cost data had been submitted;

(ii) The FBI should have known that the cost data at issue were defective even though the carrier or subcontractor took no affirmative action to bring the character of the data to the attention of the FBI;

(iii) The carrier or subcontractor did not submit accurate cost data. Except as prohibited, an offset in an amount determined appropriate by the FBI based upon the facts shall be allowed against the cost reimbursement of an agreement amount reduction if the carrier certifies to the FBI that, to the best of the carrier's knowledge and belief, the carrier is entitled to the offset in the amount requested and the carrier proves that the cost data were available before the date of agreement on the cost of the agreement (or cost of the modification) and that the data were not submitted before such date. An offset shall not be allowed if the understated data were known by the carrier to be understated when the agreement was signed; or the Government proves that the facts demonstrate that the agreement amount would not have increased even if the available data had been submitted before the date of agreement on cost; or

(4) In the event of an overpayment, the carrier shall be liable to and shall pay the United States at that time such overpayment as was made, with simple interest on the amount of such overpayment to be computed from the date(s) of overpayment to the carrier to the date the Government is repaid by the carrier at the applicable underpayment rate effective for each quarter prescribed by the Secretary of the Treasury under 26 U.S.C. 6621(a)(2).

§ 100.20 Confidentiality of trade secrets/proprietary information.

With respect to any information provided to the FBI under this part that is identified as company proprietary information, it shall be treated as privileged and confidential and only shared within the government on a need-to-know basis. It shall not be disclosed outside the government for any reason inclusive of Freedom of Information requests, without the prior written approval of the company. Information provided will be used exclusively for the implementation of CALEA. This restriction does not limit the government's right to use the information provided if obtained from any other source without limitation.

§ 100.21 Alternative dispute resolution.

(a) If an impasse arises in negotiations between the FBI and the carrier which precludes the execution of a cooperative agreement, the FBI will consider using mediation with the goal of achieving, in a timely fashion, a consensual resolution of all outstanding issues through facilitated negotiations.

(b) Should the carrier agree to mediation, the costs of that mediation process shall be shared equally by the FBI and the carrier.

(c) Each mediation shall be governed by a separate mediation agreement prepared by the FBI and the carrier.

§ 104.1 Purpose.

This part implements the provisions of the September 11th Victim Compensation Fund of 2001, Title IV of Public Law 107-42, 115 Stat. 230 (Air Transportation Safety and System Stabilization Act), as amended by the James Zadroga 9/11 Health and Compensation Act of 2010, Title II of Public Law 111-347, and as amended by the James Zadroga 9/11 Victim Compensation Fund Reauthorization Act, Division O, Title IV of Public Law 114-113 (the “Act”) to provide full compensation to eligible individuals who were physically injured (as defined herein) as a result of the terrorist-related aircraft crashes of September 11, 2001, or the rescue and recovery efforts during the immediate aftermath of such crashes or debris removal during the immediate aftermath of those crashes, and to the “personal representatives” of those who were killed as a result of the crashes or the rescue and recovery efforts during the immediate aftermath of such crashes or debris removal during the immediate aftermath of such crashes. All compensation provided through the Victim Compensation Fund will be on account of personal physical conditions, physical injuries or death. The provisions of these regulations that relate to filing and evaluation of claims, determination of eligibility, and determination of compensable loss shall apply to all claims that are defined as Group B claims in the Act and in these regulations. Eligibility and compensation for Group A claims has been determined prior to the effective date of these regulations, pursuant to the regulations previously in effect.

§ 104.2 Eligibility definitions and requirements.

(a) Categories of claims—(1) Group A claims. A claim is a Group A claim if the Special Master has transmitted a final award determination by sending a letter postmarked and transmitted on or before December 17, 2015 indicating the total amount of compensation to which the claimant is entitled for that claim, pursuant to the regulations and methodology in effect on December 17, 2015.

(2) Group B claims. A claim is a Group B claim if it is not a Group A claim. An individual can have both Group A claims and Group B claims.

(b) Eligible claimants. The term eligible claimants means:

(1) Individuals present at a 9/11 crash site at the time of or in the immediate aftermath of the terrorist-related aircraft crashes and who suffered physical harm, as defined herein, as a direct result of the crashes or the rescue and recovery efforts or debris removal;

(2) The Personal Representatives of deceased individuals aboard American Airlines flights 11 or 77 and United Airlines flights 93 or 175; and

(3) The Personal Representatives of individuals who were present at a 9/11 crash site at the time of or in the immediate aftermath of the crashes and who died as a direct result of the terrorist-related aircraft crash or the rescue and recovery efforts during the immediate aftermath of such crashes or the debris removal during the immediate aftermath of such crashes.

(4) The term eligible claimants does not include any individual or representative of an individual who is identified to have been a participant or conspirator in the terrorist-related crashes of September 11.

(c) Immediate aftermath. The term immediate aftermath means any period beginning with the terrorist-related aircraft crashes of September 11, 2001, and ending on May 30, 2002.

(d) Physical harm. The term physical harm shall mean:

(1) A WTC-Related Physical Health Condition; or

(2) A physical injury to the body resulting from the 9/11 attacks that was treated by a medical professional within a reasonable time from the date of discovering such harm and is verifiable by medical records created by or at the direction of the medical professional who provided the medical care contemporaneously with the care; but

(3) Not including any Mental Health Condition.

(e) Mental Health Condition. The term Mental Health Condition shall mean a mental health condition described in paragraph (1)(A)(ii) or (3)(B) of section 3312(a) of the Public Health Service Act (42 U.S.C. 300 mm-22(a)), or any mental health condition certified under section 3312(b)(2)(B)(iii) of such Act (including such certification as applied under section 3322(a) (42 U.S.C. 300mm-32(a) of such Act), or a mental health condition described in section 3322(b)(2) (42 U.S.C. 300mm-32(b)(2)) of such Act, or any other mental health condition.

(f) Personal Representative. The term Personal Representative shall mean the person determined to be the Personal Representative under § 104.4 of this part.

(g) WTC Health Program. The term WTC Health Program means the World Trade Center Health Program established by Title I of Public Law 111-347 (codified at Title XXXIII of the Public Health Service Act, 42 U.S.C. 300mm through 300mm-61).

(h) WTC Program Administrator. The WTC Program Administrator shall mean the WTC Program Administrator as defined in section 3306 of the Public Health Service Act (42 U.S.C. 300mm-5).

(i) WTC-Related Physical Health Condition. The term WTC-Related Physical Health Condition means a WTC-related health condition listed in Section 3312(a) of the Public Health Service Act (42 U.S.C. 300mm-22(a)), including the conditions listed in section 3322(b) of such Act (42 U.S.C. 300mm-32(b)), and including those health conditions added by the WTC Program Administrator through rulemaking pursuant to the Public Health Service Act, 42 CFR part 88, except that such term shall not include any Mental Health Condition.

(j) 9/11 crash site. The term 9/11 crash site means:

(1) The World Trade Center site, Pentagon site, and Shanksville, Pennsylvania site; or

(2) The buildings or portions of buildings that were destroyed as a result of the terrorist-related airplane crashes of September 11, 2001; or

(3) The area in Manhattan that is south of the line that runs along Canal Street from the Hudson River to the intersection of Canal Street and East Broadway, north on East Broadway to Clinton Street, and east on Clinton Street to the East River; and

(4) Any area related to, or along, routes of debris removal, such as barges and Fresh Kills.

§ 104.3 Other definitions.

(a) Beneficiary. The term beneficiary shall mean a person to whom the Personal Representative shall distribute all or part of the award under § 104.52 of this part.

(b) Dependents. The Special Master shall identify as dependents those persons so identified by the victim on his or her Federal tax return for the year prior to the year of the victim's death (or those persons who legally could have been identified by the victim on his or her Federal tax return for the year prior to the year of the victim's death) unless:

(1) The claimant demonstrates that a minor child of the victim was born or adopted on or after January 1 of the year of the victim's death;

(2) Another person became a dependent in accordance with then- applicable law on or after January 1 of the year of the victim's death; or

(3) The victim was not required by law to file a Federal income tax return for the year prior to the year of the victim's death.

(c) Spouse. The Special Master shall identify as the spouse of a victim the person reported as spouse on the victim's Federal tax return for the year prior to the year of the victim's death (or the person who legally could have been identified by the victim on his or her Federal tax return for the year prior to the year of the victim's death) unless:

(1) The victim was married or divorced in accordance with applicable state law on or after January 1 of the year of the victim's death; or

(2) The victim was not required by law to file a Federal income tax return for the year prior to the year of the victim's death.

(3) The Special Master shall identify as the spouse of a victim any same-sex spouse who was lawfully married to the victim under applicable state law.

(d) The Act. The Act, as used in this part, shall mean Public Law 107-42, 115 Stat. 230 (“Air Transportation Safety and System Stabilization Act”), 49 U.S.C. 40101 note, as amended by the James Zadroga 9/11 Health and Compensation Act of 2010, Title II of Public Law 111-347 and as further amended by the James Zadroga 9/11 Victim Compensation Fund Reauthorization Act, Division O, Title IV of Public Law 114-113.

(e) Victim. The term victim shall mean an eligible injured claimant or a decedent on whose behalf a claim is brought by an eligible Personal Representative.

(f) Substantially Complete. A claim becomes substantially complete when, in the opinion of the Special Master or her designee, the claim contains sufficient information and documentation to determine both the claimant's eligibility and, if the claimant is eligible, an appropriate award.

§ 104.4 Personal Representative.

(a) In general. The Personal Representative shall be:

(1) An individual appointed by a court of competent jurisdiction as the Personal Representative of the decedent or as the executor or administrator of the decedent's will or estate.

(2) In the event that no Personal Representative or executor or administrator has been appointed by any court of competent jurisdiction, and such issue is not the subject of pending litigation or other dispute, the Special Master may, in her discretion, determine that the Personal Representative for purposes of compensation by the Fund is the person named by the decedent in the decedent's will as the executor or administrator of the decedent's estate. In the event no will exists, the Special Master may, in her discretion, determine that the Personal Representative for purposes of compensation by the Fund is the first person in the line of succession established by the laws of the decedent's domicile governing intestacy.

(b) Notice to beneficiaries. (1) Any purported Personal Representative must, before filing an Eligibility Form, provide written notice of the claim (including a designated portion of the Eligibility Form) to the immediate family of the decedent (including, but not limited to, the decedent's spouse, former spouses, children, other dependents, and parents), to the executor, administrator, and beneficiaries of the decedent's will, and to any other persons who may reasonably be expected to assert an interest in an award or to have a cause of action to recover damages relating to the wrongful death of the decedent.

(2) Personal delivery or transmission by certified mail, return receipt requested, shall be deemed sufficient notice under this provision. The claim forms shall require that the purported Personal Representative certify that such notice (or other notice that the Special Master deems appropriate) has been given. In addition, as provided in § 104.21(b)(5) of this part, the Special Master may publish a list of individuals who have filed Eligibility Forms and the names of the victims for whom compensation is sought, but shall not publish the content of any such form.

(c) Objections to Personal Representatives. Objections to the authority of an individual to file as the Personal Representative of a decedent may be filed with the Special Master by parties who assert a financial interest in the award up to 30 days following the filing by the Personal Representative. If timely filed, such objections shall be treated as evidence of a “dispute” pursuant to paragraph (d) of this section.

(d) Disputes as to identity. The Special Master shall not be required to arbitrate, litigate, or otherwise resolve any dispute as to the identity of the Personal Representative. In the event of a dispute over the appropriate Personal Representative, the Special Master may suspend adjudication of the claim or, if sufficient information is provided, calculate the appropriate award and authorize payment, but place in escrow any payment until the dispute is resolved either by agreement of the disputing parties or by a court of competent jurisdiction. Alternatively, the disputing parties may agree in writing to the identity of a Personal Representative to act on their behalf, who may seek and accept payment from the Fund while the disputing parties work to settle their dispute.

§ 104.5 Foreign claims.

In the case of claims brought by or on behalf of foreign citizens, the Special Master may alter the requirements for documentation set forth herein to the extent such materials are unavailable to such foreign claimants.

§ 104.6 Amendments to this part.

All claims will be processed in accordance with the current provisions of this part.

§ 104.21 Presumptively covered conditions.

(a) In general. The Special Master shall maintain and publish on the Fund's Web site a list of presumptively covered conditions that resulted from the terrorist-related air crashes of September 11, 2001, or rescue and recovery or debris removal efforts during the immediate aftermath of such crashes. The list shall consist of the WTC-Related Physical Health Conditions that resulted from the terrorist-related air crashes of September 11, 2001 or rescue and recovery or debris removal efforts during the immediate aftermath of such crashes. Group B claims shall be eligible for compensation only if the Special Master determines based on the evidence presented that a claimant who seeks compensation for physical harm has at least one WTC-Related Physical Health Condition, or, with respect to a deceased individual, the cause of such individual's death is determined at least in part to be attributable to a WTC-Related Physical Health Condition.

(b) Updates. The Special Master shall update the list of presumptively covered conditions to conform to any changes in the WTC-Related Physical Health Conditions. Claims may then be amended pursuant to § 104.22(e)(ii).

(c) Conditions other than presumptively covered conditions. A claimant may also be eligible for payment under § 104.51 where the claimant has at least one WTC-Related Physical Health Condition and the Special Master determines that the claimant—

(1) Has a physical injury to the body that resulted from the terrorist-related air crashes of September 11, 2001 or rescue and recovery or debris removal efforts during the immediate aftermath of such crashes or presents extraordinary circumstances; and

(2) Is otherwise eligible for payment.

[81 FR 38941, June 15, 2016, as amended at 81 FR 60620, Sept. 2, 2016]

§ 104.22 Filing for compensation.

(a) Compensation form; “filing.” A compensation claim shall be deemed “filed” for purposes of section 405(b)(3) of the Act (providing that the Special Master shall issue a determination regarding the matters that were the subject of the claim not later than 120 calendar days after the date on which a claim is filed), and for any time periods in this part, when it is substantially complete.

(b) Eligibility Form. The Special Master shall develop an Eligibility Form, which may be a portion of a complete claim form, that will require the claimant to provide information necessary for determining the claimant's eligibility to recover from the Fund.

(1) The Eligibility Form may require that the claimant certify that he or she has dismissed any pending lawsuit seeking damages as a result of the terrorist-related airplane crashes of September 11, 2001, or for damages arising from or related to debris removal (except for actions seeking collateral source benefits) no later than January 2, 2011 and that there is no pending lawsuit brought by a dependent, spouse, or beneficiary of the victim.

(2) The Special Master may require as part of the notice requirement pursuant to § 104.4(b) that the Personal Representative of the deceased individual provide copies of a designated portion of the Eligibility Form to the immediate family of the decedent (including, but not limited to, the spouse, former spouses, children, other dependents, and parents), to the executor, administrator, and beneficiaries of the decedent's will, and to any other persons who may reasonably be expected to assert an interest in an award or to have a cause of action to recover damages relating to the wrongful death of the decedent.

(3) The Eligibility Form may require claimants to provide the following proof:

(i) Proof of death: Death certificate or similar official documentation;

(ii) Proof of presence at site: Documentation sufficient to establish presence at a 9/11 crash site, which may include, without limitation, a death certificate, proof of residence, such as a lease or utility bill, records of employment or school attendance, contemporaneous medical records, contemporaneous records of federal, state, city or local government, a pay stub, official personnel roster, site credentials, an affidavit or declaration of the decedent's or injured claimant's employer, or other sworn statement (or unsworn statement complying with 28 U.S.C. 1746) regarding the presence of the victim;

(iii) Proof of physical harm: Certification of a conclusion by the WTC Health Program that the claimant suffers from a WTC-Related Physical Health Condition and is eligible for treatment under the WTC Health Program, or verification by the WTC Program Administrator that the claimant suffers from a WTC-Related Physical Health Condition, or other credible medical records from a licensed medical professional.

(iv) Personal Representative: Copies of relevant legal documentation, including court orders; letters testamentary or similar documentation; proof of the purported Personal Representative's relationship to the decedent; copies of wills, trusts, or other testamentary documents; and information regarding other possible beneficiaries as requested by the Eligibility Form;

(v) Any other information that the Special Master deems necessary to determine the claimant's eligibility.

(vi) The Special Master may also require waivers, consents, or authorizations from claimants to obtain directly from third parties tax returns, medical information, employment information, or other information that the Special Master deems relevant in determining the claimant's eligibility or award, and may request an opportunity to review originals of documents submitted in connection with the Fund.

(vii) The Special Master may publish a list of individuals who have filed Eligibility Forms on behalf of a deceased victim and the names of the deceased victims for whom compensation is sought, but shall not publish the content of any such form.

(c) Personal Injury Compensation Form and Death Compensation Form. The Special Master shall develop a Personal Injury Compensation Form, which may be a portion of a complete claim form, that each injured claimant must submit. The Special Master shall also develop a Death Compensation Form, which may be a portion of a complete claim form, that each Personal Representative must submit. These forms shall require the claimant to provide certain information that the Special Master deems necessary to determining the amount of any award, including information concerning income, collateral sources, benefits, settlements and attorneys' fees relating to civil actions described in section 405(c)(3)(C)(iii) of the Act, and other financial information, and shall require the claimant to state the factual basis for the amount of compensation sought. It shall also allow the claimant to submit certain other information that may be relevant, but not necessary, to the determination of the amount of any award.

(1) The Special Master may ask claimants to submit certain tax returns or tax transcripts for returns that the Special Master deems appropriate for determination of an award. The Special Master may also require waivers, consents, or authorizations from claimants to obtain directly from third parties medical information, employment information, or other information that the Special Master deems relevant to determining the amount of any award.

(2) Claimants may attach to the `Personal Injury Compensation Form” or “Death Compensation Form” any additional statements, documents or analyses by physicians, experts, advisors, or any other person or entity that the claimant believes may be relevant to a determination of compensation.

(d) Submission of a claim. Section 405(c)(3)(C) of the Act provides that upon the submission of a claim under the Fund, the claimant waives the right to file a civil action (or to be a party to an action) in any Federal or State court for damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001, or debris removal, except for civil actions to recover collateral source obligations and civil actions against any person who is a knowing participant in any conspiracy to hijack any aircraft or commit any terrorist act. A claim shall be deemed submitted for purposes of section 405(c)(3)(C) of the Act when the Eligibility Form is deemed filed, regardless of whether any time limits are stayed or tolled.

(e) Amendment of claims. A claimant who has previously submitted a claim may amend such claim to include:

(1) An injury or loss that the claimant had not suffered (or did not reasonably know the claimant suffered) at the time the claimant filed the previous claim;

(2) A condition that the Special Master has identified and published in accordance with 104.21(a), since the time the claimant filed the previous claim, as a presumptively covered condition;

(3) An injury for which the claimant was previously compensated by the Fund, but only if that injury has substantially worsened, resulting in damages or loss that was not previously compensated.

(f) Provisions of information by third parties. Any third party having an interest in a claim brought by a Personal Representative may provide written statements or information regarding the Personal Representative's claim. The Claims Evaluator or the Special Master or the Special Master's designee may, at his or her discretion, include the written statements or information as part of the claim.

§ 104.31 Procedure for claims evaluation.

(a) Initial review. Claims Evaluators shall review the forms filed by the claimant and either deem the claim “filed” or notify the claimant of any deficiency in the forms or any required documents.

(b) Procedure. The Claims Evaluator shall determine eligibility and the claimant's presumed award pursuant to §§ 104.43 to 104.46 of this part and notify the claimant in writing of the eligibility determination, or the amount of the presumed award as applicable, and the right to request a hearing before the Special Master or her designee under § 104.33 of this part. After an eligible claimant has been notified of the presumed award, within 30 days the claimant may either accept the presumed compensation determination as the final determination and request payment, or may instead request a review before the Special Master or her designee pursuant to § 104.33. Claimants found to be ineligible may appeal pursuant to § 104.32.

(c) Multiple claims from the same family. The Special Master may treat claims brought by or on behalf of two or more members of the same immediate family as related or consolidated claims for purposes of determining the amount of any award.

§ 104.32 Eligibility review.

Any claimant deemed ineligible by the Claims Evaluator may appeal that decision to the Special Master or her designee by filing an eligibility appeal within 30 days on forms created by the office of the Special Master.

§ 104.33 Hearing.

(a) Conduct of hearings. Hearings shall be before the Special Master or her designee. The objective of hearings shall be to permit the claimant to present information or evidence that the claimant believes is necessary to a full understanding of the claim. The claimant may request that the Special Master or her designee review any evidence relevant to the determination of the award, including without limitation: The nature and extent of the claimant's injury; evidence of the claimant's presence at a 9/11 crash site; factors and variables used in calculating economic loss; the identity of the victim's spouse and dependents; the financial needs of the claimant, facts affecting noneconomic loss; and any factual or legal arguments that the claimant contends should affect the award. Claimants shall be entitled to submit any statements or reports in writing. The Special Master or her designee may require authentication of documents, including medical records and reports, and may request and consider information regarding the financial resources and expenses of the victim's family or other material that the Special Master or her designee deems relevant.

(b) Location and duration of hearings. The hearings shall, to the extent practicable, be scheduled at times and in locations convenient to the claimant or his or her representative. The hearings shall be limited in length to a time period determined by the Special Master or her designee.

(c) Witnesses, counsel, and experts. Claimants shall be permitted, but not required, to present witnesses, including expert witnesses. The Special Master or her designee shall be permitted to question witnesses and examine the credentials of experts. The claimant shall be entitled to be represented by an attorney in good standing, but it is not necessary that the claimant be represented by an attorney. All testimony shall be taken under oath.

(d) Waivers. The Special Master shall have authority and discretion to require any waivers necessary to obtain more individualized information on specific claimants.

(e) Award Appeals. For award appeals, the Special Master or her designee shall make a determination whether:

(1) There was an error in determining the presumptive award, either because the claimant's individual criteria were misapplied or for another reason; or

(2) The claimant presents extraordinary circumstances not adequately addressed by the presumptive award.

(f) Determination. The Special Master shall notify the claimant in writing of the final amount of the award, but need not create or provide any written record of the deliberations that resulted in that determination. There shall be no further review or appeal of the Special Master's determination. In notifying the claimant of the final amount of the award, the Special Master may designate the portions or percentages of the final award that are attributable to economic loss and non-economic loss, respectively, and may provide such other information as appropriate to provide adequate guidance for a court of competent jurisdiction and a personal representative.

§ 104.34 Publication of awards.

The Special Master reserves the right to publicize the amounts of some or all of the awards, but shall not publish the name of the claimants or victims that received each award. If published, these decisions would be intended by the Special Master as general guides for potential claimants and should not be viewed as precedent binding on the Special Master or her staff.

§ 104.35 Claims deemed abandoned by claimants.

The Special Master and her staff will endeavor to evaluate promptly any information submitted by claimants. Nonetheless, it is the responsibility of the claimant to keep the Special Master informed of his or her current address and to respond within the duration of this program to requests for additional information. Claims outstanding because of a claimant's failure to complete his or her filings shall be deemed abandoned.

§ 104.41 Amount of compensation.

As provided in section 405(b)(1)(B)(ii) of the Act, in determining the amount of compensation to which a claimant is entitled, the Special Master shall take into consideration the harm to the claimant, the facts of the claim, and the individual circumstances of the claimant. The individual circumstances of the claimant may include the financial needs or financial resources of the claimant or the victim's dependents and beneficiaries. As provided in section 405(b)(6) of the Act, the Special Master shall reduce the amount of compensation by the amount of collateral source compensation the claimant (or, in the case of a Personal Representative, the victim's beneficiaries) has received or is entitled to receive as a result of the terrorist- related aircraft crashes of September 11, 2001. In no event shall a Group B claim receive an amount of compensation that is greater than the amount of loss determined pursuant to these regulations less the amount of any collateral source compensation that the claimant has received or is entitled to receive for such claim as a result of the terrorist related aircraft crashes of September 11, 2001 for the Group B claim.

§ 104.42 Applicable state law.

The phrase “to the extent recovery for such loss is allowed under applicable state law,” as used in the statute's definition of economic loss in section 402(5) of the Act, is interpreted to mean that the Special Master is not permitted to compensate claimants for those categories or types of economic losses that would not be compensable under the law of the state that would be applicable to any tort claims brought by or on behalf of the victim.

§ 104.43 Determination of presumed economic loss for decedents.

In reaching presumed determinations for economic loss for Personal Representatives bringing claims on behalf of eligible decedents, the Special Master shall consider sums corresponding to the following:

(a) Loss of earnings or other benefits related to employment. The Special Master, as part of the process of reaching a “determination” pursuant to section 405(b) of the Act, has developed a methodology and may publish updated schedules, tables, or charts that will permit prospective claimants to estimate determinations of loss of earnings or other benefits related to employment based upon individual circumstances of the deceased victim, including: The age of the decedent as of the date of death; the number of dependents who survive the decedent; whether the decedent is survived by a spouse; and the amount and nature of the decedent's income for recent years. The decedent's salary/income in the three years preceding the year of death (or for other years the Special Master deems relevant) shall be evaluated in a manner that the Special Master deems appropriate. The Special Master may, if she deems appropriate, take an average of income figures for the three years preceding the year of death, and may also consider income for other periods that she deems appropriate, including published pay scales for victims who were government or military employees. In computing any loss of earnings due to physical harm as defined herein the Special Master shall, for each year for which any loss of earnings or other benefits related to employment is computed, limit the annual past or projected future gross income of the decedent to an amount that is not greater than $200,000. For purposes of the computation of loss of earnings, annual gross income shall have the meaning given such term in section 61 of the Internal Revenue Code of 1986. In cases where the victim was a minor child, the Special Master may assume an average income for the child commensurate with the average income of all wage earners in the United States. For victims who were members of the armed services or government employees such as firefighters or police officers, the Special Master may consider all forms of compensation (or pay) to which the victim was entitled. For example, military service members' and uniformed service members' compensation includes all of the various components of compensation, including, but not limited to, basic pay (BPY), basic allowance for housing (BAH), basic allowance for subsistence (BAS), federal income tax advantage (TAD), overtime bonuses, differential pay, and longevity pay.

(b) Medical expense loss. This loss equals the documented past out-of-pocket medical expenses that were incurred as a result of the eligible physical harm suffered by the decedent (i.e., those medical expenses that were not paid for or reimbursed through health insurance or other programs). This loss shall be calculated on a case-by-case basis, using documentation and other information submitted by the Personal Representative. The Special Master shall not consider any future medical expense loss.

(c) Replacement services loss. For decedents who did not have any prior earned income, or who worked only part-time outside the home, economic loss may be determined with reference to replacement services and similar measures.

(d) Loss due to death/burial costs. This loss shall be calculated on a case- by-case basis, using documentation and other information submitted by the personal representative and includes the out-of-pocket burial costs that were incurred.

(e) Loss of business or employment opportunities. Such losses shall be addressed through the procedure outlined above in paragraph (a) of this section.

§ 104.44 Determination of presumed noneconomic losses for death for claims on behalf of decedents.

The presumed non-economic losses for an eligible death shall be $250,000 plus an additional $100,000 for the spouse and each dependent of the deceased victim. Such presumed losses include a noneconomic component of replacement services loss.

§ 104.45 Determination of presumed economic loss for injured claimants.

In reaching presumed determinations for economic loss for claimants who suffered an eligible physical harm (but did not die), the Special Master shall consider sums corresponding to the following:

(a) Loss of earnings or other benefits related to employment. The Special Master may determine the loss of earnings or other benefits related to employment on a case-by-case basis, using documentation and other information submitted by the claimant, regarding the actual amount of work that the claimant has missed or will miss without compensation. Alternatively, the Special Master may determine the loss of earnings or other benefits related to employment by relying upon the methodology created pursuant to § 104.43(a) and adjusting the loss based upon the extent of the victim's physical harm. In determining or computing any loss of earnings due to eligible physical harm, the Special Master shall, for each year of any past or projected future loss of earnings or other benefits related to employment, limit the annual gross income of the claimant to an amount that is not greater than $200,000. For purposes of the computation of loss of earnings, annual gross income shall have the meaning given such term in section 61 of the Internal Revenue Code of 1986.

(1) Disability; in general. In evaluating claims of disability, the Special Master will, in general, make a determination regarding whether the claimant is capable of performing his or her usual profession in light of the eligible physical conditions. The Special Master may require that the claimant submit an evaluation of the claimant's disability and ability to perform his or her occupation prepared by medical experts.

(2) Total permanent disability. With respect to claims of total permanent disability, the Special Master may accept a determination of disability made by the Social Security Administration as evidence of disability without any further medical evidence or review. The Special Master may also consider determinations of permanent total disability made by other governmental agencies or private insurers in evaluating the claim.

(3) Partial disability. With respect to claims of partial disability, the Special Master may consider evidence of the effect of the partial disability on the claimant's ability to perform his or her usual occupation as well as the effect of the partial disability on the claimant's ability to participate in usual daily activities.

(b) Medical Expense Loss. This loss equals the documented past out-of-pocket medical expenses that were incurred as a result of the physical harm suffered by the victim (i.e., those medical expenses that were not paid for or reimbursed through health insurance or other programs). The Special Master shall not consider any future medical expense loss.

(c) Replacement Services. For claimants who suffer physical harm and did not have any prior earned income or who worked only part time outside the home, economic loss may be determined with reference to replacement services and similar measures.

(d) Loss of business or employment opportunities. Such losses shall be addressed through the procedure outlined above in paragraph (a) of this section.

(e) Determination of Noneconomic Loss for Claimants Who Have a WTC-Related Physical Condition and Who Are Found Eligible for Economic Loss. The Special Master shall determine the appropriate noneconomic loss for such claimants in accordance with the provisions of § 104.46, taking into account the extent of disability, and may consider whether the claimant has multiple WTC-Related Physical Health Conditions that contribute to the disability.

§ 104.46 Determination of presumed noneconomic losses for injured claimants

The Special Master may determine the presumed noneconomic losses for claimants who suffered physical harm (but did not die) by relying upon the noneconomic losses described in § 104.44 and adjusting the losses based upon the extent of the victim's physical harm. The presumed noneconomic loss for a claim based on any single type of cancer shall not exceed $250,000 and the presumed noneconomic loss for a claim based on any single type of non-cancer condition shall not exceed $90,000. Such presumed losses include any noneconomic component of replacement services loss. The Special Master has discretion to consider the effect of multiple cancer conditions or multiple cancer and non-cancer conditions in computing the total noneconomic loss.

§ 104.47 Collateral sources.

(a) Payments that constitute collateral source compensation. The amount of compensation shall be reduced by all collateral source compensation the claimant has received or is entitled to receive as a result of the terrorist-related aircraft crashes of September 11, 2001, or debris removal in the immediate aftermath, including life insurance, pension funds, death benefits programs, payments by Federal, State, or local governments related to the terrorist- related aircraft crashes of September 11, 2001, or debris removal and payments made pursuant to the settlement of a civil action as described in section 405(c)(3)(C)(iii) of the Act. In determining the appropriate collateral source offset for future benefit payments, the Special Master may employ an appropriate methodology for determining the present value of such future benefits. In determining the appropriate value of offsets for pension funds, life insurance and similar collateral sources, the Special Master may, as appropriate, reduce the amount of offsets to take account of self- contributions made or premiums paid by the victim during his or her lifetime. In determining the appropriate collateral source offset for future benefit payments that are contingent upon one or more future event(s), the Special Master may reduce such offsets to account for the possibility that the future contingencies may or may not occur. In cases where the recipients of collateral source compensation are not beneficiaries of the awards from the Fund, the Special Master shall have discretion to exclude such compensation from the collateral source offset where necessary to prevent beneficiaries from having their awards reduced by collateral source compensation that they will not receive.

(b) Payments that do not constitute collateral source compensation. The following payments received by claimants do not constitute collateral source compensation:

(1) The value of services or in-kind charitable gifts such as provision of emergency housing, food, or clothing; and

(2) Charitable donations distributed to the beneficiaries of the decedent, to the injured claimant, or to the beneficiaries of the injured claimant by privately funded charitable entities; provided however, that the Special Master may determine that funds provided to victims or their families through a privately funded charitable entity constitute, in substance, a payment described in paragraph (a) of this section.

(3) Tax benefits received from the Federal government as a result of the enactment of the Victims of Terrorism Tax Relief Act.

§ 104.51 Payments to eligible individuals.

(a) Payment date. Subject to paragraph (c) of this section, the Special Master shall authorize payment of an award to a claimant not later than 20 days after the date on which:

(1) The claimant accepts the presumed award; or

(2) A final award for the claimant is determined after a hearing on appeal.

(b) Failure to accept or appeal presumed award. If a claimant fails to accept or appeal the presumed award determined for that claimant within 30 days, the presumed award shall be deemed to have been accepted and all rights to appeal the award shall have been waived.

(c) Payment of Group A claims. Group A claims shall be paid as soon as practicable from the capped amount appropriated for such claims of $2,775,000,000.

(d) Payment of Group B claims. Group B claims may be paid after the date on which new Group B claims may be filed under these regulations from the amount appropriated for Group A claims if and to the extent that there are funds remaining after all Group A claims have been paid and, thereafter, from the $4,600,000,000 amount appropriated specifically for Group B claims once it becomes available in fiscal year 2017 until expended.

(e) Prioritization. The Special Master shall identify claims that present the most debilitating physical conditions and shall prioritize the compensation of such claims so that claimants with such debilitating conditions are not unduly burdened.

(f) Reassessment. Commencing on December 18, 2017, and continuing at least annually thereafter until the closure of the Victim Compensation Fund, the Special Master shall review and reassess policies and procedures and make such adjustments as may be necessary to ensure that the total expenditures including administrative costs in providing compensation for claims in Group B do not exceed the funds deposited into the Victim Compensation Fund and to ensure that the compensation of those claimants who suffer from the most debilitating physical conditions is prioritized to avoid undue burden on such claimants.

§ 104.52 Distribution of award to decedent's beneficiaries.

The Personal Representative shall distribute the award in a manner consistent with the law of the decedent's domicile or any applicable rulings made by a court of competent jurisdiction. The Special Master may require the Personal Representative to provide to the Special Master a plan for distribution of any award received from the Fund before payment is authorized. Notwithstanding any other provision of these regulations or any other provision of state law, in the event that the Special Master concludes that the Personal Representative's plan for distribution does not appropriately compensate the victim's spouse, children, or other relatives, the Special Master may direct the Personal Representative to distribute all or part of the award to such spouse, children, or other relatives.

§ 104.61 Limitation on civil actions.

(a) General. Section 405(c)(3)(C) of the Act provides that upon the submission of a claim under the Fund, the claimant waives the right to file a civil action (or be a party to an action) in any Federal or State court for damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001, or for damages arising from or related to debris removal, except that this limitation does not apply to recover collateral source obligations, or to a civil action against any person who is a knowing participant in any conspiracy to hijack any aircraft or commit any terrorist act. The Special Master shall take appropriate steps to inform potential claimants of section 405(c)(3)(C) of the Act.

(b) Pending actions. Claimants who have filed a civil action or who are a party to such an action as described in paragraph (a) of this section may not file a claim with the Special Master unless they withdraw from such action not later than January 2, 2012.

(c) Settled actions. In the case of an individual who settled a civil action described in Section 405(c)(3)(C) of the Act, such individual may not submit a claim under this title unless such action was commenced after December 22, 2003, and a release of all claims in such action was tendered prior to January 2, 2011.

§ 104.62 Time limit on filing claims.

(a) In general. Group B claims. Group B claims that were not submitted to the Victim Compensation Fund on or before December 17, 2015 may be filed by an individual (or by a personal representative on behalf of a deceased individual) during the period beginning on June 15, 2016, and ending on December 18, 2020. Notwithstanding the above, an individual who intends to file a Group B claim must register with the Victim Compensation Fund in accordance with the following:

(1) In the case that the individual knew (or reasonably should have known) before October 3, 2011, that the individual suffered a physical harm or died as a result of the terrorist-related aircraft crashes of September 11, 2001, or as a result of debris removal, and is eligible to file a claim under this part as of October 3, 2011, the individual or representative of such individual as appropriate may file a claim not later than October 3, 2013.

(2) In the case that the individual first knew (or reasonably should have known) on or after October 3, 2011, that the individual suffered a physical harm or died or in the case that the individual became eligible to file a claim under this part on or after that date, the individual or representative of such individual as appropriate may file a claim not later than the last day of the 2-year period beginning on the date that the individual or representative first knew (or should have known) that the individual both suffered from such harm and was eligible to file a claim under this title, but in no event beyond December 18, 2020.

(b) Determination by Special Master. The Special Master or the Special Master's designee should determine the timeliness of all claims under paragraph (a) of this section.

[81 FR 38941, June 15, 2016, as amended at 81 FR 60620, Sept. 2, 2016]

§ 104.63 Subrogation.

Compensation under this Fund does not constitute the recovery of tort damages against a third party nor the settlement of a third party action, and the United States shall be subrogated to all potential claims against third party tortfeasors of any victim receiving compensation from the Fund. For that reason, no person or entity having paid other benefits or compensation to or on behalf of a victim shall have any right of recovery, whether through subrogation or otherwise, against the compensation paid by the Fund.

§ 104.71 Procedures to prevent and detect fraud.

(a) Review of claims. For the purpose of detecting and preventing the payment of fraudulent claims and for the purpose of assuring accurate and appropriate payments to eligible claimants, the Special Master shall implement procedures to:

(1) Verify, authenticate, and audit claims;

(2) Analyze claim submissions to detect inconsistencies, irregularities, duplication, and multiple claimants; and

(3) Ensure the quality control of claims review procedures.

(b) Quality control. The Special Master shall institute periodic quality control audits designed to evaluate the accuracy of submissions and the accuracy of payments, subject to the oversight of the Inspector General of the Department of Justice.

(c) False or fraudulent claims. The Special Master shall refer all evidence of false or fraudulent claims to appropriate law enforcement authorities.

§ 104.81 Limitation on attorney fees.

(a) In general—(1) In general. Notwithstanding any contract, the representative of an individual may not charge, for services rendered in connection with the claim of an individual under this title, including expenses routinely incurred in the course of providing legal services, more than 10 percent of an award paid under this title on such claim. Expenses incurred in connection with the claim of an individual in this title other than those that are routinely incurred in the course of providing legal services may be charged to a claimant only if they have been approved by the Special Master.

(2) Certification. In the case of any claim in connection with which services covered by this section were rendered, the representative shall certify his or her compliance with this section and shall provide such information as the Special Master requires to ensure such compliance.

(b) Limitation—(1) In general. Except as provided in paragraph (b)(2) of this section, in the case of an individual who was charged a legal fee in connection with the settlement of a civil action described in section 405(c)(3)(C)(iii) of the Act, the representative who charged such legal fee may not charge any amount for compensation for services rendered in connection with a claim filed by or on behalf of that individual under this title.

(2) Exception. If the legal fee charged in connection with the settlement of a civil action described in section 405(c)(3)(C)(iii) of the Act of an individual is less than 10 percent of the aggregate amount of compensation awarded to such individual through such settlement, the representative who charged such legal fee to that individual may charge an amount for compensation for services rendered to the extent that such amount charged is not more than Ten (10) percent of such aggregate amount through the settlement, minus the total amount of all legal fees charged for services rendered in connection with such settlement.

(c) Discretion to lower fee. In the event that the Special Master finds that the fee limit set by paragraph (a) or (b) of this section provides excessive compensation for services rendered in connection with such claim, the Special Master may, in the discretion of the Special Master, award as reasonable compensation for services rendered an amount lesser than that permitted for in paragraph (a) of this section.

§ 105.10 Definitions, purpose, and scope.

(a) Definitions.

ATSA means the Aviation and Transportation Security Act, Public Law 107-71.

Candidate means any person who is an alien as defined in section 101(a)(3) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(3), or a person specified by the Under Secretary of Transportation for Security, who seeks training in the operation of an aircraft with a maximum certificated takeoff weight of 12,500 pounds or more from a Provider.

Certificates with ratings recognized by the United States means a valid pilot or flight engineer certificate with ratings issued by the United States, or a valid foreign pilot or flight engineer license issued by a member of the Assembly of the International Civil Aviation Organization, as established by Article 43 of the Convention on International Civil Aviation.

Notification means providing the information required under this regulation in the format and manner specified.

Provider means a person or entity subject to regulation under Title 49 Subtitle VII, Part A, United States Code. This definition includes individual training providers, training centers, certificated carriers, and flight schools. Virtually all private providers of instruction in the operation of aircraft with a maximum certificated takeoff weight of 12,500 pounds or more are covered by section 113 of ATSA (49 U.S.C. 44939) and are therefore subject to this rule. Providers located in countries other than the United States are included in this definition to the extent that they are providing training leading to a United States license, certification, or rating. Providers who “dry-lease” simulator equipment to individuals or entities for use within the United States are deemed to be providing the training themselves if the lessee is not subject to regulation under Title 49. Providers located in countries other than the United States who are providing training that does not lead to a United States pilot or flight engineer certification, or rating are not included in this definition. When the Department of Defense or the U.S. Coast Guard, or an entity providing training pursuant to a contract with the Department of Defense or the U.S. Coast Guard (including a subcontractor), provides training for a military purpose, such training is not subject to Federal Aviation Administration (FAA) regulation. Accordingly, these entities, when providing such training, are not “person[s] subject to regulation under this part” within the meaning of section 113 of ATSA.

Training means any instruction in the operation of an aircraft, including “ground school,” flight simulator, and in-flight training. It does not include the provision of training manuals or other materials, and does not include mechanical training that would not enable the trainee to operate the aircraft in flight.

(b) Purpose and scope. (1) Section 113 of ATSA (49 U.S.C. 44939) prohibits Providers from furnishing candidates with training in the operation of an aircraft with a maximum certificated takeoff weight of 12,500 pounds or more without the prior notification of the Attorney General. Training in the operation of smaller aircraft is considered to be training in the operation of an aircraft with a maximum certificated takeoff weight of 12,500 pounds or more if the training would lead to a type rating allowing the candidate to operate a model of the same or substantially similar type of aircraft with a maximum certificated takeoff weight of 12,500 pounds or more in accordance with FAA regulations. The purpose of this notification is to allow the Attorney General to determine whether such an individual presents a risk to aviation or national security before training may begin. The Department believes that it is not required to make a candidate wait for 45 days in order to begin training if the Department has completed its risk assessment. Therefore, after providing the required notification to the Attorney General as described in this subpart, the Provider may begin instruction of a candidate if the Attorney General has informed the Provider that the Attorney General has determined as a result of the risk assessment conducted pursuant to section 113 of ATSA that providing the training does not present a risk to aviation or national security. If the Attorney General does not provide either an authorization to proceed with training or a notice to deny training within 45 days after receiving the required notification, the Provider may commence training at that time. All candidates who are not citizens or nationals of the U.S. must show a valid passport establishing their identity to a Provider before commencing training.

(2) The Department may, at any time, require the resubmission of all or a portion of a candidate's training request, including fingerprints. If, after approving any training application, the Department determines that a candidate presents a risk to aviation or national security, it will notify the Provider to cease training. The Provider who submitted the candidate's identifying information will be responsible for ensuring that the training is promptly halted, regardless of whether another Provider is currently training the candidate.

(3) Providing false information or otherwise failing to comply with section 113 of ATSA may present a threat to aviation or national security and is subject to both civil and criminal sanctions. The United States will take all necessary legal action to deter and punish violations of this section.

(4) Providers should make every effort to ensure that approved training occurs on the dates specified in the training request at the location of the Provider who submitted the request. However, where scheduling problems or other exigent circumstances prevent this from happening, training may be rescheduled for any time within 30 days of the approved training dates without submitting an additional request. If any scheduling change of greater than 30 days occurs, a new request with the corrected training dates must be submitted. Any proposed change in location or Provider must precipitate a new request, although Providers may employ the assistance of other Providers or their facilities for a portion of the training, provided that the substantial majority of the training occurs at location of the Provider who submitted the request.

§ 105.11 Individuals not requiring a security risk assessment.

(a) Citizens and nationals of the United States. A citizen or national of the United States is not subject to section 113 of ATSA unless otherwise designated by the Under Secretary of Transportation for Security. A Provider must determine whether a prospective trainee is a citizen or national of the United States prior to providing training in the operation of an aircraft with a maximum certificated takeoff weight of 12,500 pounds or more. To establish United States citizenship or nationality, the prospective trainee must show the Provider from whom he or she seeks training any of the following documents as proof of United States citizenship or nationality:

(1) A valid, unexpired United States passport;

(2) An original or government-issued certified birth certificate with a registrar's raised, embossed, impressed or multicolored seal, registrar's signature, and the date the certificate was filed with the registrar's office, which must be within 1 year of birth, together with a government-issued picture identification of the individual named in the birth certificate (the birth certificate must establish that the person was born in the United States or in an outlying possession, as defined in section 101(a)(29) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(29)));

(3) An original United States naturalization certificate with raised seal, INS Form N-550 or INS Form N-570, together with a government-issued picture identification of the individual named in the certificate;

(4) An original certification of birth abroad with raised seal, Department of State Form FS-545 or Form DS-1350, together with a government-issued picture identification of the individual named in the certificate;

(5) An original certificate of United States citizenship with raised seal, INS Form N-560 or Form N-561, together with a government-issued picture identification of the individual named in the certificate; or

(6) In the case of training provided to a federal employee (including military personnel) pursuant to a contract between a federal agency and a Provider, the agency's written certification as to its employee's United States citizenship/nationality, together with the employee's government-issued credentials or other federally-issued picture identification.

(b) Exception. Notwithstanding paragraph (a) of this section, a Provider is required to provide notification to the Attorney General with respect to any individual specified by the Under Secretary of Transportation for Security. Individuals specified by the Under Secretary of Transportation for Security will be identified by procedures developed by the Department of Transportation and are not eligible for expedited processing under § 105.12 of this part.

§ 105.12 Notification for candidates eligible for expedited processing.

(a) Expedited processing. The Attorney General has determined that providing aviation training to certain categories of candidates presents a minimal additional risk to aviation or national security because of the aviation training already possessed by these individuals or because of risk assessments conducted by other agencies. Therefore, the following categories of candidates are eligible for expedited processing, unless the candidate is an individual specified by the Under Secretary of Transportation for Security:

(1) Foreign nationals who are current and qualified as pilot in command, second in command, or flight engineer with respective certificates with ratings recognized by the FAA for aircraft with a maximum certificated takeoff weight of over 12,500 pounds, or who are currently employed and qualified by U.S. regulated air carriers as pilots on aircraft with a maximum certificated takeoff weight of 12,500 pounds or more;

(2) Foreign nationals who are commercial, governmental, corporate, or military pilots of aircraft with a maximum certificated takeoff weight of 12,500 pounds or more who are receiving training on a particular aircraft in connection with the sale of that aircraft, provided that the training provided is limited to familiarization (i.e., training required by one who is already a competent pilot to become proficient in configurations and variations of a new aircraft) and not initial qualification or type rating; or

(3) Foreign military or law enforcement personnel who must receive training on a particular aircraft given by the United States to a foreign government pursuant to a draw-down authorized by the President under section 506(a)(2) of the Foreign Assistance Act of 1961, as amended (22 U.S.C. 2318(a)(2)), if the training provided is limited to familiarization.

(b) Notification. Before a Provider may conduct training for a candidate eligible for expedited processing under paragraph (a) of this section, the Provider must submit the following information to the Department:

(1) The full name of the candidate;

(2) A unique student identification number created by the Provider as a means of identifying records concerning the candidate;

(3) Date of birth;

(4) Country of citizenship;

(5) Passport issuing authority;

(6) Dates of training; and

(7) The category of expedited processing under paragraph (a) of this section for which the candidate qualifies.

(c) Commencement of training. (1) The notification must be provided electronically to the Department by the Provider in the specific format and by the specific means identified by the Department. Notification must be made by electronic mail. Only notifications sent from an electronic mail address registered as a Provider will be accepted. Specific details about the mechanism for the notification will be made available by the Department and distributed through the FAA.

(2) After the complete notification is furnished to the Department, the Provider may commence training the candidate as soon as the Provider receives a response from the Department that the individual does not present a risk to aviation or national security as a result of the risk assessment conducted pursuant to section 113 of ATSA and the foreign national candidate presents a valid passport establishing his or her identity to the Provider. Receipt of this response from the Department will be deemed approval by the Department to commence training.

(d) Records. When a Provider conducts training for a candidate eligible for expedited processing, the Provider must retain a copy of the relevant pages of the passport and other records to document how the Provider made the determination that the candidate was eligible. The Provider also must retain certain identifying records regarding the candidate, including date of birth, place of birth, passport issuing authority, and passport number. The Provider must be able to reference these records by the unique student identification number provided to the Department pursuant to this section. Providers also are encouraged to maintain photographs of all candidates trained by the Provider. Such records must be maintained for at least three years following the conclusion of training by the Provider. The Provider must also be able to use the unique student identification number to cross-reference any other documentation that the FAA may require the Provider to retain regarding the candidate.

§ 105.13 Notification for candidates not eligible for expedited processing.

(a) A Provider must submit a complete Flight Training Candidate Checks Program (FTCCP) form and arrange for the submission of fingerprints to the Department in accordance with this section prior to providing flight training, except with respect to persons whom the Provider has determined, as provided in § 105.11 of this part, are not subject to a security risk assessment. A separate FTCCP form must be submitted for each course or instance of training requested by a candidate. A set of fingerprints must be submitted in accordance with this rule prior to the commencement of any training. Where a Provider enlists the assistance of another Provider in training a candidate, no additional request need be submitted, as long as the specific instance of training has been approved.

(b) The completed FTCCP form must be sent to the Attorney General via electronic submission at https://www.flightschoolcandidates.gov. The form must be submitted no more than three months prior to the proposed training dates. No paper submissions of this form will be accepted.

(1) In order to ensure that such electronic submissions are made by FAA certificated training providers, Providers must receive initial access to the system through the FAA. Providers should register through their local FAA Flight Standards District Offices. The FAA has decided that registration will be only by appointment. Upon registration, Providers will be sent (via electronic mail) an access password to use the system.

(2) Candidates may complete the online FTCCP form at https://www.flightschoolcandidates.gov to reduce the burden on the Provider. After the form has been completed by a candidate, it will be forwarded electronically to the Provider for verification that the candidate is a bona fide applicant. Verification by the Provider will be considered submission of the form for purposes of paragraph (a) of this section. To reduce the burden on the candidates, personal information needs only to be updated, rather than reentered, for each subsequent training request.

(c) Candidates must submit fingerprints to the Federal Bureau of Investigation (FBI) as part of the identification process. These fingerprints must be taken by, or under the supervision of, a federal, state, or local law enforcement agency, or by another entity approved by the Director of the Foreign Terrorist Tracking Task Force, in consultation with the FBI's Criminal Justice Information Services Division. Where available, fingerprints may be taken by U.S. government personnel at a United States embassy or consulate. Law enforcement agencies and U.S. diplomatic installations are not required to participate in this process, but their cooperation is strongly encouraged. Any individual taking fingerprints as part of the notification process must comply with the following requirements when taking and processing fingerprints to ensure the integrity of the process:

(1) Candidates must provide two forms of identification at the time of fingerprinting. In the case of aliens, one of the forms of identification must be the individual's passport. In the case of United States citizens or nationals designated by the Under Secretary of Transportation for Security, a valid photo driver's license issued in the United States may be submitted in lieu of a passport;

(2) The fingerprints must be taken under the direct observation of a law enforcement or consular officer, or another specifically authorized individual. Individuals other than law enforcement or consular officers will only be approved on a case-by-case basis by the Director of the Foreign Terrorist Tracking Task Force, in consultation with the FBI's Criminal Justice Information Services Division, upon a showing that they possess the necessary training and will ensure the integrity of the fingerprinting process;

(3) The fingerprints must be processed by means approved by the Director of the Foreign Terrorist Tracking Task Force, in consultation with the FBI's Criminal Justice Information Services Division;

(4) The fingerprint submissions must be forwarded to the FBI in the manner specified by the Director of the Foreign Terrorist Tracking Task Force, in consultation with the FBI's Criminal Justice Information Services Division;

(5) Officials taking fingerprints must ensure that any fingerprints provided to the FBI are not placed within the control of the candidate or the Provider at any time; and

(6) Candidates must pay for all costs associated with taking and processing their fingerprints.

(d) In accordance with Public Law 101-515, as amended, the Director of the FBI is authorized to establish and collect fees to process fingerprint identification records and name checks for certain purposes, including non-criminal justice and licensing purposes. In addition to the cost to the FBI for conducting its review, other fees may be imposed, including the cost of taking the fingerprints and the cost of processing the fingerprints and submitting them to the FBI for review. Because the total fee may vary by agency, the candidate must check with the entity taking the fingerprints to determine the applicable total fee. This payment must be made at the designated rate for each set of fingerprints submitted.

(e) In some cases, candidates seeking training from Providers abroad may be unable to obtain fingerprints. If a Provider located in a country other than the United States can demonstrate that compliance with the fingerprint requirement is not practicable, a temporary waiver of the requirement may be requested by contacting the Foreign Terrorist Tracking Task Force. The Director of the Foreign Terrorist Tracking Task Force will have the discretion to grant the waiver, deny the waiver, or prescribe a reasonable, alternative manner of complying with the fingerprint requirement for each Provider location.

(f) The 45-day review period by the Department will not start until all the required information has been submitted, including fingerprints.

§ 105.14 Risk assessment for candidates.

(a) It is the responsibility of the Department of Justice to conduct a risk assessment for each candidate. The Department has made an initial determination that providing training to the aliens in the categories set forth in § 105.12(a) of this part presents minimal additional risk to aviation or national security and therefore has established an expedited processing procedure for these aliens. Based on the information contained in each FTCCP form and the corresponding set of fingerprints, the Department will determine whether a candidate not granted expedited processing presents a risk to aviation or national security.

(b) After submission of the FTCCP form by the Provider, the Department will perform a preliminary risk assessment.

(1) If the Department determines that a candidate does not present a risk to aviation or national security as a result of the preliminary risk assessment, the candidate or the Provider will be notified electronically that the Provider may supply the candidate with the appropriate materials and instructions to complete the fingerprinting process described in § 105.13(c) and (d) of this part.

(2) If the Department determines that the candidate presents a risk to aviation or national security, when appropriate, it will notify the Provider electronically that training is prohibited.

(3) For each complete training request submitted by a Provider, the Department will promptly conduct an appropriate risk assessment. Every effort will be made to respond to a training request in the briefest time possible. In routine cases, the Department anticipates granting approval to train within a fraction of the 45-day notification period after receiving a complete, properly submitted request, including fingerprints. In the unlikely event that no notification or authorization by the Department has occurred within 45 days after the proper submission under these regulations of all the required information, the Provider may proceed with the training, upon establishing the candidate's identity in accordance with paragraph (c) of this section.

(c) Providers must ascertain the identity of each candidate. For candidates who are not citizens or nationals of the United States designated by the Under Secretary of Transportation for Security, a Provider must inspect the candidate's passport and visa to verify the candidate's identity before providing training. Candidates who are citizens or nationals of the United States must present the documentation described in § 105.11(a) of this part. If the candidate's identity cannot be verified, then the Provider cannot proceed with training.

(d) If, at any time after training has begun, the Department determines that a candidate subject to this section being trained by a Provider presents a risk to aviation or national security, the Department shall notify the Provider to cease training. A Provider so notified shall immediately cease providing any training to the person, regardless of whether or in what manner such training commenced or had been authorized. The Provider who submitted the candidate's identifying information will be responsible for ensuring that the training is promptly halted, regardless of whether another Provider is currently training the candidate.

(e) With regard to any determination as to an alien candidate's eligibility for training, when appropriate, the Department will inform the Secretary of State and the Secretary of Homeland Security as to the identity of the alien and the determination made.

§ 105.21 Purpose and authority.

(a) The purpose of this subpart is to regulate the exchange of criminal history record information (“CHRI”), as defined in 28 CFR 20.3(d), and related information authorized by Section 6402 (The Private Security Officer Employment Authorization Act of 2004) (Act) of Public Law 108-458 (The Intelligence Reform and Terrorism Prevention Act of 2004). Section 6402 authorizes a fingerprint-based criminal history check of state and national criminal history records to screen prospective and current private security officers, and section 6402(d)(2) requires the Attorney General to publish regulations to provide for the “security, confidentiality, accuracy, use, submission, dissemination, destruction of information and audits, and record keeping” of the CHRI and related information, standards for qualifying an authorized employer, and the imposition of fees.

(b) The regulations in this subpart do not displace state licensing requirements for private security officers. A State retains the right to impose its own licensing requirements upon this industry.

§ 105.22 Definitions.

As used in this subpart:

(a) Authorized employer means any person that employs private security officers and is authorized by the regulations in this subpart to request a criminal history record information search of an employee through a state identification bureau. An employer is not authorized within the meaning of these regulations if it has not executed and submitted to the appropriate state agency the certification required in § 105.25(g), if its authority to do business in a State has been suspended or revoked pursuant to state law, or, in those states that regulate private security officers, the employer has been found to be out of compliance with any mandatory standards or requirements established by the appropriate regulatory agency or entity.

(b) Employee means both a current employee and an applicant for employment as a private security officer.

(c) Charged, with respect to a criminal felony, means being subject to a complaint, indictment, or information.

(d) Felony means a crime punishable by imprisonment for more than one year, regardless of the period of imprisonment actually imposed.

(e) Participating State means a State that has not elected to opt out of participating in the Act by statutory enactment or gubernatorial order. A State may decline to participate in the background check system authorized by the Act by enacting a law or issuing an order by the Governor (if consistent with state law) providing that the State is declining to participate. The regulations in this subpart that pertain to States apply only to participating states.

(f) Person means an individual, partnership, firm, company, corporation or institution that performs security services, whether for a third party for consideration or as an internal, proprietary function.

(g) Private Security Officer means an individual other than an employee of a Federal, State, or local government whose primary duty is to perform security services, full or part time, for consideration, whether armed or unarmed and in uniform or plain clothes, except as may be excluded from coverage in these regulations, except that the term excludes—

(1) Employees whose duties are primarily internal audit or credit functions;

(2) Employees of electronic security system companies acting as technicians or monitors; or

(3) Employees whose duties involve the secure movement of prisoners.

(h) Security services means services, whether provided by a third party for consideration, or by employees as an internal, proprietary function, to protect people or property, including activities to: Patrol, guard, or monitor property (including real property as well as tangible or intangible personal property such as records, merchandise, money, and equipment); protect against fire, theft, misappropriation, vandalism, violence, terrorism, and other illegal activity; safeguard persons; control access to real property and prevent trespass; or deter criminal activity on the authorized employer's or another's premises. This definition does not cover services by the employees described in § 105.22(f) as excluded from the definition of private security officer.

(i) State Identification Bureau (SIB) means the state agency designated by the Governor or other appropriate executive official or the state legislature to perform centralized recordkeeping functions for criminal history records and associated services in the States.

§ 105.23 Procedure for requesting criminal history record check.

These procedures only apply to participating states. An authorized employer may obtain a State and national criminal history record check as authorized by section 6402 of Public Law 105-458 as follows:

(a) An authorized employer is required to execute a certification to the State, developed by the SIB or the relevant state agency for purposes of accepting requests for these background checks, declaring that it is an authorized employer that employs private security officers; that all fingerprints and requests for criminal history background checks are being submitted for private security officers; that it will use the information obtained as a result of the state and national criminal history record checks solely for the purpose of screening its private security officers; and that it will abide by other regulatory obligations. To help ensure that only legitimate use is made of this authority, the certification shall be executed under penalties of perjury, false statement, or other applicable state laws.

(b) An authorized employer must obtain a set of fingerprints and the written consent of its employee to submit those prints for a state and national criminal history record check. An authorized employer must submit the fingerprints and appropriate state and federal fees to the SIB in the manner specified by the SIB.

(c) Upon receipt of an employee's fingerprints, the SIB shall perform a fingerprint-based search of its criminal records. If no relevant criminal record is found, the SIB shall submit the fingerprints to the FBI for a national search.

(d) Upon the conclusion of the national search, the FBI will disseminate the results to the SIB.

(e) Based upon the results of the state check and, if necessary, the national check:

(1) If the State has standards for qualifying a private security officer, the SIB or other designated state agency shall apply those standards to the CHRI and notify the authorized employer of the results of the application of the state standards; or

(2) If the State does not have standards for qualifying a private security officer, the SIB or other designated state agency shall notify an authorized employer as to the fact of whether an applicant has been:

(i) Convicted of a felony;

(ii) Convicted of a lesser offense involving dishonesty or false statement if occurring within the previous ten years;

(iii) Convicted of a lesser offense involving the use or attempted use of physical force against the person of another if occurring within the previous ten years; or

(iv) Charged with a felony during the previous 365 days for which there has been no resolution.

(f) The limitation periods set forth in paragraph (e)(2) of this section shall be determined using the date the employee's fingerprints were submitted. An employee shall be considered charged with a criminal felony for which there has been no resolution during the preceding 365 days if the individual is the subject of a complaint, indictment, or information, issued within 365 days of the date that the fingerprints were taken, for a crime punishable by imprisonment for more than one year. The effect of various forms of post-conviction relief shall be determined by the law of the convicting jurisdiction.

§ 105.24 Employee's rights.

An employee is entitled to:

(a) Obtain a copy from the authorized employer of any information concerning the employee provided under these regulations to the authorized employer by the participating State;

(b) Determine the status of his or her CHRI by contacting the SIB or other state agency providing information to the authorized employer; and

(c) Challenge the CHRI by contacting the agency originating the record or complying with the procedures contained in 28 CFR 16.34.

§ 105.25 Authorized employer's responsibilities.

An authorized employer is responsible for:

(a) Executing and providing to the appropriate state agency the certification to the State required under § 105.23(a) before a State can accept requests on private security guard employees;

(b) Obtaining the written consent of an employee to submit the employee's fingerprints for purposes of a CHRI check as described herein;

(c) Submitting an employee's fingerprints and appropriate state and federal fees to the SIB not later than one year after the date the employee's consent is obtained;

(d) Retaining an employee's written consent to submit his fingerprints for a criminal history record check for a period of no less than three years from the date the consent was last used to request a CHRI check;

(e) Upon request, providing an employee with confidential access to and a copy of the information provided to the employer by the SIB; and

(f) Maintaining the confidentiality and security of the information contained in a participating State's notification by:

(1) Storing the information in a secure container located in a limited access office or space;

(2) Limiting access to the information strictly to personnel involved in the employer's personnel and administration functions; and

(3) Establishing internal rules on the handling and dissemination of such information and training personnel with such access on such rules, on the need to safeguard and control the information, and on the consequences of failing to abide by such rules.

§ 105.26 State agency's responsibilities.

(a) Each State will determine whether it will opt out of participation by statutory enactment or gubernatorial order and communicating such determination to the Attorney General. Failure to inform the Attorney General of the determination will result in a State being considered a participating State.

(b) Each participating State is responsible for:

(1) Determining whether to establish a fee to perform a check of state criminal history records and related fees for administering the Act;

(2) Developing a certification form for execution by authorized employers under § 105.25(a) and receiving authorized employers' certifications;

(3) Receiving the fingerprint submissions and fees from the authorized employer; performing a check of state criminal history records; if necessary, transmitting the fingerprints to the FBI; remitting the FBI fees consistent with established interagency agreements; and receiving the results of the FBI check;

(4) Applying the relevant standards to any CHRI returned by the fingerprint check and notifying the authorized employer of the results of the application of the standards as required under § 105.23(e);

(5) Providing to an employee upon his or her request a copy of CHRI upon which an adverse determination was predicated; and

(6) Maintaining, for a period of no less than three years, auditable records regarding

(i) Maintenance and dissemination of CHRI; and

(ii) The employer's certification.

(c) If relevant CHRI is lacking disposition information, the SIB or responsible agency in a participating State will make reasonable efforts to obtain such information to promote the accuracy of the record and the integrity of the application of the relevant standards. If additional time beyond a State's standard response time is needed to find relevant disposition information, the SIB or responsible agency may advise the authorized employer that additional research is necessary before a final response can be provided. If raised, a participating State should take into account the effect of post-conviction relief.

§ 105.27 Miscellaneous provisions.

(a) Alternate State availability. (1) An authorized employer may submit the employee's fingerprints to the SIB of a participating State other than the State of employment—provided it obtains the permission of the accommodating State—if the authorized employer is prevented from submitting an employee's fingerprints because the employee's employment is in:

(i) A State that does not have an applicable Public Law 92-544 statute authorizing state and national fingerprint-based criminal history checks of prospective and current private security officers and has elected to opt out; or

(ii) A participating State that has not yet established a process for receiving fingerprints and processing the checks under the regulations in this subpart.

(2) A participating State agreeing to process checks under this subsection will discontinue doing so if thereafter the State of the employee's employment establishes a process State and national fingerprint-based criminal history checks of prospective and current private security officers.

(b) FBI fees for national check. The fee imposed by the FBI to perform a fingerprint-based criminal history record check is that routinely charged for noncriminal justice fingerprint submissions as periodically noticed in the Federal Register.

(c) Penalties for misuse. (1) In addition to incarceration for a period not to exceed two years, one who knowingly and intentionally misuses information (including a State's notification) received pursuant to the Act may be subject to a fine pursuant to 18 U.S.C. 3571.

(2) Consistent with State law, a violation of these regulations may also result in the divestiture of “authorized employer” status, thereby precluding an employer which provides security services from submitting fingerprints for a State and national criminal history record check.

(d) Exclusion from coverage. [Reserved]

§ 106.1 Authority.

(a) Under section 3 of the HAVANA Act of 2021, Public Law 117-46, 135 Stat. 391 (2021) (codified at 22 U.S.C. 2680b(i)), the Attorney General or other agency heads may provide a payment to a covered employee or covered dependent who experiences a qualifying injury to the brain on or after January 1, 2016. The authority to provide such payments is at the discretion of the Attorney General or the Attorney General's designees.

(b) These regulations are issued in accordance with 22 U.S.C. 2680b(i)(4) and apply to covered employees (current and former employees) and covered dependents.

[A.G. Order No. 5922-2024, 89 FR 28636, Apr. 19, 2024; 89 FR 36671, May 3, 2024]

§ 106.2 Definitions.

Link to an amendment published at 91 FR 67480, Oct. 27, 2026.

For purposes of this part, the following definitions apply:

(a) Covered employee. (1) A current or former employee of the Department who, on or after January 1, 2016, became injured by reason of a qualifying injury while they were employed by the Department.

(2) The following are considered covered employees for the purposes of this rule: Department of Justice employees as defined in 5 U.S.C. 2105, including employees on Limited Non-Career Appointments, employees on Temporary Appointments, personnel hired on Personal Services Contracts, and students providing volunteer services under 5 U.S.C. 3111.

(3) The following are not considered employees of the Department for purposes of this rule: employees or retired employees who were employed by other agencies at the time of the injury.

(b) Covered dependent. A family member, as defined in paragraph (c) of this section, of a current or former employee of the Department who, on or after January 1, 2016, became injured by reason of a qualifying injury while their relative was an employee of the Department in a position listed in paragraph (a)(2) of this section.

(c) Family member. For purposes of determining who is a “covered dependent,” a family member is defined as follows:

(1) Children who at the time of the injury are unmarried and under 21 years of age or, regardless of age, are unmarried and due to mental or physical limitations are incapable of self-support. The term “children” includes natural offspring; stepchildren; adopted children; those under permanent legal guardianship, or comparable permanent custody arrangement, of the employee, spouse, or domestic partner as defined in 5 CFR 875.101 when dependent upon and normally residing with the guardian or custodial party; and U.S. citizen children placed for adoption if a U.S. court grants temporary guardianship of the child to the employee and specifically authorizes the child to reside with the employee in the country of assignment before the adoption is finalized;

(2) Parents (including stepparents and legally adoptive parents) of the employee or of the spouse or of the domestic partner as defined in 5 CFR 875.101, when normally residing with the employee at the time of the injury;

(3) Sisters and brothers (including stepsisters or stepbrothers, or adoptive sisters or brothers) of the employee or the spouse when at the time of the injury such sisters and brothers are at least 51 percent dependent on the employee or spouse for support, unmarried and under 21 years of age, or, regardless of age, are physically or mentally incapable of self-support; and

(4) Spouse or domestic partner at the time of the injury.

(d) Qualifying injury to the brain. (1) An injury to the brain that occurred in connection with war, insurgency, hostile act, terrorist activity, or other incidents designated under 22 U.S.C. 2680b, and that was not the result of the willful misconduct of the covered employee or covered dependent.

(2) The individual must have:

(i) An acute injury to the brain such as a concussion, a penetrating injury, or an injury as the consequence of an event that leads to permanent alterations in brain function where such alterations are demonstrated by confirming correlative findings on imaging studies (including computed tomography scan (CT) or magnetic resonance imaging scan (MRI)), or electroencephalogram (EEG);

(ii) A medical diagnosis of a traumatic brain injury that required active medical treatment for 12 months or more; or

(iii) Acute onset of new, persistent, disabling neurologic symptoms, as demonstrated by confirming correlative findings on imaging studies (including CT or MRI), EEG, physical exam, or other appropriate testing, that required active medical treatment for 12 months or more.

(e) Other incident. A new onset of physical manifestations that cannot otherwise be readily explained and that is designated under 22 U.S.C. 2680b.

§ 106.3 Eligibility for payments by the Department of Justice.

(a) The Department may, in its discretion, provide a payment to an employee, covered dependent, or former employee if that person suffered a qualifying injury to the brain that was assessed and diagnosed in person by a physician who is currently a neurologist certified by the American Board of Psychology and Neurology (ABPN) or a physician certified by the American Osteopathic Board of Neurology and Psychiatry (AOBNP), the American Board of Physical Medicine and Rehabilitation (ABPMR), or the American Osteopathic Board of Physical Medicine and Rehabilitation (AOBPMR); occurred on or after January 1, 2016; and, for an employee or former employee, occurred while the employee or former employee was a covered employee of the Department or, for a covered dependent, occurred while the covered dependent's relative was an employee of the Department in a position listed in § 106.2(a)(2).

(b) Payment for a qualifying injury to the brain will be a non-taxable, one-time lump sum payment, unless a second payment is authorized under paragraph (d) of this section.

(c) The amount of the payment is at the Department's discretion. The Department will determine the amount paid to each eligible person based on the following factors:

(1) The responses on the “Eligibility Questionnaire for HAVANA Act Payments” form; and

(2) Whether the Department of Labor (Office of Workers' Compensation Programs) has determined that the applicant has no reemployment potential, or the Social Security Administration has approved the applicant for Social Security Disability Insurance or Supplemental Security Income benefits, or the applicant's ABPN-certified neurologist or the applicant's AOBNP-, ABPMR-, or AOBPMR-certified physician has certified that the individual requires a full-time caregiver for activities of daily living, as defined by the Katz Index of Independence in Activities of Daily Living.

(d) The award thresholds are based on Level III of the Executive Schedule: Base will be 75 percent of Level III pay, and Base+ will be 100 percent of Level III pay. If the applicant meets any of the criteria listed in paragraph (c)(2) of this section, the applicant will be eligible to receive a Base+ payment. Applicants whose board-certified physician (as described in paragraph (a) of this section) confirms that the definition of “qualifying injury to the brain” has been met, but who have not met any of the criteria listed in paragraph (c)(2) of this section, will be eligible to receive a Base payment. If an applicant who received a Base payment later meets any of the criteria listed in paragraph (c)(2) of this section, the applicant may apply for an additional payment that will be the difference between the Base and Base+ payment.

§ 106.4 Consultation.

When a covered employee or covered dependent seeks payment for an incident that occurred overseas under Chief of Mission security responsibility, the Department will coordinate with the Department of State as appropriate in evaluating whether the incident is an “other incident” under the HAVANA Act or should be so designated.

§ 106.5 Procedures.

(a) Application. (1) A covered employee or covered dependent may apply for a HAVANA Act payment if the covered individual has sustained a qualifying injury to the brain on or after January 1, 2016. To apply for the benefit, the applicant must submit the “Eligibility Questionnaire for HAVANA Act Payments” claim form to the appropriate email address or fax number set forth in this paragraph (a). The claim form must be completed by a person eligible to file a claim under the HAVANA Act or by that person's legal guardian and must be signed by a currently certified physician as listed in § 106.3(a) of this part. The claim form must be emailed or faxed to the following address: HRD_AHI_QUESTIONNAIR@FBI.GOV or fax number (202) 323-9420 (covered FBI employees and dependents) or HavanaActClaims@usdoj.gov or fax number (202) 616-3200 (covered DOJ employees and dependents).

(2) The applicant must furnish additional documentation upon request.

(3) Copies of the claim form, as well as the regulations and other information, may be obtained by requesting the document or publications via an email to HRD_AHI_QUESTIONNAIR@FBI.GOV (covered FBI employees and dependents) or HavanaActClaims@usdoj.gov (covered DOJ employees and dependents).

(b) Review. For FBI covered employees and dependents, the Human Resources Division (HRD) of the FBI is responsible for reviewing the applications to determine their completeness. For other DOJ covered employees and dependents, the Justice Management Division (JMD) is responsible for reviewing the applications to determine their completeness.

(c) Other incident. The Department will determine whether a covered employee or covered dependent has a qualifying injury to the brain as set forth in § 106.2, and whether the incident causing the injury was in connection with war, insurgency, hostile act, or terrorist activity. The Department will as appropriate or necessary make a recommendation to the Secretary of State that the incident should be deemed an “other incident designated by the Secretary of State” for purposes of 22 U.S.C. 2680b(i)(1)(D) (cross-referencing subparagraph 2680b(e)(4)); or, for incidents affecting employees or dependents who are not under the security responsibility of the Secretary of State, the Department will as appropriate or necessary designate such incidents, under authority set forth in 22 U.S.C. 2680b(j).

(d) Decisions. For FBI covered employees and covered dependents, the Executive Assistant Director, Human Resources Branch, FBI, in their discretion may approve payments under the HAVANA Act. For all other Departmental covered employees and covered dependents, the Deputy Assistant Attorney General, Human Resources and Administration, JMD, in their discretion may approve payments under the HAVANA Act.

(e) Appeals. In the event of a decision to deny an application for payment under the HAVANA Act, the Department will notify the applicant in writing. Applicants may direct an appeal to the Assistant Attorney General for Administration within 60 days of the date of the notification of the denial. However, decisions concerning the amount paid are not subject to appeal. The Department will notify the applicant in writing of the decision on appeal.

§ 107.1 Definitions.

As used in this part:

Arrest shall include a criminal arrest, “apprehension” as the term is used under the Uniform Code of Military Justice, and “pretrial restraint” as the term is used under the Rules for Courts-Martial. The term also includes a citation in lieu of arrest for a criminal violation (other than one involving parking, traffic, or motor vehicle violations punishable only by a fine).

Brandish means to display all or part of a firearm, or otherwise make the presence of a firearm known to another person, in a threatening or intimidating manner, regardless of whether the firearm is directly visible to that person. The term does not include the carrying of a firearm for lawful purposes, including self-defense, whether the firearm is concealed or unconcealed.

Controlled substance has the meaning given the term in 27 CFR 478.11, except that it does not include marijuana.

Convicted or conviction shall include a criminal conviction, a plea of guilty, a finding of guilt without judgment by a court, and the judgment of special or general court-martial issued under 10 U.S.C. 860c of the Uniform Code of Military Justice. The term also includes a judgment entered upon a plea of nolo contendere.

Felony means “a crime punishable by imprisonment for a term exceeding one year” as that phrase is defined in 18 U.S.C. 921(a)(20).

Misdemeanor crime of domestic violence shall have the meaning provided in 27 CFR 478.11. It shall also include a conviction for a crime at a general or special court-martial that would meet the definition of “misdemeanor crime of domestic violence” in the previous sentence had the conviction been entered by a State, local, or Tribal court.

Sentence shall include any criminal penalty imposed by a court or following a general or special court-martial of a custodial sentence (whether continuous or intermittent) such as detention, incarceration, or home confinement; a non-custodial sentence (whether supervised or unsupervised) such as probation, parole, or release; or a period during the pendency of other unsatisfied penalties such as monetary obligations, education, treatment, or programming requirements, community service or extra duties, or restriction on movement or electronic monitoring.

State or Federal law shall include Federal laws (including the Uniform Code of Military Justice); State laws; the laws of the District of Columbia; the laws of United States territories; the laws of any subdivision of the States or territories; and laws of Federally Recognized Tribes, where “Federally Recognized Tribe” means any tribe listed at 91 FR 4102 or any future notice listing Federally Recognized Tribes.

Unlawful user of or addicted to any controlled substance has the meaning given this term in 27 CFR 478.11, except that it excludes those whose only unlawful use of or addiction to a controlled substance consists of the use of or addiction to marijuana.

§ 107.10 Application for relief from disabilities under the Gun Control Act.

(a) Any person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed under section 922 of the Gun Control Act. See 18 U.S.C. 925(c).

(b) In determining whether the applicant's prior offense is presumptively disqualifying under § 107.50, the Attorney General may consider all the facts underlying the prior offense to determine whether that offense involved the same or similar conduct targeted by the specific offenses listed in § 107.50. The Attorney General is not confined to a “categorical approach” that looks only at the elements of the underlying offense or that requires an exact correspondence with a “generic” offense.

(c) An application for relief under paragraph (a) of this section shall be submitted using the form and procedures established by the Attorney General and shall include the information required by this part and any additional data the Attorney General deems appropriate.

(d) Any record or document of a court or other government entity or official required by this part to be furnished by an applicant in support of an application for relief shall be certified as a true copy by the court or other government entity or official or shall be the true copy as provided by the court or other government entity or official to the applicant. Applicants may submit electronic copies of such records or documents but must follow any instructions or guidance issued by the Department regarding the procedures for doing so.

(e) Any record or document required by this part to be furnished by an applicant in support of an application for relief containing a foreign language shall be accompanied by a full English-language translation. The translator must certify that the translation is complete and accurate and that the translator is competent to translate from the foreign language into English.

(f) If any supporting documents required under paragraph (g)(4), (5), (6), (7), (8), (11), or (12) of this section are unavailable to an applicant due to failure of an official entity to maintain records due to passage of time, destruction such as through natural disaster or fire, or any reason not attributable to an applicant's fault or negligence, the applicant shall submit a sworn statement that:

(1) Includes the underlying facts, charges or proceedings, and ultimate disposition; and

(2) Describes the efforts of the applicant to obtain the documents and the reason they are unavailable to the applicant.

(g) An application shall include:

(1) A statement of all applicable prohibitions on the applicant's possession, transfer, shipment, or receipt of a firearm under 18 U.S.C. 922(g);

(2) Written consent from the applicant authorizing the Department to obtain and examine, and custodians to disclose, copies of records, statements, and information regarding the applicant's background (including employment, medical history, military service, and criminal record);

(3) In the case of an applicant who is an individual and not an entity, an electronic fingerprint scan or two properly completed FBI Forms FD-1222 (Fingerprint Card);

(4) In the case of an applicant having been convicted of a felony, a copy of the indictment, information, or other charging instrument on which the applicant was convicted; any plea agreement; any factual basis for a plea; any presentence report or other document prepared to aid in sentencing or response thereto; the judgment of conviction or record of any plea of nolo contendere or plea of guilty or finding of guilt by the court; and a certificate from the relevant authority (such as a department of corrections, probation office, or parole board) stating the date of completion of the applicant's sentence, including any term of supervision;

(5) In the case of an applicant who has been adjudicated a mental defective or committed to a mental institution, a copy of the order of a court, board, commission, or other lawful authority that made the adjudication or ordered the commitment; any petition that sought to have the applicant so adjudicated or committed; medical records sufficient to characterize the diagnoses underlying, and reasons for, adjudication or commitment of the applicant; any court order or finding of a court, board, commission, or other lawful authority showing the applicant's discharge from commitment, restoration of mental competency, or the restoration of rights; and a current certification from a licensed mental health professional that the applicant either no longer suffers from the disease or condition that caused the disability or that the disease or condition has been successfully treated or is stably managed such that the person is unlikely to be a danger to himself/herself or others;

(6) In the case of an applicant who, as a member of the Armed Forces, was convicted by general court-martial for a felony or who was discharged from the Armed Forces under dishonorable conditions (including a sentence of dismissal of a commissioned officer, cadet, or midshipman), a copy of the applicant's Certificate of Uniformed Service (DD Form 214 and, if applicable, DD Form 214-1 and/or DD Form 215), and, if applicable, the Charge Sheet (DD Form 458), Judgment of the Court, and Certificate of Completion of Appellate Review;

(7) In the case of an applicant who, having been a citizen of the United States, has renounced his or her citizenship, a copy of the formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state or before an officer designated by the Attorney General when the United States was in a state of war. See 8 U.S.C. 1481(a)(5) and (6). The person shall also submit a supplemental statement explaining, under penalty of perjury, why the person renounced his or her citizenship;

(8) In the case of an applicant who has been convicted of a misdemeanor crime of domestic violence, a copy of the charging instrument on which the applicant was convicted; a copy of the underlying investigative reports; a statement of the relationship of the victim to the applicant; the judgment of conviction or record of any plea of nolo contendere or plea of guilty or finding of guilt by the court; a certificate from the relevant authority (such as a department of corrections, probation office, or parole board) stating the date of completion of the applicant's sentence; any record purporting to show that the conviction was rendered nugatory or that civil rights were restored (even if such procedure was insufficient under Federal law to restore Federal firearms rights); and any police reports from the time of original arrest or apprehension to the present involving domestic violence in which the applicant is involved;

(9) A copy of any application, and any decision on that application, made to a State or other political subdivision to expunge or set aside a prior conviction, to restore the right to possess or otherwise handle a firearm, or to restore any other civil rights that the applicant has forfeited;

(10) In the case of an applicant who is an individual and not an entity, a copy of the individual's criminal record check (i.e., a list of the individual's arrests and convictions within a given jurisdiction, or a statement that the individual has no arrests or convictions) for:

(i) Each State (or locality, if a State-wide report is unavailable) in which the applicant has resided since turning 18 or for the last 25 years, whichever is shorter; and

(ii) Each State (or locality, if a State-wide report is unavailable) in which the individual has been arrested since turning 18 or for the last 25 years, whichever is shorter;

(11) A copy of the applicant's Certificate of Uniformed Service (DD Form 214 and, if applicable, DD Form 214-1, and/or DD Form 215), for any active or reserve duty the applicant has served since turning 18 or for the last 25 years, whichever is shorter;

(12) A copy of any foreign criminal, medical, or military record concerning any conduct, adjudication, or other matter that occurred outside the jurisdiction of the United States but that would have been required to be submitted under paragraph (f)(4), (5), (6), (8), or (9) of this section had the conduct, adjudication, or other matter occurred inside the jurisdiction of the United States and had it involved a Federal, State, local, or Tribal authority instead of any foreign authority;

(13) In the case of an applicant who is an individual and not an entity, an affidavit from three references, attesting under penalty of perjury that:

(i) The affiant is not related to the applicant by blood or marriage and has known the applicant for at least three years;

(ii) The affiant is not currently prohibited from possessing a firearm under 18 U.S.C. 922(g);

(iii) To the affiant's knowledge, the applicant:

(A) Has not committed any crime (other than traffic or parking infractions, or petty offenses not involving force or violence to persons or property) in the five years immediately preceding the date of the attestation;

(B) Is not an unlawful user of or addicted to any controlled substance as defined in § 107.1, regardless of whether the controlled substance has been legalized or decriminalized for medicinal or recreational purposes in the State where the applicant resides;

(C) Does not regularly abuse alcohol or other intoxicants, including prescription drugs;

(D) Is not currently suffering from a mental health condition that would impair the applicant's judgment or behavior;

(E) Is a person of good character and has a good reputation in the community, demonstrating characteristics such as honesty, dependability, and community contribution;

(F) Has not threatened to use unlawful violence, or attempted to do so, toward any person or threatened or attempted suicide, regardless of whether the authorities were notified, within the past five years; and

(G) Would not pose a danger to public safety or to himself/herself, family members, or intimate partners if permitted to possess a firearm; and

(14) In the case of an applicant who is an individual and not an entity, an affirmation from the applicant under penalty of perjury that the applicant:

(i) Has not committed a crime (other than traffic or parking infractions, or petty offenses not involving force or violence to persons or property) within the past five years;

(ii) Is not an unlawful user of or addicted to any controlled substance, as defined in § 107.1, regardless of whether the controlled substance has been legalized or decriminalized for medicinal or recreational purposes in the State where the applicant resides;

(iii) Does not regularly abuse alcohol or other intoxicants, including prescription drugs;

(iv) Is not currently suffering from a mental health condition that would impair the applicant's judgment or behavior;

(v) Is a person of good character and has a good reputation in the community;

(vi) Has not threatened to use unlawful violence, or attempted to do so toward any person or threatened or attempted suicide regardless of whether the authorities were notified, within the past five years;

(vii) Would not pose a danger to public safety or to himself/herself, family members, or intimate partners if permitted to possess a firearm;

(viii) Has not been a member of, or associated with, a group of three or more persons who acted together in the United States or elsewhere with the aim of committing any crime within the last 10 years; and

(ix) Has provided, to the extent possible, all information relevant to the applicant's eligibility under this paragraph (g) and that all information provided in the application is true and correct.

§ 107.20 Review of application.

(a) The Attorney General may grant relief to an applicant if the applicant has established to the satisfaction of the Attorney General that the circumstances regarding the disability (or disabilities), and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety, and that the granting of the relief would not be contrary to the public interest. In making this determination, the Attorney General may consider all information submitted as part of the application and all other relevant information, including the following:

(1) All of the applicant's criminal history, including arrests, regardless of whether they resulted in criminal charges; criminal charges, regardless of whether they resulted in a conviction; alternative dispositions of criminal charges resulting in dismissals, such as deferred prosecutions or probation before judgment; and convictions for any offense;

(2) The seriousness of the conduct involved in all the applicant's prior convictions for or other dispositions of any offense, including victim impact statements;

(3) The conduct underlying any charges against the applicant that were dismissed in exchange for a guilty plea;

(4) The applicant's conduct while serving any criminal sentence, including compliance with conditions of supervision and satisfaction of any financial penalties;

(5) The time elapsed since the applicant's completion of any criminal sentence and the applicant's conduct during that time;

(6) The applicant's past or present use or abuse of controlled substances;

(7) Any restraining or protection orders, regardless of whether that behavior related to an arrest;

(8) Any threats or threatening behavior, regardless of whether that behavior resulted in criminal charges;

(9) The applicant's mental health, including any abnormal behaviors or mental health treatment;

(10) Any information provided by the chief law enforcement officers of the locality in which the applicant resides either supporting or opposing the application; and

(11) Whether the applicant's individual circumstances demonstrate that a failure to grant relief would infringe the applicant's rights under the Second Amendment.

(b) Where an application fails to identify a disability for which relief may be granted, is improperly executed, or is otherwise incomplete, the applicant will be notified of the defect and given an opportunity to amend and resubmit the application within 30 days. Failure to amend and resubmit the application, with supporting documents or records, within 30 days will result in the application being considered abandoned. An abandoned application will not be considered for purposes of determining whether the person's application should be presumptively denied based on § 107.70.

(c) Whenever relief is granted to any person pursuant to this part, a notice of such action shall be promptly published in the Federal Register, together with the reasons therefor.

§ 107.30 Scope of relief granted.

(a) A person who has been granted relief under this part shall be relieved of the Federal disability or disabilities imposed by the Gun Control Act for which relief is sought with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms or ammunition. Such relief shall not extend to disabilities imposed by State law if the applicant is independently subject to any such State-law prohibition. A person who becomes subject to a subsequent disability after the granting of relief shall not be relieved of such disability and must reapply for relief.

(b)(1) A Federal firearms licensee (including any responsible person of the licensee as defined in 27 CFR 478.11) who incurs a disability under the Gun Control Act, see 18 U.S.C. 922(g), (n), 923(d)(1)(B); 27 CFR 478.32(a), 478.47(b)(2), during the term of a current license or while the licensee has pending a license renewal application with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and who, within 30 days following the date of incurring the disability for which relief may be granted, files an application for removal of such disabilities, shall not be barred from licensed operations for the 30-day period following the date on which the applicant was first subject to such disabilities (or 30 days after the date upon which the conviction for a felony becomes final). If the licensee files the application for relief as provided by this part within such 30-day period, the licensee may further continue licensed operations during the pendency of the application. A licensee who does not file such application within such 30-day period shall not continue licensed operations beyond 30 days following the date on which the licensee was first subject to such disabilities (or 30 days from the date the conviction for a felony becomes final).

(2) In the event the term of a person's license expires during the 30-day period specified in paragraph (b)(1) of this section, or during the pendency of the application for relief, a timely application for renewal of the license must be filed to continue licensed operations. Such license application shall show that the applicant (or responsible person of the applicant) is subject to a Federal firearms disability (or disabilities), shall describe the event(s) giving rise to any disability, and shall state when any disability was incurred.

(3) A licensee shall not continue licensed operations beyond the 30-day period following the date on which the notification is issued that the licensee's application for removal of disabilities has been denied.

(4) When, as provided in this paragraph (b), a licensee may no longer continue licensed operations, any application for renewal of license filed by the licensee during the pendency of the application for removal of disabilities shall be denied by the ATF Director of Industry Operations for the applicable ATF Field Division.

§ 107.40 Application fee.

(a) The Attorney General shall charge a fee for processing applications requesting relief from the disabilities imposed under section 922(g) of the Gun Control Act.

(b) The Attorney General shall review the amount of the fee periodically, but not less than every two years, to determine the amount of the fee.

(c) Fee amounts and any revisions thereto shall be consistent with widely accepted accounting principles and practices and calculated in accordance with the provisions of 31 U.S.C. 9701 and other Federal law as applicable.

(d) Revisions to fee amounts shall be proposed by notice of proposed rulemaking in the Federal Register and finalized after the receipt of comments under 5 U.S.C. 553.

(e) Applicants may request a waiver or modification of the application fee. Each applicant shall set forth the reasons why a waiver or modification should be granted. The application fee may be waived or reduced because of indigency.

§ 107.50 Presumptive disqualifications for certain applicants.

(a) The Attorney General has determined that prior conviction for certain offenses renders an applicant presumptively unable to establish to the Attorney General's satisfaction that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of relief would not be contrary to the public interest. Applications will therefore be denied, absent extraordinary circumstances, if the applicant:

(1) Has been convicted under State or Federal law of any felony that involves the following conduct, excluding jurisdictional requirements:

(i) The death of another person; rape, sexual abuse, or sexual assault (as defined by 18 U.S.C. Chapter 109A); human trafficking; or kidnapping (as defined by 18 U.S.C. 1201);

(ii) Intimate partner or domestic violence; burglary; robbery; extortion; carjacking; arson; racketeering (if at least one of the predicate racketeering acts is violent); or gang-related offenses;

(iii) Maiming, assault, or battery;

(iv) Stalking;

(v) Escape or rescue of a person in custody;

(vi) Terrorism; or

(vii) Witness tampering.

(2) Has been convicted under State or Federal law of any other felony offense where the applicant brandished or discharged a firearm or used an explosive in the course of committing that offense.

(3) Has been convicted under State or Federal law of attempting, soliciting, or conspiring to commit, or aiding or abetting the commission of, any of the offenses listed in paragraphs (a)(1) and (2) of this section.

(b) The Attorney General has determined that the recency of prior conviction for certain offenses renders an applicant presumptively unable to establish to the Attorney General's satisfaction that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of relief would not be contrary to the public interest. For purposes of this section, the Attorney General may treat any subsequent criminal conduct for which a person is participating (or has participated) in any program in lieu of criminal conviction (such as a pretrial diversion or substance abuse treatment program) as if the person had been convicted. Applications will therefore be denied, absent extraordinary circumstances, if the applicant:

(1) Has, within the last 10 years, been convicted of, or served any part of a sentence under State or Federal law for, any felony that involves the following conduct, excluding jurisdictional requirements:

(i) The manufacture, import, export, distribution, or dispensing of a controlled substance or the possession of a controlled substance with intent to manufacture, import, export, distribute, or dispense; or the attempt, solicitation, or participation in a conspiracy to commit, or the aiding or abetting the commission of, an offense listed in this paragraph (b);

(ii) Threats of violence;

(iii) The manufacture, possession, transfer, or use of explosives;

(iv) Conduct prohibited under 18 U.S.C. 922(g), (i), (j), (k), (l), (n), (o), or (u), or 18 U.S.C. 932 and 933, except that an individual convicted of violating 18 U.S.C. 922(g)(1) based on an underlying conviction that itself would not be subject to a presumptive denial under paragraph (a) or (b) of this section shall not be subject to such presumptive denial;

(v) Possession of a firearm or other weapon on school property or discharging a firearm or weapon on school property;

(vi) Animal abuse.

(2)(i) Has, within the last 10 years, been convicted of, or served any part of a sentence under State or Federal law for, a misdemeanor crime of domestic violence; or

(ii) At any time within the 10 years following a conviction or having served any part of a sentence under State or Federal law for a misdemeanor crime of domestic violence:

(A) Incurred any other disability set forth in 18 U.S.C. 922(g); or

(B) Was arrested for a felony, a misdemeanor crime of domestic violence, or any other offense where the applicant was alleged to have committed or threatened to commit acts of violence, brandished or discharged a firearm or used an explosive in the course of committing or attempting to commit that offense, except that presumptive denial under this paragraph (b)(2)(ii)(B) shall not apply if the applicant submits evidence of a judicial determination that no misconduct occurred or of a dismissal on the merits of any resulting charges against the applicant.

(iii) If such conduct as described in paragraph (b)(2)(ii)(A) or (B) of this section occurs, the 10-year period begins anew.

(3) Has, within the last 5 years, been convicted of, or served any part of a sentence under State or Federal law for, any other felony.

(4) Has, within the last 5 years, been convicted of, or served any part of a sentence under State or Federal law for, any assault, battery, or stalking offense, or any threatened act of violence.

(c) The Attorney General has determined that ongoing unlawful conduct, certain statuses demonstrating ongoing or recent disregard for the law, certain statuses indicating a high risk of future violence, and certain statuses related to the criminal justice system render an applicant presumptively unable to establish to the Attorney General's satisfaction that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of relief would not be contrary to the public interest. Applications will therefore be denied, absent extraordinary circumstances, if the applicant is currently:

(1) Awaiting imposition of a sentence for any crime;

(2) Serving any part of a sentence;

(3) Participating in any program in lieu of criminal conviction (such as through a pretrial diversion or substance abuse treatment program);

(4) Subject to any of the disabilities set forth in 18 U.S.C. 922(g)(2), (g)(5), or (g)(8);

(5) An unlawful user of, or addicted to, a controlled substance, as defined § 107.1; or

(6) Required to register under the Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. 20911-20932, or comparable sex-offender registration statute, based on an offense that disqualified that person from possessing a firearm under the Gun Control Act.

(d) The Attorney General may treat any status under foreign law that is similar to the statuses outlined in paragraphs (c)(1) through (5) of this section as if the status had arisen in the United States, if consistent with United States public policy.

§ 107.60 Applicants subject to the disability in 18 U.S.C. 922(g)(4).

(a) Applicants currently subject to the disability in 18 U.S.C. 922(g)(4) are eligible to apply for relief under this part.

(b) The Attorney General has determined that the following circumstances render an applicant subject to the disability in 18 U.S.C. 922(g)(4) presumptively unable to establish to the Attorney General's satisfaction that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of relief would not be contrary to the public interest based on a lack of information necessary for the Attorney General to make those determinations or to reject the contrary findings of another competent authority. Applications will therefore be denied, absent extraordinary circumstances, if the applicant is currently subject to the disability set forth in 18 U.S.C. 922(g)(4) imposed by:

(1) A State or territory that has adopted a relief-from-disability program implemented in accordance with 34 U.S.C. 40915, where the applicant is eligible to apply under the program and has not sought relief or has been denied relief;

(2) A State or territory that maintains a relief-from-disability program not implemented in accordance with 34 U.S.C. 40915, where the applicant is eligible to apply under the program and has not sought relief or has been denied relief; or

(3) A Federal department or agency that has adopted a relief-from-disability program or other administrative process where the applicant is eligible to apply under the program and has not sought relief or has been denied relief.

§ 107.70 Subsequent applications and prevention of vexatious applications.

The Attorney General has determined that denial of a prior application for relief under this part renders an applicant presumptively unable to establish to the Attorney General's satisfaction that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of relief would not be contrary to the public interest. Applications will therefore be denied, absent extraordinary circumstances, if the applicant has, at any time, had an application for relief under this part denied based on a disqualification under § 107.50(a) or has, within the previous 5 years, had an application for relief under this part denied for any reason other than the circumstances described in § 107.50(b) and (c) or that portion of § 107.60(b) related to failure to apply under the relevant program.

§ 107.80 Relief void if procured by fraud.

Any relief granted to an applicant pursuant to this part shall be void ab initio if the applicant willfully subscribed as true any material matter that the applicant did not believe to be true or willfully omitted any material requested information.

§ 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.

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.

§ 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

(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.

§ 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.

§ 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.

§ 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 § 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.

§ 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.

§ 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 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.

§ 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 § 115.64, or the investigation of the inmate's allegations.

§ 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.

§ 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.

§ 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 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.

§ 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.

§ 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.

§ 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.

§ 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 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.

§ 115.34 Specialized training: Investigations.

(a) In addition to the general training provided to all employees pursuant to § 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.

§ 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 § 115.31 or for contractors and volunteers under § 115.32, depending upon the practitioner's status at the agency.

§ 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.

§ 115.42 Use of screening information.

(a) The agency shall use information from the risk screening required by § 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.

(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.

§ 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.

§ 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.

§ 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.

§ 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 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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 §§ 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.

§ 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 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.

§ 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 § 115.43.

§ 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 § 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.

§ 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.

§ 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.

§ 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.

§ 115.77 Corrective action for contractors and volunteers.

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

§ 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.

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

(a) If the screening pursuant to § 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 § 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 § 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.

§ 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 § 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.

§ 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.

§ 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 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.

§ 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.

§ 115.88 Data review for corrective action.

(a) The agency shall review data collected and aggregated pursuant to § 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.

§ 115.89 Data storage, publication, and destruction.

(a) The agency shall ensure that data collected pursuant to § 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 § 115.87 for at least 10 years after the date of the initial collection unless Federal, State, or local law requires otherwise.

§ 115.93 Audits of standards.

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

§ 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.

§ 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.

§ 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 § 115.141, security staff shall provide such detainees with 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.

§ 115.114 Juveniles and youthful detainees.

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

§ 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.

§ 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 § 115.164, or the investigation of the detainee's allegations.

§ 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.

§ 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 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.

§ 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 § 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.

§ 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.

§ 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.

§ 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.

§ 115.133 [Reserved]

§ 115.134 Specialized training: Investigations.

(a) In addition to the general training provided to all employees and volunteers pursuant to § 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 sexual abuse in lockups shall provide such training to their agents and investigators who conduct such investigations.

§ 115.135 [Reserved]

§ 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.

§§ 115.142-115.143 [Reserved]

§ 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.

§§ 115.152-115.153 [Reserved]

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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 §§ 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.

§ 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.

§ 115.168 [Reserved]

§ 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 § 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.

§ 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.

§ 115.173 [Reserved]

§ 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.

§ 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 sexual harassment policies by a contractor or volunteer.

§ 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.

§ 115.181 [Reserved]

§ 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.

§ 115.183 [Reserved]

§ 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.

§ 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.

§ 115.188 Data review for corrective action.

(a) The agency shall review data collected and aggregated pursuant to § 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.

§ 115.189 Data storage, publication, and destruction.

(a) The agency shall ensure that data collected pursuant to § 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 § 115.187 for at least 10 years after the date of the initial collection unless Federal, State, or local law requires otherwise.

§ 115.193 Audits of standards.

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

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

§ 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.

§ 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.

§ 115.214 [Reserved]

§ 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.

§ 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 § 115.264, or the investigation of the resident's allegations.

§ 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 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.

§ 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.

§ 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.

§ 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.

(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.

§ 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.

§ 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.

§ 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.

§ 115.234 Specialized training: Investigations.

(a) In addition to the general training provided to all employees pursuant to § 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.

§ 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 § 115.231 or for contractors and volunteers under § 115.232, depending upon the practitioner's status at the agency.

§ 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.

§ 115.242 Use of screening information.

(a) The agency shall use information from the risk screening required by § 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.

§ 115.243 [Reserved]

§ 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.

§ 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.

(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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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 §§ 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.

§ 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.

§ 115.268 [Reserved]

§ 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 § 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.

§ 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.

§ 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:

(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.

§ 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.

§ 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.

§ 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.

§ 115.281 [Reserved]

§ 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 § 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.

§ 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.

§ 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.

(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.

§ 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.

§ 115.288 Data review for corrective action.

(a) The agency shall review data collected and aggregated pursuant to § 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.

§ 115.289 Data storage, publication, and destruction.

(a) The agency shall ensure that data collected pursuant to § 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 § 115.287 for at least 10 years after the date of the initial collection unless Federal, State, or local law requires otherwise.

§ 115.293 Audits of standards.

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

§ 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.

§ 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.

§ 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;

(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 § 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.

§ 115.314 [Reserved]

§ 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.

§ 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 § 115.364, or the investigation of the resident's allegations.

§ 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 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.

§ 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.

§ 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.

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

§ 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.

§ 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.

§ 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.

§ 115.334 Specialized training: Investigations.

(a) In addition to the general training provided to all employees pursuant to § 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.

§ 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 § 115.331 or for contractors and volunteers under § 115.332, depending upon the practitioner's status at the agency.

§ 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.

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

(a) The agency shall use all information obtained pursuant to § 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.

§ 115.343 [Reserved]

§ 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.

§ 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

(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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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 §§ 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.

§ 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.

§ 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 § 115.342.

§ 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 § 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 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

(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.

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

(a) If the screening pursuant to § 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 § 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.

§ 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 § 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.

§ 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.

§ 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.

§ 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.

(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.

§ 115.388 Data review for corrective action.

(a) The agency shall review data collected and aggregated pursuant to § 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.

§ 115.389 Data storage, publication, and destruction.

(a) The agency shall ensure that data collected pursuant to § 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 § 115.387 for at least 10 years after the date of its initial collection unless Federal, State, or local law requires otherwise.

§ 115.393 Audits of standards.

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

§ 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.

§ 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.

§ 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 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.

§ 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.

§ 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.

§ 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.

§ 124.1 Purpose and scope.

(a) Purpose. This part implements the authority of the Secretary of Homeland Security and the Attorney General to develop the governance framework for the exercise of all counter-unmanned aircraft system (C-UAS) actions by State, local, Tribal, and territorial (SLTT) law enforcement and correctional agencies and their personnel under 6 U.S.C. 124n(a)(2), as amended by the SAFER SKIES Act. The purpose of actions taken under this authority is to detect, identify, monitor, track, warn, and, if necessary, mitigate credible threats posed by unmanned aircraft or unmanned aircraft systems (UAS) to the safety or security of people, facilities, or assets; a venue or set of venues used for large-scale public gatherings or events; critical infrastructure; or a correctional facility.

(b) Scope. This part applies to all SLTT law enforcement and correctional agencies, and their personnel seeking to exercise or exercising authority under 6 U.S.C. 124n(a)(2). This part does not govern Federal agency operations under 6 U.S.C. 124n(a)(1), nor deputized SLTT personnel conducting C-UAS as part of an FBI C-UAS task force, which are subject to separate policies and guidance. An SLTT law enforcement or correctional agency that conducts only detection and warning operations using systems the operation of which requires the authority of the Act or the relief it provides from certain laws is subject principally to the Detection and Warning Certification requirement of § 124.5(c), the detection and warning policy provisions of § 124.6(g), the authorized technology requirements of § 124.7, the C-UAS Operations Plan requirement of § 124.8, the operational conditions of § 124.12, and the privacy and data handling requirements of § 124.14.

(c) Relationship to other laws. As provided in 6 U.S.C. 124n(a)(2), actions taken by SLTT law enforcement and correctional agencies and their personnel in compliance with this part may be taken notwithstanding section 46502 of title 49, United States Code, and sections 32, 1030, and 1367 and chapters 119 and 206 of title 18, United States Code, and notwithstanding the laws of any particular State, local, Tribal, or territorial jurisdiction. Nothing in this part vests in the Secretary of Homeland Security or the Attorney General any authority of the Secretary of Transportation or the Administrator of the Federal Aviation Administration.

(d) Comprehensive framework. This part establishes the complete framework governing the exercise of authority under 6 U.S.C. 124n(a)(2), including the training and certification procedures required by 6 U.S.C. 124n(d)(2)(A) and the guidance required by 6 U.S.C. 124n(d)(1) on the matters this part addresses. An SLTT law enforcement or correctional agency and its personnel exercising authority under 6 U.S.C. 124n(a)(2) must conduct operations in accordance with this part. The Attorney General, the Secretary of Homeland Security, the Secretary of Transportation, and the Administrator of the Federal Aviation Administration may issue forms, templates, curricula, and other implementing materials under this part to the extent consistent with law. Where any implementing material addresses a matter also addressed by this part, this part controls. Nothing in this part limits the authority of the Secretary of Homeland Security, the Attorney General, or the Secretary of Transportation to issue guidance under 6 U.S.C. 124n(d)(1) in their respective areas.

(e) Parallel regulations. Consistent with section 8606(a)(1) of the Act, identical implementing regulations appear at 6 CFR part 124 and 28 CFR part 124. The Department of Homeland Security and Department of Justice administer and interpret their respective regulations with respect to their own programs, activities, and solely held authorities. Any description in these regulations of the other Department's programs, activities, or solely held authorities is provided for context and does not itself govern the other Department's exercise of its statutory authorities.

§ 124.2 Definitions.

As used in this part:

Agency accreditation means an agency's eligibility to exercise authority under this part, established when the agency has adopted the implementation policy and completed the portal attestation required by § 124.6(d), deploys only systems within categories on the Authorized Technologies List and, where populated, on the Authorized Systems List, and ensures that its personnel hold the certifications required for the authorities exercised.

Agency Approving Official means the senior official designated by an SLTT law enforcement or correctional agency in its implementation policy under § 124.6(a)(1), or in its detection and warning policy under § 124.6(g), authorized to approve C-UAS operations on behalf of the agency. The Agency Approving Official must not be below the rank of a Senior Executive or Senior Official or its equivalent, except that for an agency in which no equivalent rank exists, the agency head or the agency head's designee may serve as Agency Approving Official. The Agency Approving Official may not serve as a mitigation operator for an operation that official has approved.

Authorized Systems List means the subset of the Authorized Technologies List that identifies specific systems—including make, model, and hardware version—that have been authorized for operational use within one or more technology categories on the Authorized Technologies List. The Authorized Systems List is populated on a phased basis. As systems complete interagency assessment, systems may be added to the Authorized Systems List with appropriate operational limitations based on the approved capabilities, functions, and hardware version of the system.

Authorized Technologies List means the list of authorized technology categories for C-UAS operations by SLTT law enforcement and correctional agencies, maintained jointly by the Department of Justice, the Department of Homeland Security, the Department of Defense, the Department of Transportation and Federal Aviation Administration, the Federal Communications Commission, and the National Telecommunications and Information Administration, consistent with 6 U.S.C. 124n(d)(2)(A)(iii) and section 8606(a)(4) of the SAFER SKIES Act.

Control communications means any wire, oral, or electronic communication used to navigate, command, or otherwise control a UAS or unmanned aircraft, including telemetry transmitted from the aircraft to its operator, command-and-control signals transmitted from the operator to the aircraft, and any video, audio, or other data stream used by the operator to navigate the aircraft when other navigation telemetry is unavailable or insufficient. The operational role of a communication, rather than its packet type or transmission frequency, determines whether it is a control communication. Whether a communication is a control communication is determined when captured material is processed under § 124.14 and does not require an operator to determine in real time whether a particular video, audio, or data stream is being used to navigate the aircraft. Control communications also include a UAS unique identifier (such as a manufacturer device identifier or serial-correlated number), the operator or take-off location of the UAS, and the location, velocity, and emergency status of the UAS when that information is acquired by intercepting a communication from an unmanned aircraft or unmanned aircraft system pursuant to the relief provided by 6 U.S.C. 124n. The same information is not a control communication when it is obtainable without that relief.

Correctional agency has the meaning given in section 8606(c)(2) of the SAFER SKIES Act.

Correctional facility has the meaning given in 6 U.S.C. 124n(l)(9).

Credible threat means a threat that, based on the totality of circumstances known to the operator at the time of the determination, would cause a reasonable person in the operator's position, considering the operator's training and experience, to conclude that a UAS or unmanned aircraft poses an articulable risk to the safety or security of people, a facility, or an asset; a venue or set of venues used for large-scale public gatherings or events; critical infrastructure; or a correctional facility.

(1) A credible threat may be based on, but is not limited to:

(i) Specific intelligence, including information from law enforcement databases, threat assessments, or intelligence community products;

(ii) Behavioral indicators, including operation in airspace in which UAS operations have been restricted or prohibited by the Federal Aviation Administration, operation not in compliance with Federal Aviation Administration's flight requirements, approach toward a protected interest, failure to respond to warnings, or evasive maneuvering inconsistent with normal flight operations;

(iii) Payload or physical configuration indicators, including observed attachments, modifications, or configurations inconsistent with ordinary recreational or commercial UAS use that suggest capability to cause harm or to deliver prohibited items;

(iv) Unauthorized surveillance or reconnaissance of a protected interest that by law is protected from such activities, or interference with the operational mission of a protected interest;

(v) Indications that the UAS is being used to gain unauthorized access to, or to disclose, classified, law enforcement sensitive, or otherwise lawfully protected information; or

(vi) Pattern-based indicators, including repeated unauthorized UAS activity at a specific location (such as repeat incursions of national defense airspace in violation of 49 U.S.C. 46307), which may inform but do not independently satisfy the credible threat standard.

(2) A credible threat determination rests on the totality of the circumstances. A single indicator may establish a credible threat where it is sufficiently probative. For mitigation actions under 6 U.S.C. 124n(b)(1)(C), (D), and (F), the determination must be supported by a contemporaneous indicator that the specific unmanned aircraft system or unmanned aircraft at issue poses a current, articulable risk if unabated. For detection and warning actions under 6 U.S.C. 124n(b)(1)(A) and (B), a credible threat determination may also be supported by a reasonable basis to anticipate that one or more unmanned aircraft systems or unmanned aircraft poses an articulable risk. Activity protected by the First Amendment to the Constitution of the United States may not be considered in making a credible threat determination.

Critical infrastructure has the meaning given in subsection (e) of the Critical Infrastructures Protection Act of 2001 (Pub. L. 107-56, sec. 1016, 115 Stat. 272, 400-02 (codified at 42 U.S.C. 5195c)), as referenced in 6 U.S.C. 124n(l)(10).

Data purge verification means documented confirmation that records subject to purge have been deleted from all systems on which they were stored. Verification may be performed through an automated system, supervisory review, or other documented confirmation process, and must be recorded in the audit trail required by § 124.14.

Designated Federal C-UAS coordination portal means the electronic submission system designated by the Attorney General and Secretary of Homeland Security for advance notifications, notices of intent, C-UAS Operations Plans, mitigation notifications, post-operation reports, and other submissions required by this part.

Detection and Warning Certification means certification that personnel have successfully completed the online detection and warning training curriculum developed and maintained through the National Counter-UAS Training Center (NCUTC) and passed the post-course assessment. A Detection and Warning Certification authorizes the holder to exercise the authorities described in 6 U.S.C. 124n(b)(1)(A), (B), and (E). The certification is issued automatically through the NCUTC training portal upon successful completion of the curriculum and assessment and recorded in the NCUTC certification database.

Detection and warning operations means operations conducted using systems the operation of which requires the authority of, or relief from certain laws under, 6 U.S.C. 124n and involve only the actions described in 6 U.S.C. 124n(b)(1)(A) and (B). Detection and warning activity conducted using systems that do not require the authority of 6 U.S.C. 124n (including, for example, electro-optical, infrared, acoustic sensors, and radar) is not subject to this part. Operation of RF-emitting C-UAS systems remains subject to applicable Federal Communications Commission authorization requirements and Federal Aviation Administration coordination if such emission could impact the National Airspace System or other systems located at or near airports.

Detection system means a system or technology used to take an action described in 6 U.S.C. 124n(b)(1)(A) or (B)—that is, to detect, identify, monitor, or track a UAS or unmanned aircraft, or to warn its operator, and that has no capability enabled to disrupt or seize control of, or disable, damage, or destroy a UAS or unmanned aircraft.

FAA-designated coordination mechanism means the program, office, or process designated by the Administrator of the Federal Aviation Administration for the coordination of C-UAS operations that might affect aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, or the use of the airspace.

Hazardous Devices School means the schoolhouse operated by the Federal Bureau of Investigation at which public safety bomb technicians are certified and recertified in accordance with the National Guidelines for Bomb Technicians, or any successor publication.

Mitigation action means an action described in 6 U.S.C. 124n(b)(1)(C), (D), or (F). Detection and warning, described in 6 U.S.C. 124n(b)(1)(A) and (B), are not mitigation actions.

Mitigation Certification means certification issued by the National Counter-UAS Training Center upon successful completion of the NCUTC mitigation training course or a successor course approved by the Attorney General acting through the Director of the Federal Bureau of Investigation, authorizing the holder to exercise the authorities described in 6 U.S.C. 124n(b)(1)(C), (D), and (F), to the extent consistent with this part and applicable laws, using authorized technologies within the mitigation technology categories covered by the approved mitigation courses the holder has completed. A current Detection and Warning Certification is a prerequisite for obtaining and maintaining a Mitigation Certification.

Mitigation operation means an operation in which a mitigation system is deployed for the purpose of taking an action described in 6 U.S.C. 124n(b)(1)(C), (D), or (F), including disrupting, seizing, or exercising control of, or using reasonable force, if necessary, to disable, damage, or destroy a UAS or unmanned aircraft, whether or not a mitigation action is taken during the operation. A mitigation operation may include elements of detection and warning operations.

Mitigation system means a system or technology used or capable of being employed to take an action described in 6 U.S.C. 124n(b)(1)(C), (D), or (F), including disrupting, seizing or exercising control of, or using force to disable, damage, or destroy a UAS or unmanned aircraft. A system with both detection and mitigation capability is a mitigation system while its mitigation capability is enabled.

National Counter-UAS Training Center (NCUTC) means the national schoolhouse operated by the Federal Bureau of Investigation and designated by the Attorney General, acting through the Director of the Federal Bureau of Investigation, as the national training center for purposes of 6 U.S.C. 124n and as the sole certifying authority for SLTT C-UAS mitigation operators under 6 U.S.C. 124n(d)(2)(A)(i).

Pattern data means a derived data product reflecting aggregated trends, frequencies, or statistical observations of UAS activity across multiple C-UAS operations that has met the anonymization standards established by the agency's implementation policy and contains no information identifying any specific aircraft, operator, or natural person.

Personnel means officers and employees with assigned duties that include the security or protection of people, facilities, or assets of SLTT law enforcement and correctional agencies, as defined in 6 U.S.C. 124n(a)(2) and (l)(6)(B). This term does not include contractors of SLTT law enforcement and correctional agencies.

Raw sensor data means unprocessed or minimally processed data generated by C-UAS detection or mitigation systems, including radio frequency signal captures, waveform recordings, radar returns, optical and infrared imagery, acoustic signatures, full sensor logs, and system telemetry. Whether a particular item of raw sensor data constitutes a control communication, and is therefore a record of communications subject to the retention limit of § 124.14, is determined by its function.

RF-emitting C-UAS system means any C-UAS system that, when employed for detection or mitigation purposes, actively transmits radio frequency energy to detect, disrupt, disable, or seize control of a UAS or unmanned aircraft. This includes systems employing technologies for detection-only purposes, such as radars that transmit radio frequency signals, that may require a radiolocation service license to be issued from the Federal Communications Commission, and mitigation systems that employ radio frequency jamming (broadband or protocol-specific disruption of command-and-control links, video downlinks, or navigation signals) and radio frequency protocol manipulation (command injection or cyber takeover of control signals).

SLTT law enforcement agency has the meaning given in section 8606(c)(1) of the SAFER SKIES Act.

Special Event Assessment Rating means a rating assigned to an event under the special event assessment process administered by the Department of Homeland Security, or the equivalent rating under any successor event rating system.

§ 124.3 Scope of authority and mitigation standards.

(a) Scope of authority. An SLTT law enforcement or correctional agency exercising authority under 6 U.S.C. 124n(a)(2) may take actions described in 6 U.S.C. 124n(b)(1), which generally include detection, warning, and mitigation, that are necessary to address or eliminate a credible threat that a UAS or unmanned aircraft poses to the safety or security of people, a facility, or an asset; a venue or set of venues used for large-scale public gatherings or events; critical infrastructure; or a correctional facility. These statutory categories are functional and are not a prescribed list of property types. The determination of whether a specific property falls within these categories is made by the agency's Agency Approving Official, consistent with this part and 6 U.S.C. 124n. No “covered facility or asset” designation under 6 U.S.C. 124n(l)(3) is required for SLTT law enforcement or correctional agency operations; however, a risk-based assessment is required as part of the Operations Plan, as outlined in § 124.8. Whether the property falls within a section 124n(a)(2) category is a separate question from the credible threat determination. The credible threat determination required by paragraph (b) of this section must be made before any mitigation action.

(b) Credible threat determination for mitigation actions. Before taking any mitigation action, personnel must reasonably determine, under the totality of the circumstances, that a credible threat exists, as defined in § 124.2. The determination must be made in real time by the certified and trained personnel closest to the operational situation and documented as part of the post-operation report required by § 124.13. An established pattern of unauthorized UAS activity at a specific location is relevant to the totality of the circumstances and may, in combination with a contemporaneous indicator—including, for example, a new detection event at the same location during a period consistent with the established pattern—support a credible threat determination. A contemporaneous indicator need not independently establish a threat. Considered with the totality of the circumstances, which may include an established pattern of unauthorized UAS activity, an intelligence indicator, or other contextual information, the contemporaneous indicator must provide a present-tense basis for concluding that the specific aircraft at issue poses a current risk. This operational standard governs individual mitigation decisions by authorized personnel in the application of reasonable force under the totality of the circumstances and does not limit the information or analysis that may be considered at the approval level in determining whether to authorize a C-UAS operation for a specific event or facility.

(c) Proportionality. Mitigation actions must be proportionate to the credible threat identified. Personnel must employ the least disruptive effective means of mitigation available under the totality of the circumstances. If equipment is available and time permits, a warning to the remote pilot-in-command should precede any mitigation action. Before taking any mitigation action that may result in the disabling, damage, or destruction of an unmanned aircraft, personnel must consider whether the threat posed by the UAS outweighs the risk of collateral harm to public safety. A mitigation action that creates a greater risk to public safety than the threat it is intended to address is not proportionate and must not be taken. Where a non-mitigation measure is sufficient to eliminate the threat, seizure or destruction of the aircraft should be avoided when feasible. The risk of collateral harm to public safety includes the risk of falling debris, damage to persons or property on the ground, disruption to communications systems, and risks to aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, or the use of the airspace.

(d) Protective purpose limitation. The authority of 6 U.S.C. 124n(a)(2) is limited to the protection of people, facilities, and assets; a venue or set of venues used for large-scale public gatherings or events; critical infrastructure; and correctional facilities from credible threats posed by unmanned aircraft and UAS. C-UAS authority under this part may not be exercised for the sole purpose of collecting evidence for criminal prosecution or as a substitute for the authority provided by chapter 119 or 206 of title 18, United States Code. Evidence obtained incidental to lawful protective C-UAS operations may be used in subsequent criminal proceedings consistent with applicable law.

(e) Mitigation operator requirement. (1) The person who takes a mitigation action, including activating an RF-emitting system, executing a cyber-based takeover, or otherwise causing a C-UAS system to affect or otherwise impact the flight, control, or communications of a UAS or unmanned aircraft, must hold a current Mitigation Certification covering the technology category being employed, and must possess a valid 14 CFR part 107 remote pilot certificate. This requirement is not satisfied by supervision of an uncertified person by a certified operator; the certified operator must be the individual who directly executes the mitigation command or function.

(2) Support functions that do not involve the initiation of mitigation actions, such as detection system monitoring, threat triage and prioritization, ground intercept team dispatch, communications, and administrative functions, do not require Mitigation Certification, but must be performed by personnel trained in accordance with the agency's implementation policy and, where the support function involves operation of systems requiring the authority of 6 U.S.C. 124n(a)(2) or the relief it provides from certain laws, by personnel holding a current Detection and Warning Certification.

(3) For operations involving multiple personnel performing distinct roles, the agency's implementation policy must define the roles and responsibilities of each position, identify which positions require Mitigation Certification, and which require Detection and Warning Certification only, and establish the communication and concurrence procedures between the mitigation operator and other personnel.

(f) Independent professional judgment. (1) The certified mitigation operator retains independent professional judgment on whether to initiate a mitigation action.

(2) A supervisor, commander, or other official, regardless of rank, may provide operational direction, tactical context, and coordination guidance to the operator, and may direct the operator to withhold or cease mitigation when broader operational considerations warrant.

(3) A supervisor, commander, or other official may not direct a certified operator to initiate a mitigation action when the operator has determined that the credible threat standard is not met or that the proportionality requirement of paragraph (c) of this section is not satisfied.

(4) The agency's implementation policy must address the chain of command for mitigation decisions and must make clear that non-certified personnel, regardless of rank, may not direct mitigation actions that override the certified operator's professional judgment on whether the conditions for mitigation are present.

(5) An operator who declines to initiate mitigation based on a good-faith professional determination that the conditions for mitigation are not met may not be subjected to adverse employment action for that decision.

(g) Airspace awareness. (1) For operations where known authorized manned or unmanned aviation is operating or anticipated in or near the area of operations, the agency's implementation policy or C-UAS Operations Plan must designate a person or position responsible for maintaining real-time awareness of known authorized aviation within the operational area and for ensuring that this information is communicated to personnel authorized to initiate mitigation actions before any mitigation is executed. For purposes of this paragraph, known authorized aviation means any manned or unmanned aircraft that has been identified in the C-UAS Operations Plan, communicated to the C-UAS team during the operation, or otherwise confirmed as lawfully operating in or near the area of operations. The designated person, or the individual filling the designated position, must have the ability to communicate directly with the mitigation operator. No mitigation action may be initiated without reasonable efforts to confirm that the target is not a known authorized aircraft.

(2) The scope and formality of this role must be commensurate with the complexity of the aviation environment. For operations with minimal or no known authorized aviation, this role may be performed as an additional duty by the certified operator or other command post personnel; for operations with significant aviation activity, the agency must designate a dedicated individual with airspace awareness and coordination responsibilities. When a target cannot be correlated with any known, authorized aircraft and meets the credible threat standard, mitigation may proceed.

§ 124.4 Authorized personnel, contractors, and mutual aid.

(a) Officers and employees. The authority provided by 6 U.S.C. 124n(a)(2) may be exercised only by SLTT law enforcement or correctional agency personnel. No SLTT law enforcement or correctional agency may delegate or transfer the exercise of C-UAS mitigation authority to any person or entity that is not an officer or employee of the agency.

(b) Prohibition on contractor exercise. Contractors may provide technical support, system maintenance, and training assistance, but may not operate C-UAS mitigation systems, make credible threat determinations, or execute mitigation actions. An arrangement in which a contractor exercises de facto operational control of a C-UAS mitigation system during an operation, including an arrangement described as a turnkey, managed service, or operator-provided C-UAS service, constitutes an unauthorized delegation of authority and is grounds for suspension of accreditation or certification under § 124.5(i). Detection services that do not require the authority of the Act or the relief it provides from certain laws may be provided by contractors.

(c) Mutual aid and regional C-UAS support. (1) An SLTT law enforcement or correctional agency accredited under 6 U.S.C. 124n(d)(2) may provide C-UAS support to another SLTT law enforcement or correctional agency, including an agency that is not accredited under this part, under a mutual aid agreement, memorandum of understanding, request for assistance, task force arrangement, or other written arrangement authorized by applicable State, local, Tribal, or territorial law.

(2) When the requesting or host agency is not accredited under 6 U.S.C. 124n(d)(2), the accredited agency providing C-UAS support is the C-UAS operating agency for purposes of this part and is responsible for compliance with the applicable requirements of this part.

(3) Personnel of a non-accredited requesting or host agency may support the operation through ordinary law enforcement, correctional, public safety, evidence-handling, perimeter-security, ground-intercept, evacuation, traffic-control, or incident-command functions. Such personnel may not exercise C-UAS authority under 6 U.S.C. 124n(a)(2), operate systems whose operation requires the authority of or relief from certain laws under 6 U.S.C. 124n, make a credible-threat determination, or initiate any mitigation action, unless those personnel independently satisfy the requirements of this part, hold the applicable certification under § 124.5, and are expressly designated in the accredited C-UAS operating agency's C-UAS Operations Plan to perform that function. Personnel so designated operate under that agency's implementation policy, Agency Approving Official approval, supervision, and compliance responsibility. An individual certification does not, by itself, authorize personnel to exercise 6 U.S.C. 124n(a)(2) authority, and this designation must be established in advance through the C-UAS Operations Plan and the mutual-aid arrangement under paragraph (c)(4) of this section.

(4) The written mutual aid arrangement must identify the requesting or host agency, the accredited agency providing C-UAS support, the legal basis for the accredited agency's personnel to operate in the host jurisdiction, the allocation of operational responsibilities, and the handling of C-UAS-derived information consistent with §§ 124.14 and 124.15.

(5) For multi-jurisdictional operations, the participating agencies must identify a lead C-UAS agency for tactical C-UAS coordination. The lead C-UAS agency must be an accredited agency unless the operation is conducted under Federal authority pursuant to § 124.19. A non-accredited requesting or host agency may serve as the lead public safety, law enforcement, correctional, or incident-command agency for the overall event or incident, but may not serve as the lead C-UAS agency unless accredited under this part.

(6) An accredited agency may enter into standing regional, county, statewide, or other multi-jurisdictional arrangements to provide recurring or on-call C-UAS support to non-accredited agencies. A standing arrangement does not itself authorize a mitigation operation; each mitigation operation remains subject to the applicable requirements of this part.

(7) Nothing in this part requires a small, rural, or otherwise resource-limited SLTT law enforcement or correctional agency to acquire C-UAS equipment, obtain accreditation, or establish an independent C-UAS program in order to receive C-UAS support from an accredited agency.

(d) Anti-circumvention. (1) No SLTT law enforcement or correctional agency, officer, employee, contractor, vendor, or other person may structure or use a mutual aid, regional support, managed-service, technical-support, or other arrangement to evade the requirements of this part.

(2) Prohibited circumvention includes using an accredited agency as a nominal sponsor while a non-accredited agency, contractor, vendor, or other entity exercises de facto operational control of C-UAS activity requiring the authority of or relief from certain laws under 6 U.S.C. 124n; allowing personnel who lack the certifications required by § 124.5 to exercise C-UAS authority; using systems outside the requirements of § 124.7; avoiding the coordination, reporting, privacy, sensitive-information, or compliance requirements of this part; or acquiring third-party intercepted communications in a manner inconsistent with § 124.14(i).

(3) A mutual aid, regional support, statewide support, county support, or multi-jurisdictional C-UAS arrangement is not circumvention merely because the requesting or host agency is not accredited, provided that the C-UAS operating agency is accredited, the personnel exercising C-UAS authority hold the required certifications, and the operation is conducted in compliance with this part.

§ 124.5 Training and certification.

(a) Training and certification structure. This section establishes the training and certification structure implementing the requirements of 6 U.S.C. 124n(d)(2)(A). Detection and Warning Certification governs training for detection and warning operations under 6 U.S.C. 124n(b)(1)(A) and (B). Mitigation Certification governs training and certification for mitigation operations under 6 U.S.C. 124n(b)(1)(C), (D), and (F). A current Detection and Warning Certification is a prerequisite both for initial enrollment in the mitigation training course and for mitigation recertification.

(b) Agency implementation policy. Before conducting any operations under this part, an SLTT law enforcement or correctional agency must adopt an agency implementation policy or detection and warning policy and complete the portal attestation in accordance with § 124.6, and must authorize each operation by a C-UAS Operations Plan in accordance with § 124.8, consistent with the other requirements and obligations of this part and applicable laws and policies.

(c) Detection and Warning Certification. The Attorney General, acting through the Director of the Federal Bureau of Investigation, will develop and maintain through the NCUTC an online training curriculum for detection and warning operations, accessible through a secure web-based training portal. The curriculum includes the confiscation authority of 6 U.S.C. 124n(b)(1)(E), evidence preservation, and chain of custody. Only those personnel who have completed the curriculum and passed the post-course assessment may exercise the authorities described in 6 U.S.C. 124n(b)(1)(A), (B), and (E). Upon successful completion, the NCUTC training portal automatically issues a Detection and Warning Certification. Detection and Warning Certification is issued only by the NCUTC, and detection and warning training or certification obtained from another agency or a private entity does not satisfy this requirement. Detection and warning activity conducted using systems that do not require the authority of 6 U.S.C. 124n is not subject to this requirement. Upon successful completion, the training portal records the individual's name, agency, date of completion, and certification status in the NCUTC certification database, which is the system of record for all certifications issued under this section. Each agency must maintain a roster of its certified personnel drawn from the NCUTC certification database and must verify the certification status of personnel assigned to C-UAS operations. Vendor-specific and system-level operator training is the responsibility of each agency through its own training procedures and is not part of the detection and warning curriculum.

(d) Mitigation training and certification. (1) The Attorney General, acting through the Director of the Federal Bureau of Investigation, designates the NCUTC as the national schoolhouse and sole certifying authority for personnel exercising mitigation authorities under 6 U.S.C. 124n(b)(1)(C), (D), and (F), as required by 6 U.S.C. 124n(d)(2)(A)(i). Only personnel who hold a valid Mitigation Certification may exercise these authorities. The NCUTC mitigation training program consists of the mitigation training course and such advanced and supplemental courses as the Attorney General, acting through the Director of the Federal Bureau of Investigation, approves. Each course is evaluated on a pass or fail basis and requires demonstrated proficiency in each mitigation technology category it covers; a person who does not demonstrate proficiency in each category does not pass that course. A person obtains Mitigation Certification by passing the mitigation training course and may extend the scope of that certification to additional mitigation technology categories by passing an advanced or supplemental course covering those additional categories. Failure to pass a particular advanced or supplemental course does not affect the scope of a certification already held.

(2) A person who holds a current Mitigation Certification under this paragraph (d) may conduct mitigation operations at a correctional facility. An abbreviated Correctional Mitigation Certification, limited to correctional-facility operations, is available for personnel who will operate only at correctional facilities.

(3) The mitigation training course under this paragraph is delivered at the NCUTC. The Attorney General, acting through the Director of the Federal Bureau of Investigation, may authorize the Federal Law Enforcement Training Centers or another qualified Federal training provider to deliver the mitigation training course at one or more additional sites, provided the NCUTC retains approval authority over curriculum and standards, exercises oversight of the delivery, and issues all certifications upon verified completion. Any such authorization is at the sole discretion of the Attorney General, acting through the Director, confers no entitlement on any agency or training provider, and may be modified or withdrawn at any time.

(e) Correctional mitigation training and certification. The NCUTC offers an abbreviated Correctional Mitigation Certification for personnel who will conduct mitigation operations only at correctional facilities. The correctional course of instruction is shorter than the mitigation training course under paragraph (d) of this section because the fixed perimeter and persistent-threat environment of a correctional facility reduce the operational setup and mission-planning instruction required. The correctional course of instruction addresses the persistent-threat environment, perimeter operations, and the legal and safety considerations of correctional settings. A person who holds only the Correctional Mitigation Certification may conduct mitigation operations at a correctional facility but may not conduct other mitigation operations under this part. The NCUTC may arrange for the Federal Law Enforcement Training Centers or another qualified training provider to deliver the correctional curriculum, provided the NCUTC retains approval authority over curriculum and standards, exercises oversight of the delivery, and issues all certifications upon verified completion.

(f) Training standards. The mitigation training course, as administered by the NCUTC, will include instruction on the legal, operational, and technological aspects of C-UAS operations as required by section 8606(b)(1) of the SAFER SKIES Act, including FAA coordination and airspace procedures, spectrum coordination requirements, real-time air traffic control notification procedures, FBI and DHS notification requirements, and the operational use of authorized mitigation technologies. The Attorney General, in coordination with the Secretary of Homeland Security, the Secretary of Defense, the Secretary of Transportation, and the Administrator of the Federal Aviation Administration, will approve training program standards and may approve additional courses of instruction for specialized C-UAS operations. The mitigation training course must include scenario-based instruction on the application of the credible threat standard.

(g) Eligible personnel. Personnel eligible for Mitigation Certification or Detection and Warning Certification must have assigned duties that include the security or protection of people, facilities, or assets, as specified in 6 U.S.C. 124n(a)(2), and must be officers or employees of an SLTT law enforcement or correctional agency accredited by the Attorney General acting through the Director of the Federal Bureau of Investigation. The NCUTC, under the authority of the Attorney General, may establish additional attendance prerequisites.

(h) Sufficiency of certification. Successful completion of the applicable training requirement, combined with the use of systems within technology categories on the Authorized Technologies List and specific systems on the Authorized Systems List where populated, and compliance with the requirements of this part, satisfies the training and certification prerequisites of 6 U.S.C. 124n(d)(2)(A) for the exercise of the corresponding authorities under 6 U.S.C. 124n(a)(2).

(i) Suspension. The Attorney General, acting through the Director of the Federal Bureau of Investigation or the Director's designee, may suspend the Mitigation Certification or Detection and Warning Certification of any individual, or the accreditation of any SLTT law enforcement or correctional agency, for failure to comply with the requirements of this part, violation of the conditions of certification, or for any conduct that demonstrates unfitness to exercise C-UAS authority. Suspension of a certification or accreditation under this section is distinct from suspension of C-UAS authority by the Attorney General or the Secretary of Homeland Security under section 8605(f) of the SAFER SKIES Act, which is addressed in § 124.16. Neither a suspension of certification under this section nor an enforcement action against an individual under section 8605(f) of the SAFER SKIES Act prevents or bars the responsible agency from taking any additional actions it deems necessary to address the circumstances that led to suspension or enforcement action by the Attorney General or designee.

(j) Suspension notice. A suspension will be communicated in writing and will specify the basis for the action and any available remedial steps. The suspension notice must include the factual basis for the action in sufficient detail to enable the affected individual or agency to respond. In exigent circumstances, the Director of the Federal Bureau of Investigation or the Director's designee may immediately suspend a certification or accreditation pending administrative review without the requisite written notice when continued exercise of C-UAS authority poses a risk to aviation safety, public safety, or national security. In such cases, the Director or the Director's designee must provide the requisite notice within 3 days of the suspension.

(k) Administrative review. An individual or agency that receives a suspension notice may request administrative review within 30 calendar days of receipt. The Attorney General, acting through the Director of the Federal Bureau of Investigation, will designate a reviewing official of the Department of Justice who did not participate in or supervise the initial decision. The affected party may submit documentary evidence and written witness statements in support of its response. The reviewing official will consider the written submissions of both parties, may conduct an informal hearing at the reviewing official's discretion, and will issue a written determination within 60 calendar days of receipt of the request, stating the factual findings and the basis for the determination. The reviewing official may affirm the action, modify its terms, impose conditions for reinstatement, or reverse the action. A suspension that is affirmed remains in effect until reinstatement under paragraph (m) of this section or the expiration of the suspended certification or accreditation, whichever occurs first.

(l) Conditions. The Attorney General, acting through the Director of the Federal Bureau of Investigation, may issue a certification or accreditation subject to conditions, and may modify the conditions of a certification or accreditation, consistent with the standards and procedures applicable to suspension under this section.

(m) Reinstatement. An individual or agency whose certification or accreditation has been suspended may apply for reinstatement after completing the remedial steps specified in the suspension notice or the reviewing official's determination. An individual Mitigation Certification may alternatively be reinstated upon the successful recompletion of the full mitigation training course.

(n) Transition for previously trained personnel. Personnel holding a Mitigation Certification issued by the NCUTC before the effective date of this part must complete the detection and warning curriculum under paragraph (c) of this section by September 29, 2026. During that period, the Mitigation Certification remains valid, and the Detection and Warning Certification prerequisite for Mitigation Certification is deemed satisfied. An agency's accreditation is not affected while its personnel complete the curriculum during the transition period.

§ 124.6 Agency implementation policy.

(a) Requirement. Before conducting any operations under this part, each SLTT law enforcement or correctional agency must adopt and maintain an agency implementation policy governing the exercise of authority under 6 U.S.C. 124n(a)(2). The agency implementation policy is comprehensive. It governs all operations the agency conducts under this part, including detection and warning operations, and it addresses the detection and warning matters listed in paragraph (g) of this section. An agency that adopts and maintains an agency implementation policy under this paragraph is not required to adopt a separate policy under paragraph (g) of this section. An agency that conducts only detection and warning operations may instead adopt the abbreviated policy under paragraph (g) of this section. The agency implementation policy must, at a minimum:

(1) Designate an Agency Approving Official meeting the requirements of § 124.2;

(2) Designate the personnel authorized to exercise C-UAS authority and describe the recurrent training requirements applicable to such personnel;

(3) Establish procedures consistent with § 124.14 for the handling, retention, and dissemination of data acquired during C-UAS operations, including written anonymization standards specifying the aggregation thresholds, identifier suppression, and re-identification risk assessment used to qualify a data product as pattern data;

(4) Include provisions for public notification regarding the potential use of C-UAS authority within the agency's jurisdiction;

(5) Ensure compliance with the requirements of this part; and

(6) Detail standing tactical procedures governing the execution of C-UAS operations, including engagement protocols that account for the risk to persons and property on the surface and in the air before engagement, escalation procedures, use of force considerations, ground intercept team procedures, render safe procedures, evidence collection and chain-of-custody procedures, communications procedures, system operating procedures, data handling and purge procedures consistent with the retention requirements of this part, operation plan requirements, and post-operation procedures that incorporate data purge verification.

(b) Legal counsel review. The implementation policy must be reviewed and concurred in by the agency's legal counsel before adoption and upon each annual renewal. The review must specifically address the privacy and civil liberties requirements of this part, including the data retention, minimization, and dissemination provisions, and the interplay of proposed C-UAS operations and implementing policies with applicable State, local, Tribal, or territorial law. For an agency that has a designated official responsible for the agency's privacy and civil liberties compliance, regardless of title, the implementation policy must also be reviewed by that official.

(c) Alternative certification for agencies without in-house counsel. For an agency without in-house counsel, the review required by paragraph (b) of this section may alternatively be satisfied by review and certification by a State, local, territorial, or Tribal attorney's office that the implementation policy addresses each element required by paragraph (a) of this section. An agency obtaining a certification under this paragraph (c) must document the basis for using this paragraph (c). Certification pursuant to this paragraph (c) does not relieve the agency of any compliance obligation under this part.

(d) Portal attestation. Upon adoption of the implementation policy, the agency head or designee must certify compliance through the Federal C-UAS coordination portal by attesting that the agency has adopted an implementation policy addressing each element required by paragraph (a) of this section. The portal records the certifying official, agency, and date of attestation. The implementation policy is not subject to pre-approval by the NCUTC. The NCUTC retains authority to audit implementation policies and to suspend certification or accreditation under § 124.5. The attestation must be renewed annually.

(e) Retention and availability. The agency must retain the implementation policy and make it available to the Attorney General or the Secretary of Homeland Security, or their designee, upon request, including during compliance audits under § 124.16.

(f) Operating without attestation. An agency that conducts operations under this part without a current portal attestation is in violation of this part, and the absence of an attestation constitutes grounds for compliance action under § 124.16.

(g) Detection and warning policy. An SLTT law enforcement or correctional agency that conducts only detection and warning operations requiring the authority of, or the relief from certain laws provided by, 6 U.S.C. 124n may adopt a detection and warning policy in lieu of the implementation policy required by paragraph (a) of this section. A detection and warning policy must satisfy the requirements of this section, except that it need not include the standing tactical procedures of paragraph (a)(6) of this section. The agency must designate an Agency Approving Official under paragraph (a)(1) of this section and complete the portal attestation under paragraph (d) of this section, which must be renewed annually. For purposes of that attestation, a detection and warning policy need address only the elements of paragraph (a) of this section that apply to detection and warning operations.

§ 124.7 Authorized technologies.

(a) Two-list authorization framework. The technology authorization framework consists of two complementary lists. The Authorized Technologies List identifies the technology categories authorized for SLTT law enforcement and correctional agency C-UAS operations. The Authorized Systems List identifies specific systems, at the make and model level, that have completed interagency evaluation within those technology categories and stated operating restrictions. Both lists are maintained jointly by the Department of Justice, the Department of Homeland Security, the Department of Defense, the Department of Transportation and Federal Aviation Administration, the Federal Communications Commission, and the National Telecommunications and Information Administration, consistent with 6 U.S.C. 124n(d)(2)(A)(iii) and section 8606(a)(4) of the SAFER SKIES Act.

(b) General requirement. An SLTT law enforcement or correctional agency exercising authority under 6 U.S.C. 124n(a)(2) may deploy only systems within technology categories listed on the Authorized Technologies List. When the Authorized Systems List has been populated for a given technology category, the agency may deploy only specific systems listed on the Authorized Systems List within that category, subject to the advance coordination requirements of § 124.9. For technology categories on the Authorized Technologies List for which the Authorized Systems List has not yet been populated, the agency may deploy specific systems within those categories provided that an operator holds Mitigation Certification covering that technology category and has completed manufacturer or vendor training on the specific system to be deployed, subject to the advance coordination requirements of § 124.9.

(c) Scope of the list requirement. When operating under the authorities or statutory reliefs in 6 U.S.C. 124n(a)(2), SLTT law enforcement or correctional agencies may employ only listed technology categories, and, where the Authorized Systems List is populated, listed systems. Technology that an SLTT law enforcement or correctional agency may lawfully employ without the authorities or reliefs provided by 6 U.S.C. 124n(a)(2) is not subject to the requirements of this section and remains available to agencies on the same basis as before the SAFER SKIES Act. The detection and warning training curriculum will address the distinction between technology categories subject to and not subject to this section.

(d) Mitigation technology and training alignment. An SLTT law enforcement or correctional agency may employ mitigation systems only in those technology categories covered by the NCUTC mitigation courses completed by its mitigation-certified personnel. NCUTC may create an additional mitigation module covering the technology category when a new technology category is added to the Authorized Technologies List. Mitigation-certified personnel who completed the NCUTC mitigation course prior to the addition of this new content must successfully complete additional NCUTC training on the new technology category prior to using any system on the Authorized Systems List under that category.

(e) Scope of interception authority. Systems may be used to intercept communications to or from an unmanned aircraft or UAS only to the extent necessary to support an action described in 6 U.S.C. 124n(b)(1). Any interception, acquisition, maintenance, use of, or access to communications to or from an unmanned aircraft or UAS under this section must be conducted in a manner consistent with the First and Fourth Amendments to the Constitution of the United States and applicable provisions of Federal law.

(f) Maintenance of the lists. The Authorized Technologies List and Authorized Systems List, including the criteria and procedures for evaluating, listing, renewing, suspending, and removing technology categories and systems, are established and maintained through the interagency process described in 6 U.S.C. 124n(d)(2)(A)(iii) and section 8606(a)(4) of the SAFER SKIES Act. The Authorized Systems List is updated by that interagency process and published on the designated interagency C-UAS portal. Each RF-emitting system listed on the Authorized Systems List will have completed a system-level spectrum evaluation through the interagency process before listing, addressing potential interference with non-Federal spectrum users, compatibility with Federal spectrum users, and potential interference with aviation safety systems. System-level evaluations are reviewed and renewed at intervals determined through the interagency process and upon any system change to its operating capabilities, functions, radio frequency characteristics, or power levels that may alter its radio frequency characteristics, capabilities, functions, or assessed configurations. Minor updates that do not alter a system's performance, capabilities, functions, radio frequency characteristics, or assessed configurations do not require renewed evaluation.

(g) Emergency suspension. Upon receipt of an emergency suspension notice issued through the interagency process for the Authorized Technologies List and Authorized Systems List, an SLTT law enforcement or correctional agency must immediately cease deployment of the affected system or technology category. Grounds for emergency suspension include discovery of a critical safety defect, identification of a supply chain compromise or cybersecurity vulnerability, a determination that a system's radio frequency characteristics differ materially from those evaluated during spectrum evaluation, or a finding by any agency participating in the interagency process that continued deployment poses an unacceptable risk. The SLTT law enforcement or correctional agency may not resume deployment of the affected system or technology category until the suspension is lifted or the system or category is restored to the applicable list, and the agency must comply with any conditions attached to the lifting of the suspension or the restoration of the system or category to the applicable list.

§ 124.8 C-UAS Operations Plan.

(a) Requirement and function. Each mitigation operation, and each detection and warning operation conducted under this part using systems that require the authority of, or relief from certain laws under, 6 U.S.C. 124n, must be authorized by a C-UAS Operations Plan signed by the agency's Agency Approving Official. Section 124.12 sets out the conditions specific to detection and warning operations. The signed C-UAS Operations Plan is the instrument authorizing the operation on behalf of the SLTT law enforcement or correctional agency and certifies that the operation is consistent with the agency's implementation or detection and warning policy, that the operators are agency personnel who hold the required training and certification, and that the risk-based assessment factors of paragraph (e) of this section have been addressed. The agency may not commence mitigation operations until both the advance coordination process under § 124.9 and the signed C-UAS Operations Plan are complete.

(b) Legal counsel certification. The C-UAS Operations Plan must include a certification by the agency's legal counsel or, for an agency without in-house counsel, the applicable prosecuting authority, that the plan has been reviewed for legal sufficiency. The certification may take the form of a signature block, stamp, or attestation on the plan.

(c) Form. The C-UAS Operations Plan must be prepared on the standardized form prescribed by the Attorney General. The form is structured to use short-answer fields, selection-based fields, and map or diagram attachments, and does not require narrative legal analysis or repetition of standing procedures addressed in the agency's implementation policy. The form may use conditional fields keyed to the type of operation, so that each operation completes only the fields applicable to it; for a detection and warning operation, the fields specific to mitigation, such as mitigation-system parameters and render safe planning, do not apply.

(d) Content. The C-UAS Operations Plan must address, at a minimum and to the extent applicable to the operation:

(1) Operation identification, including the submitting agency, points of contact, the Agency Approving Official, the operation type, planned dates, geographic location, venue type, any Special Event Assessment Rating or National Special Security Event designation, and the identification of any mutual aid agencies;

(2) Systems and airspace, including the systems to be deployed by reference to the Authorized Systems List or Authorized Technologies List category; a description of each system's configuration and the hardware version, firmware revision, and software version of each system as deployed; RF-emitting system parameters; class of airspace; and anticipated flight restrictions;

(3) Coordination confirmation, including operator certification status, compliance with the agency implementation policy, the legal counsel certification, and compliance with the privacy and civil liberties requirements of this part; and

(4) Operational planning elements, including deployment configuration and spectrum deconfliction, personnel and team assignments, render safe and contingency planning, known authorized manned and unmanned aviation and deconfliction processes and procedures, communications, investigative response and data handling, and demobilization.

(e) Risk-based assessment. The C-UAS Operations Plan must address the following factors: potential impacts to aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, or the use of the airspace; procedures to comply with any technical and siting limitations; options for mitigating identified potential impacts; potential consequences if potential impacts are not mitigated; the ability to provide reasonable advance notice to aircraft operators of both manned and unmanned aircraft; the setting and character of the facility or asset; for National Special Security Events and Special Event Assessment Rating events, the event characteristics; and the potential consequences to public safety if UAS threats are not mitigated. For National Special Security Events and Special Event Assessment Rating events, a plan that identifies the systems, airspace environment, and coordination elements from which the assessment can be derived satisfies this paragraph without separately addressing each factor in narrative form. Nothing in this part may be interpreted as limiting the authority of the Administrator of the Federal Aviation Administration to manage the navigable airspace, assess potential aviation safety risks, and implement such mitigations as the Administrator determines appropriate.

(f) Timing and submission. The C-UAS Operations Plan must be completed before the commencement of operations and submitted to the Federal Bureau of Investigation and Department of Homeland Security through the designated Federal C-UAS coordination portal as a supplement to the advance notification not fewer than 7 calendar days before the commencement of operations, or as early as practicable when the applicable notification timeline does not permit 7 calendar days. For a detection and warning operation that is not subject to the advance notification requirement of § 124.9, the C-UAS Operations Plan must be submitted through the designated Federal C-UAS coordination portal before the commencement of operations, for situational awareness and recordkeeping; such submission is not an advance notification under § 124.9 and does not trigger Federal Aviation Administration or Federal Communications Commission coordination. The plan may be updated after submission to reflect changes resulting from Federal Aviation Administration or Federal Communications Commission coordination. Material updates must be resubmitted promptly. Federal Aviation Administration and Federal Communications Commission coordination is valid for the system configuration and the firmware and software version coordinated for the operation. A change in configuration, firmware, or software version does not require re-coordination if it does not materially change the system's radio frequency emission characteristics, its operating frequencies and power levels, or other factors potentially impacting aviation safety from those previously coordinated. A change that would operate outside the frequencies or power levels coordinated for the operation requires re-coordination before deployment; a summary of the change must be provided to the Federal Aviation Administration and Federal Communications Commission to determine if re-coordination is necessary. The Federal Aviation Administration and the Federal Communications Commission may identify by guidance categories of configuration, firmware, or software changes that are deemed to materially affect radio frequency emission characteristics and require re-coordination. Federal review of the C-UAS Operations Plan is for deconfliction and situational awareness purposes and does not constitute approval or disapproval of the operation. For an event, area, or period in which a high volume of simultaneous operations is anticipated, the Federal Bureau of Investigation, in coordination with the Federal Aviation Administration, may establish an earlier submission deadline for affected operations and will communicate that deadline to affected agencies in advance through the designated portal or the lead C-UAS agency.

(g) Relationship to implementation policy. The C-UAS Operations Plan is an event-specific or operation-specific document. Standing tactical procedures required by § 124.6(a) must be addressed in the agency's implementation policy, and the C-UAS Operations Plan must reference the implementation policy by title and version rather than repeating standing procedures.

(h) Operational windows. (1) An individual C-UAS Operations Plan may authorize operations for a period not to exceed 30 consecutive calendar days, except as provided in paragraph (h)(2) of this section. For operations requiring a longer duration, the agency must submit a renewal plan before the expiration of the current operational window; the renewal plan may incorporate the prior plan by reference and address only material changes. The agency must submit a renewal plan, through the designated Federal C-UAS coordination portal under § 124.8(f), before the expiration of the current operational window.

(2) For fixed-site facilities for which SLTT law enforcement and correctional agencies conduct ongoing persistent-protection operations, including correctional facilities, critical infrastructure sites, other permanent facilities with a continuing C-UAS mission, and venues where the agency expects to provide recurring C-UAS coverage within the authorization period, the Agency Approving Official may authorize a standing operational window of up to 365 calendar days, renewable upon submission of a renewal plan. The advance notification for a standing operational window must specify the venue and anticipated events or coverage periods; for a detection and warning operation not subject to the advance notification requirement of § 124.9, the C-UAS Operations Plan must specify the venue, the area covered, which may be stated as a radius around the site, and the anticipated coverage periods. Material changes, including a new event, new systems, or a changed threat environment, require an update to the advance notification under § 124.9(a) or, for such a detection and warning operation, an updated C-UAS Operations Plan. Federal coordination requirements continue to apply to each event within a standing window, including lead C-UAS agency coordination under § 124.10 and per-event coordination among the Department of Transportation, the Federal Aviation Administration, and the Federal Communications Commission.

(3) No C-UAS Operations Plan may authorize an indefinite or open-ended operational window.

§ 124.9 Advance coordination, notification, and authorization.

(a) Advance notification. (1) Before conducting any mitigation operation under 6 U.S.C. 124n(a)(2), an SLTT law enforcement or correctional agency must submit an advance notification through the designated Federal C-UAS coordination portal not fewer than 30 calendar days before the commencement of the operational period. When 30 calendar days is not feasible, the agency must submit the advance notification as early as the circumstances permit, with sufficient lead time to allow the Federal Bureau of Investigation, the Department of Homeland Security, the Department of Transportation, the Federal Aviation Administration, and the Federal Communications Commission to complete their respective reviews, and must include a brief explanation of the circumstances that prevented submission within the 30-day standard.

(2) The advance notification is a coordination document that routes the relevant data elements to each recipient agency through a single submission. The advance notification is not a request for approval by the Department of Justice or the Department of Homeland Security, and the absence of a response from the Department of Justice or the Department of Homeland Security does not affect the agency's authority to proceed.

(3) The advance notification must identify the submitting SLTT law enforcement or correctional agency, the planned dates and geographic location of the operation, the systems to be deployed by reference to the Authorized Systems List or Authorized Technologies List category, RF-emitting system parameters, a characterization of the airspace and operational environment, and confirmation of operator certification status and compliance with the agency implementation policy and the privacy requirements of this part.

(b) C-UAS Operations Plan. Each mitigation operation must also be authorized by a C-UAS Operations Plan in accordance with § 124.8. The agency may not commence mitigation operations until both the advance coordination process under this section and the signed C-UAS Operations Plan are complete. The SLTT law enforcement or correctional agency must also submit a comparable advance notification to the State if required by State law or policy.

(c) FBI and DHS notification and routing. The Attorney General, through the Federal Bureau of Investigation and the Department of Homeland Security, receives the advance notification for purposes of deconflicting planned SLTT law enforcement or correctional agency C-UAS operations with any ongoing or planned Federal C-UAS, law enforcement, or national security operations. Until the portal is fully established, an SLTT law enforcement or correctional agency must notify the Federal Bureau of Investigation and Department of Homeland Security through a channel designated by the Federal Bureau of Investigation and Department of Homeland Security for that purpose.

(d) DOT/FAA coordination. Before conducting any mitigation operation, an SLTT law enforcement or correctional agency must coordinate with the Department of Transportation and the Federal Aviation Administration through the coordination mechanism the Federal Aviation Administration has designated. The agency must provide the systems to be deployed, the geographic coordinates of each proposed deployment and enforcement location, the expected duration of the operation, and a characterization of the airspace environment. The Administrator of the Federal Aviation Administration may establish such flight restrictions as the Administrator determines necessary in his sole discretion for reasons of aviation safety. The absence of a formal flight restriction does not preclude mitigation action in exigent circumstances when a credible threat exists and the requirements of this part are otherwise satisfied.

(e) Categorical FAA determinations. The Federal Aviation Administration may issue categorical determinations for specific combinations of authorized technologies, geographic locations, and airspace environments. When a proposed mitigation operation falls within the parameters of a categorical determination by the Federal Aviation Administration, individual case-by-case Federal Aviation Administration coordination is not required, provided the agency operates within the conditions specified in the determination and notifies the Federal Aviation Administration through the Federal Aviation Administration-designated coordination mechanism.

(f) FCC authorization. Before deploying any C-UAS system (whether detection and warning only or mitigation) that involves the emission of radio waves, an SLTT law enforcement or correctional agency must obtain authorization to use that system consistent with Title III of the Communications Act of 1934, as amended. The system must comply with any relevant regulations, policies, and guidance administered by the Federal Communications Commission, and an SLTT law enforcement or correctional agency must submit a request to the Federal Communications Commission through the advance notification process and as directed by the Federal Communications Commission. The Federal Communications Commission will also issue waivers, as appropriate, to C-UAS equipment vendors and manufacturers to allow them to import and sell C-UAS mitigation equipment that employs radio frequency interdiction technologies or electronic counter measures to authorized SLTT law enforcement and correctional agencies.

(g) Emergency exception. When a credible threat poses an imminent risk to human life and advance coordination under this section is not practicable, an SLTT law enforcement or correctional agency may take mitigation action. The agency must complete the notifications required by this section as soon as practicable, and in any event within two hours of the action. If the mitigation action involves an RF-emitting C-UAS system, the agency must additionally comply with the real-time notification requirements of § 124.11. Each invocation of this exception must be documented in the post-operation report with a specific explanation of why advance coordination was not feasible. This exception may not be invoked as a routine alternative to advance coordination, and a pattern of repeated invocations may result in compliance review under § 124.16, accreditation or certification suspension, and penalties under section 8605(f) of the SAFER SKIES Act. The compliance audit program will establish the criteria for identifying patterns of emergency invocations that warrant review.

(h) Federal coordination. Before conducting any operation under this part within a security or protection mission overseen by a Federal Government entity, or within an area, facility, waterway, or other area over which a Federal Government entity exercises a security or protection responsibility, the agency must coordinate with that Federal Government entity through the advance coordination process under § 124.9 before conducting the operation. The Federal Aviation Administration's general regulatory authority over the navigable airspace does not by itself trigger this requirement; airspace safety coordination is addressed in § 124.8 and § 124.11.

(i) Detection and warning operations. Detection and warning operations that do not actively transmit radio frequency energy and do not affect aviation safety are not subject to the advance coordination requirements of this section.

§ 124.10 Interagency and lead-agency coordination.

(a) Early coordination and notice of intent. For operations in support of National Special Security Events, events rated Special Event Assessment Rating 1 through 3, or other events where Federal C-UAS operations are anticipated, an SLTT law enforcement or correctional agency should notify the local FBI field office of its intent to provide C-UAS coverage as early as practicable and before the 30-day advance notification standard of § 124.9. The designated Federal C-UAS coordination portal includes a notice-of-intent function that allows an agency to register its intent to cover a future event without completing the full advance notification. A notice of intent is informational only and does not trigger the advance coordination process, the Federal Aviation Administration or Federal Communications Commission review, or any timeline obligation.

(b) Special event coordination. When the Federal Bureau of Investigation receives an SLTT law enforcement or correctional agency advance notification or notice of intent for an event at which Federal C-UAS operations are also planned or under consideration, the Federal Bureau of Investigation will present the notification to the interagency C-UAS coordination process maintained by the Department of Justice and the Department of Homeland Security, will serve as the conduit for SLTT law enforcement and correctional agency equities in that process, and will communicate the results to the SLTT law enforcement or correctional agency, including any Federal operational parameters or deconfliction requirements that may affect the SLTT law enforcement or correctional agency C-UAS operation. The interagency coordination process does not approve or disapprove SLTT law enforcement or correctional agency C-UAS operations.

(c) Tactical coordination under a lead C-UAS agency. An SLTT law enforcement or correctional agency conducting C-UAS operations at an event or location for which a lead C-UAS agency has been designated must operate under the tactical coordination of the lead C-UAS agency for the duration of the event. Tactical coordination includes the assignment of system deployment locations, operating frequencies, detection and mitigation sectors, ground intercept team sectors, render safe locations, communications channels, and risk to persons and property on the surface or in the air. The SLTT law enforcement or correctional agency's C-UAS Operations Plan for the event must be developed in coordination with the lead C-UAS agency and must conform to the lead agency's overall C-UAS operational framework for the event. An SLTT law enforcement or correctional agency coordinating with a lead C-UAS agency acts under its own certified authority under 6 U.S.C. 124n(a)(2); tactical coordination merely integrates the SLTT law enforcement or correctional agency C-UAS operation into a unified C-UAS posture. Where geographic responsibilities are divided among multiple Federal agencies, the SLTT law enforcement or correctional agency must coordinate with the sector-level lead Federal agency responsible for the geographic area in which the SLTT law enforcement or correctional agency intends to operate. Whenever Federal and SLTT operations will be conducted at the same event, or whenever the Federal and SLTT operations will overlap in geographic area and time, the Federal agency will be the lead C-UAS agency. An SLTT law enforcement or correctional agency may serve as the lead C-UAS agency only where multiple SLTT agencies are operating in the same area and no Federal agency is involved.

(d) Coordination required. An SLTT law enforcement or correctional agency that does not accept tactical coordination by the designated lead C-UAS agency may not conduct C-UAS operations, including detection and warning operations using systems requiring the authority of and relief from certain laws under the Act, within the geographic area and time period covered by the lead-agency designation.

(e) Overlapping SLTT operations. When the Federal Bureau of Investigation and Department of Homeland Security receive advance notifications from two or more SLTT law enforcement or correctional agencies for C-UAS operations that overlap in geographic area and time, the Federal Bureau of Investigation and Department of Homeland Security will notify all affected SLTT law enforcement and correctional agencies of the overlap. The affected agencies must designate a lead C-UAS agency for the overlapping area and time period, or establish a joint operational coordination arrangement, before any agency commences mitigation operations in the overlapping area. The designation or arrangement must be documented and provided to the Federal Bureau of Investigation and Department of Homeland Security. If the agencies cannot reach agreement within 48 hours of the Federal Bureau of Investigation and Department of Homeland Security's notification, the Federal Bureau of Investigation and Department of Homeland Security may designate operational parameters for the overlapping area, including frequency deconfliction assignments and geographic boundaries for each agency's mitigation operations.

(f) Deconfliction direction. If the deconfliction process identifies a conflict between a planned SLTT law enforcement or correctional agency C-UAS operation and an ongoing or planned Federal C-UAS, law enforcement, or national security operation that cannot be resolved through coordination, the Department of Justice, acting through the Federal Bureau of Investigation and in coordination with the Department of Homeland Security, may direct the SLTT law enforcement or correctional agency to modify the operational parameters of, or postpone, the planned operation until the conflict is resolved.

(g) Emergency exception preserved. This section does not affect an SLTT agency's authority to respond to an imminent risk to human life under § 124.9(g), including at an event with a designated lead C-UAS agency; however, the agency must notify the lead C-UAS agency immediately upon taking emergency action and must coordinate with the lead agency as soon as practicable thereafter.

(h) The requirements in paragraphs (a) through (g) of this section are established under the Attorney General's oversight authority pursuant to 6 U.S.C. 124n(d)(1) and the coordination obligations of 6 U.S.C. 124n(b)(4) and (d)(3); they do not transfer or diminish the SLTT agency's statutory authority and relief from certain laws under 6 U.S.C. 124n(a)(2).

§ 124.11 Real-time air traffic control notification.

(a) Notification required. Any SLTT law enforcement or correctional agency, or its personnel, that activates a C-UAS system for mitigation purposes must, within five minutes of activation or as soon as operationally practicable, provide verbal or electronic notification to the notification point designated by the Federal Aviation Administration for real-time C-UAS coordination, using the procedures established under paragraph (b) of this section. Detection and warning operations do not require notification or coordination under this section.

(b) Notification procedures. An SLTT law enforcement or correctional agency must comply with the notification and reporting procedures jointly established by the Department of Homeland Security, the Department of Justice, and the Federal Aviation Administration for real-time communication to air traffic control of C-UAS mitigation actions using a radio frequency-emitting C-UAS system. The notification must identify the type of C-UAS action, the time of activation, and the location. The NCUTC will include training on these notification procedures in the mitigation training course.

(c) Notification upon termination. Upon termination of the mitigation action, the SLTT law enforcement or correctional agency must provide a follow-up notification to the designated Federal Aviation Administration notification point confirming the time of termination.

(d) Non-RF mitigation. Mitigation actions that do not involve radio frequency-emitting systems do require notification under this section unless the Department of Transportation or Federal Aviation Administration's applicable notification procedures established under this section provide otherwise. Such actions remain subject to the advance coordination and post-operation reporting requirements of §§ 124.9 and 124.13.

§ 124.12 Detection and warning operations.

(a) Scope. This section governs detection and warning operations using systems whose operation requires the authority of and relief from certain laws under 6 U.S.C. 124n(a)(2). Detection and warning activity conducted using systems that do not require the authority of the Act or the relief it provides from certain laws is not subject to this part.

(b) Conditions. An SLTT law enforcement or correctional agency may conduct detection and warning operations under this section if:

(1) All personnel conducting detection and warning operations hold a current Detection and Warning Certification;

(2) The agency deploys only systems within technology categories listed on the Authorized Technologies List and, where populated, specific systems listed on the Authorized Systems List;

(3) The agency has adopted an implementation policy under § 124.6(a) or a detection and warning policy under § 124.6(g), has completed the applicable portal attestation, and has authorized the operation by a C-UAS Operations Plan under § 124.8; and

(4) The agency complies with the privacy, data handling, and retention requirements of § 124.14.

(c) Coordination. No per-operation (that is, for each individual deployment or activation of a C-UAS system) advance notification, Federal Aviation Administration coordination, or Federal Communications Commission coordination is required for detection and warning operations that employ only systems that do not emit radio frequency energy and do not affect aviation safety. Such operations must be authorized by a C-UAS Operations Plan under § 124.8, which documents operational authority, data handling and retention, and legal review. For detection and warning operations involving RF-emitting systems, such as active warning broadcast systems, the advance coordination requirements of § 124.9 apply, and the operation must be authorized by a C-UAS Operations Plan under § 124.8.

(d) Reporting. The 48-hour reporting requirement of § 124.13 does not require per-event reporting of detection and warning operations. Each SLTT law enforcement or correctional agency conducting detection and warning operations under this section must report detection activity in the semiannual operational summary required by § 124.13, including the detection systems deployed by Authorized Technologies List category, the locations at which systems were deployed, the total number of detection events recorded, instances of retention of records of communication beyond 180 days, and any data-sharing arrangements. A physical seizure or confiscation under 6 U.S.C. 124n(b)(1)(E) that results from a detection and warning operation is a 6 U.S.C. 124n action, but it is documented through the agency's normal evidence-handling procedures and is not separately reported under this part. The recovery of a crashed or abandoned unmanned aircraft that does not involve the use of 6 U.S.C. 124n authority is not a 6 U.S.C. 124n confiscation and is not subject to the reporting requirements of this part.

(e) Prohibition on mitigation. Personnel holding only a Detection and Warning Certification are not authorized to take any mitigation action or any other action that affects an unmanned aircraft in flight, regardless of the operator's ultimate objective. If a detection operation identifies a credible threat requiring mitigation, this rule requires that the agency respond through mitigation-certified personnel operating under §§ 124.8 and 124.9 or through coordination with Federal C-UAS assets. This prohibition is absolute and is not subject to the emergency exception of § 124.9(g), which is available only to an agency with mitigation-certified personnel and authorized mitigation capability.

§ 124.13 Post-operation reporting.

(a) Report required. Any SLTT law enforcement or correctional agency exercising authority under 6 U.S.C. 124n(a)(2) must submit a post-operation report as required by 6 U.S.C. 124n(d)(2)(C)(i) within 48 hours of whichever occurs first:

(1) Taking any mitigation action described in 6 U.S.C. 124n(b)(1)(C), (D), or (F);

(2) Any confiscation of an unmanned aircraft or UAS under 6 U.S.C. 124n(b)(1)(E); or

(3) The conclusion of an operation where notification was provided.

(b) Other confiscations. A confiscation that does not occur pursuant to 6 U.S.C. 124n(b)(1)(E) may be documented through the agency's normal evidence-handling procedures and does not need to be separately reported under this part.

(c) Content. The post-operation report must contain:

(1) Confirmation whether the planned operation did or did not occur as notified;

(2) The date, time, and geographic location of the reportable action;

(3) A brief description of the credible threat that a UAS or unmanned aircraft posed to the safety or security of people, a facility, or an asset; a venue or set of venues used for large-scale public gatherings or events; critical infrastructure; or a correctional facility necessitating the action;

(4) The type of capability employed, including the specific system or systems used by reference to the Authorized Systems List and Authorized Technologies List category, or where the Authorized Systems List had not yet been populated for a particular Authorized Technologies List category at the time of the action, the Authorized Technologies List category; and in all cases the make, model, hardware version, firmware revision, and software version of the system or systems as deployed;

(5) Any known operational effects, including the seizure, disabling, damage, or destruction of a UAS or unmanned aircraft; any reported effects on other aviation systems, spectrum users, or persons and property on the surface or in the air; any aviation accident; whether a temporary flight restriction was granted or denied; and any other harm, damage, or loss to a person or to private property;

(6) Any issues, anomalies, or deviations encountered during the operation; and

(7) Summary operational statistics, including the number of UAS detected, counted as confirmed detections attributable to a distinct unmanned aircraft and reported in good faith with reasonable deduplication; warnings issued; mitigation actions taken; UAS or unmanned aircraft seized or confiscated; and any criminal charges, citations, regulatory enforcement actions, or arrests resulting from the operation.

(d) Submission mechanism. Reports must be submitted through the designated Federal C-UAS coordination portal. Submission through the portal satisfies the notification requirement to both the Attorney General and the Secretary of Homeland Security, as the portal routes reports to the Federal Bureau of Investigation and Department of Homeland Security automatically.

(e) Immediate notification for unintended consequences. If a detection, warning, or mitigation action results in unintended consequences, including interference with manned aviation or lawfully operating UAS, property damage, injury, or system malfunction affecting third parties, the SLTT law enforcement or correctional agency must immediately notify the Federal Bureau of Investigation and Department of Homeland Security by the most expedient means available, in addition to the 48-hour post-operation report. The Federal Bureau of Investigation will notify the Office of the Deputy Attorney General, the Department of Transportation, the Federal Aviation Administration, the Federal Communications Commission, and other affected agencies as appropriate.

(f) Consolidated reporting. Where multiple reportable events occur within a 48 hour period, an SLTT law enforcement or correctional agency may submit a single consolidated post-operation report covering all actions taken during the period, due within 48 hours of the first reportable event, provided that each action is documented with the data elements required by paragraph (c) of this section and that any action resulting in unintended consequences is reported immediately under paragraph (e) of this section.

(g) Recurring venue reporting. For recurring venue operations conducted under a standing operational window authorized by § 124.8(h), each discrete event within the authorization period must be reported separately.

(h) Semiannual operational summary. Each SLTT law enforcement or correctional agency exercising authority under this part must submit a semiannual operational summary through the designated Federal C-UAS coordination portal, covering total operations conducted, mitigation actions taken, detection activity, instances of retention of records of communication beyond 180 days, instances in which control communications were disclosed outside the originating agency organized by the legal basis for their disclosure, compliance issues identified, and lessons learned. The summary must also report the requests the agency received for C-UAS protection from critical infrastructure or airport owners or operators that are not SLTT law enforcement or correctional agencies, the number of those requests to which it provided protection, and the number it was unable to support as well as the reasons it was unable to provide support.

(i) Reporting to support congressional and oversight requirements. The Federal Bureau of Investigation will compile information from post-operation reports and semiannual summaries to support the biannual report required by 6 U.S.C. 124n(d)(2)(D) and the semiannual briefings required by 6 U.S.C. 124n(g), in coordination with the Secretary of Homeland Security and the Secretary of Transportation. The compilation will include:

(1) The frequency, location, and circumstances of SLTT law enforcement and correctional agencies' mitigation deployments and the types of mitigation employed;

(2) A list of any aviation security or safety incidents, and any aviation accidents, that occurred due to SLTT law enforcement and correctional agencies' deployment of C-UAS technologies;

(3) Recommendations for improving SLTT law enforcement and correctional agencies' C-UAS training, oversight, compliance, and execution, and the compliance audits required by section 8606(b)(2) of the SAFER SKIES Act; and

(4) A determination whether SLTT law enforcement and correctional agencies are able to fully protect critical infrastructure from the UAS threat and, if not, recommendations on how to expand C-UAS authorities to critical infrastructure owners. This determination is informed by the protection-request data reported under paragraph (h) of this section.

(5) Instances in which records of communications were retained beyond 180 days, or in which control communications were disclosed outside the originating agency.

§ 124.14 Privacy and civil liberties.

(a) General. In exercising authority under 6 U.S.C. 124n(a)(2), an SLTT law enforcement or correctional agency and its personnel must comply with the requirements of 6 U.S.C. 124n(e), including the implementation of privacy protections with respect to the interception, acquisition, access, maintenance, use, and dissemination of communications, consistent with the First and Fourth Amendments to the Constitution of the United States and applicable provisions of Federal law. All operations under this part must comply with the requirements of the Fourth Amendment and the policies of the applicable SLTT law enforcement or correctional agency with respect to searches and seizures, and individual searches and seizures conducted during C-UAS operations remain subject to the Fourth Amendment reasonableness requirement.

(b) First Amendment. No C-UAS authority under this part may be used solely to seize, monitor, deter, interfere with, or disrupt individuals exercising rights protected by the First Amendment to the Constitution of the United States. When C-UAS operations are conducted at events or locations where individuals are exercising First Amendment rights, personnel must take affirmative steps to minimize the collection, retention, and dissemination of information about those individuals, and must not use C-UAS-derived information to identify, track, or build records on individuals based on their exercise of protected rights.

(c) Scope of interception. Communications may be intercepted or acquired only to the extent necessary to support an action described in 6 U.S.C. 124n(b)(1).

(1) Material captured that is not control communications is incidental capture. Agencies must configure systems to minimize incidental capture, and incidentally captured material determined not to be relevant to a C-UAS, law enforcement, or national security purpose must not be reviewed, retained, or disseminated and must be purged as soon as practicable.

(2) During the contemporaneous C-UAS operation, personnel may view incidentally captured material only to the extent necessary for C-UAS detection, tracking, identification, or mitigation purposes and may not use it for general surveillance or monitoring. If it becomes apparent that the captured video, audio, or other data stream is not control communications, the interception of such communications must be discontinued, and the interception of incidentally captured material must be documented in the post-operation report. When a system's configuration permits adjustment of the scope of interception, such as frequency range, geographic coverage, or signal type, operators must use the narrowest configuration consistent with operational effectiveness.

(3) For standing detection deployments exceeding 30 days, the agency must conduct a review, not less than quarterly, to confirm that the scope of interception remains proportionate to the operational need, that incidental collection of non-UAS communications is being minimized, and that data handling and purge procedures are being executed on schedule. The review may be conducted on a program-wide basis for facilities.

(4) Where identifying the threat requires processing the control signaling of all unmanned aircraft in range, the control communications of an unmanned aircraft determined not to pose a threat may not be retained or used beyond what is needed to make the threat determination and must be purged on the same schedule as other incidental material.

(d) Records of communications and retention. (1) Control communications captured, recorded, or maintained by SLTT C-UAS systems constitute records of communications to or from a UAS within the meaning of 6 U.S.C. 124n(e)(3) and must be maintained only for as long as necessary, and in no event for more than 180 days, unless the Agency Approving Official or the agency's chief legal officer determines that maintenance of such records is necessary to investigate or prosecute a violation of law, to directly support an ongoing security operation, for the purpose of any litigation, or is required under Federal, State, local, Tribal, or territorial law, consistent with 6 U.S.C. 124n(e)(3).

(2) Data retained under the ongoing security operation exception must be reviewed at 90-day intervals and purged when the operation concludes, unless another exception applies.

(3) When an agency determines that records of communications will be retained beyond 180 days under any exception, the agency must notify the Federal Bureau of Investigation through the portal within 30 days of the determination.

(4) Pattern data, once extracted and recorded independently, is not a record of communications and is not subject to the 180-day limit. Data generated by systems whose operation does not implicate the electronic surveillance laws referenced in the notwithstanding clause of 6 U.S.C. 124n(a)(2) is likewise not subject to the 180-day limit.

(5) For data retained under the investigation or prosecution exception, the existence of an open investigative or prosecutorial case file documenting the data as evidence satisfies the required determination. For data retained under any other exception, the Agency Approving Official or the agency's chief legal officer must document the specific basis for retention. If an agency has neither an Agency Approving Official nor a chief legal officer, an official holding a rank not below a Senior Executive or Senior Official, or its equivalent, must document the specific basis for retention.

(6) A standing operational window authorized under § 124.8(h) does not itself constitute an ongoing security operation for purposes of the retention exception; that exception applies only when a specific, identified threat or other intelligence justifies continued retention of specific records to support a discrete protective objective, and the 90-day review must assess whether the specific security basis for retention continues to exist.

(7) The exception for retention required under Federal, State, local, Tribal, or territorial law applies when a specific provision of law affirmatively requires retention of the particular type of data at issue, not when a general records retention schedule incidentally encompasses C-UAS data.

(e) Dissemination. (1) Control communications acquired under this part may be disclosed outside the disseminating agency only as authorized by 6 U.S.C. 124n(e)(4): when necessary to investigate or prosecute a violation of law; to support the Department of Defense, a Federal law enforcement agency, or the enforcement activities of a regulatory agency of the Federal Government in connection with a criminal or civil investigation of, or any regulatory, statutory, or other enforcement action relating to an action described in 6 U.S.C. 124n(b)(1); or as otherwise required by law.

(2) This part does not prohibit the use, as evidence in a subsequent proceeding, of information lawfully obtained incidental to an SLTT law enforcement or correctional agency C-UAS operation, consistent with applicable law.

(3) At the time of any dissemination of control communications, the disseminating agency must document, in the audit trail required by paragraph (g) of this section, the 6 U.S.C. 124n(e)(4) basis for the dissemination, the category of recipient, whether the handling caveat required by paragraph (f) of this section was conveyed, and whether the dissemination included control communications.

(4) A real-time detection feed is governed by the substantive character of the data it transmits. A feed that transmits control communications acquired under this part is subject to the requirements of this section applicable to such data and the limitations under 6 U.S.C. 124n(e)(1), (2), and (4). A feed that transmits only data described in paragraph (e)(6) of this section is not subject to those limitations.

(5) Pattern data that contains no control communications may be disseminated consistent with the agency's standard data handling and information sharing policies and applicable law. Before disseminating pattern data beyond the agency, the disseminating agency must verify anonymization in accordance with its implementation policy and screen the product for operationally sensitive information that would reveal specific coverage patterns, capabilities, gaps, or methods. Public release of pattern data products requires approval at the level designated by the agency's implementation policy.

(6) Data not acquired using the authorities or reliefs provided by 6 U.S.C. 124n, including data generated by systems whose operation does not implicate the electronic surveillance laws referenced in the notwithstanding clause of 6 U.S.C. 124n(a)(2), is not subject to the disclosure limitations of paragraph (e)(1) of this section and may be shared consistent with the agency's standard data handling and information sharing policies and applicable law. Sharing for situational awareness with recipients that are not law enforcement or correctional agencies, including critical infrastructure owners or operators and the public, is limited to data described in this paragraph, unless the disclosure of control communications is authorized under paragraph (e)(1) of this section.

(f) Protective purpose limitation. Because the authority of 6 U.S.C. 124n(a)(2) is limited to mitigation of a credible threat, an SLTT law enforcement or correctional agency may disseminate control communications acquired pursuant to the agency's authorities and statutory reliefs under 6 U.S.C. 124n(a)(2) only for law enforcement action arising from the UAS activity that prompted the C-UAS operation, or for aviation safety. An SLTT law enforcement or correctional agency may not disseminate such control communications for use in an investigation or enforcement action unrelated to UAS activity unless the communications are independently obtainable through lawful means not dependent on the authorities and statutory reliefs under 6 U.S.C. 124n(a)(2). At the time of dissemination, the disseminating agency must communicate the protective purpose for which the control communications are being shared.

(g) Audit trail. Each SLTT law enforcement or correctional agency exercising authority under this part must maintain an audit trail sufficient to document each instance in which C-UAS authority was exercised, the basis for the action, the disposition of any data acquired, and any dissemination of data under this part. The audit trail must be searchable and accessible to compliance auditors, protected against unauthorized modification or deletion, and retained for a minimum of 6 years. The agency's implementation policy must specify the format and system of records for the audit trail.

(h) State and local retention conflicts. When an SLTT law enforcement or correctional agency determines that a State, local, Tribal, or territorial records retention requirement applicable to law enforcement or correctional agency records encompasses C-UAS communications data and the agency cannot comply with both the 180-day retention limit and that retention requirement, the agency must retain the data for the period required by the applicable law and must apply the handling restrictions of this part, including the prohibition on use for unrelated law enforcement purposes and the dissemination restrictions of this section, for the full duration of retention.

(i) Third-party acquisition. An SLTT law enforcement or correctional agency may not request, purchase, subscribe to, or operationally rely on intercepted UAS control communications acquired by any actor lacking lawful authority and relief from certain otherwise applicable laws for the underlying interception, regardless of whether the agency directed or facilitated the original interception. An agency acquiring UAS intelligence from a third-party source must document the source's lawful authority and relief from otherwise applicable laws for any intercepted content and must apply the retention and dissemination requirements of this section to data so acquired. The agency's implementation policy must specify procedures for evaluating third-party source authority and relief from certain otherwise applicable laws, which must include review and concurrence by appropriate State, local, territorial, or Tribal legal counsel.

(j) Vendor data sharing. An SLTT law enforcement or correctional agency may provide operational raw sensor data to system vendors for purposes of system diagnostics, troubleshooting, and performance validation, provided that any communications content is removed before disclosure and the data is used solely for the specific purpose identified. The agency's implementation policy must establish the conditions for vendor data sharing consistent with this paragraph and applicable privacy protections.

§ 124.15 Protection of sensitive operational information.

(a) Sensitive system information. Information that links the specific capabilities, vulnerabilities, operating parameters, or countermeasure effectiveness of C-UAS systems to planned or completed operations, including deployment locations, operating radio frequencies, tactical employment methods, and threat-specific mitigation approaches, must be treated as law enforcement sensitive, protected from public disclosure to the extent permitted by applicable law, and, where the information reveals a capability gap of national security concern, evaluated for classification. Other operational coordination information associated with a planned or completed operation, such as the existence, general timing, or general coverage area of a deployment, must be handled as Controlled Unclassified Information and may be shared with covered Federal and SLTT law enforcement and correctional partners, including a State-designated aviation point of contact, for a lawful government purpose. General technical specifications and evaluation data not associated with a specific planned or completed operation are not subject to these handling requirements. All information described in this paragraph remains subject to any applicable classification, export control, or proprietary restriction.

(b) Protection from disclosure. An SLTT law enforcement or correctional agency must take the steps available under applicable State, local, Tribal, or territorial law to protect operationally sensitive information from disclosure through public records requests or civil discovery, and should coordinate with the prosecuting authority in criminal prosecutions arising from C-UAS operations to limit testimony and pleadings to the information necessary to establish the elements of the offense. Nothing in this section requires an agency to take any action inconsistent with applicable State, local, Tribal, or territorial public records law.

(c) Markings. Advance notifications, C-UAS Operations Plans, post-operation reports, and compliance audit records must be marked with appropriate sensitivity designations.

(d) Permitted disclosures. This section does not prohibit disclosure of sensitive system information to authorized Federal officials, to other participating SLTT agencies in the course of operational coordination, or to the public to the extent required by statute or court order.

§ 124.16 Compliance and enforcement.

(a) Compliance audits. The Attorney General, in coordination with the Secretary of Homeland Security and the Administrator of the Federal Aviation Administration, will periodically conduct compliance audits of SLTT law enforcement and correctional agencies exercising authority under 6 U.S.C. 124n(a)(2), as required by 6 U.S.C. 124n(d)(2)(B) and section 8606(b)(2) of the SAFER SKIES Act, to oversee compliance with this part and the privacy protections of 6 U.S.C. 124n(e) as well as to prevent misuse of C-UAS authority. The audit program will include review of post-operation reports, advance notification records, and agency implementation policies. The FAA will participate with respect to the aviation safety, airspace safety coordination, and deconfliction aspects of the compliance audits conducted under this section.

(b) Civil fines and penalties. An SLTT law enforcement or correctional agency, or its personnel authorized to take mitigation actions under 6 U.S.C. 124n(a)(2), that knowingly engages in such actions without Federal coordination as required by 6 U.S.C. 124n and the SAFER SKIES Act, including the advance coordination required by § 124.9, the real-time air traffic control notification required by § 124.11, and the post-action notification to the Attorney General and the Secretary of Homeland Security required by 6 U.S.C. 124n(d)(2)(C) and implemented by § 124.13(a), may be subject to a civil fine of up to $100,000 per violation, or suspension of C-UAS authority pending review by the Attorney General or the Secretary of Homeland Security, as provided in section 8605(f) of the SAFER SKIES Act. Civil penalties will be assessed in accordance with graduated penalty levels proportionate to the severity of the violation and the factors set forth in this part, including the agency's compliance history, the availability and quality of compliance assistance from Federal partners, whether the violation resulted in actual harm, and whether the agency took prompt corrective action. A civil penalty will not be assessed for a first violation of a procedural reporting or notification requirement when the agency demonstrates a good-faith effort to comply and voluntarily self-reports the deficiency. Violations of requirements of this part other than the Federal coordination requirements described in this paragraph do not give rise to civil penalties under section 8605(f) of the SAFER SKIES Act; they are addressed through the compliance audit program of this section, certification and accreditation suspension under § 124.5, and any other remedy available under law.

(c) Civil enforcement. The Attorney General is authorized to bring a civil action in a United States district court to collect fines and enforce civil penalties imposed under this section against any agency or individual, as provided in section 8605(g) of the SAFER SKIES Act.

(d) Relationship to certification or accreditation suspension. In addition to civil penalties, the Attorney General or designee may suspend a Mitigation Certification, Detection and Warning Certification, or accreditation under § 124.5(i) for violations of this part. Certification or accreditation suspension may be imposed independently of or in conjunction with other actions described in this section.

§ 124.17 Confiscation and forfeiture.

(a) Confiscation authority. (1) An SLTT law enforcement or correctional agency and its personnel may seize or otherwise confiscate a UAS or unmanned aircraft as described in 6 U.S.C. 124n(b)(1)(E). This authority is contingent on a credible threat and applies to the physical taking of possession of an unmanned aircraft that is no longer active in flight or any other UAS component, such as a ground control station.

(2) This authority does not require Mitigation Certification, the use of systems on the Authorized Technologies List or Authorized Systems List, or advance coordination under § 124.9. However, personnel exercising confiscation authority under 6 U.S.C. 124n(b)(1)(E) must hold a current Detection and Warning Certification issued by the NCUTC. An officer who seizes an unmanned aircraft or any other UAS component under traditional law enforcement authority, including an abandoned or crashed unmanned aircraft, does not require Detection and Warning Certification.

(3) Any action that employs C-UAS technology to disrupt or seize control of, damage, disable, or destroy the unmanned aircraft or UAS is an action under 6 U.S.C. 124n(b)(1)(C), (D), or (F) and requires Mitigation Certification.

(4) Personnel exercising confiscation authority should follow standard law enforcement evidence handling procedures, including maintaining chain of custody, preserving digital evidence stored on the aircraft or its flight controller, and observing applicable hazardous materials precautions.

(5) This part does not affect the authority of any law enforcement or correctional officer to take physical custody of an unmanned aircraft or UAS under traditional law enforcement authority independent of 6 U.S.C. 124n. Traditional law enforcement authority refers to the seizure authorities generally available to law enforcement under applicable Federal, State, local, Tribal, or territorial law, including seizure incident to arrest, seizure of evidence or contraband pursuant to a warrant or a recognized exception to the warrant requirement, and seizure of abandoned property. Once an unmanned aircraft or UAS is on the ground and confiscated, subsequent law enforcement actions, including threat assessment, render safe procedures, evidence collection, and search warrant execution, are governed by traditional legal authorities, including Fourth Amendment requirements and applicable exigency or emergency doctrines, rather than by 6 U.S.C. 124n.

(6) When a C-UAS operation involves a known or suspected unmanned aircraft being used as a delivery mechanism for a hazardous device, the response to the hazardous device must be conducted by a public safety bomb squad accredited through the Hazardous Devices School, consistent with the National Guidelines for Bomb Technicians or any successor publication.

(7) The physical act of interception of a third-party unmanned aircraft while it is in flight, such as catching or netting an aircraft by hand or using a non-electronic physical device to capture it in the air, implicates 6 U.S.C. 124n(b)(1)(D), (E), or (F). Personnel conducting such actions must therefore hold a Mitigation Certification. This does not apply to the erection of physical barriers that a drone operator has an obligation to avoid, such as netting affixed to a physical structure.

(b) Forfeiture. Any UAS or unmanned aircraft seized by an SLTT law enforcement or correctional agency pursuant to 6 U.S.C. 124n(a)(2) is subject to forfeiture under the laws of the seizing agency's jurisdiction, as provided in 6 U.S.C. 124n(c)(2).

§ 124.18 Activities for evaluation, testing, training, and pre-operational validation.

(a) Scope and legal basis. An SLTT law enforcement or correctional agency that holds current accreditation under this part may conduct operational acceptance testing of acquired systems and systems under procurement consideration, on-the-job proficiency training, and interoperability training exercises to maintain C-UAS operational readiness. Testing and training do not and must not involve the mitigation of a credible threat and are not conducted under the authority of 6 U.S.C. 124n(a)(2). The operation of RF-emitting systems during testing and training is conducted under applicable Federal Communications Commission authorization and Federal Aviation Administration coordination requirements, and only against controlled test targets owned or operated by, or operated with the consent of, the SLTT law enforcement or correctional agency. An SLTT law enforcement or correctional agency acting pursuant to this section may utilize only authorized technologies under § 124.7. The SLTT law enforcement or correctional agency is responsible for verifying that all necessary Federal Aviation Administration authorizations or regulatory relief for operation of any unmanned aircraft or UAS, including unmanned aircraft or UAS forming part of a C-UAS system, have been obtained prior to any testing, training, or exercises. Compliance with this section is a condition of maintaining certification and accreditation under this part.

(b) Personnel. Only personnel holding a current Mitigation Certification may operate mitigation systems during evaluation testing, training, and exercises. Testing, training, and exercises may not be used to train or evaluate uncertified personnel on the operation of mitigation systems. Contractors and vendor representatives may provide technical support and instruction on system-specific procedures but may not independently operate mitigation systems against test targets.

(c) Evaluation testing and training activities plan. Before conducting testing, training, or exercises involving RF-emitting C-UAS mitigation systems, the agency must prepare a written activities plan specifying the date, time, and location; the purpose; the systems and equipment to be used; the test, training, or exercise targets; the assigned operators; safety controls; privacy measures; the types of data to be collected and their planned disposition; documentation of Federal Aviation Administration and Federal Communications Commission spectrum coordination for the C-UAS activities, and documentation of any necessary Federal Aviation Administration authorizations or regulatory relief for the operator of the target unmanned aircraft or UAS and for the operation any unmanned aircraft or UAS that form part of the C-UAS system. The activities plan must be approved by the Agency Approving Official or designee and reviewed by the agency's legal counsel.

(d) Coordination. Testing, training, and exercises, involving RF-emitting systems, or systems that may affect aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, or the use of the airspace, require advance coordination with the Federal Aviation Administration and, for spectrum authorization, with the Federal Communications Commission.

(e) Privacy within evaluation testing and training. The agency must favor testing, training, and exercise locations and activities that minimize exposure to non-participating third parties. The agency must not intentionally target, monitor, or collect the communications of non-participating third parties. Communications incidentally collected from non-participating third parties must be purged at the conclusion of the testing, training, or exercise activity, or as soon as practicable thereafter.

(f) Mitigation restriction. During testing, training, and exercises, the agency may not intentionally mitigate any UAS or unmanned aircraft that is not a controlled test target, unless necessary to protect against an imminent risk to human life or as part of an approved C-UAS Operations Plan. An action taken to protect against an imminent risk to human life must comply with the emergency exception set forth in § 124.9(g).

(g) Pre-operational validation. Before commencing mitigation operations at an event or facility, an agency may conduct pre-operational validation or equipment functional checks within the operational window and airspace restrictions already coordinated through the advance notification process under § 124.9. The C-UAS Operations Plan must document the pre-operational validation plan and required notifications. No separate authorization from the Department of Homeland Security or the Department of Justice beyond the advance notification is required.

(h) Participation in Federal RTTE. Personnel holding active Mitigation Certification may participate in research, testing, training, and evaluation (RTTE) events conducted by Federal components under 6 U.S.C. 124n(b)(3). Personnel may engage with systems in mitigation technology categories beyond those for which they hold an active Mitigation Certification or that are not on the ATL or ASL as part of the event. Participants act under the Federal component's authority and supervision.

§ 124.19 Task force arrangements and Federal support.

(a) Task force and deputization arrangements preserved. Task force and deputization arrangements under 6 U.S.C. 124n(a)(1) are not affected by this part. An SLTT law enforcement or correctional agency participating in such an arrangement may continue that participation indefinitely, so long as the deputizing Federal agency continues to have C-UAS authority and relief from certain laws under 6 U.S.C. 124n(a)(1). Nothing in this part requires an agency to seek accreditation under this part, conditions any task force or deputization arrangement on accreditation, or terminates or limits any such arrangement.

(b) Concurrent authority. The availability of independent SLTT law enforcement and correctional agency authority under 6 U.S.C. 124n(a)(2) does not preclude continued participation in C-UAS task forces or deputization arrangements under 6 U.S.C. 124n(a)(1). An SLTT law enforcement or correctional agency and its officers may exercise independent authority and participate in Federal task force operations concurrently or at different times as operational circumstances warrant. Task force operations are governed by the policies applicable to the sponsoring Federal component.

(c) Federal support. An SLTT law enforcement or correctional agency may request C-UAS support from an authorized Department of Justice or Department of Homeland Security component. Such support, when provided, constitutes a Federal operation under 6 U.S.C. 124n(a)(1) and is governed by the policies applicable to the supporting component, and the requesting agency's personnel participating in the operation do so under the Federal component's authority and supervision, consistent with applicable task force or deputization arrangements. No formal gubernatorial request is required under this part. Support from the Department of Defense, when available, is governed by the Department of Defense's own authorities, including 10 U.S.C. 130i and 2564, and applicable Department of Defense policies, not by this part.

§ 124.20 Construction.

(a) No private right. This part is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(b) Manned aircraft. Nothing in this part authorizes the use of C-UAS authority against any aircraft or aircraft system operated with a human pilot, crew, or passengers onboard.

(c) Mass gatherings. Consistent with 6 U.S.C. 124n(h)(5), nothing in this part provides a new basis of liability for any State, local, territorial, or Tribal law enforcement officer who participates in the protection of a mass gathering identified by the Secretary of Homeland Security or the Attorney General under 6 U.S.C. 124n(l)(3)(C)(iii)(II), acts within the scope of the officer's authority, and does not exercise the authority granted to the Secretary of Homeland Security and the Attorney General by 6 U.S.C. 124n.

(d) Statutory scope. Nothing in this part alters the scope of the authority of, or the statutory reliefs under 6 U.S.C. 124n(a)(2). A determination that an action does not comply with this part may give rise to administrative, civil, or other consequences provided by law, but does not by itself determine whether the action falls outside the scope of the statutory authorization in, or the relief from criminal liability available under, 6 U.S.C. 124n. Such a determination will be made by the Attorney General, in coordination with the Secretary of Homeland Security and other appropriate officials.

§ 124.21 Termination.

(a) Termination. Absent additional statutory authority, the authority of SLTT law enforcement and correctional agencies and their personnel under 6 U.S.C. 124n(a)(2) will terminate on December 31, 2031, as provided in 6 U.S.C. 124n(j)(2).

(b) Savings. Termination under paragraph (a) of this section does not affect any obligation, proceeding, or liability that arose before the termination date. Recordkeeping, retention, audit, reporting, and enforcement obligations with respect to operations conducted before the termination date, and any administrative or civil proceeding arising from those operations, survive the termination of authority under this part and remain in effect until satisfied or otherwise resolved.

§ 124.22 Severability.

If any provision of this part, or the application of any provision to any person, entity, or circumstance, is held to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this part, and the application of its provisions to any other persons, entities, or circumstances, shall not be affected and shall remain in full force and effect.

§ 200.1 Eligibility for Protection under the Convention Against Torture.

A removal order under Title V of the Act shall not be executed in circumstances that would violate Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention, as implemented by section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105-277. Convention-based claims by aliens subject to removal under this Title shall be determined by the Attorney General, in consultation with the Secretary of State.

§ 201.1 Purpose.

This part establishes an independent and impartial Data Protection Review Court (DPRC) to consider, in classified proceedings, applications for review of determinations made by the Civil Liberties Protection Officer of the Office of the Director of National Intelligence (ODNI CLPO) in response to qualifying complaints submitted through the redress mechanism established pursuant to section 3 of the Executive order of October 7, 2022, “Enhancing Safeguards for United States Signals Intelligence Activities.”

§ 201.2 Definitions.

The terms “appropriate remediation,” “covered violation,” “element of the Intelligence Community,” “Intelligence Community,” “national security,” and “qualifying complaint” shall have the same meanings as they have in the Executive order of October 7, 2022. The term “qualifying state” means a country or regional economic integration organization designated as a qualifying state by the Attorney General pursuant to section 3(f) of the Executive order of October 7, 2022.

§ 201.3 Appointment of judges and rules of procedure.

(a) The Attorney General shall, in consultation with the Secretary of Commerce, the Director of National Intelligence, and the Privacy and Civil Liberties Oversight Board (PCLOB), appoint not fewer than six individuals to serve as judges on the DPRC for four-year renewable terms, choosing individuals who at the time of their initial appointment have not been employees of the executive branch in the previous two years.

(b) The Attorney General's appointments shall be informed by the criteria used by the executive branch in assessing candidates for the Federal judiciary, giving weight to any prior judicial experience, and shall be of individuals with appropriate experience in the fields of data privacy and national security law. The Attorney General shall endeavor to ensure that at least half of the judges at any given time have prior judicial experience, and all persons appointed as judges shall be active members in good standing of the bar of a State, Commonwealth, Territory, or Possession, or of the District of Columbia and shall be duly licensed to practice law.

(c) During their term of appointment as judges on the DPRC, such judges shall not have any official duties or employment within the United States Government other than their official duties and employment as judges on the DPRC.

(d) The DPRC shall review and adopt by majority vote rules of procedure consistent with the Executive order of October 7, 2022 and this part, which thereafter shall be made publicly available and applied by each DPRC panel convened under § 201.7(a). The rules of procedure may thereafter be amended at such times and in such ways as a majority of the judges may deem necessary and appropriate to accomplish the work of the DPRC. A quorum of six judges shall be required for the initial adoption of and any amendments to the rules of procedure.

§ 201.4 Appointment of Special Advocates.

(a) The Attorney General shall, in consultation with the Secretary of Commerce, the Director of National Intelligence, and the PCLOB, appoint no fewer than two individuals to serve as Special Advocates for two-year renewable terms, choosing individuals who at the time of their initial appointment have not been employees of the executive branch in the previous two years.

(b) All persons appointed as Special Advocates shall have appropriate experience in the fields of data privacy and national security law, shall be experienced attorneys and active members in good standing of the bar of a State, Commonwealth, Territory, or Possession, or of the District of Columbia, and shall be duly licensed to practice law.

§ 201.5 Administrative support for the DPRC.

(a) The Office of Privacy and Civil Liberties of the Department of Justice (OPCL) shall be responsible for providing administrative support to the DPRC and the Special Advocates.

(b) The administrative support provided by OPCL shall include the following functions:

(1) Facilitating the Attorney General's consultations with other officials regarding the appointment of judges and Special Advocates;

(2) Drafting in consultation with relevant agencies rules of procedure and, when requested by the DPRC, any amendments thereto for consideration by the DPRC;

(3) Receiving applications for review of determinations made by the ODNI CLPO and receiving from the ODNI CLPO its record of review;

(4) Receiving and maintaining the confidentiality of any written information that a complainant filing an application for review wishes to provide to the DPRC and of any responses the complainant or their counsel provides to questions from the Special Advocate;

(5) Coordinating with the ODNI CLPO as needed on matters arising from an application for review;

(6) Securely maintaining records pursuant to applicable law;

(7) Making publicly available information about the DPRC, including the names of the judges and Special Advocates, the rules of procedure, and the process for filing an application for review, and such other information as the DPRC in its discretion deems appropriate for its function; and

(8) Providing other administrative support to the DPRC, its panels and judges, and the Special Advocates.

§ 201.6 Applications for review.

(a) A complainant may apply for review by the DPRC of a determination made by the ODNI CLPO in response to a qualifying complaint submitted by the complainant by filing an application for review with the appropriate public authority in a qualifying state, for forwarding to OPCL, no later than sixty (60) days after the date, as reported to OPCL by the appropriate public authority in a qualifying state, on which the complainant receives notification that the ODNI CLPO has completed its review.

(b) The complainant shall submit with the application for review, through the appropriate authority in a qualifying state, any information, including argument on questions of law or the application of law to the facts, that the complainant wishes to provide to the DPRC. The complainant may be represented by counsel in submitting this information. OPCL shall maintain the confidentiality of such information.

(c) An element of the Intelligence Community may apply for review by the DPRC of a determination made by the ODNI CLPO by filing an application for review with OPCL no later than sixty (60) days after the date on which the element of the Intelligence Community receives notification from the ODNI CPLO that the ODNI CLPO has completed its review of the qualifying complaint. An application for review filed by an element of the Intelligence Community may include any information that the element of the Intelligence Community wishes to provide to the DPRC, including argument on questions of law or the application of law to the facts. To prevent the disclosure of classified or otherwise privileged or protected information, the DPRC, Special Advocates, and OPCL shall not provide to the complainant any information relating to the existence, review, or outcome of any application for review filed by an element of the Intelligence Community.

§ 201.7 Convening of panels, conduct of judges, and independence of the DPRC.

(a) Upon receipt of an application for review, OPCL shall convene a panel of the DPRC by selecting three judges on a rotating basis, while ensuring if possible that at least one of the judges selected has prior judicial experience.

(b) The three judges on a DPRC panel shall select a presiding judge by unanimous agreement. If agreement is not reached within five (5) days of the convening of the DPRC panel, the presiding judge shall be the judge who was selected first by OPCL who has prior judicial experience; if no judge on the DPRC panel has such experience, the presiding judge shall be the judge selected first by OPCL.

(c) Judges on a DPRC panel shall conduct themselves in accordance with the Code of Conduct for United States Judges, except that a judge may participate in extrajudicial activities, including business activities, financial activities, non-profit fundraising activities, fiduciary activities, and the practice of law, where such extrajudicial activities do not interfere with the impartial performance of the judge's duties or the effectiveness or independence of the DPRC.

(d) A DPRC panel and its judges shall not be subject to the day-to-day supervision of the Attorney General. The Attorney General shall not remove a judge from a DPRC panel, remove a judge from the DPRC prior to the end of the judge's term of appointment under § 201.3(a), or take any other adverse action against a judge arising from service on the DPRC, except for instances of misconduct, malfeasance, breach of security, neglect of duty, or incapacity, after taking due account of the standards in the Rules for Judicial-Conduct and Judicial-Disability Proceedings promulgated by the Judicial Conference of the United States pursuant to the Judicial Conduct and Disability Act (28 U.S.C. 351 et seq.).

§ 201.8 Special Advocates.

(a) After a DPRC panel is convened under § 201.7(a), the presiding judge shall select a Special Advocate to assist the panel in the consideration of the application for review.

(b) The Special Advocate shall upon selection receive from OPCL the application for review and any information that the complainant provided under § 201.6(b). The Special Advocate shall not be the agent of the complainant, consistent with the rules of professional responsibility, and there shall be no attorney-client relationship between the Special Advocate and the complainant.

(c) The Special Advocate shall also have access to the record of the ODNI CLPO's review and any information or submissions provided to the DPRC panel by an element of the Intelligence Community.

(d) To prevent the disclosure of classified or otherwise privileged or protected information, the Special Advocate shall adhere to the following rules on communications with the complainant or the complainant's counsel:

(1) If the complainant did not file an application for review, the Special Advocate shall not communicate with the complainant or the complainant's counsel.

(2) If the complainant did file an application for review, the Special Advocate may at any stage submit to OPCL written questions for the complainant or the complainant's counsel. OPCL shall, in consultation with relevant elements of the Intelligence Community, review any such questions to ensure they do not disclose any classified or otherwise privileged or protected information and, subject to that limitation, shall convey the questions through the appropriate public authority in a qualifying state to the complainant or the complainant's counsel, with an invitation to provide written responses to the Special Advocate through the appropriate public authority in a qualifying state.

(e) The Special Advocate shall assist the DPRC panel in its consideration of the application for review, including by advocating regarding the complainant's interest in the matter and by ensuring that the DPRC panel is well informed of the issues and the law with respect to the matter. Where the complainant has filed an application for review, the submissions of the Special Advocate to the DPRC shall include the complainant's application for review and the information and responses to questions submitted to the Special Advocate by the complainant.

(f) Affected elements of the Intelligence Community shall be provided an opportunity to respond to submissions made by the Special Advocate.

§ 201.9 Consideration of applications and decisions.

(a) A DPRC panel shall consider an application for review in a manner that is timely, impartial, and consistent with the Executive order of October 7, 2022 and this part in order to determine whether a covered violation occurred and, if so, to determine any appropriate remediation.

(b) A DPRC panel shall conduct its review based on the record of the ODNI CLPO's review and any information or submissions provided by the complainant, the Special Advocate, or an element of the Intelligence Community. A DPRC panel may request that the ODNI CLPO supplement the record with specific explanatory or clarifying information and that the ODNI CLPO make additional factual findings where necessary to enable the DPRC panel to conduct its review.

(c) If the DPRC panel finds no evidence in the record indicating that signals intelligence activities occurred involving personal information of or about the complainant, the DPRC panel shall render a decision to that effect.

(d) In all other cases, the DPRC panel shall determine:

(1) Whether, under the applicable law as set forth in the definition of a covered violation in the Executive order of October 7, 2022, the ODNI CLPO's determination whether a covered violation occurred was legally correct and supported by substantial evidence; and

(2) Whether, in the event of a covered violation, the ODNI CLPO's determination as to the appropriate remediation was consistent with the Executive order of October 7, 2022.

(e) If a DPRC panel decides that a determination by the ODNI CLPO does not meet the standard set out in paragraph (d) of this section, the DPRC panel shall issue its own determination.

(f) Prior to determining an appropriate remediation under paragraph (e) of this section, a DPRC panel shall seek through the ODNI CLPO the views of affected elements of the Intelligence Community regarding the appropriate remediation, including an assessment of impacts on the operations of the Intelligence Community and the national security of the United States. The panel shall take due account of these views as well as customary ways of addressing a violation of the type identified.

(g) A DPRC panel shall make its decision by majority vote. Each DPRC panel shall issue a written decision setting out its determinations and the specification of any appropriate remediation. The decision of each DPRC panel shall be final and binding with respect to the application for review before it and shall be controlling only as to that application for review.

(h) After the issuance of a written decision under paragraph (g) of this section, OPCL shall forward the decision to the ODNI CLPO. If the complainant submitted an application for review in the case, OPCL shall notify the complainant through the appropriate public authority in a qualifying state, without confirming or denying whether the complainant was subject to signals intelligence activities, that:

(1) The DPRC completed its review;

(2) The review either did not identify any covered violations or the Data Protection Review Court issued a determination requiring appropriate remediation; and

(3) The notification to the complainant constitutes the final agency action in the matter.

(i) A DPRC panel shall provide a classified report on information indicating a violation of any authority subject to the oversight of the Foreign Intelligence Surveillance Court to the Assistant Attorney General for National Security, who shall report violations to the Foreign Intelligence Surveillance Court in accordance with its rules of procedure.

(j) For each application for review, OPCL shall maintain a record of the information reviewed by the DPRC panel and the decision of the DPRC panel, which records shall be made available for consideration as non-binding precedent to future DPRC panels considering applications for review.

§ 201.10 Guiding principles of law.

(a) The Executive order of October 7, 2022 and its terms shall be interpreted by the DPRC exclusively in light of United States law and the United States legal tradition, and not any other source of law.

(b) In a DPRC panel's review of an application under § 201.9, the DPRC panel shall be guided by relevant decisions of the United States Supreme Court in the same way as are courts established under Article III of the United States Constitution, including those decisions regarding appropriate deference to relevant determinations of national security officials.

§ 201.11 Information security and classified national security information.

(a) All proceedings before and other activities of the DPRC and all activities of the Special Advocates shall be governed by Executive Order 13526 of December 29, 2009, “Classified National Security Information,” or any successor order, and this part.

(b) Judges may serve on a DPRC panel convened under § 201.7(a), and Special Advocates may be selected to assist a DPRC panel under § 201.8(a), only if they hold the requisite security clearances to access classified national security information. The DPRC and Special Advocates shall have no authority to declassify or grant any person access to any classified or otherwise privileged or protected information, including the information reviewed in or information about the existence or outcome of any proceedings before the DPRC or any information that would tend to reveal whether a complainant was subject to signals intelligence activities.

(c) The Department of Justice Security Officer shall be responsible for establishing security procedures for proceedings before and other activities of the DPRC and the Special Advocate, and for amending those procedures as necessary.

§ 201.12 Disclaimer.

This part governs the ability to obtain review of the ODNI CLPO's determinations by the DPRC in accordance with the redress mechanism established in section 3 of the Executive order of October 7, 2022. This part is not intended to, and does not, create any other entitlement, right, or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. This part is not intended to, and does not, modify the availability or scope of any judicial review of the decisions rendered through the redress mechanism, which is governed by existing law.

§ 202.101 Scope.

(a) Executive Order 14117 of February 28, 2024 (Preventing Access to Americans' Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern) (“the Order”), directs the Attorney General to issue regulations that prohibit or otherwise restrict United States persons from engaging in any acquisition, holding, use, transfer, transportation, or exportation of, or dealing in, any property in which a foreign country or national thereof has any interest (“transaction”), where the transaction: involves United States Government-related data (“government-related data”) or bulk U.S. sensitive personal data, as defined by final rules implementing the Order; falls within a class of transactions that has been determined by the Attorney General to pose an unacceptable risk to the national security of the United States because the transactions may enable access by countries of concern or covered persons to government-related data or bulk U.S. sensitive personal data; and meets other criteria specified by the Order.

(b) This part contains regulations implementing the Order and addressing the national emergency declared in Executive Order 13873 of May 15, 2019 (Securing the Information and Communications Technology and Services Supply Chain), and further addressed with additional measures in Executive Order 14034 of June 9, 2021 (Protecting Americans' Sensitive Data from Foreign Adversaries) and Executive Order 14117.

§ 202.102 Rules of construction and interpretation.

(a) The examples included in this part are provided for informational purposes and should not be construed to alter the meaning of the text of the regulations in this part.

(b) As used in this part, the term “including” means “including but not limited to.”

(c) All references to “days” in this part mean calendar days. In computing any time period specified in this part:

(1) Exclude the day of the event that triggers the period;

(2) Count every day, including Saturdays, Sundays, and legal holidays; and

(3) Include the last day of the period, but if the last day is a Saturday, Sunday, or Federal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or Federal holiday.

§ 202.103 Relation of this part to other laws and regulations.

Nothing in this part shall be construed as altering or affecting any other authority, process, regulation, investigation, enforcement measure, or review provided by or established under any other provision of Federal law, including the International Emergency Economic Powers Act.

§ 202.104 Delegation of authorities.

Any action that the Attorney General is authorized to take pursuant to the Order or pursuant to this part may be taken by the Assistant Attorney General for National Security or by any other person to whom the Attorney General or Assistant Attorney General for National Security in writing delegates authority so to act.

§ 202.105 Amendment, modification, or revocation.

Except as otherwise provided by law, any determinations, prohibitions, decisions, licenses (whether general or specific), guidance, authorizations, instructions, orders, or forms issued pursuant to this part may be amended, modified, or revoked, in whole or in part, at any time.

§ 202.106 Severability.

If any provision of this part is held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, or stayed pending further agency action or judicial review, the provision is to be construed so as to continue to give the maximum effect to the provision permitted by law, unless such holding will be one of utter invalidity or unenforceability, in which event the provision will be severable from this part and will not affect the remainder thereof.

§ 202.201 Access.

The term access means logical or physical access, including the ability to obtain, read, copy, decrypt, edit, divert, release, affect, alter the state of, or otherwise view or receive, in any form, including through information systems, information technology systems, cloud-computing platforms, networks, security systems, equipment, or software. For purposes of determining whether a transaction is a covered data transaction, access is determined without regard for the application or effect of any security requirements.

§ 202.202 Attorney General.

The term Attorney General means the Attorney General of the United States or the Attorney General's designee.

§ 202.203 Assistant Attorney General.

The term Assistant Attorney General means the Assistant Attorney General, National Security Division, United States Department of Justice, or the Assistant Attorney General's designee.

§ 202.204 Biometric identifiers.

The term biometric identifiers means measurable physical characteristics or behaviors used to recognize or verify the identity of an individual, including facial images, voice prints and patterns, retina and iris scans, palm prints and fingerprints, gait, and keyboard usage patterns that are enrolled in a biometric system and the templates created by the system.

§ 202.205 Bulk.

The term bulk means any amount of sensitive personal data that meets or exceeds the following thresholds at any point in the preceding 12 months, whether through a single covered data transaction or aggregated across covered data transactions involving the same U.S. person and the same foreign person or covered person:

(a) Human `omic data collected about or maintained on more than 1,000 U.S. persons, or, in the case of human genomic data, more than 100 U.S. persons;

(b) Biometric identifiers collected about or maintained on more than 1,000 U.S. persons;

(c) Precise geolocation data collected about or maintained on more than 1,000 U.S. devices;

(d) Personal health data collected about or maintained on more than 10,000 U.S. persons;

(e) Personal financial data collected about or maintained on more than 10,000 U.S. persons;

(f) Covered personal identifiers collected about or maintained on more than 100,000 U.S. persons; or

(g) Combined data, meaning any collection or set of data that contains more than one of the categories in paragraphs (a) through (f) of this section, or that contains any listed identifier linked to categories in paragraphs (a) through (e) of this section, where any individual data type meets the threshold number of persons or devices collected or maintained in the aggregate for the lowest number of U.S. persons or U.S. devices in that category of data.

§ 202.206 Bulk U.S. sensitive personal data.

The term bulk U.S. sensitive personal data means a collection or set of sensitive personal data relating to U.S. persons, in any format, regardless of whether the data is anonymized, pseudonymized, de-identified, or encrypted, where such data meets or exceeds the applicable threshold set forth in § 202.205.

§ 202.207 CFIUS action.

The term CFIUS action means any agreement or condition the Committee on Foreign Investment in the United States has entered into or imposed pursuant to 50 U.S.C. 4565(l)(1), (3), or (5) to resolve a national security risk involving access by a country of concern or covered person to sensitive personal data that the Committee on Foreign Investment in the United States has explicitly designated, in the agreement or document containing the condition, as a CFIUS action, including:

(a) Suspension of a proposed or pending transaction, as authorized under 50 U.S.C. 4565(l)(1);

(b) Entry into or imposition of any agreement or condition with any party to a covered transaction, as authorized under 50 U.S.C. 4565(l)(3); and

(c) The establishment of interim protections for covered transactions withdrawn before CFIUS's review or investigation is completed, as authorized under 50 U.S.C. 4565(l)(5).

§ 202.208 China.

The term China means the People's Republic of China, including the Special Administrative Region of Hong Kong and the Special Administrative Region of Macau, as well as any political subdivision, agency, or instrumentality thereof.

§ 202.209 Country of concern.

The term country of concern means any foreign government that, as determined by the Attorney General with the concurrence of the Secretary of State and the Secretary of Commerce:

(a) Has engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons; and

(b) Poses a significant risk of exploiting government-related data or bulk U.S. sensitive personal data to the detriment of the national security of the United States or security and safety of U.S. persons.

§ 202.210 Covered data transaction.

(a) Definition. A covered data transaction is any transaction that involves any access by a country of concern or covered person to any government-related data or bulk U.S. sensitive personal data and that involves:

(1) Data brokerage;

(2) A vendor agreement;

(3) An employment agreement; or

(4) An investment agreement.

(b) Examples—(1) Example 1. A U.S. institution conducts medical research at its own laboratory in a country of concern, including sending several U.S.-citizen employees to that laboratory to perform and assist with the research. The U.S. institution does not engage in data brokerage or a vendor, employment, or investment agreement that gives a covered person or country of concern access to government-related data or bulk U.S. sensitive personal data. Because the U.S. institution does not engage in any data brokerage or enter into a vendor, employment, or investment agreement, the U.S. institution's research activity is not a covered data transaction.

(2) Example 2. A U.S. person engages in a vendor agreement with a covered person involving access to bulk U.S. sensitive personal data. The vendor agreement is a restricted transaction. To comply with the CISA security requirements, the U.S. person, among other things, uses data-level requirements to mitigate the risk that the covered person could access the data. The vendor agreement remains a covered data transaction subject to the requirements of this part.

(3) Example 3. A covered person engages in a vendor agreement with a U.S. person involving the U.S. person accessing bulk U.S. sensitive personal data already possessed by the covered person. The vendor agreement is not a covered data transaction because the transaction does not involve access by the covered person.

§ 202.211 Covered person.

(a) Definition. The term covered person means:

(1) A foreign person that is an entity that is 50% or more owned, directly or indirectly, individually or in the aggregate, by one or more countries of concern or persons described in paragraph (a)(2) of this section; or that is organized or chartered under the laws of, or has its principal place of business in, a country of concern;

(2) A foreign person that is an entity that is 50% or more owned, directly or indirectly, individually or in the aggregate, by one or more persons described in paragraphs (a)(1), (3), (4), or (5) of this section;

(3) A foreign person that is an individual who is an employee or contractor of a country of concern or of an entity described in paragraphs (a)(1), (2), or (5) of this section;

(4) A foreign person that is an individual who is primarily a resident in the territorial jurisdiction of a country of concern; or

(5) Any person, wherever located, determined by the Attorney General:

(i) To be, to have been, or to be likely to become owned or controlled by or subject to the jurisdiction or direction of a country of concern or covered person;

(ii) To act, to have acted or purported to act, or to be likely to act for or on behalf of a country of concern or covered person; or

(iii) To have knowingly caused or directed, or to be likely to knowingly cause or direct a violation of this part.

(b) Examples—(1) Example 1. Foreign persons primarily resident in Cuba, Iran, or another country of concern would be covered persons.

(2) Example 2. Chinese or Russian citizens located in the United States would be treated as U.S. persons and would not be covered persons (except to the extent individually designated). They would be subject to the same prohibitions and restrictions as all other U.S. persons with respect to engaging in covered data transactions with countries of concern or covered persons.

(3) Example 3. Citizens of a country of concern who are primarily resident in a third country, such as Russian citizens primarily resident in a European Union country or Cuban citizens primarily resident in a South American country that is not a country of concern, would not be covered persons except to the extent they are individually designated or to the extent that they are employees or contractors of a country of concern government or a covered person that is an entity.

(4) Example 4. A foreign person is located abroad and is employed by a company headquartered in China. Because the company is a covered person that is an entity and the employee is located outside the United States, the employee is a covered person.

(5) Example 5. A foreign person is located abroad and is employed by a company that has been designated as a covered person. Because the foreign person is the employee of a covered person that is an entity and the employee is a foreign person, the person is a covered person.

(6) Example 6. A foreign person individual investor who principally resides in Venezuela owns 50% of a technology company that is solely organized under the laws of the United States. The investor is a covered person because the investor is a foreign person that is an individual who is primarily a resident in the territorial jurisdiction of a country of concern. The technology company is a U.S. person because it is an entity organized solely under the laws of the United States or any jurisdiction within the United States. The technology company is not a covered person because it is not a foreign person and therefore does not meet the criteria of § 202.211(a)(2). However, the technology company could still be designated as a covered person following a determination that the technology company meets one or more criteria of § 202.211(a)(5).

(7) Example 7. Same as Example 6, but the technology company is additionally organized under the laws of Luxembourg. A U.S. company wishes to license bulk U.S. sensitive personal data to the technology company. The technology company is not a U.S. person because it is not solely organized under the laws of the United States. The technology company is a covered person because it is 50% or more owned, directly or indirectly, individually or in the aggregate, by a foreign person that is an individual who is primarily resident in the territorial jurisdiction of a country of concern. The transaction between the U.S. company and the technology company would be a prohibited data transaction.

(8) Example 8. A foreign person that lives in China owns 50% of Foreign Entity A. Foreign Entity A owns 100% of Foreign Entity B and 100% of Foreign Entity C. Foreign Entity B owns 20% of Foreign Entity D. Foreign Entity C owns 30% of Foreign Entity D. Foreign Entity D would be a covered person for two independent reasons. First, Foreign Entity D because it is “indirectly” 50% or more owned by Foreign Entity A (20% through Foreign Entity B and 30% through Foreign Entity C). Second, Foreign Entity D is directly 50% owned, in the aggregate, by Foreign Entity B and Foreign Entity C, each of which are covered persons because they are 50% or more owned by Foreign Entity A.

§ 202.212 Covered personal identifiers.

(a) Definition. The term covered personal identifiers means any listed identifier:

(1) In combination with any other listed identifier; or

(2) In combination with other data that is disclosed by a transacting party pursuant to the transaction such that the listed identifier is linked or linkable to other listed identifiers or to other sensitive personal data.

(b) Exclusion. The term covered personal identifiers excludes:

(1) Demographic or contact data that is linked only to other demographic or contact data (such as first and last name, birthplace, ZIP code, residential street or postal address, phone number, and email address and similar public account identifiers); and

(2) A network-based identifier, account-authentication data, or call-detail data that is linked only to other network-based identifier, account-authentication data, or call-detail data as necessary for the provision of telecommunications, networking, or similar service.

(c) Examples of listed identifiers in combination with other listed identifiers—(1) Example 1. A standalone listed identifier in isolation (i.e., that is not linked to another listed identifier, sensitive personal data, or other data that is disclosed by a transacting party pursuant to the transaction such that the listed identifier is linked or linkable to other listed identifiers or to other sensitive personal data)—such as a Social Security Number or account username—would not constitute a covered personal identifier.

(2) Example 2. A listed identifier linked to another listed identifier—such as a first and last name linked to a Social Security number, a driver's license number linked to a passport number, a device Media Access Control (“MAC”) address linked to a residential address, an account username linked to a first and last name, or a mobile advertising ID linked to an email address—would constitute covered personal identifiers.

(3) Example 3. Demographic or contact data linked only to other demographic or contact data—such as a first and last name linked to a residential street address, an email address linked to a first and last name, or a customer loyalty membership record linking a first and last name to a phone number—would not constitute covered personal identifiers.

(4) Example 4. Demographic or contact data linked to other demographic or contact data and to another listed identifier—such as a first and last name linked to an email address and to an IP address—would constitute covered personal identifiers.

(5) Example 5. Account usernames linked to passwords as part of a sale of a dataset would constitute covered personal identifiers. Those pieces of account-authentication data are not linked as a necessary part of the provision of telecommunications, networking, or similar services. This combination would constitute covered personal identifiers.

(d) Examples of a listed identifier in combination with other data disclosed by a transacting party—(1) Example 1. A foreign person who is a covered person asks a U.S. company for a list of Media Access Control (“MAC”) addresses from devices that have connected to the wireless network of a U.S. fast-food restaurant located in a particular government building. The U.S. company then sells the list of MAC addresses, without any other listed identifiers or sensitive personal data, to the covered person. The disclosed MAC addresses, when paired with the other data disclosed by the covered person—that the devices “have connected to the wireless network of a U.S. fast-food restaurant located in a particular government building”—makes it so that the MAC addresses are linked or linkable to other sensitive personal data, in this case precise geolocation data of the location of the fast-food restaurant that the national security-related individuals frequent with their devices. This combination of data therefore meets the definition of covered personal identifiers.

(2) Example 2. A U.S. company sells to a country of concern a list of residential addresses that the company describes (whether in a heading on the list or separately to the country of concern as part of the transaction) as “addresses of members of a country of concern's opposition political party in New York City” or as “addresses of active-duty military officers who live in Howard County, Maryland” without any other listed identifiers or sensitive personal data. The data disclosed by the U.S. company's description, when paired with the disclosed addresses, makes the addresses linked or linkable to other listed identifiers or to other sensitive personal data of the U.S. individuals associated with them. This combination of data therefore meets the definition of covered personal identifiers.

(3) Example 3. A covered person asks a U.S. company for a bulk list of birth dates for “any American who visited a Starbucks in Washington, DC, in December 2023.” The U.S. company then sells the list of birth dates, without any other listed identifiers or sensitive personal data, to the covered person. The other data disclosed by the covered person—“any American who visited a Starbucks in Washington, DC, in December 2023”—does not make the birth dates linked or linkable to other listed identifiers or to other sensitive personal data. This combination of data therefore does not meet the definition of covered personal identifiers.

(4) Example 4. Same as Example 3, but the covered person asks the U.S. company for a bulk list of names (rather than birth dates) for “any American who visited a Starbucks in Washington, DC in December 2023.” The other data disclosed by the covered person—“any American who visited a Starbucks in Washington, DC, in December 2023”—does not make the list of names, without more, linked or linkable to other listed identifiers or to other sensitive personal data. This combination of data therefore does not meet the definition of covered personal identifiers.

(5) Example 5. A U.S. company sells to a covered person a list of residential addresses that the company describes (in a heading in the list or to the covered person as part of the transaction) as “households of Americans who watched more than 50% of episodes” of a specific popular TV show, without any other listed identifiers or sensitive personal data. The other data disclosed by the U.S. company—“Americans who watched more than 50% of episodes” of a specific popular TV show—does not increase the extent to which the addresses are linked or linkable to other listed identifiers or to other sensitive personal data. This combination of data therefore does not meet the definition of covered personal identifiers.

§ 202.213 Cuba.

The term Cuba means the Republic of Cuba, as well as any political subdivision, agency, or instrumentality thereof.

§ 202.214 Data brokerage.

(a) Definition. The term data brokerage means the sale of data, licensing of access to data, or similar commercial transactions, excluding an employment agreement, investment agreement, or a vendor agreement, involving the transfer of data from any person (the provider) to any other person (the recipient), where the recipient did not collect or process the data directly from the individuals linked or linkable to the collected or processed data.

(b) Examples—(1) Example 1. A U.S. company sells bulk U.S. sensitive personal data to an entity headquartered in a country of concern. The U.S. company engages in prohibited data brokerage.

(2) Example 2. A U.S. company enters into an agreement that gives a covered person a license to access government-related data held by the U.S. company. The U.S. company engages in prohibited data brokerage.

(3) Example 3. A U.S. organization maintains a database of bulk U.S. sensitive personal data and offers annual memberships for a fee that provide members a license to access that data. Providing an annual membership to a covered person that includes a license to access government-related data or bulk U.S. sensitive personal data would constitute prohibited data brokerage.

(4) Example 4. A U.S. company owns and operates a mobile app for U.S. users with available advertising space. As part of selling the advertising space, the U.S. company provides IP addresses and advertising IDs of more than 100,000 U.S. users' devices to an advertising exchange based in a country of concern in a twelve-month period. The U.S. company's provision of this data as part of the sale of advertising space is a covered data transaction involving data brokerage and is a prohibited transaction because IP addresses and advertising IDs are listed identifiers that satisfy the definition of bulk covered personal identifiers in this transaction.

(5) Example 5. Same as Example 4, but the U.S. company provides the data to an advertising exchange based in the United States. As part of the sale of the advertising space, the U.S. advertising exchange provides the data to advertisers headquartered in a country of concern. The U.S. company's provision of the data to the U.S. advertising exchange would not be a transaction because it is between U.S. persons. The advertising exchange's provision of this data to the country of concern-based advertisers is data brokerage because it is a commercial transaction involving the transfer of data from the U.S. advertising exchange to the advertisers headquartered in the country of concern, where those country-of-concern advertisers did not collect or process the data directly from the individuals linked or linkable to the collected or processed data. Furthermore, the U.S. advertising exchange's provision of this data to the country of concern-based advertisers is a prohibited transaction.

(6) Example 6. A U.S. information technology company operates an autonomous driving platform that collects the precise geolocation data of its cars operating in the United States. The U.S. company sells or otherwise licenses this bulk data to its parent company headquartered in a country of concern to help develop artificial intelligence technology and machine learning capabilities. The sale or license is data brokerage and a prohibited transaction.

(7) Example 7. A U.S. company owns or operates a mobile app or website for U.S. users. That mobile app or website contains one or more tracking pixels or software development kits that were knowingly installed or approved for incorporation into the app or website by the U.S. company. The tracking pixels or software development kits transfer or otherwise provide access to government-related data or bulk U.S. sensitive personal data to a country of concern or covered person-owned social media app for targeted advertising. The U.S. company engages in prohibited data brokerage.

(8) Example 8. A non-U.S. company is contracted to develop a mobile app for a U.S. company. In developing the mobile app for that U.S. company, the non-U.S. company knowingly incorporates tracking pixels or software development kits into the mobile app that then transfer or otherwise provide access to government-related data or bulk U.S. sensitive personal data to a country of concern or covered person for targeted advertising, at the request of the U.S. company. The non-U.S. company has caused a violation of the data brokerage prohibition. If the U.S. company knowingly arranged the transfer of such data to the country of concern or covered person by requesting incorporation of the tracking pixels or software development kits, the U.S. company has engaged in prohibited data brokerage.

(9) Example 9. A U.S. researcher shares bulk human `omic data on U.S. persons with a researcher in a country of concern (a covered person) with whom the U.S. researcher is drafting a paper for submission to an academic journal. The two researchers exchange country of concern and bulk U.S. human `omic data over a period of several months to analyze and describe the findings of their research for the journal article. The U.S. person does not provide to or receive from the covered person or the covered person's employer any money or other valuable consideration as part of the authors' study. The U.S. person has not engaged in a covered data transaction involving data brokerage, because the transaction does not involve the sale of data, licensing of access to data, or similar commercial transaction involving the transfer of data to the covered person.

(10) Example 10. A U.S. researcher receives a grant from a university in a country of concern to study. bulk personal health data and bulk human `omic data on U.S. persons. The grant directs the researcher to share the underlying bulk U.S. sensitive personal data with the country of concern university (a covered person). The transaction is a covered data transaction because it involves access by a covered person to bulk U.S. sensitive personal data and is data brokerage because it involves the transfer of bulk U.S. sensitive personal data to a covered person in return for a financial benefit.

§ 202.215 Directing.

The term directing means having any authority (individually or as part of a group) to make decisions for or on behalf of an entity and exercising that authority.

§ 202.216 Effective date.

The term effective date refers to the effective date of this part, which is 12:01 a.m. ET on April 8, 2025.

§ 202.217 Employment agreement.

(a) Definition. The term employment agreement means any agreement or arrangement in which an individual, other than as an independent contractor, performs work or performs job functions directly for a person in exchange for payment or other consideration, including employment on a board or committee, executive-level arrangements or services, and employment services at an operational level.

(b) Examples—(1) Example 1. A U.S. company that conducts consumer human genomic testing collects and maintains bulk human genomic data from U.S. consumers. The U.S. company has global IT operations, including employing a team of individuals who are citizens of and primarily resident in a country of concern to provide back-end services. The agreements related to employing these individuals are employment agreements. Employment as part of the global IT operations team includes access to the U.S. company's systems containing the bulk human genomic data. These employment agreements would be prohibited transactions (because they involve access to bulk human genomic data).

(2) Example 2. A U.S. company develops its own mobile games and social media apps that collect the bulk U.S. sensitive personal data of its U.S. users. The U.S. company distributes these games and apps in the United States through U.S.-based digital distribution platforms for software applications. The U.S. company intends to hire as CEO an individual designated by the Attorney General as a covered person because of evidence the CEO acts on behalf of a country of concern. The agreement retaining the individual as CEO would be an employment agreement. The individual's authorities and responsibilities as CEO involve access to all data collected by the apps, including the bulk U.S. sensitive personal data. The CEO's employment would be a restricted transaction.

(3) Example 3. A U.S. company has derived U.S. persons' biometric identifiers by scraping public photos from social media platforms. The U.S. company stores the derived biometric identifiers in bulk, including face-data scans, for the purpose of training or enhancing facial-recognition software. The U.S. company intends to hire a foreign person, who primarily resides in a country of concern, as a project manager responsible for the database. The agreement retaining the project manager would be an employment agreement. The individual's employment as the lead project manager would involve access to the bulk biometric identifiers. The project manager's employment would be a restricted transaction.

(4) Example 4. A U.S. financial-services company seeks to hire a data scientist who is a citizen of a country of concern who primarily resides in that country of concern and who is developing a new artificial intelligence-based personal assistant that could be sold as a standalone product to the company's customers. The arrangement retaining the data scientist would be an employment agreement. As part of that individual's employment, the data scientist would have administrator rights that allow that individual to access, download, and transmit bulk quantities of personal financial data not ordinarily incident to and part of the company's underlying provision of financial services to its customers. The data scientist's employment would be a restricted transaction.

(5) Example 5. A U.S. company sells goods and collects bulk personal financial data about its U.S. customers. The U.S. company appoints a citizen of a country of concern, who is located in a country of concern, to its board of directors. This director would be a covered person, and the arrangement appointing the director would be an employment agreement. In connection with the board's data security and cybersecurity responsibilities, the director could access the bulk personal financial data. The director's employment would be a restricted transaction.

§ 202.218 Entity.

The term entity means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization.

§ 202.219 Exempt transaction.

The term exempt transaction means a data transaction that is subject to one or more exemptions described in subpart E of this part.

§ 202.220 Former senior official.

The term former senior official means either a “former senior employee” or a “former very senior employee,” as those terms are defined in 5 CFR 2641.104.

§ 202.221 Foreign person.

The term foreign person means any person that is not a U.S. person.

§ 202.222 Government-related data.

(a) Definition. The term government-related data means the following:

(1) Any precise geolocation data, regardless of volume, for any location within any area enumerated on the Government-Related Location Data List in § 202.1401 which the Attorney General has determined poses a heightened risk of being exploited by a country of concern to reveal insights about locations controlled by the Federal Government, including insights about facilities, activities, or populations in those locations, to the detriment of national security, because of the nature of those locations or the personnel who work there. Such locations may include:

(i) The worksite or duty station of Federal Government employees or contractors who occupy a national security position as that term is defined in 5 CFR 1400.102(a)(4);

(ii) A military installation as that term is defined in 10 U.S.C. 2801(c)(4); or

(iii) Facilities or locations that otherwise support the Federal Government's national security, defense, intelligence, law enforcement, or foreign policy missions.

(2) Any sensitive personal data, regardless of volume, that a transacting party markets as linked or linkable to current or recent former employees or contractors, or former senior officials, of the United States Government, including the military and Intelligence Community.

(b) Examples of government-related data marketed by a transacting party—(1) Example 1. A U.S. company advertises the sale of a set of sensitive personal data as belonging to “active duty” personnel, “military personnel who like to read,” “DoD” personnel, “government employees,” or “communities that are heavily connected to a nearby military base.” The data is government-related data.

(2) Example 2. In discussing the sale of a set of sensitive personal data with a covered person, a U.S. company describes the dataset as belonging to members of a specific named organization. The identified organization restricts membership to current and former members of the military and their families. The data is government-related data.

§ 202.223 Human biospecimens.

(a) The term human biospecimens means a quantity of tissue, blood, urine, or other human-derived material, including such material classified under any of the following 10-digit Harmonized System-based Schedule B numbers:

(1) 0501.00.0000 Human hair, unworked, whether or not washed or scoured; waste of human hair

(2) 3001.20.0000 Extracts of glands or other organs or of their secretions

(3) 3001.90.0115 Glands and other organs, dried, whether or not powdered

(4) 3002.12.0010 Human blood plasma

(5) 3002.12.0020 Normal human blood sera, whether or not freeze-dried

(6) 3002.12.0030 Human immune blood sera

(7) 3002.12.0090 Antisera and other blood fractions, Other

(8) 3002.51.0000 Cell therapy products

(9) 3002.59.0000 Cell cultures, whether or not modified, Other

(10) 3002.90.5210 Whole human blood

(11) 3002.90.5250 Blood, human/animal, other

(12) 9705.21.0000 Human specimens and parts thereof

(b) Notwithstanding paragraph (a) of this section, the term human biospecimens does not include human biospecimens, including human blood, cell, and plasma-derived therapeutics, intended by a recipient solely for use in diagnosing, treating, or preventing any disease or medical condition.

§ 202.224 Human `omic data.

(a) The term human `omic data means:

(1) Human genomic data. Data representing the nucleic acid sequences that constitute the entire set or a subset of the genetic instructions found in a human cell, including the result or results of an individual's “genetic test” (as defined in 42 U.S.C. 300gg-91(d)(17)) and any related human genetic sequencing data.

(2) Human epigenomic data. Data derived from a systems-level analysis of human epigenetic modifications, which are changes in gene expression that do not involve alterations to the DNA sequence itself. These epigenetic modifications include modifications such as DNA methylation, histone modifications, and non-coding RNA regulation. Routine clinical measurements of epigenetic modifications for individualized patient care purposes would not be considered epigenomic data under this rule because such measurements would not entail a systems-level analysis of the epigenetic modifications in a sample.

(3) Human proteomic data. Data derived from a systems-level analysis of proteins expressed by a human genome, cell, tissue, or organism. Routine clinical measurements of proteins for individualized patient care purposes would not be considered proteomic data under this rule because such measurements would not entail a systems-level analysis of the proteins found in such a sample.

(4) Human transcriptomic data. Data derived from a systems-level analysis of RNA transcripts produced by the human genome under specific conditions or in a specific cell type. Routine clinical measurements of RNA transcripts for individualized patient care purposes would not be considered transcriptomic data under this rule because such measurements would not entail a systems-level analysis of the RNA transcripts in a sample.

(b) The term human `omic data excludes pathogen-specific data embedded in human `omic data sets.

§ 202.225 IEEPA.

The term IEEPA means the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.).

§ 202.226 Information or informational materials.

(a) Definition. The term information or informational materials is limited to expressive material and includes publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds. It does not include data that is technical, functional, or otherwise non-expressive.

(b) Exclusions. The term information or informational materials does not include:

(1) Information or informational materials not fully created and in existence at the date of the data transaction, or the substantive or artistic alteration or enhancement of information or informational materials, or the provision of marketing and business consulting services, including to market, produce or co-produce, or assist in the creation of information or informational materials;

(2) Items that were, as of April 30, 1994, or that thereafter become, controlled for export to the extent that such controls promote the nonproliferation or antiterrorism policies of the United States, or with respect to which acts are prohibited by 18 U.S.C. chapter 37.

(c) Examples—(1) Example 1. A U.S. person enters into an agreement to create a customized dataset of bulk U.S. sensitive personal data that meets a covered person's specifications (such as the specific types and fields of data, date ranges, and other criteria) and to sell that dataset to the covered person. This customized dataset is not fully created and in existence at the date of the agreement, and therefore is not information or informational materials.

(2) Example 2. A U.S. company has access to several pre-existing databases of different bulk U.S. sensitive personal data. The U.S. company offers, for a fee, to use data analytics to link the data across these databases to the same individuals and to sell that combined dataset to a covered person. This service constitutes a substantive alteration or enhancement of the data in the pre-existing databases and therefore is not information or informational materials.

§ 202.227 Interest.

Except as otherwise provided in this part, the term interest, when used with respect to property (e.g., “an interest in property”), means an interest of any nature whatsoever, direct or indirect.

§ 202.228 Investment agreement.

(a) Definition. The term investment agreement means an agreement or arrangement in which any person, in exchange for payment or other consideration, obtains direct or indirect ownership interests in or rights in relation to:

(1) Real estate located in the United States; or

(2) A U.S. legal entity.

(b) Exclusion for passive investments. The term investment agreement excludes any investment that:

(1) Is made:

(i) Into a publicly traded security, with “security” defined in section 3(a)(10) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(10)), denominated in any currency that trades on a securities exchange or through the method of trading that is commonly referred to as “over-the-counter,” in any jurisdiction;

(ii) Into a security offered by:

(A) Any “investment company” (as defined in section 3(a)(1) of the Investment Company Act of 1940 (15 U.S.C. 80a-3(a)(1)) that is registered with the United States Securities and Exchange Commission, such as index funds, mutual funds, or exchange traded funds; or

(B) Any company that has elected to be regulated or is regulated as a business development company pursuant to section 54(a) of the Investment Company Act of 1940 (15 U.S.C. 80a-53), or any derivative of either of the foregoing; or

(iii) As a limited partner into a venture capital fund, private equity fund, fund of funds, or other pooled investment fund, or private entity, if the limited partner's contribution is solely capital and the limited partner cannot make managerial decisions, is not responsible for any debts beyond its investment, and does not have the formal or informal ability to influence or participate in the fund's or a U.S. person's decision making or operations;

(2) Gives the covered person less than 10% in total voting and equity interest in a U.S. person; and

(3) Does not give a covered person rights beyond those reasonably considered to be standard minority shareholder protections, including (a) membership or observer rights on, or the right to nominate an individual to a position on, the board of directors or an equivalent governing body of the U.S. person, or (b) any other involvement, beyond the voting of shares, in substantive business decisions, management, or strategy of the U.S. person.

(c) Examples—(1) Example 1. A U.S. company intends to build a data center located in a U.S. territory. The data center will store bulk personal health data on U.S. persons. A foreign private equity fund located in a country of concern agrees to provide capital for the construction of the data center in exchange for acquiring a majority ownership stake in the data center. The agreement that gives the private equity fund a stake in the data center is an investment agreement. The investment agreement is a restricted transaction.

(2) Example 2. A foreign technology company that is subject to the jurisdiction of a country of concern and that the Attorney General has designated as a covered person enters into a shareholders' agreement with a U.S. business that develops mobile games and social media apps, acquiring a minority equity stake in the U.S. business. The shareholders' agreement is an investment agreement. These games and apps developed by the U.S. business systematically collect bulk U.S. sensitive personal data of its U.S. users. The investment agreement explicitly gives the foreign technology company the ability to access this data and is therefore a restricted transaction.

(3) Example 3. Same as Example 2, but the investment agreement either does not explicitly give the foreign technology company the right to access the data or explicitly forbids that access. The investment agreement nonetheless provides the foreign technology company with the sufficient ownership interest, rights, or other involvement in substantive business decisions, management, or strategy such that the investment does not constitute a passive investment. Because it is not a passive investment, the ownership interest, rights, or other involvement in substantive business decisions, management, or strategy gives the foreign technology company the ability to obtain logical or physical access, regardless of how the agreement formally distributes those rights. The investment agreement therefore involves access to bulk U.S. sensitive personal data. The investment agreement is a restricted transaction.

(4) Example 4. Same as Example 3, but the U.S. business does not maintain or have access to any government-related data or bulk U.S. sensitive personal data (e.g., a pre-commercial company or startup company). Because the data transaction cannot involve access to any government-related data or bulk U.S. sensitive personal data, this investment agreement does not meet the definition of a covered data transaction and is not a restricted transaction.

§ 202.229 Iran.

The term Iran means the Islamic Republic of Iran, as well as any political subdivision, agency, or instrumentality thereof.

§ 202.230 Knowingly.

(a) Definition. The term knowingly, with respect to conduct, a circumstance, or a result, means that a person has actual knowledge, or reasonably should have known, of the conduct, the circumstance, or the result.

(b) Examples—(1) Example 1. A U.S. company sells DNA testing kits to U.S. consumers and maintains bulk human genomic data collected from those consumers. The U.S. company enters into a contract with a foreign cloud-computing company (which is not a covered person) to store the U.S. company's database of human genomic data. The foreign company hires employees from other countries, including citizens of countries of concern who primarily reside in a country of concern, to manage databases for its customers, including the U.S. company's human genomic database. There is no indication of evasion, such as the U.S. company knowingly directing the foreign company's employment agreements with covered persons, or the U.S. company engaging in and structuring these transactions to evade the regulations. The cloud-computing services agreement between the U.S. company and the foreign company would not be prohibited or restricted, because that covered data transaction is between a U.S. person and a foreign company that does not meet the definition of a covered person. The employment agreements between the foreign company and the covered persons would not be prohibited or restricted because those agreements are between foreign persons.

(2) Example 2. A U.S. company transmits the bulk U.S. sensitive personal data of U.S. persons to a country of concern, in violation of this part, using a fiber optic cable operated by another U.S. company. The U.S. cable operator has not knowingly engaged in a prohibited transaction or a restricted transaction solely by virtue of operating the fiber optic cable because the U.S. cable operator does not know, and reasonably should not know, the content of the traffic transmitted across the fiber optic cable.

(3) Example 3. A U.S. service provider provides a software platform on which a U.S. company processes the bulk U.S. sensitive personal data of its U.S.-person customers. While the U.S. service provider is generally aware of the nature of the U.S. company's business, the U.S. service provider is not aware of the kind or volume of data that the U.S. company processes on the platform, how the U.S. company uses the data, or whether the U.S. company engages in data transactions. The U.S. company also primarily controls access to its data on the platform, with the U.S. service provider accessing the data only for troubleshooting or technical support purposes, upon request by the U.S. company. Subsequently, without the actual knowledge of the U.S. service provider and without providing the U.S. service provider with any information from which the service provider should have known, the U.S. company grants access to the data on the U.S. service provider's software platform to a covered person through a covered data transaction, in violation of this part. The U.S. service provider itself, however, has not knowingly engaged in a restricted transaction by enabling the covered persons' access via its software platform.

(4) Example 4. Same as Example 3, but in addition to providing the software platform, the U.S. company's contract with the U.S. service provider also outsources the U.S. company's processing and handling of the data to the U.S. service provider. As a result, the U.S. service provider primarily controls access to the U.S. company's bulk U.S. sensitive personal data on the platform. The U.S. service provider employs a covered person and grants access to this data as part of this employment. Although the U.S. company's contract with the U.S. service provider is not a restricted transaction, the U.S. service provider's employment agreement with the covered person is a restricted transaction. The U.S. service provider has thus knowingly engaged in a restricted transaction by entering into an employment agreement that grants access to its employee because the U.S. service provider knew or should have known of its employee's covered person status and, as the party responsible for processing and handling the data, the U.S. service provider was aware of the kind and volume of data that the U.S. company processes on the platform.

(5) Example 5. A U.S. company provides cloud storage to a U.S. customer for the encrypted storage of the customer's bulk U.S. sensitive personal data. The U.S. cloud-service provider has an emergency back-up encryption key for all its customers' data, but the company is contractually limited to using the key to decrypt the data only at the customer's request. The U.S. customer's systems and access to the key become disabled, and the U.S. customer requests that the cloud-service provider use the back-up encryption key to decrypt the data and store it on a backup server while the customer restores its own systems. By having access to and using the backup encryption key to decrypt the data in accordance with the contractual limitation, the U.S. cloud-service provider does not and reasonably should not know the kind and volumes of the U.S. customer's data. If the U.S. customer later uses the cloud storage to knowingly engage in a prohibited transaction, the U.S. cloud-service provider's access to and use of the backup encryption key does not mean that the U.S. cloud-service provider has also knowingly engaged in a restricted transaction.

(6) Example 6. A prominent human genomics research clinic enters into a cloud-services contract with a U.S. cloud-service provider that specializes in storing and processing healthcare data to store bulk human genomic research data. The cloud-service provider hires IT personnel in a country of concern, who are thus covered persons. While the data that is stored is encrypted, the IT personnel can access the data in encrypted form. The employment agreement between the U.S. cloud-service provider and the IT professionals in the country of concern is a prohibited transaction because the agreement involves giving the IT personnel access to the encrypted data and constitutes a transfer of human genomic data. Given the nature of the research institution's work and the cloud-service provider's expertise in storing healthcare data, the cloud-service provider reasonably should have known that the encrypted data is bulk U.S. sensitive personal data covered by the regulations. The cloud-service provider has therefore knowingly engaged in a prohibited transaction (because it involves access to human genomic data).

§ 202.231 Licenses; general and specific.

(a) General license. The term general license means a written license issued pursuant to this part authorizing a class of transactions and not limited to a particular person.

(b) Specific license. The term specific license means a written license issued pursuant to this part to a particular person or persons, authorizing a particular transaction or transactions in response to a written license application.

§ 202.232 Linked.

(a) Definition. The term linked means associated.

(b) Examples—(1) Example 1. A U.S. person transfers two listed identifiers in a single spreadsheet—such as a list of names of individuals and associated MAC addresses for those individuals' devices. The names and MAC addresses would be considered linked.

(2) Example 2. A U.S. person transfers two listed identifiers in different spreadsheets—such as a list of names of individuals in one spreadsheet and MAC addresses in another spreadsheet—to two related parties in two different covered data transactions. The names and MAC addresses would be considered linked, provided that some correlation existed between the names and MAC addresses (e.g., associated employee ID number is also listed in both spreadsheets).

(3) Example 3. A U.S. person transfers a standalone list of MAC addresses, without any additional listed identifiers. The standalone list does not include covered personal identifiers. That standalone list of MAC addresses would not become covered personal identifiers even if the receiving party is capable of obtaining separate sets of other listed identifiers or sensitive personal data through separate covered data transactions with unaffiliated parties that would ultimately permit the association of the MAC addresses to specific persons. The MAC addresses would not be considered linked or linkable to those separate sets of other listed identifiers or sensitive personal data.

§ 202.233 Linkable.

The term linkable means reasonably capable of being linked.

Note to § 202.233:

Data is considered linkable when the identifiers involved in a single covered data transaction, or in multiple covered data transactions or a course of dealing between the same or related parties, are reasonably capable of being associated with the same person(s). Identifiers are not linked or linkable when additional identifiers or data not involved in the relevant covered data transaction(s) would be necessary to associate the identifiers with the same specific person(s).

§ 202.234 Listed identifier.

The term listed identifier means any piece of data in any of the following data fields:

(a) Full or truncated government identification or account number (such as a Social Security number, driver's license or State identification number, passport number, or Alien Registration Number);

(b) Full financial account numbers or personal identification numbers associated with a financial institution or financial-services company;

(c) Device-based or hardware-based identifier (such as International Mobile Equipment Identity (“IMEI”), Media Access Control (“MAC”) address, or Subscriber Identity Module (“SIM”) card number);

(d) Demographic or contact data (such as first and last name, birth date, birthplace, ZIP code, residential street or postal address, phone number, email address, or similar public account identifiers);

(e) Advertising identifier (such as Google Advertising ID, Apple ID for Advertisers, or other mobile advertising ID (“MAID”));

(f) Account-authentication data (such as account username, account password, or an answer to security questions);

(g) Network-based identifier (such as Internet Protocol (“IP”) address or cookie data); or

(h) Call-detail data (such as Customer Proprietary Network Information (“CPNI”)).

§ 202.235 National Security Division.

The term National Security Division means the National Security Division of the United States Department of Justice.

§ 202.236 North Korea.

The term North Korea means the Democratic People's Republic of North Korea, and any political subdivision, agency, or instrumentality thereof.

§ 202.237 Order.

The term Order means Executive Order 14117 of February 28, 2024 (Preventing Access to Americans' Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern), 89 FR 15421 (March 1, 2024).

§ 202.238 Person.

The term person means an individual or entity.

§ 202.239 Personal communications.

The term personal communications means any postal, telegraphic, telephonic, or other personal communication that does not involve the transfer of anything of value, as set out under 50 U.S.C. 1702(b)(1).

§ 202.240 Personal financial data.

The term personal financial data means data about an individual's credit, charge, or debit card, or bank account, including purchases and payment history; data in a bank, credit, or other financial statement, including assets, liabilities, debts, or trades in a securities portfolio; or data in a credit report or in a “consumer report” (as defined in 15 U.S.C. 1681a(d)).

§ 202.241 Personal health data.

The term personal health data means health information that indicates, reveals, or describes the past, present, or future physical or mental health or condition of an individual; the provision of healthcare to an individual; or the past, present, or future payment for the provision of healthcare to an individual. This term includes basic physical measurements and health attributes (such as bodily functions, height and weight, vital signs, symptoms, and allergies); social, psychological, behavioral, and medical diagnostic, intervention, and treatment history; test results; logs of exercise habits; immunization data; data on reproductive and sexual health; and data on the use or purchase of prescribed medications.

§ 202.242 Precise geolocation data.

The term precise geolocation data means data, whether real-time or historical, that identifies the physical location of an individual or a device with a precision of within 1,000 meters.

§ 202.243 Prohibited transaction.

The term prohibited transaction means a data transaction that is subject to one or more of the prohibitions described in subpart C of this part.

§ 202.244 Property; property interest.

The terms property and property interest include money; checks; drafts; bullion; bank deposits; savings accounts; debts; indebtedness; obligations; notes; guarantees; debentures; stocks; bonds; coupons; any other financial instruments; bankers acceptances; mortgages, pledges, liens, or other rights in the nature of security; warehouse receipts, bills of lading, trust receipts, bills of sale, or any other evidences of title, ownership, or indebtedness; letters of credit and any documents relating to any rights or obligations thereunder; powers of attorney; goods; wares; merchandise; chattels; stocks on hand; ships; goods on ships; real estate mortgages; deeds of trust; vendors' sales agreements; land contracts, leaseholds, ground rents, real estate and any other interest therein; options; negotiable instruments; trade acceptances; royalties; book accounts; accounts payable; judgments; patents; trademarks or copyrights; insurance policies; safe deposit boxes and their contents; annuities; pooling agreements; services of any nature whatsoever; contracts of any nature whatsoever; any other property, real, personal, or mixed, tangible or intangible, or interest or interests therein, present, future, or contingent.

§ 202.245 Recent former employees or contractors.

The terms recent former employees or recent former contractors mean employees or contractors who worked for or provided services to the United States Government, in a paid or unpaid status, within the past 2 years of a potential covered data transaction.

§ 202.246 Restricted transaction.

The term restricted transaction means a data transaction that is subject to subpart D of this part.

§ 202.247 Russia.

The term Russia means the Russian Federation, and any political subdivision, agency, or instrumentality thereof.

§ 202.248 Security requirements.

The term security requirements means the Cybersecurity and Infrastructure Agency (“CISA”) Security Requirements for Restricted Transactions E.O. 14117 Implementation, January 2025. This material is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. This incorporation by reference (“IBR”) material is available for inspection at the Department of Justice and at the National Archives and Records Administration (“NARA”). Please contact the Foreign Investment Review Section, National Security Division, U.S. Department of Justice, 175 N St. NE, Washington, DC 20002, telephone: 202-514-8648, NSD.FIRS.datasecurity@usdoj.gov; www.justice.gov/nsd. For information on the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email fr.inspection@nara.gov. The material may be obtained from the National Security Division and the Cybersecurity and Infrastructure Security Agency (CISA), Mail Stop 0380, Department of Homeland Security, 245 Murray Lane, Washington, DC 20528-0380; central@cisa.gov; 888-282-0870; www.cisa.gov/.

§ 202.249 Sensitive personal data.

(a) Definition. The term sensitive personal data means covered personal identifiers, precise geolocation data, biometric identifiers, human `omic data, personal health data, personal financial data, or any combination thereof.

(b) Exclusions. The term sensitive personal data, and each of the categories of sensitive personal data, excludes:

(1) Public or nonpublic data that does not relate to an individual, including such data that meets the definition of a “trade secret” (as defined in 18 U.S.C. 1839(3)) or “proprietary information” (as defined in 50 U.S.C. 1708(d)(7));

(2) Data that is, at the time of the transaction, lawfully available to the public from a Federal, State, or local government record (such as court records) or in widely distributed media (such as sources that are generally available to the public through unrestricted and open-access repositories);

(3) Personal communications; and

(4) Information or informational materials and ordinarily associated metadata or metadata reasonably necessary to enable the transmission or dissemination of such information or informational materials.

§ 202.250 Special Administrative Region of Hong Kong.

The term Special Administrative Region of Hong Kong means the Special Administrative Region of Hong Kong, and any political subdivision, agency, or instrumentality thereof.

§ 202.251 Special Administrative Region of Macau.

The term Special Administrative Region of Macau means the Special Administrative Region of Macau, and any political subdivision, agency, or instrumentality thereof.

§ 202.252 Telecommunications service.

The term telecommunications service means the provision of voice and data communications services regardless of format or mode of delivery, including communications services delivered over cable, Internet Protocol, wireless, fiber, or other transmission mechanisms, as well as arrangements for network interconnection, transport, messaging, routing, or international voice, text, and data roaming.

§ 202.253 Transaction.

The term transaction means any acquisition, holding, use, transfer, transportation, exportation of, or dealing in any property in which a foreign country or national thereof has an interest.

§ 202.254 Transfer.

The term transfer means any actual or purported act or transaction, whether or not evidenced by writing, and whether or not done or performed within the United States, the purpose, intent, or effect of which is to create, surrender, release, convey, transfer, or alter, directly or indirectly, any right, remedy, power, privilege, or interest with respect to any property. Without limitation on the foregoing, it shall include the making, execution, or delivery of any assignment, power, conveyance, check, declaration, deed, deed of trust, power of attorney, power of appointment, bill of sale, mortgage, receipt, agreement, contract, certificate, gift, sale, affidavit, or statement; the making of any payment; the setting off of any obligation or credit; the appointment of any agent, trustee, or fiduciary; the creation or transfer of any lien; the issuance, docketing, filing, or levy of or under any judgment, decree, attachment, injunction, execution, or other judicial or administrative process or order, or the service of any garnishment; the acquisition of any interest of any nature whatsoever by reason of a judgment or decree of any foreign country; the fulfillment of any condition; the exercise of any power of appointment, power of attorney, or other power; or the acquisition, disposition, transportation, importation, exportation, or withdrawal of any security.

§ 202.255 United States.

The term United States means the United States, its territories and possessions, and all areas under the jurisdiction or authority thereof.

§ 202.256 United States person or U.S. person.

(a) Definition. The terms United States person and U.S. person mean any United States citizen, national, or lawful permanent resident; any individual admitted to the United States as a refugee under 8 U.S.C. 1157 or granted asylum under 8 U.S.C. 1158; any entity organized solely under the laws of the United States or any jurisdiction within the United States (including foreign branches); or any person in the United States.

(b) Examples—(1) Example 1. An individual is a citizen of a country of concern and is in the United States. The individual is a U.S. person.

(2) Example 2. An individual is a U.S. citizen. The individual is a U.S. person, regardless of location.

(3) Example 3. An individual is a dual citizen of the United States and a country of concern. The individual is a U.S. person, regardless of location.

(4) Example 4. An individual is a citizen of a country of concern, is not a permanent resident alien of the United States, and is outside the United States. The individual is a foreign person.

(5) Example 5. A company is organized under the laws of the United States and has a foreign branch in a country of concern. The company, including its foreign branch, is a U.S. person.

(6) Example 6. A parent company is organized under the laws of the United States and has a subsidiary organized under the laws of a country of concern. The subsidiary is a foreign person regardless of the degree of ownership by the parent company; the parent company is a U.S. person.

(7) Example 7. A company is organized under the laws of a country of concern and has a branch in the United States. The company, including its U.S. branch, is a foreign person.

(8) Example 8. A parent company is organized under the laws of a country of concern and has a subsidiary organized under the laws of the United States. The subsidiary is a U.S. person regardless of the degree of ownership by the parent company; the parent company is a foreign person.

§ 202.257 U.S. device.

The term U.S. device means any device with the capacity to store or transmit data that is linked or linkable to a U.S. person.

§ 202.258 Vendor agreement.

(a) Definition. The term vendor agreement means any agreement or arrangement, other than an employment agreement, in which any person provides goods or services to another person, including cloud-computing services, in exchange for payment or other consideration.

(b) Examples—(1) Example 1. A U.S. company collects bulk precise geolocation data from U.S. users through an app. The U.S. company enters into an agreement with a company headquartered in a country of concern to process and store this data. This vendor agreement is a restricted transaction.

(2) Example 2. A medical facility in the United States contracts with a company headquartered in a country of concern to provide IT-related services. The contract governing the provision of services is a vendor agreement. The medical facility has bulk personal health data on its U.S. patients. The IT services provided under the contract involve access to the medical facility's systems containing the bulk personal health data. This vendor agreement is a restricted transaction.

(3) Example 3. A U.S. company, which is owned by an entity headquartered in a country of concern and has been designated a covered person, establishes a new data center in the United States to offer managed services. The U.S. company's data center serves as a vendor to various U.S. companies to store bulk U.S. sensitive personal data collected by those companies. These vendor agreements are restricted transactions.

(4) Example 4. A U.S. company develops mobile games that collect bulk precise geolocation data and biometric identifiers of U.S.-person users. The U.S. company contracts part of the software development to a foreign person who is primarily resident in a country of concern and is a covered person. The contract with the foreign person is a vendor agreement. The software-development services provided by the covered person under the contract involve access to the bulk precise geolocation data and biometric identifiers. This is a restricted transaction.

(5) Example 5. A U.S. multinational company maintains bulk U.S. sensitive personal data of U.S. persons. This company has a foreign branch, located in a country of concern, that has access to this data. The foreign branch contracts with a local company located in the country of concern to provide cleaning services for the foreign branch's facilities. The contract is a vendor agreement, the foreign branch is a U.S. person, and the local company is a covered person. Because the services performed under this vendor agreement do not “involve access to” the bulk U.S. sensitive personal data, the vendor agreement would not be a covered data transaction.

§ 202.259 Venezuela.

The term Venezuela means the Bolivarian Republic of Venezuela, and any political subdivision, agency, or instrumentality thereof.

§ 202.301 Prohibited data-brokerage transactions.

(a) Prohibition. Except as otherwise authorized pursuant to subparts E or H of this part or any other provision of this part, no U.S. person, on or after the effective date, may knowingly engage in a covered data transaction involving data brokerage with a country of concern or covered person.

(b) Examples—(1) Example 1. A U.S. subsidiary of a company headquartered in a country of concern develops an artificial intelligence chatbot in the United States that is trained on the bulk U.S. sensitive personal data of U.S. persons. While not its primary commercial use, the chatbot is capable of reproducing or otherwise disclosing the bulk U.S. sensitive personal health data that was used to train the chatbot when responding to queries. The U.S. subsidiary knowingly licenses subscription-based access to that chatbot worldwide, including to covered persons such as its parent entity. Although licensing use of the chatbot itself may not necessarily “involve access” to bulk U.S. sensitive personal data, the U.S. subsidiary knows or should know that the license can be used to obtain access to the U.S. persons' bulk sensitive personal training data if prompted. The licensing of access to this bulk U.S. sensitive personal data is data brokerage because it involves the transfer of data from the U.S. company (i.e., the provider) to licensees (i.e., the recipients), where the recipients did not collect or process the data directly from the individuals linked or linkable to the collected or processed data. Even though the license did not explicitly provide access to the data, this is a prohibited transaction because the U.S. company knew or should have known that the use of the chatbot pursuant to the license could be used to obtain access to the training data, and because the U.S. company licensed the product to covered persons.

(2) [Reserved]

§ 202.302 Other prohibited data-brokerage transactions involving potential onward transfer to countries of concern or covered persons.

(a) Prohibition. Except as otherwise authorized pursuant to this part, no U.S. person, on or after the effective date, may knowingly engage in any transaction that involves any access by a foreign person to government-related data or bulk U.S. sensitive personal data and that involves data brokerage with any foreign person that is not a covered person unless the U.S. person:

(1) Contractually requires that the foreign person refrain from engaging in a subsequent covered data transaction involving data brokerage of the same data with a country of concern or covered person; and

(2) Reports any known or suspected violations of this contractual requirement in accordance with paragraph (b) of this section.

(b) Reporting known or suspected violations—(1) When reports are due. U.S. persons shall file reports within 14 days of the U.S. person becoming aware of a known or suspected violation.

(2) Contents of reports. Reports on known or suspected violations shall include the following, to the extent the information is known and available to the person filing the report at the time of the report:

(i) The name and address of the U.S. person reporting the known or suspected violation of the contractual requirement in accordance with paragraph (b) of this section;

(ii) A description of the known or suspected violation, including:

(A) Date of known or suspected violation;

(B) Description of the data-brokerage transaction referenced in paragraph (a) of this section;

(C) Description of the contractual provision prohibiting the onward transfer of the same data to a country of concern or covered person;

(D) Description of the known or suspected violation of the contractual obligation prohibiting the foreign person from engaging in a subsequent covered data transaction involving the same data with a country of concern or a covered person;

(E) Any persons substantively participating in the transaction referenced in paragraph (a) of this section;

(F) Information about the known or suspected persons involved in the onward data transfer transaction, including the name and location of any covered persons or countries of concern;

(G) A copy of any relevant documentation received or created in connection with the transaction; and

(iii) Any other information that the Department of Justice may require or any other information that the U.S. person filing the report believes to be pertinent to the known or suspected violation or the implicated covered person.

(3) Additional contents; format and method of submission. Reports required by this section must be submitted in accordance with this section and with subpart L of this part.

(c) Examples—(1) Example 1. A U.S. business knowingly enters into an agreement to sell bulk human genomic data to a European business that is not a covered person. The U.S. business is required to include in that agreement a limitation on the European business' right to resell or otherwise engage in a covered data transaction involving data brokerage of that data to a country of concern or covered person. Otherwise, the agreement would be a prohibited transaction.

(2) Example 2. A U.S. company owns and operates a mobile app for U.S. users with available advertising space. As part of selling the advertising space, the U.S. company provides the bulk precise geolocation data, IP address, and advertising IDs of its U.S. users' devices to an advertising exchange based in Europe that is not a covered person. The U.S. company's provision of this data to the advertising exchange is data brokerage and a prohibited transaction unless the U.S. company obtains a contractual commitment from the advertising exchange not to engage in any covered data transactions involving data brokerage of that same data with a country of concern or covered person.

(3) Example 3. A U.S. business knowingly enters into an agreement to buy bulk human genomic data from a European business that is not a covered person. This provision does not require the U.S. business to include any contractual limitation because the transaction does not involve access by the foreign person.

§ 202.303 Prohibited human `omic data and human biospecimen transactions.

Except as otherwise authorized pursuant to this part, no U.S. person, on or after the effective date, may knowingly engage in any covered data transaction with a country of concern or covered person that involves access by that country of concern or covered person to bulk U.S. sensitive personal data that involves bulk human `omic data, or to human biospecimens from which bulk human `omic data could be derived.

§ 202.304 Prohibited evasions, attempts, causing violations, and conspiracies.

(a) Prohibition. Any transaction on or after the effective date that has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in this part is prohibited. Any conspiracy formed to violate the prohibitions set forth in this part is prohibited.

(b) Examples—(1) Example 1. A U.S. data broker seeks to sell bulk U.S. sensitive personal data to a foreign person who primarily resides in China. With knowledge that the foreign person is a covered person and with the intent to evade the regulations, the U.S. data broker invites the foreign person to travel to the United States to consummate the data transaction and transfer the bulk U.S. sensitive personal data in the United States. After completing the transaction, the person returns to China with the bulk U.S. sensitive personal data. The transaction in the United States is not a covered data transaction because the person who resides in China is a U.S. person while in the United States (unless that person was individually designated as a covered person pursuant to § 202.211(a)(5), in which case their covered person status would remain, even while in the United States, and the transaction would be a covered data transaction). However, the U.S. data broker has structured the transaction to evade the regulation's prohibitions on covered data transactions with covered persons. As a result, this transaction has the purpose of evading the regulations and is prohibited.

(2) Example 2. A Russian national, who is employed by a corporation headquartered in Russia, travels to the United States to conduct business with the Russian company's U.S. subsidiary, including with the purpose of obtaining bulk U.S. sensitive personal data from the U.S. subsidiary. The U.S. subsidiary is a U.S. person, the Russian corporation is a covered person, and the Russian employee is a covered person while outside the United States but a U.S. person while temporarily in the United States (unless that Russian employee was individually designated as a covered person pursuant to § 202.211(a)(5), in which case their covered person status would remain, even while in the United States, and the transaction would be a covered data transaction). With knowledge of these facts, the U.S. subsidiary licenses access to bulk U.S. sensitive personal data to the Russian employee while in the United States, who then returns to Russia. This transaction has the purpose of evading the regulations and is prohibited.

(3) Example 3. A U.S. subsidiary of a company headquartered in a country of concern collects bulk precise geolocation data from U.S. persons. The U.S. subsidiary is a U.S. person, and the parent company is a covered person. With the purpose of evading the regulations, the U.S. subsidiary enters into a vendor agreement with a foreign company that is not a covered person. The vendor agreement provides the foreign company access to the data. The U.S. subsidiary knows (or reasonably should know) that the foreign company is a shell company, and knows that it subsequently outsources the vendor agreement to the U.S. subsidiary's parent company. This transaction has the purpose of evading the regulations and is prohibited.

(4) Example 4. A U.S. company collects bulk personal health data from U.S. persons. With the purpose of evading the regulations, the U.S. company enters into a vendor agreement with a foreign company that is not a covered person. The agreement provides the foreign company access to the data. The U.S. company knows (or reasonably should know) that the foreign company is a front company staffed primarily by covered persons. The U.S. company has not complied with either the security requirements in § 202.248 or other applicable requirements for conducting restricted transactions as detailed in subpart J of this part. This transaction has the purpose of evading the regulations and is prohibited.

(5) Example 5. A U.S. online gambling company uses an artificial intelligence algorithm to analyze collected bulk covered personal identifiers to identify users based on impulsivity for targeted advertising. The algorithm is trained on bulk covered personal identifiers and may reveal that raw data. A U.S. subsidiary of a company headquartered in a country of concern knows that the algorithm can reveal the training data. For the purpose of evasion, the U.S. subsidiary licenses the derivative algorithm from the U.S. online gambling company for the purpose of accessing bulk sensitive personal identifiers from the training data that would not otherwise be accessible to the parent company and shares the algorithm with the parent company so that the parent company can obtain the bulk covered personal identifiers. The U.S. subsidiary's licensing transaction with the parent company has the purpose of evading the regulations and is prohibited.

§ 202.305 Knowingly directing prohibited or restricted transactions.

(a) Prohibition. Except as otherwise authorized pursuant to this part, no U.S. person, on or after the effective date, may knowingly direct any covered data transaction that would be a prohibited transaction or restricted transaction that fails to comply with the requirements of subpart D of this part and all other applicable requirements under this part, if engaged in by a U.S. person.

(b) Examples—(1) Example 1. A U.S. person is an officer, senior manager, or equivalent senior-level employee at a foreign company that is not a covered person, and the foreign company undertakes a covered data transaction at that U.S. person's direction or with that U.S. person's approval when the covered data transaction would be prohibited if performed by a U.S. person. The U.S. person has knowingly directed a prohibited transaction.

(2) Example 2. Several U.S. persons launch, own, and operate a foreign company that is not a covered person, and that foreign company, under the U.S. persons' operation, undertakes covered data transactions that would be prohibited if performed by a U.S. person. The U.S. persons have knowingly directed a prohibited transaction.

(3) Example 3. A U.S. person is employed at a U.S.-headquartered multinational company that has a foreign affiliate that is not a covered person. The U.S. person instructs the U.S. company's compliance unit to change (or approve changes to) the operating policies and procedures of the foreign affiliate with the specific purpose of allowing the foreign affiliate to undertake covered data transactions that would be prohibited if performed by a U.S. person. The U.S. person has knowingly directed prohibited transactions.

(4) Example 4. A U.S. bank processes a payment from a U.S. person to a covered person, or from a covered person to a U.S. person, as part of that U.S. person's engagement in a prohibited transaction. The U.S. bank has not knowingly directed a prohibited transaction, and its activity would not be prohibited (although the U.S. person's covered data transaction would be prohibited).

(5) Example 5. A U.S. financial institution underwrites a loan or otherwise provides financing for a foreign company that is not a covered person, and the foreign company undertakes covered data transactions that would be prohibited if performed by a U.S. person. The U.S. financial institution has not knowingly directed a prohibited transaction, and its activity would not be prohibited.

(6) Example 6. A U.S. person, who is employed at a foreign company that is not a covered person, signs paperwork approving the foreign company's procurement of real estate for its operations. The same foreign company separately conducts data transactions that use or are facilitated by operations at that real estate location and that would be prohibited transactions if performed by a U.S. person, but the U.S. employee has no role in approving or directing those separate data transactions. The U.S. person has not knowingly directed a prohibited transaction, and the U.S. person's activity would not be prohibited.

(7) Example 7. A U.S. company owns or operates a submarine telecommunications cable with one landing point in a foreign country that is not a country of concern and one landing point in a country of concern. The U.S. company leases capacity on the cable to U.S. customers that transmit bulk U.S. sensitive personal data to the landing point in the country of concern, including transmissions as part of prohibited transactions. The U.S. company's ownership or operation of the cable does not constitute knowingly directing a prohibited transaction, and its ownership or operation of the cable would not be prohibited (although the U.S. customers' covered data transactions would be prohibited).

(8) Example 8. A U.S. person engages in a vendor agreement involving bulk U.S. sensitive personal data with a foreign person who is not a covered person. Such vendor agreement is not a restricted or prohibited transaction. The foreign person then employs an individual who is a covered person and grants them access to bulk U.S. sensitive personal data without the U.S. person's knowledge or direction. There is no covered data transaction between the U.S. person and the covered person, and there is no indication that the parties engaged in these transactions with the purpose of evading the regulations (such as the U.S. person having knowingly directed the foreign person's employment agreement with the covered person or the parties knowingly structuring a restricted transaction into these multiple transactions with the purpose of evading the prohibition). The U.S. person has not knowingly directed a restricted transaction.

(9) Example 9. A U.S. company sells DNA testing kits to U.S. consumers and maintains bulk human genomic data collected from those consumers. The U.S. company enters into a contract with a foreign cloud-computing company (which is not a covered person) to store the U.S. company's database of human genomic data. The foreign company hires employees from other countries, including citizens of countries of concern who primarily reside in a country of concern, to manage databases for its customers, including the U.S. company's human genomic database. There is no indication of evasion, such as the U.S. company knowingly directing the foreign company's employment agreements or the U.S. company knowingly engaging in and structuring these transactions to evade the regulations. The cloud-computing services agreement between the U.S. company and the foreign company would not be prohibited or restricted because that transaction is between a U.S. person and a foreign company that does not meet the definition of a covered person. The employment agreements between the foreign company and the covered persons would not be prohibited or restricted because those agreements are between foreign persons.

§ 202.401 Authorization to conduct restricted transactions.

(a) Restricted transactions. Except as otherwise authorized pursuant to subparts E or H of this part or any other provision of this part, no U.S. person, on or after the effective date, may knowingly engage in a covered data transaction involving a vendor agreement, employment agreement, or investment agreement with a country of concern or covered person unless the U.S. person complies with the security requirements (as defined by § 202.248) required by this subpart D and all other applicable requirements under this part.

(b) This subpart D does not apply to covered data transactions involving access to bulk human `omic data or human biospecimens from which such data can be derived, and which are subject to the prohibition in § 202.303.

(c) Examples—(1) Example 1. A U.S. company engages in an employment agreement with a covered person to provide information technology support. As part of their employment, the covered person has access to personal financial data. The U.S. company implements and complies with the security requirements. The employment agreement is authorized as a restricted transaction because the company has complied with the security requirements.

(2) Example 2. A U.S. company engages in a vendor agreement with a covered person to store bulk personal health data. Instead of implementing the security requirements as identified by reference in this subpart D, the U.S. company implements different controls that it believes mitigate the covered person's access to the bulk personal health data. Because the U.S. person has not complied with the security requirements, the vendor agreement is not authorized and thus is a prohibited transaction.

(3) Example 3. A U.S. person engages in a vendor agreement involving bulk U.S. sensitive personal data with a foreign person who is not a covered person. The foreign person then employs an individual who is a covered person and grants them access to bulk U.S. sensitive personal data without the U.S. person's knowledge or direction. There is no covered data transaction between the U.S. person and the covered person, and there is no indication that the parties engaged in these transactions with the purpose of evading the regulations (such as the U.S. person having knowingly directed the foreign person's employment agreement with the covered person or the parties knowingly structuring a prohibited transaction into these multiple transactions with the purpose of evading the prohibition). As a result, neither the vendor agreement nor the employment agreement would be a restricted transaction.

[90 FR 1706, Jan. 8, 2025, as amended at 90 FR 16466, Apr. 18, 2025]

§ 202.402 [Reserved]

§ 202.501 Personal communications.

This part does not apply to data transactions to the extent that they involve any postal, telegraphic, telephonic, or other personal communication that does not involve the transfer of anything of value.

§ 202.502 Information or informational materials.

This part does not apply to data transactions to the extent that they involve the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials.

§ 202.503 Travel.

This part does not apply to data transactions to the extent that they are ordinarily incident to travel to or from any country, including importation of accompanied baggage for personal use; maintenance within any country, including payment of living expenses and acquisition of goods or services for personal use; and arrangement or facilitation of such travel, including nonscheduled air, sea, or land voyages.

§ 202.504 Official business of the United States Government.

(a) Exemption. Subparts C, and D, J, and K (other than § 202.1102 and § 202.1104) of this part do not apply to data transactions to the extent that they are for the conduct of the official business of the United States Government by its employees, grantees, or contractors; any authorized activity of any United States Government department or agency (including an activity that is performed by a Federal depository institution or credit union supervisory agency in the capacity of receiver or conservator); or transactions conducted pursuant to a grant, contract, or other agreement entered into with the United States Government.

(b) Examples—(1) Example 1. A U.S. hospital receives a Federal grant to conduct human genomic research on U.S. persons. As part of that federally funded human genomic research, the U.S. hospital contracts with a foreign laboratory that is a covered person, hires a researcher that is a covered person, and gives the laboratory and researcher access to the human biospecimens and human genomic data in bulk. The contract with the foreign laboratory and the employment of the researcher are exempt transactions but would be prohibited transactions if they were not part of the federally funded research.

(2) Example 2. A U.S. research institution receives a Federal grant to conduct human genomic research on U.S. and foreign persons. The Federal grant directs the U.S. research institution to publicize the results of its research, including the underlying human genomic data, via an internet-accessible database open to public health researchers with valid log-in credentials who pay a small annual fee to access the database, including covered persons primarily resident in a country of concern. The Federal grant does not cover the full costs of the authorized human genomic research or creation and publication of the database. The U.S. research institution obtains funds from private institutions and donors to fund the remaining costs. The human genomic research authorized by the Federal grant and publication of the database at the direction of the Federal grant would constitute a “transaction[ ] conducted pursuant to a grant, contract, or other agreement entered into with the United States Government.” The U.S. research institution must still comply with any requirements or prohibitions on sharing bulk U.S. sensitive personal data with countries of concern or covered persons required by the Federal grantmaker.

(3) Example 3. Same as Example 2, but the Federal grant is limited in scope to funding the U.S. research institution's purchase of equipment needed to conduct the human genomic research and does not include funding related to publication of the data. The Federal grant does not direct or authorize the U.S. research institution to publicize the human genomic research or make it available to country of concern or covered person researchers via the database for which researchers pay an annual fee to access, or otherwise fund the conduct of the human genomic research. The U.S. research institution contracts with a foreign laboratory that is a covered person and gives the laboratory access to the bulk human genomic data. The contract with the foreign laboratory is not an exempt transaction because that transaction is not within the scope of the Federal grant.

§ 202.505 Financial services.

(a) Exemption. Subparts C, D, J, and K (other than § 202.1102 and § 202.1104) of this part do not apply to data transactions, to the extent that they are ordinarily incident to and part of the provision of financial services, including:

(1) Banking, capital-markets (including investment-management services as well as trading and underwriting of securities, commodities, and derivatives), or financial-insurance services;

(2) A financial activity authorized for national banks by 12 U.S.C. 24 (Seventh) and rules and regulations and written interpretations of the Office of the Comptroller of the Currency thereunder;

(3) An activity that is “financial in nature or incidental to such financial activity” or “complementary to a financial activity,” section (k)(1), as set forth in section (k)(4) of the Bank Holding Company Act of 1956 (12 U.S.C. 1843(k)(4)) and rules and regulations and written interpretations of the Board of Governors of the Federal Reserve System thereunder;

(4) The transfer of personal financial data or covered personal identifiers incidental to the purchase and sale of goods and services (such as the purchase, sale, or transfer of consumer products and services through online shopping or e-commerce marketplaces);

(5) The provision or processing of payments or funds transfers (such as person-to-person, business-to-person, and government-to-person funds transfers) involving the transfer of personal financial data or covered personal identifiers, or the provision of services ancillary to processing payments and funds transfers (such as services for payment dispute resolution, payor authentication, tokenization, payment gateway, payment fraud detection, payment resiliency, mitigation and prevention, and payment-related loyalty point program administration); and

(6) The provision of investment-management services that manage or provide advice on investment portfolios or individual assets for compensation (such as devising strategies and handling financial assets and other investments for clients) or provide services ancillary to investment-management services (such as broker-dealers or futures commission merchants executing trades within an investment portfolio based upon instructions from an investment advisor).

(b) Examples—(1) Example 1. A U.S. company engages in a data transaction to transfer personal financial data in bulk to a financial institution that is incorporated in, located in, or subject to the jurisdiction or control of a country of concern to clear and settle electronic payment transactions between U.S. individuals and merchants in a country of concern where both the U.S. individuals and the merchants use the U.S. company's infrastructure, such as an e-commerce platform. Both the U.S. company's transaction transferring bulk personal financial data and the payment transactions by U.S. individuals are exempt transactions because they involve access by a covered person to bulk personal financial data, but are ordinarily incident to and part of a financial service.

(2) Example 2. As ordinarily incident to and part of securitizing and selling asset-backed obligations (such as mortgage and nonmortgage loans) to a covered person, a U.S. bank provides bulk U.S. sensitive personal data to the covered person. The data transfers are exempt transactions because they involve access by a covered person to bulk personal financial data, but are ordinarily incident to and part of a financial service.

(3) Example 3. A U.S. bank or other financial institution, as ordinarily incident to and part of facilitating payments to U.S. persons in a country of concern, stores and processes the customers' bulk financial data using a data center operated by a third-party service provider in the country of concern. The use of this third-party service provider is a vendor agreement because it involves access by a covered person to personal financial data, but it is an exempt transaction that is ordinarily incident to and part of facilitating international payment.

(4) Example 4. Same as Example 3, but the underlying payments are between U.S. persons in the United States and do not involve a country of concern. The use of this third-party service provider is a vendor agreement, but it is not an exempt transaction because it involves access by a covered person to bulk personal financial data and it is not ordinarily incident to facilitating this type of financial activity.

(5) Example 5. As part of operating an online marketplace for the purchase and sale of goods, a U.S. company, as ordinarily incident to and part of U.S. consumers' purchase of goods on that marketplace, transfers bulk contact information, payment information (e.g., credit-card account number, expiration data, and security code), and delivery address to a merchant in a country of concern. The data transfers are exempt transactions because they involve access by a covered person to bulk personal financial data, but they are ordinarily incident to and part of U.S. consumers' purchase of goods.

(6) Example 6. A U.S. investment adviser purchases securities of a company incorporated in a country of concern for the accounts of its clients. The investment adviser engages a broker-dealer located in a country of concern to execute the trade, and, as ordinarily incident to and part of the transaction, transfers to the broker-dealer its clients' covered personal identifiers and financial account numbers in bulk. This provision of data is an exempt transaction because it involves access by a covered person to bulk personal financial data, but it is ordinarily incident to and part of the provision of investment-management services.

(7) Example 7. A U.S. company that provides payment-processing services sells bulk U.S. sensitive personal data to a covered person. This sale is prohibited data brokerage and is not an exempt transaction because it involves access by a covered person to bulk personal financial data and is not ordinarily incident to and part of the payment-processing services provided by the U.S. company.

(8) Example 8. A U.S. bank facilitates international funds transfers to foreign persons not related to a country of concern, but through intermediaries or locations subject to the jurisdiction or control of a country of concern. These transfers result in access to bulk financial records by some covered persons to complete the transfers and manage associated risks. Providing this access as part of these transfers is ordinarily incident to the provision of financial services and is exempt.

(9) Example 9. A U.S. insurance company underwrites personal insurance to U.S. persons residing in foreign countries in the same region as a country of concern. The insurance company relies on its own business infrastructure and personnel in the country of concern to support its financial activity in the region, which results in access to the bulk U.S. sensitive personal data of some U.S.-person customers residing in the region, to covered persons at the insurance company supporting these activities. Providing this access is ordinarily incident to the provision of financial services and is exempt.

(10) Example 10. A U.S. financial services provider operates a foreign branch in a country of concern and provides financial services to U.S. persons living within the country of concern. The financial services provider receives a lawful request from the regulator in the country of concern to review the financial activity conducted in the country, which includes providing access to the bulk U.S. sensitive personal data of U.S. persons resident in the country or U.S. persons conducting transactions through the foreign branch. The financial services provider is also subject to ongoing and routine reporting requirements from various regulators in the country of concern. Responding to the regulator's request, including providing access to this bulk U.S. sensitive personal data, is ordinarily incident to the provision of financial services and is exempt.

(11) Example 11. A U.S. bank voluntarily shares information, including relevant bulk U.S. sensitive personal data, with financial institutions organized under the laws of a country of concern for the purposes of, and consistent with industry practices for, fraud identification, combatting money laundering and terrorism financing, and U.S. sanctions compliance. Sharing this data for these purposes involves access by a covered person to bulk personal financial data, but is ordinarily incident to the provision of financial services and is exempt.

(12) Example 12. A U.S. company provides wealth-management services and collects bulk personal financial data on its U.S. clients. The U.S. company appoints a citizen of a country of concern, who is located in a country of concern, to its board of directors. In connection with the board's data security and cybersecurity responsibilities, the director could compel company personnel or influence company policies or practices to provide the director access to the underlying bulk personal financial data the company collects on its U.S. clients. The appointment of the director, who is a covered person, is a restricted employment agreement and is not exempt because the board member does not need to access, and in normal circumstances would not be able to access, the bulk financial data to perform his or her responsibilities. The board member's access to the bulk personal financial data is not ordinarily incident to the U.S. company's provision of wealth-management services.

§ 202.506 Corporate group transactions.

(a) Subparts C, D, J, and K (other than § 202.1102 and § 202.1104) of this part do not apply to data transactions to the extent they are:

(1) Between a U.S. person and its subsidiary or affiliate located in (or otherwise subject to the ownership, direction, jurisdiction, or control of) a country of concern; and

(2) Ordinarily incident to and part of administrative or ancillary business operations, including:

(i) Human resources;

(ii) Payroll, expense monitoring and reimbursement, and other corporate financial activities;

(iii) Paying business taxes or fees;

(iv) Obtaining business permits or licenses;

(v) Sharing data with auditors and law firms for regulatory compliance;

(vi) Risk management;

(vii) Business-related travel;

(viii) Customer support;

(ix) Employee benefits; and

(x) Employees' internal and external communications.

(b) Examples—(1) Example 1. A U.S. company has a foreign subsidiary located in a country of concern, and the U.S. company's U.S.-person contractors perform services for the foreign subsidiary. As ordinarily incident to and part of the foreign subsidiary's payments to the U.S.-person contractors for those services, the U.S. company engages in a data transaction that gives the subsidiary access to the U.S.-person contractors' bulk personal financial data and covered personal identifiers. This is an exempt corporate group transaction.

(2) Example 2. A U.S. company aggregates bulk personal financial data. The U.S. company has a subsidiary that is a covered person because it is headquartered in a country of concern. The subsidiary is subject to the country of concern's national security laws requiring it to cooperate with and assist the country's intelligence services. The exemption for corporate group transactions would not apply to the U.S. parent's grant of a license to the subsidiary to access the parent's databases containing the bulk personal financial data for the purpose of complying with a request or order by the country of concern under those national security laws to provide access to that data because granting of such a license is not ordinarily incident to and part of administrative or ancillary business operations.

(3) Example 3. A U.S. company's affiliate operates a manufacturing facility in a country of concern for one of the U.S. company's products. The affiliate uses employee fingerprints as part of security and identity verification to control access to that facility. To facilitate its U.S. employees' access to that facility as part of their job responsibilities, the U.S. company provides the fingerprints of those employees in bulk to its affiliate. The transaction is an exempt corporate group transaction.

(4) Example 4. A U.S. company has a foreign subsidiary located in a country of concern that conducts research and development for the U.S. company. The U.S. company sends bulk personal financial data to the subsidiary for the purpose of developing a financial software tool. The transaction is not an exempt corporate group transaction because it is not ordinarily incident to and part of administrative or ancillary business operations.

(5) Example 5. Same as Example 4, but the U.S. company has a foreign branch located in a country of concern instead of a foreign subsidiary. Because the foreign branch is a U.S. person as part of the U.S. company, the transaction occurs within the same U.S. person and is not subject to the prohibitions or restrictions. If the foreign branch allows employees who are covered persons to access the bulk personal financial data to develop the financial software tool, the foreign branch has engaged in restricted transactions.

(6) Example 6. A U.S. financial services provider has a subsidiary located in a country of concern. Customers of the U.S. company conduct financial transactions in the country of concern, and customers of the foreign subsidiary conduct financial transactions in the United States. To perform customer service functions related to these financial transactions, the foreign subsidiary accesses bulk U.S. sensitive personal data—specifically, personal financial data. The corporate group transactions exemption would apply to the foreign subsidiary's access to the personal financial data under these circumstances because it is ordinarily incident to and part of the provision of customer support. The foreign subsidiary's access to the personal financial data would also be covered by the financial services exemption.

§ 202.507 Transactions required or authorized by Federal law or international agreements, or necessary for compliance with Federal law.

(a) Required or authorized by Federal law or international agreements. Subparts C, D, J, and K (other than § 202.1102 and § 202.1104) of this part do not apply to data transactions to the extent they are required or authorized by Federal law or pursuant to an international agreement to which the United States is a party, including relevant provisions in the following:

(1) Annex 9 to the Convention on International Civil Aviation, International Civil Aviation Organization Doc. 7300 (2022);

(2) Section 2 of the Convention on Facilitation of International Maritime Traffic (1965);

(3) Articles 1, 12, 14, and 16 of the Postal Payment Services Agreement (2021);

(4) Articles 63, 64, and 65 of the Constitution of the World Health Organization (1946);

(5) Article 2 of the Agreement Between the Government of the United States of America and the Government of the People's Republic of China Regarding Mutual Assistance in Customs Matters (1999);

(6) Article 7 of the Agreement Between the Government of the United States of America and the Government of the People's Republic of China on Mutual Legal Assistance in Criminal Matters (2000);

(7) Article 25 of the Agreement Between the Government of the United States of America and the Government of the People's Republic of China for the Avoidance of Double Taxation and the Prevention of Tax Evasion with Respect to Taxes on Income (1987);

(8) Article 2 of the Agreement Between the United States of America and the Macao Special Administrative Region of the People's Republic of China for Cooperation to Facilitate the Implementation of FATCA (2021);

(9) The Agreement between the Government of the United States and the Government of the People's Republic of China on Cooperation in Science and Technology (1979), as amended and extended;

(10) Articles II, III, VII of the Protocol to Extend and Amend the Agreement Between the Department of Health and Human Services of the United States of America and the National Health and Family Planning Commission of the People's Republic of China for Cooperation in the Science and Technology of Medicine and Public Health (2013);

(11) Article III of the Treaty Between the United States and Cuba for the Mutual Extradition of Fugitives from Justice (1905);

(12) Articles 3, 4, 5, 7 of the Agreement Between the Government of the United States of America and the Government of the Russian Federation on Cooperation and Mutual Assistance in Customs Matters (1994);

(13) Articles 1, 2, 5, 7, 13, and 16 of the Treaty Between the United States of America and the Russian Federation on Mutual Legal Assistance in Criminal Matters (1999);

(14) Articles I, IV, IX, XV, and XVI of the Treaty Between the Government of the United States of America and the Government of the Republic of Venezuela on Mutual Legal Assistance in Criminal Matters (1997); and

(15) Articles 5, 6, 7, 9, 11, 19, 35, and 45 of the International Health Regulations (2005).

(b) Global health and pandemic preparedness. Subparts C and D of this part do not apply to data transactions to the extent they are required or authorized by the following:

(1) The Pandemic Influenza Preparedness and Response Framework; and

(2) The Global Influenza Surveillance and Response System.

(c) Compliance with Federal law. Subparts C and D of this part do not apply to data transactions to the extent that they are ordinarily incident to and part of ensuring compliance with any Federal laws and regulations, including the Bank Secrecy Act, 12 U.S.C. 1829b, 1951 through 1960, 31 U.S.C. 310, 5311 through 5314, 5316 through 5336; the Securities Act of 1933, 15 U.S.C. 77a et seq.; the Securities Exchange Act of 1934, 15 U.S.C. 78a et seq.; the Investment Company Act of 1940, 15 U.S.C. 80a-1 et seq.; the Investment Advisers Act of 1940, 15 U.S.C. 80b-1 et seq.; the International Emergency Economic Powers Act, 50 U.S.C. 1701 et seq.; the Export Administration Regulations, 15 CFR 730 et seq.; or any notes, guidance, orders, directives, or additional regulations related thereto.

(d) Examples—(1) Example 1. A U.S. bank or other financial institution engages in a covered data transaction with a covered person that is ordinarily incident to and part of ensuring compliance with U.S. laws and regulations (such as OFAC sanctions and anti-money laundering programs required by the Bank Secrecy Act). This is an exempt transaction.

(2) [Reserved]

§ 202.508 Investment agreements subject to a CFIUS action.

(a) Exemption. Subparts C, D, J, and K (other than § 202.1102 and § 202.1104) of this part do not apply to data transactions to the extent that they involve an investment agreement that is subject to a CFIUS action.

(b) Examples—(1) Example 1. A U.S. software provider is acquired in a CFIUS covered transaction by a foreign entity in which the transaction parties sign a mitigation agreement with CFIUS. The agreement has provisions governing the acquirer's ability to access the data of the U.S. software provider and their customers. The mitigation agreement contains a provision stating that it is a CFIUS action for purposes of this part. Before the effective date of the CFIUS mitigation agreement, the investment agreement is not subject to a CFIUS action and remains subject to these regulations to the extent otherwise applicable. Beginning on the effective date of the CFIUS mitigation agreement, the investment agreement is subject to a CFIUS action and exempt from this part.

(2) Example 2. Same as Example 1, but CFIUS issues an interim order before entering a mitigation agreement. The interim order states that it constitutes a CFIUS action for purposes of this part. Before the effective date of the interim order, the investment agreement is not subject to a CFIUS action and remains subject to these regulations to the extent otherwise applicable. Beginning on the effective date of the interim order, the investment agreement is subject to a CFIUS action and is exempt from this part. The mitigation agreement also states that it constitutes a CFIUS action for purposes of this part. After the effective date of the mitigation agreement, the investment agreement remains subject to a CFIUS action and is exempt from this part.

(3) Example 3. A U.S. biotechnology company is acquired by a foreign multinational corporation. CFIUS reviews this acquisition and concludes action without mitigation. This acquisition is not subject to a CFIUS action, and the acquisition remains subject to this part to the extent otherwise applicable.

(4) Example 4. A U.S. manufacturer is acquired by a foreign owner in which the transaction parties sign a mitigation agreement with CFIUS. The mitigation agreement provides for supply assurances and physical access restrictions but does not address data security, and it does not contain a provision explicitly designating that it is a CFIUS action. This acquisition is not subject to a CFIUS action, and the acquisition remains subject to this part to the extent otherwise applicable.

(5) Example 5. As a result of CFIUS's review and investigation of a U.S. human genomic company's acquisition by a foreign healthcare company, CFIUS refers the transaction to the President with a recommendation to require the foreign acquirer to divest its interest in the U.S. company. The President issues an order prohibiting the transaction and requiring divestment of the foreign healthcare company's interests and rights in the human genomic company. The presidential order itself does not constitute a CFIUS action. Unless CFIUS takes action, such as by entering into an agreement or imposing conditions to address risk prior to completion of the divestment, the transaction remains subject to this part to the extent otherwise applicable for as long as the investment agreement remains in existence following the presidential order and prior to divestment.

(6) Example 6. A U.S. healthcare company and foreign acquirer announce a transaction that they believe will be subject to CFIUS jurisdiction and disclose that they intend to file a joint voluntary notice soon. No CFIUS action has occurred yet, and the transaction remains subject to this part to the extent otherwise applicable.

(7) Example 7. Same as Example 6, but the transaction parties file a joint voluntary notice with CFIUS. No CFIUS action has occurred yet, and the transaction remains subject to this part to the extent otherwise applicable.

(8) Example 8. Company A, a covered person, acquires 100% of the equity and voting interest of Company B, a U.S. business that maintains bulk U.S. sensitive personal data of U.S. persons. After completing the transaction, the parties fail to implement the security requirements and other conditions required under this part. Company A and Company B later submit a joint voluntary notice to CFIUS with respect to the transaction. Upon accepting the notice, CFIUS determines that the transaction is a covered transaction and takes measures to mitigate interim risk that may arise as a result of the transaction until such time that the Committee has completed action, pursuant to 50 U.S.C. 4565(l)(3)(A)(iii). The interim order states that it constitutes a CFIUS action for purposes of this part. Beginning on the effective date of these measures imposed by the interim order, the security requirements and other applicable conditions under this part no longer apply to the transaction. The Department of Justice, however, may take enforcement action under this part, in coordination with CFIUS, with respect to the violations that occurred before the effective date of the interim order issued by CFIUS.

(9) Example 9. Same as Example 8, but before engaging in the investment agreement for the acquisition, Company A and Company B submit the joint voluntary notice to CFIUS, CFIUS determines that the transaction is a CFIUS covered transaction, CFIUS identifies a risk related to data security arising from the transaction, and CFIUS negotiates and enters into a mitigation agreement with the parties to resolve that risk. The mitigation agreement contains a provision stating that it is a CFIUS action for purposes of this part. Because a CFIUS action has occurred before the parties engage in the investment agreement, the acquisition is exempt from this part.

(10) Example 10. Same as Example 8, but before engaging in the investment agreement for the acquisition, the parties implement the security requirements and other conditions required under these regulations. Company A and Company B then submit a joint voluntary notice to CFIUS, which determines that the transaction is a CFIUS covered transaction. CFIUS identifies a risk related to data security arising from the transaction but determines that the regulations in this part adequately resolve the risk. CFIUS concludes action with respect to the transaction without taking any CFIUS action. Because no CFIUS action has occurred, the transaction remains subject to this part.

(11) Example 11. Same facts as Example 10, but CFIUS determines that the security requirements and other conditions applicable under this part are inadequate to resolve the national security risk identified by CFIUS. CFIUS negotiates a mitigation agreement with the parties to resolve the risk, which contains a provision stating that it is a CFIUS action for purposes of this part. The transaction is exempt from this part beginning on the effective date of the CFIUS mitigation agreement.

§ 202.509 Telecommunications services.

(a) Exemption. Subparts C, D, J, and K (other than § 202.1102 and § 202.1104) of this part do not apply to data transactions, other than those involving data brokerage, to the extent that they are ordinarily incident to and part of the provision of telecommunications services.

(b) Examples—(1) Example 1. A U.S. telecommunications service provider collects covered personal identifiers from its U.S. subscribers. Some of those subscribers travel to a country of concern and use their mobile phone service under an international roaming agreement. The local telecommunications service provider in the country of concern shares these covered personal identifiers with the U.S. service provider for the purposes of either helping provision service to the U.S. subscriber or receiving payment for the U.S. subscriber's use of the country of concern service provider's network under that international roaming agreement. The U.S. service provider provides the country of concern service provider with network or device information for the purpose of provisioning services and obtaining payment for its subscribers' use of the local telecommunications service provider's network. Over the course of 12 months, the volume of network or device information shared by the U.S. service provider with the country of concern service provider for the purpose of provisioning services exceeds the applicable bulk threshold. These transfers of bulk U.S. sensitive personal data are ordinarily incident to and part of the provision of telecommunications services and are thus exempt transactions.

(2) Example 2. A U.S. telecommunications service provider collects precise geolocation data on its U.S. subscribers. The U.S. telecommunications service provider sells this precise geolocation data in bulk to a covered person for the purpose of targeted advertising. This sale is not ordinarily incident to and part of the provision of telecommunications services and remains a prohibited transaction.

§ 202.510 Drug, biological product, and medical device authorizations.

(a) Exemption. Except as specified in paragraph (a)(2) of this section, subparts C, D, J, and K (other than § 202.1102 and § 202.1104) of this part do not apply to a data transaction that

(1) Involves “regulatory approval data” as defined in paragraph (b) of this section and

(2) Is necessary to obtain or maintain regulatory authorization or approval to research or market a drug, biological product, device, or a combination product, provided that the U.S. person complies with the recordkeeping and reporting requirements set forth in §§ 202.1101(a) and 202.1102 with respect to such transaction.

(b) Regulatory approval data. For purposes of this section, the term regulatory approval data means sensitive personal data that is de-identified or pseudonymized consistent with the standards of 21 CFR 314.80 and that is required to be submitted to a regulatory entity, or is required by a regulatory entity to be submitted to a covered person, to obtain or maintain authorization or approval to research or market a drug, biological product, device, or combination product, including in relation to post-marketing studies and post-marketing product surveillance activities, and supplemental product applications for additional uses. The term excludes sensitive personal data not reasonably necessary for a regulatory entity to assess the safety and effectiveness of the drug, biological product, device, or combination product.

(c) Other terms. For purposes of this section, the terms “drug,” “biological product,” “device,” and “combination product” have the meanings given to them in 21 U.S.C. 321(g)(1), 42 U.S.C. 262(i)(1), 21 U.S.C. 321(h)(1), and 21 CFR 3.2(e), respectively.

(d) Examples—(1) Example 1. A U.S. pharmaceutical company seeks to market a new drug in a country of concern. The company submits a marketing application to the regulatory entity in the country of concern with authority to approve the drug in the country of concern. The marketing application includes the safety and effectiveness data reasonably necessary to obtain regulatory approval in that country. The transfer of data to the country of concern's regulatory entity is exempt from the prohibitions in this part.

(2) Example 2. Same as Example 1, except the regulatory entity in the country of concern requires that the data be de-anonymized. The transfer of data is not exempt under this section, because the data includes sensitive personal data that is identified to an individual.

(3) Example 3. Same as Example 1, except country of concern law requires foreign pharmaceutical companies to submit regulatory approval data using (1) a registered agent who primarily resides in the country of concern, (2) a country of concern incorporated subsidiary, or (3) an employee located in a country of concern. The U.S. pharmaceutical company enters into a vendor agreement with a registered agent in the country of concern to submit the regulatory approval data to the country of concern regulator. The U.S. pharmaceutical company provides to the registered agent only the regulatory approval data the U.S. pharmaceutical company intends the registered agent to submit to the country of concern regulator. The transaction with the registered agent is exempt, because it is necessary to obtain approval to market the drug in a country of concern. The U.S. pharmaceutical company must comply with the recordkeeping and reporting requirements set forth in §§ 202.1101(a) and 202.1102 with respect to such transaction, however.

(4) Example 4. Same as Example 1, except the U.S. company enters a vendor agreement with a covered person located in the country of concern to store and organize the bulk U.S. sensitive personal data for eventual submission to the country of concern regulator. Country of concern law does not require foreign pharmaceutical companies to enter into such vendor agreements. The transaction is not exempt under this section, because the use of a covered person to store and organize the bulk U.S. sensitive personal data for the company's regulatory submission is not necessary to obtain regulatory approval.

(5) Example 5. A U.S. pharmaceutical company has obtained regulatory approval to market a new drug in a country of concern. The country of concern regulator requires the U.S. pharmaceutical company to submit de-identified sensitive personal data collected as part of the company's post-marketing product surveillance activities to assess the safety and efficacy of the drug to the country of concern regulator via a country of concern registered agent to maintain the U.S. pharmaceutical company's authorization to market the drug. Sharing the de-identified sensitive personal data with the country of concern regulator via the country of concern registered agent to maintain marketing authorization is exempt from the prohibitions and restrictions in subparts C and D of this part.

(6) Example 6. A U.S. medical device manufacturer provides de-identified bulk U.S. personal health data to a country of concern regulator to obtain authorization to research the safety and effectiveness of a medical device in the country of concern. Country of concern law requires medical device manufacturers to conduct such safety research to obtain regulatory approval to market a new device. The prohibitions and restrictions of subparts C and D of this part do not apply to the de-identified regulatory approval data submitted to the country of concern regulator to obtain authorization to research the device's safety and effectiveness.

§ 202.511 Other clinical investigations and post-marketing surveillance data.

(a) Exemption. Subparts C, D, J, and K (other than § 202.1102 and § 202.1104) of this part do not apply to data transactions to the extent that those transactions are:

(1) Ordinarily incident to and part of clinical investigations regulated by the U.S. Food and Drug Administration (“FDA”) under sections 505(i) and 520(g) of the Federal Food, Drug, and Cosmetic Act (“FD&C Act”) or clinical investigations that support applications to the FDA for research or marketing permits for drugs, biological products, devices, combination products, or infant formula; or

(2) Ordinarily incident to and part of the collection or processing of clinical care data indicating real-world performance or safety of products, or the collection or processing of post-marketing surveillance data (including pharmacovigilance and post-marketing safety monitoring), and necessary to support or maintain authorization by the FDA, provided the data is de-identified or pseudonymized consistent with the standards of 21 CFR 314.80.

(b) Other terms. For purposes of this section, the terms “drug,” “biological product,” “device,” “combination product,” and “infant formula” have the meanings given to them in 21 U.S.C. 321(g)(1), 42 U.S.C. 262(i)(1), 21 U.S.C. 321(h)(1), 21 CFR 3.2(e), and 21 U.S.C. 321(z) respectively.

§ 202.601 Determination of countries of concern.

(a) Countries of concern. Solely for purposes of the Order and this part, the Attorney General has determined, with the concurrence of the Secretaries of State and Commerce, that the following foreign governments have engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of U.S. persons and pose a significant risk of exploiting government-related data or bulk U.S. sensitive personal data to the detriment of the national security of the United States or security and safety of U.S. persons:

(1) China;

(2) Cuba;

(3) Iran;

(4) North Korea;

(5) Russia; and

(6) Venezuela.

(b) Effective date of amendments. Any amendment to the list of countries of concern will apply to any covered data transaction that is initiated, pending, or completed on or after the effective date of the amendment.

§ 202.701 Designation of covered persons.

(a) Designations. The Attorney General may designate any person as a covered person for purposes of this part if, after consultation with the Department of State and any other agencies as the Attorney General deems appropriate, the Attorney General determines the person meets any of the criteria set forth in § 202.211(a)(5) of this part.

(b) Information considered. In determining whether to designate a person as a covered person, the Attorney General may consider any information or material the Attorney General deems relevant and appropriate, classified or unclassified, from any Federal department or agency or from any other source.

(c) Covered Persons List. The names of persons designated as a covered person for purposes of this part, transactions with whom are prohibited or restricted pursuant to this part, are published in the Federal Register and incorporated into the National Security Division's Covered Persons List. The Covered Persons List is accessible through the following page on the National Security Division's website at https://www.justice.gov/nsd.

(d) Non-exhaustive. The list of designated covered persons described in this section is not exhaustive of all covered persons and supplements the categories in the definition of covered persons in § 202.211.

(e) Effective date; actual and constructive knowledge. (1) Designation as a covered person will be effective from the date of any public announcement by the Department. Except as otherwise authorized in this part, a U.S. person with actual knowledge of a designated person's status is prohibited from knowingly engaging in a covered data transaction with that person on or after the date of the Department's public announcement.

(2) Publication in the Federal Register is deemed to provide constructive knowledge of a person's status as a covered person.

§ 202.702 Procedures governing removal from the Covered Persons List.

(a) Requests for removal from the Covered Persons List. A person may petition to seek administrative reconsideration of their designation, or may assert that the circumstances resulting in the designation no longer apply, and thus seek to be removed from the Covered Persons List pursuant to the following administrative procedures:

(b) Content of requests. A covered person designated under paragraph (a) of this section may submit arguments or evidence that the person believes establish that insufficient basis exists for the designation. Such a person also may propose remedial steps on the person's part, such as corporate reorganization, resignation of persons from positions in a listed entity, or similar steps, that the person believes would negate the basis for designation.

(c) Additional content; form and method of submission. Requests for removal from the Covered Persons List must be submitted in accordance with this section and with subpart L of this part.

(d) Requests for more information. The information submitted by the listed person seeking removal will be reviewed by the Attorney General, who may request clarifying, corroborating, or other additional information.

(e) Meetings. A person seeking removal may request a meeting with the Attorney General; however, such meetings are not required, and the Attorney General may, in the Attorney General's discretion, decline to conduct such a meeting prior to completing a review pursuant to this section.

(f) Decisions. After the Attorney General has conducted a review of the request for removal, and after consultation with other agencies as the Attorney General deems appropriate, the Attorney General will provide a written decision to the person seeking removal. A covered person's status as a covered person—including its associated prohibitions and restrictions under this part—remains in effect during the pendency of any request to be removed from the Covered Persons List.

§ 202.801 General licenses.

(a) General course of procedure. The Department may, as appropriate, issue general licenses to authorize, under appropriate terms and conditions, transactions that are subject to the prohibitions or restrictions in this part. In determining whether to issue a general license, the Attorney General may consider any information or material the Attorney General deems relevant and appropriate, classified or unclassified, from any Federal department or agency or from any other source.

(b) Relationship with specific licenses. It is the policy of the Department not to grant applications for specific licenses authorizing transactions to which the provisions of a general license are applicable.

(c) Reports. Persons availing themselves of certain general licenses may be required to file reports and statements in accordance with the instructions specified in those licenses, this part or the Order. Failure to file timely all required information in such reports or statements may nullify the authorization otherwise provided by the general license and result in apparent violations of the applicable prohibitions that may be subject to enforcement action.

§ 202.802 Specific licenses.

(a) General course of procedure. Transactions subject to the prohibitions or restrictions in this part or the Order, and that are not otherwise permitted under this part or a general license, may be permitted only under a specific license, under appropriate terms and conditions.

(b) Content of applications for specific licenses. Applications for specific licenses shall include, at a minimum, a description of the nature of the transaction, including each of the following requirements:

(1) The types and volumes of government-related data or bulk U.S. sensitive personal data involved in the transactions;

(2) The identity of the transaction parties, including any ownership of entities or citizenship or primary residence of individuals;

(3) The end-use of the data and the method of data transfer; and

(4) Any other information that the Attorney General may require.

(c) Additional content; form and method of submissions. Requests for specific licenses must be submitted in accordance with this section and with subpart L of this part.

(d) Additional conditions. Applicants should submit only one copy of a specific license application to the Department; submitting multiple copies may result in processing delays. Any person having an interest in a transaction or proposed transaction may file an application for a specific license authorizing such a transaction.

(e) Further information to be supplied. Applicants may be required to furnish such further information as the Department deems necessary to assist in making a determination. Any applicant or other party-in-interest desiring to present additional information concerning a specific license application may do so at any time before or after the Department makes its decision with respect to the application. In unique circumstances, the Department may determine, in its discretion, that an oral presentation regarding a license application would assist in the Department's review of the issues involved. Any requests to make such an oral presentation must be submitted electronically by emailing the National Security Division at NSD.FIRS.datasecurity@usdoj.gov or using another official method to make such requests, in accordance with any instructions on the National Security Division's website.

(f) Decisions. In determining whether to issue a specific license, the Attorney General may consider any information or material the Attorney General deems relevant and appropriate, classified or unclassified, from any Federal department or agency or from any other source. The Department will advise each applicant of the decision respecting the applicant's filed application. The Department's decision with respect to a license application shall constitute final agency action.

(g) Time to issuance. The Department shall endeavor to respond to any request for a specific license within 45 days after receipt of the request and of any requested additional information and documents.

(h) Scope. (1) Unless otherwise specified in the license, a specific license authorizes the transaction:

(i) Only between the parties identified in the license;

(ii) Only with respect to the data described in the license; and

(iii) Only to the extent the conditions specified in the license are satisfied. The applicant must inform any other parties identified in the license of the license's scope and of the specific conditions applicable to them.

(2) The Department will determine whether to grant specific licenses in reliance on representations the applicant made or submitted in connection with the license application, letters of explanation, and other documents submitted. Any license obtained based on a false or misleading representation in the license application, in any document submitted in connection with the license application, or during an oral presentation under this section shall be deemed void as of the date of issuance.

(i) Reports under specific licenses. As a condition for the issuance of any specific license, the licensee may be required to file reports or statements with respect to the transaction or transactions authorized by the specific license in such form and at such times as may be prescribed in the license. Failure to file timely all required information in such reports or statements may nullify the authorization otherwise provided by the specific license and result in apparent violations of the applicable prohibitions that may be subject to enforcement action.

(j) Effect of denial. The denial of a specific license does not preclude the reconsideration of an application or the filing of a further application. The applicant or any other party-in-interest may at any time request, by written correspondence, reconsideration of the denial of an application based on new facts or changed circumstances.

§ 202.803 General provisions.

(a) Effect of license. (1) No license issued under this subpart H, or otherwise issued by the Department, authorizes or validates any transaction effected prior to the issuance of such license or other authorization, unless specifically provided for in such license or authorization.

(2) No license issued under this subpart H authorizes or validates any transaction prohibited under or subject to this part unless the license is properly issued by the Department and specifically refers to this part.

(3) Any license authorizing or validating any transaction that is prohibited under or otherwise subject to this part has the effect of removing or amending those prohibitions or other requirements from the transaction, but only to the extent specifically stated by the terms of the license. Unless the license otherwise specifies, such an authorization does not create any right, duty, obligation, claim, or interest in, or with respect to, any property that would not otherwise exist under ordinary principles of law.

(4) Nothing contained in this part shall be construed to supersede the requirements established under any other provision of law or to relieve a person from any requirement to obtain a license or authorization from another department or agency of the United States Government in compliance with applicable laws and regulations subject to the jurisdiction of that department or agency. For example, issuance of a specific license authorizing a transaction otherwise prohibited by this part does not operate as a license or authorization to conclude the transaction that is otherwise required from the U.S. Department of Commerce, U.S. Department of State, U.S. Department of the Treasury, or any other department or agency of the United States Government.

(b) Amendment, modification, or rescission. Except as otherwise provided by law, any licenses (whether general or specific), authorizations, instructions, or forms issued thereunder may be amended, modified, or rescinded at any time.

(c) Consultation. The Department will issue, amend, modify, or rescind a general or specific license in concurrence with the Departments of State, Commerce, and Homeland Security and in consultation with other relevant agencies.

(d) Exclusion from licenses and other authorizations. The Attorney General reserves the right to exclude any person, property, or transaction from the operation of any license or from the privileges conferred by any license. The Attorney General also reserves the right to restrict the applicability of any license to particular persons, property, transactions, or classes thereof. Such actions are binding upon all persons receiving actual or constructive notice of the exclusions or restrictions.

§ 202.901 Inquiries concerning application of this part.

(a) General. Any U.S. person party to a transaction potentially regulated under the Order and this part, or an agent of the party to such a transaction on the party's behalf, may request from the Attorney General a statement of the present enforcement intentions of the Department of Justice under the Order with respect to that transaction that may be subject to the prohibitions or restrictions in the Order and this part (“advisory opinion”).

(b) Anonymous, hypothetical, non-party and ex post facto review requests excluded. The entire transaction that is the subject of the advisory opinion request must be an actual, as opposed to hypothetical, transaction and involve disclosed, as opposed to anonymous, parties to the transaction. Advisory opinion requests must be submitted by a U.S. person party to the transaction or that party's agent and have no application to a party that does not join the request. The transaction need not involve only prospective conduct, but an advisory opinion request will not be considered unless that portion of the transaction for which an opinion is sought involves only prospective conduct.

(c) Contents. Each advisory opinion request shall be specific and must be accompanied by all material information bearing on the conduct for which an advisory opinion is requested, and on the circumstances of the prospective conduct, including background information, complete copies of any and all operative documents, and detailed statements of all collateral or oral understandings, if any. Each request must include, at a minimum:

(1) The identities of the transaction parties, including any ownership of entities or citizenship or primary residence of individuals;

(2) A description of the nature of the transaction, including the types and volumes of government-related data or bulk U.S. sensitive personal data involved in the transaction, the end-use of the data, the method of data transfer, and any restrictions or requirements related to a party's right or ability to control, access, disseminate, or dispose of the data; and

(3) Any potential basis for exempting or excluding the transaction from the prohibitions or restrictions imposed in the Order and this part.

(d) Additional contents; format and method of submissions. Requests for advisory opinions must be submitted in accordance with this section and with subpart L of this part.

(e) Further information to be supplied. Each party shall provide any additional information or documents that the Department of Justice may thereafter request in its review of the matter. Any information furnished orally shall be confirmed promptly in writing; signed by or on behalf of the party that submitted the initial review request; and certified to be a true, correct, and complete disclosure of the requested information. A request will not be deemed complete until the Department of Justice receives such additional information. In connection with an advisory opinion request, the Department of Justice may conduct any independent investigation it believes appropriate.

(f) Outcomes. After submission of an advisory opinion request, the Department, in its discretion, may state its present enforcement intention under the Order and this part with respect to the proposed conduct; may decline to state its present enforcement intention; or, if circumstances warrant, may take such other position or initiate such other action as it considers appropriate. Any requesting party or parties may withdraw a request at any time prior to issuance of an advisory opinion. The Department remains free, however, to submit such comments to the requesting party or parties as it deems appropriate. Failure to take action after receipt of a request, documents, or information, whether submitted pursuant to this procedure or otherwise, shall not in any way limit or stop the Department from taking any action at such time thereafter as it deems appropriate. The Department reserves the right to retain any advisory opinion request, document, or information submitted to it under this procedure or otherwise, to disclose any advisory opinion and advisory opinion request, including the identities of the requesting party and foreign parties to the transaction, the general nature and circumstances of the proposed conduct, and the action of the Department in response to any advisory opinion request, consistent with applicable law, and to use any such request, document, or information for any governmental purpose.

(g) Time for response. The Department shall endeavor to respond to any advisory opinion request within 30 days after receipt of the request and of any requested additional information and documents.

(h) Written decisions only. The requesting party or parties may rely only upon a written advisory opinion signed by the Attorney General.

(i) Effect of advisory opinion. Each advisory opinion can be relied upon by the requesting party or parties to the extent the disclosures made pursuant to this subpart I were accurate and complete and to the extent the disclosures continue accurately and completely to reflect circumstances after the date of the issuance of the advisory opinion. An advisory opinion will not restrict enforcement actions by any agency other than the Department of Justice. It will not affect a requesting party's obligations to any other agency or under any statutory or regulatory provision other than those specifically discussed in the advisory opinion.

(j) Amendment or revocation of advisory opinion. An advisory opinion may be amended or revoked at any time after it has been issued. Notice of such will be given in the same manner as notice of the advisory opinion was originally given or in the Federal Register. Whenever possible, a notice of amendment or revocation will state when the Department will consider a party's reliance on the superseded advisory opinion to be unreasonable, and any transition period that may be applicable.

(k) Compliance. Neither the submission of an advisory opinion request, nor its pendency, shall in any way alter the responsibility or obligation of a requesting party to comply with the Order, this part, or any other applicable law.

§ 202.1001 Due diligence for restricted transactions.

(a) Data compliance program. By no later than October 6, 2025, U.S. persons engaging in any restricted transactions shall develop and implement a data compliance program.

(b) Requirements. The data compliance program shall include, at a minimum, each of the following requirements:

(1) Risk-based procedures for verifying data flows involved in any restricted transaction, including procedures to verify and log, in an auditable manner, the following:

(i) The types and volumes of government-related data or bulk U.S. sensitive personal data involved in the transaction;

(ii) The identity of the transaction parties, including any ownership of entities or citizenship or primary residence of individuals; and

(iii) The end-use of the data and the method of data transfer;

(2) For restricted transactions that involve vendors, risk-based procedures for verifying the identity of vendors;

(3) A written policy that describes the data compliance program and that is annually certified by an officer, executive, or other employee responsible for compliance;

(4) A written policy that describes the implementation of the security requirements as defined in § 202.248 and that is annually certified by an officer, executive, or other employee responsible for compliance; and

(5) Any other information that the Attorney General may require.

§ 202.1002 Audits for restricted transactions.

(a) Audit required. U.S. persons that, on or after October 6, 2025, engage in any restricted transactions under § 202.401 shall conduct an audit that complies with the requirements of this section.

(b) Who may conduct the audit. The auditor:

(1) Must be qualified and competent to examine, verify, and attest to the U.S. person's compliance with and the effectiveness of the security requirements, as defined in § 202.248, and all other applicable requirements, as defined in § 202.401, implemented for restricted transactions;

(2) Must be independent; and

(3) Cannot be a covered person or a country of concern.

(c) When required. The audit must be performed once for each calendar year in which the U.S. person engages in any restricted transactions.

(d) Timeframe. The audit must cover the preceding 12 months.

(e) Scope. The audit must:

(1) Examine the U.S. person's restricted transactions;

(2) Examine the U.S. person's data compliance program required under § 202.1001 and its implementation;

(3) Examine relevant records required under § 202.1101;

(4) Examine the U.S. person's security requirements, as defined by § 202.248; and

(5) Use a reliable methodology to conduct the audit.

(f) Report. (1) The auditor must prepare and submit a written report to the U.S. person within 60 days of the completion of the audit.

(2) The audit report must:

(i) Describe the nature of any restricted transactions engaged in by the U.S. person;

(ii) Describe the methodology undertaken, including the relevant policies and other documents reviewed, relevant personnel interviewed, and any relevant facilities, equipment, networks, or systems examined;

(iii) Describe the effectiveness of the U.S. person's data compliance program and its implementation;

(iv) Describe any vulnerabilities or deficiencies in the implementation of the security requirements that have affected or could affect the risk of access to government-related data or bulk U.S. sensitive personal data by a country of concern or covered person;

(v) Describe any instances in which the security requirements failed or were otherwise not effective in mitigating the risk of access to government-related data or bulk U.S. sensitive personal data by a country of concern or covered person; and

(vi) Recommend any improvements or changes to policies, practices, or other aspects of the U.S. person's business to ensure compliance with the security requirements.

(3) U.S. persons engaged in restricted transactions must retain the audit report for a period of at least 10 years, consistent with the recordkeeping requirements in § 202.1101.

§ 202.1101 Records and recordkeeping requirements.

(a) Records. Except as otherwise provided, U.S. persons engaging in any transaction subject to the provisions of this part shall keep a full and accurate record of each such transaction engaged in, and such record shall be available for examination for at least 10 years after the date of such transaction.

(b) Additional recordkeeping requirements. U.S. persons engaging in any restricted transaction shall create and maintain, at a minimum, the following records in an auditable manner:

(1) A written policy that describes the data compliance program and that is certified annually by an officer, executive, or other employee responsible for compliance;

(2) A written policy that describes the implementation of any applicable security requirements as defined in § 202.248 and that is certified annually by an officer, executive, or other employee responsible for compliance;

(3) The results of any annual audits that verify the U.S. person's compliance with the security requirements and any conditions on a license;

(4) Documentation of the due diligence conducted to verify the data flow involved in any restricted transaction, including:

(i) The types and volumes of government-related data or bulk U.S. sensitive personal data involved in the transaction;

(ii) The identity of the transaction parties, including any direct and indirect ownership of entities or citizenship or primary residence of individuals; and

(iii) A description of the end-use of the data;

(5) Documentation of the method of data transfer;

(6) Documentation of the dates the transaction began and ended;

(7) Copies of any agreements associated with the transaction;

(8) Copies of any relevant licenses or advisory opinions;

(9) The document reference number for any original document issued by the Attorney General, such as a license or advisory opinion;

(10) A copy of any relevant documentation received or created in connection with the transaction; and

(11) An annual certification by an officer, executive, or other employee responsible for compliance of the completeness and accuracy of the records documenting due diligence.

§ 202.1102 Reports to be furnished on demand.

(a) Reports. Every person is required to furnish under oath, in the form of reports or otherwise, from time to time and at any time as may be required by the Department of Justice, complete information relative to any act or transaction or covered data transaction, regardless of whether such act, transaction, or covered data transaction is effected pursuant to a license or otherwise, subject to the provisions of this part and except as otherwise prohibited by Federal law. The Department of Justice may require that such reports include the production of any books, contracts, letters, papers, or other hard copy or electronic documents relating to any such act, transaction, or covered data transaction, in the custody or control of the persons required to make such reports. Reports may be required either before, during, or after such acts, transactions, or covered data transactions. The Department of Justice may, through any person or agency, conduct investigations, hold hearings, administer oaths, examine witnesses, receive evidence, take depositions, and require by subpoena the attendance and testimony of witnesses and the production of any books, contracts, letters, papers, and other hard copy or electronic documents relating to any matter under investigation, regardless of whether any report has been required or filed in connection therewith.

(b) Definition of the term “document.” For purposes of paragraph (a) of this section, the term document includes any written, recorded, or graphic matter or other means of preserving thought or expression (including in electronic format), and all tangible things stored in any medium from which information can be processed, transcribed, or obtained directly or indirectly, including correspondence, memoranda, notes, messages, contemporaneous communications such as text and instant messages, letters, emails, spreadsheets, metadata, contracts, bulletins, diaries, chronological data, minutes, books, reports, examinations, charts, ledgers, books of account, invoices, air waybills, bills of lading, worksheets, receipts, printouts, papers, schedules, affidavits, presentations, transcripts, surveys, graphic representations of any kind, drawings, photographs, graphs, video or sound recordings, and motion pictures or other film.

(c) Format. Persons providing documents to the Department of Justice pursuant to this section must produce documents in a usable format agreed upon by the Department of Justice. For guidance, see the Department of Justice's data delivery standards available on the National Security Division's website at https://www.justice.gov/nsd.

§ 202.1103 Annual reports.

(a) Who must report. An annual report must be filed, except as otherwise prohibited by Federal law, by any U.S. person that, on or after October 6, 2025, is engaged in a restricted transaction involving cloud-computing services, and that has 25% or more of the U.S. person's equity interests owned (directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise) by a country of concern or covered person.

(b) Primary responsibility to report. A report may be filed on behalf of a U.S. person engaging in the data transaction described in § 202.1103(a) by an attorney, agent, or other person. Primary responsibility for reporting, however, rests with the actual U.S. person engaging in the data transaction. No U.S. person is excused from filing a report by reason of the fact that another U.S. person has submitted a report with regard to the same data transaction, except where the U.S. person has actual knowledge that the other U.S. person filed the report.

(c) When reports are due. A report on the data transactions described in § 202.1103(a) engaged in as of December 31 of the previous year shall be filed annually by March 1 of the subsequent year.

(d) Contents of reports. Annual reports on the data transactions described in § 202.1103(a) shall include the following:

(1) The name and address of the U.S. person engaging in the covered data transaction, and the name, telephone number, and email address of a contact from whom additional information may be obtained;

(2) A description of the covered data transaction, including:

(i) The date of the transaction;

(ii) The types and volumes of government-related data or bulk U.S. sensitive personal data involved in the transaction;

(iii) The method of data transfer; and

(iv) Any persons participating in the data transaction and their respective locations, including the name and location of each data recipient, the ownership of entities or citizenship or primary residence of individuals, the name and location of any covered persons involved in the transaction, and the name of any countries of concern involved in the transaction;

(3) A copy of any relevant documentation received or created in connection with the transaction; and

(4) Any other information that the Department of Justice may require.

(e) Additional contents; format and method of submission. Reports required by this section must be submitted in accordance with this section and with subpart L of this part.

§ 202.1104 Reports on rejected prohibited transactions.

(a) Who must report. A report must be filed, except as otherwise prohibited by Federal law, by any U.S. person that, on or after October 6, 2025, has received and affirmatively rejected (including automatically rejected using software, technology, or automated tools) an offer from another person to engage in a prohibited transaction involving data brokerage.

(b) When reports are due. U.S. persons shall file reports within 14 days of rejecting a transaction prohibited by this part.

(c) Contents of reports. Reports on rejected transactions shall include the following, to the extent known and available to the person filing the report at the time the transaction is rejected:

(1) The name and address of the U.S. person that rejected the prohibited transaction, and the name, telephone number, and email address of a contact from whom additional information may be obtained;

(2) A description of the rejected transaction, including:

(i) The date the transaction was rejected;

(ii) The types and volumes of government-related data or bulk U.S. sensitive personal data involved in the transaction;

(iii) The method of data transfer;

(iv) Any persons attempting to participate in the transaction and their respective locations, including the name and location of each data recipient, the ownership of entities or citizenship or primary residence of individuals, the name and location of any covered persons involved in the transaction, and the name of any countries of concern involved in the transaction;

(v) A copy of any relevant documentation received or created in connection with the transaction; and

(vi) Any other information that the Department of Justice may require.

(d) Additional contents; format and method of submission. Reports required by this section must be submitted in accordance with this section and with subpart L of this part.

§ 202.1201 Procedures.

(a) Application of this subpart. This subpart L applies to any submissions required or permitted by this part, including reports of known or suspected violations submitted pursuant to § 202.302, requests for removal from the Covered Persons List submitted pursuant to subpart G of this part, requests for specific licenses submitted pursuant to § 202.802, advisory opinion requests submitted pursuant to subpart I of this part, annual reports submitted pursuant to § 202.1103, reports on rejected prohibited transactions submitted pursuant to § 202.1104, and responses to pre-penalty notices and findings of violations submitted pursuant to § 202.1306 (collectively, “submissions”).

(b) Form of submissions. Submissions must follow the instructions in this part and any instructions on the National Security Division's website. With the exception of responses to pre-penalty notices or findings of violations submitted pursuant to subpart M of this part, submissions must use the forms on the National Security Division's website or another official reporting option as specified by the National Security Division.

(c) Method of submissions. Submissions must be made to the National Security Division electronically by emailing the National Security Division at NSD.FIRS.datasecurity@usdoj.gov or using another official electronic reporting option, in accordance with any instructions on the National Security Division's website.

(d) Certification. If the submitting party is an individual, the submission must be signed by the individual or the individual's attorney. If the submitting party is not an individual, the submission must be signed on behalf of each submitting party by an officer, director, a person performing the functions of an officer or a director of, or an attorney for, the submitting party. Annual reports submitted pursuant to § 202.1103, and reports on rejected transactions submitted pursuant to § 202.1104, must be signed by an officer, a director, a person performing the functions of an officer or a director, or an employee responsible for compliance. In appropriate cases, the Department of Justice may require the chief executive officer of a requesting party to sign the request. Each such person signing a submission must certify that the submission is true, accurate, and complete.

§ 202.1301 Penalties for violations.

(a) Civil and criminal penalties. Section 206 of IEEPA, 50 U.S.C. 1705, is applicable to violations of the provisions of any license, ruling, regulation, order, directive, or instruction issued by or pursuant to the direction or authorization of the Attorney General pursuant to this part or otherwise under IEEPA.

(1) A civil penalty not to exceed the amount set forth in section 206 of IEEPA may be imposed on any person who violates, attempts to violate, conspires to violate, or causes a violation of any license, order, regulation, or prohibition issued under IEEPA.

(2) IEEPA provides for a maximum civil penalty not to exceed the greater of $368,136 or an amount that is twice the amount of the transaction that is the basis of the violation with respect to which the penalty is imposed.

(3) A person who willfully commits, willfully attempts to commit, willfully conspires to commit, or aids or abets in the commission of a violation of any license, order, regulation, or prohibition issued under IEEPA shall, upon conviction, be fined not more than $1,000,000, or if a natural person, may be imprisoned for not more than 20 years, or both.

(b) Adjustment of civil penalties. The civil penalties provided in IEEPA are subject to adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (Public Law 101-410, as amended, 28 U.S.C. 2461 note).

(c) Adjustment of criminal penalties. The criminal penalties provided in IEEPA are subject to adjustment pursuant to 18 U.S.C. 3571.

(d) False statements. Pursuant to 18 U.S.C. 1001, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; or makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry shall be fined under title 18, United States Code, imprisoned, or both.

(e) Other applicable laws. Violations of this part may also be subject to other applicable laws.

§ 202.1302 Process for pre-penalty notice.

(a) When and how issued. (1) If the Department of Justice has reason to believe that there has occurred a violation of any provision of this part or a violation of the provisions of any license, ruling, regulation, order, directive, or instruction issued by or pursuant to the direction or authorization of the Attorney General pursuant to this part or otherwise under IEEPA and determines that a civil monetary penalty is warranted, the Department of Justice will issue a pre-penalty notice informing the alleged violator of the agency's intent to impose a monetary penalty.

(2) The pre-penalty notice shall be in writing.

(3) The pre-penalty notice may be issued whether or not another agency has taken any action with respect to the matter.

(4) The Department shall provide the alleged violator with the relevant information that is not privileged, classified, or otherwise protected, and that forms the basis for the pre-penalty notice, including a description of the alleged violation and proposed penalty amount.

(b) Opportunity to respond. An alleged violator has the right to respond to a pre-penalty notice in accordance with § 202.1306.

(c) Settlement. Settlement discussion may be initiated by the Department of Justice, the alleged violator, or the alleged violator's authorized representative.

(d) Representation. A representative of the alleged violator may act on behalf of the alleged violator, but any oral communication with the Department of Justice prior to a written submission regarding the specific allegations contained in the pre-penalty notice must be preceded by a written letter of representation, unless the pre-penalty notice was served upon the alleged violator in care of the representative.

§ 202.1303 Penalty imposition.

If, after considering any written response to the pre-penalty notice and any relevant facts, the Department of Justice determines that there was a violation by the alleged violator named in the pre-penalty notice and that a civil monetary penalty is appropriate, the Department of Justice may issue a penalty notice to the violator containing a determination of the violation and the imposition of the monetary penalty. The Department shall provide the violator with any relevant, non-classified information that forms the basis of the penalty. The issuance of the penalty notice shall constitute final agency action. The violator has the right to seek judicial review of that final agency action in Federal district court.

§ 202.1304 Administrative collection and litigation.

In the event that the violator does not pay the penalty imposed pursuant to this part or make payment arrangements acceptable to the Department of Justice, the Department of Justice may refer the matter to the Department of the Treasury for administrative collection measures or take appropriate action to recover the penalty in any civil suit in Federal district court.

§ 202.1305 Finding of violation.

(a) When and how issued. (1) The Department of Justice may issue an initial finding of violation that identifies a violation if the Department of Justice:

(i) Determines that there has occurred a violation of any provision of this part, or a violation of the provisions of any license, ruling, regulation, order, directive, or instruction issued by or pursuant to the direction or authorization of the Attorney General pursuant to this part or otherwise under IEEPA;

(ii) Considers it important to document the occurrence of a violation; and

(iii) Concludes that an administrative response is warranted but that a civil monetary penalty is not the most appropriate response.

(2) An initial finding of violation shall be in writing and may be issued whether or not another agency has taken any action with respect to the matter.

(3) The Department shall provide the alleged violator with the relevant information that is not privileged, classified, or otherwise protected, that forms the basis for the finding of violation, including a description of the alleged violation.

(b) Opportunity to respond. An alleged violator has the right to contest an initial finding of violation in accordance with § 202.1306.

(c) Determination—(1) Determination that a finding of violation is warranted. If, after considering the response, the Department of Justice determines that a final finding of violation should be issued, the Department of Justice will issue a final finding of violation that will inform the violator of its decision. The Department shall provide the violator with the relevant information that is not privileged, classified, or otherwise protected, that forms the basis for the finding of violation. A final finding of violation shall constitute final agency action. The violator has the right to seek judicial review of that final agency action in Federal district court.

(2) Determination that a finding of violation is not warranted. If, after considering the response, the Department of Justice determines a finding of violation is not warranted, then the Department of Justice will inform the alleged violator of its decision not to issue a final finding of violation. A determination by the Department of Justice that a final finding of violation is not warranted does not preclude the Department of Justice from pursuing other enforcement actions.

(d) Representation. A representative of the alleged violator may act on behalf of the alleged violator, but any oral communication with the Department of Justice prior to a written submission regarding the specific alleged violations contained in the initial finding of violation must be preceded by a written letter of representation, unless the initial finding of violation was served upon the alleged violator in care of the representative.

§ 202.1306 Opportunity to respond to a pre-penalty notice or finding of violation.

(a) Right to respond. An alleged violator has the right to respond to a pre-penalty notice or finding of violation by making a written presentation to the Department of Justice.

(b) Deadline for response. A response to a pre-penalty notice or finding of violation must be electronically submitted within 30 days of electronic service of the notice or finding. The failure to submit a response within 30 days shall be deemed to be a waiver of the right to respond.

(c) Extensions of time for response. Any extensions of time will be granted, at the discretion of the Department of Justice, only upon specific request to the Department of Justice.

(d) Contents of response. Any response should set forth in detail why the alleged violator either believes that a violation of the regulations did not occur or why a finding of violation or penalty is otherwise unwarranted under the circumstances. The response should include all documentary or other evidence available to the alleged violator that supports the arguments set forth in the response. The Department of Justice will consider all relevant materials submitted in the response.

§ 202.1401 Government-Related Location Data List.

For each Area ID listed in this section, each of the latitude/longitude coordinate pairs forms a corner of the geofenced area.

Table 1 to § 202.1401

Area ID | Latitude/longitude coordinates of geofenced areas

1 | 38.935624, −77.207888 | 38.931674, −77.199387 | 38.929289, −77.203229 | 38.932939, −77.209328.

2 | 38.950446, −77.125592 | 38.952077, −77.120947 | 38.947468, −77.120060 | 38.947135, −77.122809.

3 | 38.953191, −77.372792 | 38.953174, −77.369764 | 38.951148, −77.369759 | 38.951152, −77.372781.

4 | 39.113546, −76.777053 | 39.131086, −76.758527 | 39.100086, −76.749715 | 39.093304, −76.760882.

5 | 33.416299, −82.172772 | 33.416666, −82.164366 | 33.406350, −82.163645 | 33.406261, −82.172947.

6 | 21.525093, −158.019139 | 21.525362, −158.002575 | 21.518161, −158.002233 | 21.518010, −158.018364.

7 | 21.475012, −158.061844 | 21.483357, −158.057568 | 21.479226, −158.049881 | 21.472695, −158.052371.

8 | 29.449322, −98.646174 | 29.452872, −98.637623 | 29.448069, −98.637303 | 29.444547, −98.640607.

9 | 39.273162771, −76.362684384 | 39.508996774, −76.362684384 | 39.508996774, −76.049235582 | 39.273162771, −76.049235582.

10 | 39.0258436940001, −76.9680962199999 | 39.0402111820001, −76.9680962199999 | 39.0402111820001, −76.9506770369999 | 39.0258436940001, −76.9506770369999.

11 | 20.7457155230001, −156.440726997 | 20.7494410490001, −156.440726997 | 20.7494410490001, −156.431116699 | 20.7457155230001, −156.431116699.

12 | 38.8805363480001, −77.1090209989999 | 38.8811994730001, −77.1090209989999 | 38.8811994730001, −77.1082027119999 | 38.8805363480001, −77.1082027119999.

13 | 32.765632877, −97.460085871 | 32.786292692, −97.460085871 | 32.786292692, −97.445002478 | 32.765632877, −97.445002478.

14 | 34.602177924, −118.126219217 | 34.652496869, −118.126219217 | 34.652496869, −118.040871203 | 34.602177924, −118.040871203.

15 | 32.0905440820001, −110.959444035 | 32.1053229630001, −110.959444035 | 32.1053229630001, −110.922377001 | 32.0905440820001, −110.922377001.

16 | 33.8999448750001, −84.540445929 | 33.9364828150001, −84.540445929 | 33.9364828150001, −84.511508719 | 33.8999448750001, −84.511508719.

17 | 36.6657671500001, −76.163567934 | 36.7187899800001, −76.163567934 | 36.7187899800001, −76.098012048 | 36.6657671500001, −76.098012048.

18 | 27.8761052880001, −98.061583281 | 27.9157840450001, −98.061583281 | 27.9157840450001, −98.0214386 | 27.8761052880001, −98.0214386.

19 | 21.3545686960001, −157.926772605 | 21.3700858780001, −157.926772605 | 21.3700858780001, −157.89962502 | 21.3545686960001, −157.89962502.

20 | 39.529701323, −78.871120656 | 39.566862548, −78.871120656 | 39.566862548, −78.819110448 | 39.529701323, −78.819110448.

21 | 31.227908115, −85.654625655 | 31.235020282, −85.654625655 | 31.235020282, −85.646160343 | 31.227908115, −85.646160343.

22 | 45.0576284000001, −83.5785134019999 | 45.0972929400001, −83.5785134019999 | 45.0972929400001, −83.5582903029999 | 45.0576284000001, −83.5582903029999.

23 | 34.6379009080001, −99.303633301 | 34.6889874940001, −99.303633301 | 34.6889874940001, −99.25506291 | 34.6379009080001, −99.25506291.

24 | 32.6375106470001, −117.168353987 | 32.6816990190001, −117.168353987 | 32.6816990190001, −117.138279193 | 32.6375106470001, −117.138279193.

25 | 32.666935251, −117.172352209 | 32.675675627, −117.172352209 | 32.675675627, −117.163035197 | 32.666935251, −117.163035197.

26 | 13.5479750120001, 144.840656045 | 13.6479224930001, 144.840656045 | 13.6479224930001, 144.956626971 | 13.5479750120001, 144.956626971.

27 | 33.610199773, −86.013461889 | 33.688770568, −86.013461889 | 33.688770568, −85.910594886 | 33.610199773, −85.910594886.

28 | 27.6372285040001, −81.364060357 | 27.6776476600001, −81.364060357 | 27.6776476600001, −81.326061341 | 27.6372285040001, −81.326061341.

29 | 38.869169115, −77.079135005 | 38.887908934, −77.079135005 | 38.887908934, −77.058113411 | 38.869169115, −77.058113411.

30 | 38.865964869, −77.081320445 | 38.869010908, −77.081320445 | 38.869010908, −77.07688713 | 38.865964869, −77.07688713.

31 | 30.268965988, −97.74101039 | 30.26898402, −97.74101039 | 30.26898402, −97.74098961 | 30.268965988, −97.74098961.

32 | 28.585892605, −81.197868843 | 28.58638835, −81.197868843 | 28.58638835, −81.197094434 | 28.585892605, −81.197094434.

33 | 35.9939351130001, −78.8988567119999 | 35.9939531280001, −78.8988567119999 | 35.9939531280001, −78.8988345369999 | 35.9939351130001, −78.8988345369999.

34 | 35.290658975, −86.1900228969999 | 35.448152643, −86.1900228969999 | 35.448152643, −85.9565678559999 | 35.290658975, −85.9565678559999.

35 | 39.668741192, −74.486379079 | 39.735566472, −74.486379079 | 39.735566472, −74.38985998 | 39.668741192, −74.38985998.

36 | 27.5433418430001, −81.440651203 | 27.7481014920001, −81.440651203 | 27.7481014920001, −81.140127987 | 27.5433418430001, −81.140127987.

37 | 43.329662741, −89.768817729 | 43.3804415840001, −89.768817729 | 43.3804415840001, −89.704814972 | 43.329662741, −89.704814972.

38 | 32.7213462890001, −117.147436521 | 32.7304327800001, −117.147436521 | 32.7304327800001, −117.142819245 | 32.7213462890001, −117.142819245.

39 | 44.810736596, −68.845190583 | 44.824436067, −68.845190583 | 44.824436067, −68.817759555 | 44.810736596, −68.817759555.

40 | 30.378935891, −87.651017989 | 30.406043932, −87.651017989 | 30.406043932, −87.616693181 | 30.378935891, −87.616693181.

41 | 32.460689648, −93.692932035 | 32.533707929, −93.692932035 | 32.533707929, −93.531044113 | 32.460689648, −93.531044113.

42 | 42.1637746650001, −72.721474954 | 42.1737587120001, −72.721474954 | 42.1737587120001, −72.713127559 | 42.1637746650001, −72.713127559.

43 | 32.234848137, −114.563241999 | 32.74030585, −114.563241999 | 32.74030585, −113.597922719 | 32.234848137, −113.597922719.

44 | 32.8717587680001, −112.742209944 | 32.9055316810001, −112.742209944 | 32.9055316810001, −112.715649106 | 32.8717587680001, −112.715649106.

45 | 70.118081036, −143.649422567 | 70.13677672, −143.649422567 | 70.13677672, −143.549196508 | 70.118081036, −143.549196508.

46 | 39.0718274430001, −121.477278056 | 39.1737524000001, −121.477278056 | 39.1737524000001, −121.321123307 | 39.0718274430001, −121.321123307.

47 | 21.3446919420001, −157.715961149 | 21.3801950850001, −157.715961149 | 21.3801950850001, −157.704152283 | 21.3446919420001, −157.704152283.

48 | 39.320337941, −80.27238984 | 39.332562421, −80.27238984 | 39.332562421, −80.257518209 | 39.320337941, −80.257518209.

49 | 64.3151851490001, −146.65232338 | 64.3202659380001, −146.65232338 | 64.3202659380001, −146.642748991 | 64.3151851490001, −146.642748991.

50 | 33.564586567, −86.7593074919999 | 33.577571506, −86.7593074919999 | 33.577571506, −86.749335831 | 33.564586567, −86.749335831.

51 | 33.979025715, −77.920042096 | 33.98353888, −77.920042096 | 33.98353888, −77.911945012 | 33.979025715, −77.911945012.

52 | 37.6569067660001, −84.2697493539999 | 37.7403075720001, −84.2697493539999 | 37.7403075720001, −84.1739063399999 | 37.6569067660001, −84.1739063399999.

53 | 43.549701982, −116.23995646 | 43.565222364, −116.23995646 | 43.565222364, −116.203444555 | 43.549701982, −116.203444555.

54 | 41.928394165, −72.706470888 | 41.940084218, −72.706470888 | 41.940084218, −72.6950519379999 | 41.928394165, −72.6950519379999.

55 | 41.5399982100001, −81.628180911 | 41.5451316070001, −81.628180911 | 41.5451316070001, −81.623066892 | 41.5399982100001, −81.623066892.

56 | 38.259480861, −119.65128069 | 38.488443466, −119.65128069 | 38.488443466, −119.46086144 | 38.259480861, −119.46086144.

57 | 32.7116821270001, −117.172842204 | 32.7155456210001, −117.172842204 | 32.7155456210001, −117.171235129 | 32.7116821270001, −117.171235129.

58 | 40.5796208020001, −73.881158344 | 40.5851822330001, −73.881158344 | 40.5851822330001, −73.875044844 | 40.5796208020001, −73.875044844.

59 | 31.3815422060001, −85.978073125 | 31.3912525150001, −85.978073125 | 31.3912525150001, −85.96646119 | 31.3815422060001, −85.96646119.

60 | 39.6792307960001, −104.791155246 | 39.7256386980001, −104.791155246 | 39.7256386980001, −104.732681808 | 39.6792307960001, −104.732681808.

61 | 44.465375824, −73.165872108 | 44.481431105, −73.165872108 | 44.481431105, −73.138589437 | 44.465375824, −73.138589437.

62 | 18.246447926, −65.580288041 | 18.250653732, −65.580288041 | 18.250653732, −65.57513189 | 18.246447926, −65.57513189.

63 | 31.2653802660001, −85.730112602 | 31.2900770820001, −85.730112602 | 31.2900770820001, −85.701272345 | 31.2653802660001, −85.701272345.

64 | 13.488847714, 144.8237902 | 13.650804937, 144.8237902 | 13.650804937, 144.882806074 | 13.488847714, 144.882806074.

65 | 41.613354353, −93.9831494479999 | 42.134619451, −93.9831494479999 | 42.134619451, −93.625230214 | 41.613354353, −93.625230214.

66 | 34.6199016640001, −84.1105367119999 | 34.6357614130001, −84.1105367119999 | 34.6357614130001, −84.0950752379999 | 34.6199016640001, −84.0950752379999.

67 | 44.5103232180001, −85.0727276169999 | 44.8976058610001, −85.0727276169999 | 44.8976058610001, −84.4513643499999 | 44.5103232180001, −84.4513643499999.

68 | 35.0011406840001, −79.523939868 | 35.0683094360001, −79.523939868 | 35.0683094360001, −79.442653881 | 35.0011406840001, −79.442653881.

69 | 32.641816556, −116.466773316 | 32.70380767, −116.466773316 | 32.70380767, −116.419479903 | 32.641816556, −116.419479903.

70 | 32.707519441, −116.520980841 | 32.714794633, −116.520980841 | 32.714794633, −116.509578866 | 32.707519441, −116.509578866.

71 | 35.1488975340001, −111.913136629 | 35.2519317510001, −111.913136629 | 35.2519317510001, −111.772220092 | 35.1488975340001, −111.772220092.

72 | 35.688234999, −120.85951023 | 35.893098334, −120.85951023 | 35.893098334, −120.711509738 | 35.688234999, −120.711509738.

73 | 30.91049165, −89.245591473 | 31.215207751, −89.245591473 | 31.215207751, −88.825853545 | 30.91049165, −88.825853545.

74 | 40.3878151230001, −112.116737638 | 40.4646164020001, −112.116737638 | 40.4646164020001, −111.91331559 | 40.3878151230001, −111.91331559.

75 | 34.40563345, −103.337070541 | 34.412489823, −103.337070541 | 34.412489823, −103.319797859 | 34.40563345, −103.319797859.

76 | 34.3614483640001, −103.354726446 | 34.4053770780001, −103.354726446 | 34.4053770780001, −103.295530382 | 34.3614483640001, −103.295530382.

77 | 28.410293461, −80.611521457 | 28.569239286, −80.611521457 | 28.569239286, −80.525040895 | 28.410293461, −80.525040895.

78 | 58.6207566940001, −162.088477025 | 58.6671382160001, −162.088477025 | 58.6671382160001, −162.051955173 | 58.6207566940001, −162.051955173.

79 | 39.843911672, −89.673153301 | 39.853707959, −89.673153301 | 39.853707959, −89.664434939 | 39.843911672, −89.664434939.

80 | 40.1998354450001, −77.1813079679999 | 40.2155193840001, −77.1813079679999 | 40.2155193840001, −77.1567188819999 | 40.1998354450001, −77.1567188819999.

81 | 48.720965666, −97.91415126 | 48.732224729, −97.91415126 | 48.732224729, −97.892530954 | 48.720965666, −97.892530954.

82 | 30.3692267820001, −89.145003244 | 30.3839136300001, −89.145003244 | 30.3839136300001, −89.1029689419999 | 30.3692267820001, −89.1029689419999.

83 | 34.133132274, −119.113804625 | 34.1468546850001, −119.113804625 | 34.1468546850001, −119.107499465 | 34.133132274, −119.107499465.

84 | 35.2130798650001, −80.93434288 | 35.2209434880001, −80.93434288 | 35.2209434880001, −80.924747233 | 35.2130798650001, −80.924747233.

85 | 37.268469865, −76.6497831579999 | 37.300168225, −76.6497831579999 | 37.300168225, −76.5808454679999 | 37.268469865, −76.5808454679999.

86 | 38.652772446, −76.537514883 | 38.665190459, −76.537514883 | 38.665190459, −76.526755785 | 38.652772446, −76.526755785.

87 | 38.730266928, −104.854175709 | 38.748479779, −104.854175709 | 38.748479779, −104.830998169 | 38.730266928, −104.830998169.

88 | 41.1585808, −104.827282882 | 41.163962628, −104.827282882 | 41.163962628, −104.811583526 | 41.1585808, −104.811583526.

89 | 33.0433918000001, −115.769002927 | 33.561860554, −115.769002927 | 33.561860554, −114.937048224 | 33.0433918000001, −114.937048224.

90 | 64.256937909, −149.271311872 | 64.318532807, −149.271311872 | 64.318532807, −149.078782527 | 64.256937909, −149.078782527.

91 | 48.0181544170001, −122.749058066 | 48.0882406420001, −122.749058066 | 48.0882406420001, −122.699833714 | 48.0181544170001, −122.699833714.

92 | 55.260399471, −162.892009844 | 55.266039599, −162.892009844 | 55.266039599, −162.882133146 | 55.260399471, −162.882133146.

93 | 32.9238514580001, −88.597781493 | 33.6613396510001, −88.597781493 | 33.6613396510001, −88.419408536 | 32.9238514580001, −88.419408536.

94 | 42.2857517910001, −71.366797532 | 42.2934966590001, −71.366797532 | 42.2934966590001, −71.355575286 | 42.2857517910001, −71.355575286.

95 | 30.396955129, −87.301358539 | 30.41034727, −87.301358539 | 30.41034727, −87.278142462 | 30.396955129, −87.278142462.

96 | 36.8832992170001, −76.3808126719999 | 36.8943868090001, −76.3808126719999 | 36.8943868090001, −76.3390713729999 | 36.8832992170001, −76.3390713729999.

97 | 36.4941214200001, −115.88042321 | 36.7385429400001, −115.88042321 | 36.7385429400001, −115.4868387 | 36.4941214200001, −115.4868387.

98 | 21.299764458, −158.073065748 | 21.327294536, −158.073065748 | 21.327294536, −158.044610628 | 21.299764458, −158.044610628.

99 | 36.779547069, −119.702471155 | 36.782099199, −119.702471155 | 36.782099199, −119.701514522 | 36.779547069, −119.701514522.

100 | 42.15393814, −70.9374754149999 | 42.158515225, −70.9374754149999 | 42.158515225, −70.9301741339999 | 42.15393814, −70.9301741339999.

101 | 48.4214595020001, −117.41300542 | 48.5515751880001, −117.41300542 | 48.5515751880001, −117.35926532 | 48.4214595020001, −117.35926532.

102 | 26.091587869, −80.111818708 | 26.092584016, −80.111818708 | 26.092584016, −80.108205835 | 26.091587869, −80.108205835.

103 | 35.6459372400001, −75.991669019 | 35.7768890170001, −75.991669019 | 35.7768890170001, −75.771652698 | 35.6459372400001, −75.771652698.

104 | 32.1193109110001, −110.909314221 | 32.1962087390001, −110.909314221 | 32.1962087390001, −110.789766372 | 32.1193109110001, −110.789766372.

105 | 37.408487704, −77.453738162 | 37.439266805, −77.453738162 | 37.439266805, −77.435618651 | 37.408487704, −77.435618651.

106 | 38.8781991000001, −77.109040482 | 38.8792949460001, −77.109040482 | 38.8792949460001, −77.108174294 | 38.8781991000001, −77.108174294.

107 | 40.1972506380001, −76.853865245 | 40.2226551520001, −76.853865245 | 40.2226551520001, −76.8221857039999 | 40.1972506380001, −76.8221857039999.

108 | 39.974582163, −82.913383443 | 39.985122185, −82.913383443 | 39.985122185, −82.884325098 | 39.974582163, −82.884325098.

109 | 41.537901628, −93.674402705 | 41.549978514, −93.674402705 | 41.549978514, −93.657102163 | 41.537901628, −93.657102163.

110 | 30.40946552, −86.500613385 | 30.412738745, −86.500613385 | 30.412738745, −86.4971744769999 | 30.40946552, −86.4971744769999.

111 | 37.9630717110001, −122.027819871 | 38.0227201040001, −122.027819871 | 38.0227201040001, −121.939142028 | 37.9630717110001, −121.939142028.

112 | 39.8839370650001, −75.190933843 | 39.8984743260001, −75.190933843 | 39.8984743260001, −75.16306509 | 39.8839370650001, −75.16306509.

113 | 42.4914812000001, −83.046418438 | 42.5026695230001, −83.046418438 | 42.5026695230001, −83.037544269 | 42.4914812000001, −83.037544269.

114 | 42.4694829900001, −71.691664547 | 42.5765892500001, −71.691664547 | 42.5765892500001, −71.603764233 | 42.4694829900001, −71.603764233.

115 | 46.9314271700001, −67.8969077639999 | 46.9342671660001, −67.8969077639999 | 46.9342671660001, −67.8923200479999 | 46.9314271700001, −67.8923200479999.

116 | 21.567863645, −158.21347981 | 21.581952858, −158.21347981 | 21.581952858, −158.180039671 | 21.567863645, −158.180039671.

117 | 28.0671354250001, −98.778173769 | 28.1245884970001, −98.778173769 | 28.1245884970001, −98.685192869 | 28.0671354250001, −98.685192869.

118 | 33.8969244250001, −84.542380856 | 33.9367576460001, −84.542380856 | 33.9367576460001, −84.495305955 | 33.8969244250001, −84.495305955.

119 | 39.10595655, −75.494449085 | 39.152386899, −75.494449085 | 39.152386899, −75.436634728 | 39.10595655, −75.436634728.

120 | 24.568031467, −81.781745689 | 24.585123807, −81.781745689 | 24.585123807, −81.765170818 | 24.568031467, −81.765170818.

121 | 32.674333394, −117.133765 | 32.692839739, −117.133765 | 32.692839739, −117.108967938 | 32.674333394, −117.108967938.

122 | 46.8330442210001, −92.21102751 | 46.8510308170001, −92.21102751 | 46.8510308170001, −92.165423416 | 46.8330442210001, −92.165423416.

123 | 32.3941914100001, −99.867572545 | 32.4478988670001, −99.867572545 | 32.4478988670001, −99.808678428 | 32.3941914100001, −99.808678428.

124 | 52.7044712040001, 174.053643507 | 52.7410254930001, 174.053643507 | 52.7410254930001, 174.156518998 | 52.7044712040001, 174.156518998.

125 | 34.762486344, −118.140763438 | 35.017611389, −118.140763438 | 35.017611389, −117.525081645 | 34.762486344, −117.525081645.

126 | 30.381138945, −86.8509824239999 | 30.405275435, −86.8509824239999 | 30.405275435, −86.6331687359999 | 30.381138945, −86.6331687359999.

127 | 30.6217855130001, −86.7554594279999 | 30.6494843350001, −86.7554594279999 | 30.6494843350001, −86.7303715759999 | 30.6217855130001, −86.7303715759999.

128 | 27.0764966720001, −86.983116121 | 30.7497294690001, −86.983116121 | 30.7497294690001, −82.448862506 | 27.0764966720001, −82.448862506.

129 | 64.6012802210001, −147.165786418 | 64.7480079510001, −147.165786418 | 64.7480079510001, −146.938371648 | 64.6012802210001, −146.938371648.

130 | 36.8644398160001, −76.3344377989999 | 36.8708429060001, −76.3344377989999 | 36.8708429060001, −76.3299793119999 | 36.8644398160001, −76.3299793119999.

131 | 29.5899224830001, −95.17474779 | 29.6230511860001, −95.17474779 | 29.6230511860001, −95.16633921 | 29.5899224830001, −95.16633921.

132 | 44.112997566, −103.129144564 | 44.176511165, −103.129144564 | 44.176511165, −103.060660125 | 44.112997566, −103.060660125.

133 | 31.325926945, −92.549004972 | 31.34466339, −92.549004972 | 31.34466339, −92.532050872 | 31.325926945, −92.532050872.

134 | 39.4012000000001, −77.9954 | 39.4140000010001, −77.9954 | 39.4140000010001, −77.9708 | 39.4012000000001, −77.9708.

135 | 47.5887747180001, −117.693058242 | 47.6428480860001, −117.693058242 | 47.6428480860001, −117.623082729 | 47.5887747180001, −117.623082729.

136 | 33.3291382400001, −117.313779432 | 33.3984247810001, −117.313779432 | 33.3984247810001, −117.249241913 | 33.3291382400001, −117.249241913.

137 | 38.826363557, −118.950589204 | 39.942237, −118.950589204 | 39.942237, −117.125199131 | 38.826363557, −117.125199131.

138 | 36.9206436430001, −76.324596591 | 36.9225983950001, −76.324596591 | 36.9225983950001, −76.321048116 | 36.9206436430001, −76.321048116.

139 | 30.395125636, −81.633046236 | 30.406669179, −81.633046236 | 30.406669179, −81.613437212 | 30.395125636, −81.613437212.

140 | 24.567441214, −81.801443736 | 24.594738599, −81.801443736 | 24.594738599, −81.79382837 | 24.567441214, −81.79382837.

141 | 38.9355059150001, −95.6866671779999 | 38.9672269680001, −95.6866671779999 | 38.9672269680001, −95.6739997489999 | 38.9355059150001, −95.6739997489999.

142 | 32.7263297590001, −117.225651967 | 32.7323354850001, −117.225651967 | 32.7323354850001, −117.215769817 | 32.7263297590001, −117.215769817.

143 | 41.4732485420001, −71.3429884129999 | 41.4772592680001, −71.3429884129999 | 41.4772592680001, −71.3354651549999 | 41.4732485420001, −71.3354651549999.

144 | 38.6728683430001, −77.202015081 | 38.7484680470001, −77.202015081 | 38.7484680470001, −77.1209734769999 | 38.6728683430001, −77.1209734769999.

145 | 39.855326909, −86.028620872 | 39.864369447, −86.028620872 | 39.864369447, −86.003845091 | 39.855326909, −86.003845091.

146 | 31.7888139250001, −106.581474459 | 32.6965880790001, −106.581474459 | 32.6965880790001, −105.524846042 | 31.7888139250001, −105.524846042.

147 | 18.4046924090001, −66.1341755349999 | 18.4221096420001, −66.1341755349999 | 18.4221096420001, −66.1054899209999 | 18.4046924090001, −66.1054899209999.

148 | 36.5354833810001, −87.820914236 | 36.7268240330001, −87.820914236 | 36.7268240330001, −87.423400866 | 36.5354833810001, −87.423400866.

149 | 38.418237328, −104.967064928 | 38.765149965, −104.967064928 | 38.765149965, −104.717754537 | 38.418237328, −104.717754537.

150 | 30.7215072980001, −97.913021062 | 31.3927951710001, −97.913021062 | 31.3927951710001, −97.382600936 | 30.7215072980001, −97.382600936.

151 | 21.277988357, −157.837039889 | 21.28553417, −157.837039889 | 21.28553417, −157.831141168 | 21.277988357, −157.831141168.

152 | 39.428600294, −77.437471934 | 39.450390568, −77.437471934 | 39.450390568, −77.410819037 | 39.428600294, −77.410819037.

153 | 39.0020859900001, −77.060006807 | 39.0129141590001, −77.060006807 | 39.0129141590001, −77.05003399 | 39.0020859900001, −77.05003399.

154 | 39.0320227890001, −77.04385429 | 39.0346693610001, −77.04385429 | 39.0346693610001, −77.03866628 | 39.0320227890001, −77.03866628.

155 | 44.010913031, −75.842125669 | 44.256536804, −75.842125669 | 44.256536804, −75.386367945 | 44.010913031, −75.386367945.

156 | 33.274519335, −82.379611728 | 33.440619771, −82.379611728 | 33.440619771, −82.096232277 | 33.274519335, −82.096232277.

157 | 33.6089633770001, −84.35154274 | 33.6319158920001, −84.35154274 | 33.6319158920001, −84.307486309 | 33.6089633770001, −84.307486309.

158 | 63.9388112670001, −145.772613518 | 64.0231208060001, −145.772613518 | 64.0231208060001, −145.655809936 | 63.9388112670001, −145.655809936.

159 | 37.213516865, −77.358595158 | 37.298684924, −77.358595158 | 37.298684924, −77.307488144 | 37.213516865, −77.307488144.

160 | 40.604582683, −74.034049003 | 40.613167841, −74.034049003 | 40.613167841, −74.0206090659999 | 40.604582683, −74.0206090659999.

161 | 31.434363842, −110.449131361 | 31.686859773, −110.449131361 | 31.686859773, −110.188946087 | 31.434363842, −110.188946087.

162 | 35.7935092910001, −121.426498813 | 36.1147194860001, −121.426498813 | 36.1147194860001, −121.031600619 | 35.7935092910001, −121.031600619.

163 | 35.082504812, −117.084003937 | 35.627708795, −117.084003937 | 35.627708795, −116.163545882 | 35.082504812, −116.163545882.

164 | 33.9829769470001, −80.959251815 | 34.0836392030001, −80.959251815 | 34.0836392030001, −80.704124579 | 33.9829769470001, −80.704124579.

165 | 30.921870988, −93.579998793 | 31.490503162, −93.579998793 | 31.490503162, −92.862745164 | 30.921870988, −92.862745164.

166 | 37.78807672, −86.056877114 | 38.0073711200001, −86.056877114 | 38.0073711200001, −85.747574551 | 37.78807672, −85.747574551.

167 | 39.3284266840001, −94.949264706 | 39.3922569280001, −94.949264706 | 39.3922569280001, −94.880745646 | 39.3284266840001, −94.880745646.

168 | 37.6037963470001, −92.2500513099999 | 37.7999725520001, −92.2500513099999 | 37.7999725520001, −92.0408380759999 | 37.6037963470001, −92.0408380759999.

169 | 35.039462073, −79.38062969 | 35.274563988, −79.38062969 | 35.274563988, −78.901879671 | 35.039462073, −78.901879671.

170 | 43.90284867, −90.765375865 | 44.159924233, −90.765375865 | 44.159924233, −90.587856675 | 43.90284867, −90.587856675.

171 | 39.071479147, −76.776616336 | 39.130981819, −76.776616336 | 39.130981819, −76.709232204 | 39.071479147, −76.709232204.

172 | 40.2844597280001, −74.096750839 | 40.3390552010001, −74.096750839 | 40.3390552010001, −74.026249284 | 40.2844597280001, −74.026249284.

173 | 37.000205414, −76.3170219039999 | 37.035192566, −76.3170219039999 | 37.035192566, −76.2925912169999 | 37.000205414, −76.2925912169999.

174 | 32.2387118290001, −85.021200904 | 32.5517604030001, −85.021200904 | 32.5517604030001, −84.637054935 | 32.2387118290001, −84.637054935.

175 | 31.314144049, −85.865695246 | 31.505687537, −85.865695246 | 31.505687537, −85.612193512 | 31.314144049, −85.612193512.

176 | 39.0366899860001, −96.962729439 | 39.3067854380001, −96.962729439 | 39.3067854380001, −96.681803847 | 39.0366899860001, −96.681803847.

177 | 21.3344869650001, −157.894073145 | 21.3570876230001, −157.894073145 | 21.3570876230001, −157.87189508 | 21.3344869650001, −157.87189508.

178 | 42.203459073, −87.8100502569999 | 42.216029281, −87.8100502569999 | 42.216029281, −87.7987031449999 | 42.203459073, −87.7987031449999.

179 | 34.637509069, −98.755961597 | 34.768015017, −98.755961597 | 34.768015017, −98.282396833 | 34.637509069, −98.282396833.

180 | 35.247127112, −94.374048025 | 35.345197662, −94.374048025 | 35.345197662, −94.080609487 | 35.247127112, −94.080609487.

181 | 31.8490945500001, −81.889069385 | 32.1248422650001, −81.889069385 | 32.1248422650001, −81.304927888 | 31.8490945500001, −81.304927888.

182 | 63.495426454, −148.652607873 | 64.877948104, −148.652607873 | 64.877948104, −145.011700164 | 63.495426454, −145.011700164.

183 | 38.018142733, −77.395133849 | 38.2229469870001, −77.395133849 | 38.2229469870001, −77.136746906 | 38.018142733, −77.136746906.

184 | 35.4225141090001, −108.629517745 | 35.5234010050001, −108.629517745 | 35.5234010050001, −108.546488603 | 35.4225141090001, −108.546488603.

185 | 66.558440788, −145.217198219 | 66.562635721, −145.217198219 | 66.562635721, −145.196865879 | 66.558440788, −145.196865879.

186 | 41.131595797, −104.888175803 | 41.201251583, −104.888175803 | 41.201251583, −104.839386748 | 41.131595797, −104.839386748.

187 | 40.8317168790001, −72.646569509 | 40.8404590060001, −72.646569509 | 40.8404590060001, −72.637878307 | 40.8317168790001, −72.637878307.

188 | 36.7652210320001, −119.726849268 | 36.7866408030001, −119.726849268 | 36.7866408030001, −119.702290588 | 36.7652210320001, −119.702290588.

189 | 39.046072102, −76.689705918 | 39.068500337, −76.689705918 | 39.068500337, −76.660214864 | 39.046072102, −76.660214864.

190 | 42.9373147850001, −87.891735357 | 42.9447209110001, −87.891735357 | 42.9447209110001, −87.88532841 | 42.9373147850001, −87.88532841.

191 | 40.6559953350001, −89.713436026 | 40.6713177760001, −89.713436026 | 40.6713177760001, −89.691898535 | 40.6559953350001, −89.691898535.

192 | 42.297663631, −87.8562319869999 | 42.303204758, −87.8562319869999 | 42.303204758, −87.8518457849999 | 42.297663631, −87.8518457849999.

193 | 42.0902179130001, −87.8412161049999 | 42.0929537750001, −87.8412161049999 | 42.0929537750001, −87.8329821559999 | 42.0902179130001, −87.8329821559999.

194 | 31.410361906, −85.4658208399999 | 31.419467447, −85.4658208399999 | 31.419467447, −85.4610573259999 | 31.410361906, −85.4610573259999.

195 | 33.422394339, −112.015046889 | 33.427659719, −112.015046889 | 33.427659719, −112.006740103 | 33.422394339, −112.006740103.

196 | 31.4211524990001, −100.421423136 | 31.4502936180001, −100.421423136 | 31.4502936180001, −100.386562872 | 31.4211524990001, −100.386562872.

197 | 41.5355012680001, −71.3460647429999 | 41.5398354990001, −71.3460647429999 | 41.5398354990001, −71.3433558969999 | 41.5355012680001, −71.3433558969999.

198 | 47.921128756, −97.4238744209999 | 48.00111753, −97.4238744209999 | 48.00111753, −97.3251566139999 | 47.921128756, −97.3251566139999.

199 | 32.7378756470001, −96.960057831 | 32.7421326520001, −96.960057831 | 32.7421326520001, −96.951545219 | 32.7378756470001, −96.951545219.

200 | 47.471916874, −111.370342141 | 47.482136373, −111.370342141 | 47.482136373, −111.35856852 | 47.471916874, −111.35856852.

201 | 38.935411516, −110.143618375 | 38.983389468, −110.143618375 | 38.983389468, −110.064497018 | 38.935411516, −110.064497018.

202 | 40.629836335, −86.175582897 | 40.6784136910001, −86.175582897 | 40.6784136910001, −86.124933251 | 40.629836335, −86.124933251.

203 | 30.404753499, −89.06446994 | 30.416012997, −89.06446994 | 30.416012997, −89.05803309 | 30.404753499, −89.05803309.

204 | 62.384524694, −145.202752458 | 62.438701327, −145.202752458 | 62.438701327, −145.108315 | 62.384524694, −145.108315.

205 | 43.0985925350001, −76.1175710329999 | 43.1204055300001, −76.1175710329999 | 43.1204055300001, −76.0811541549999 | 43.0985925350001, −76.0811541549999.

206 | 42.449141119, −71.2922332959999 | 42.477596104, −71.2922332959999 | 42.477596104, −71.263228187 | 42.449141119, −71.263228187.

207 | 32.728744878, −117.208959019 | 32.730100028, −117.208959019 | 32.730100028, −117.205155926 | 32.728744878, −117.205155926.

208 | 44.220163461, −90.111781241 | 44.249174018, −90.111781241 | 44.249174018, −89.996184064 | 44.220163461, −89.996184064.

209 | 38.229497861, −118.850468214 | 38.675823329, −118.850468214 | 38.675823329, −118.465402259 | 38.229497861, −118.465402259.

210 | 46.9082501180001, −96.813335915 | 46.9192707510001, −96.813335915 | 46.9192707510001, −96.797905722 | 46.9082501180001, −96.797905722.

211 | 21.530784666, −158.026158574 | 21.541312201, −158.026158574 | 21.541312201, −158.012928076 | 21.530784666, −158.012928076.

212 | 21.4521601660001, −158.036478816 | 21.4580696550001, −158.036478816 | 21.4580696550001, −158.032403386 | 21.4521601660001, −158.032403386.

213 | 31.1479145100001, −85.744240415 | 31.1546432720001, −85.744240415 | 31.1546432720001, −85.729933472 | 31.1479145100001, −85.729933472.

214 | 41.0983339530001, −112.024399889 | 41.1651189630001, −112.024399889 | 41.1651189630001, −111.942395214 | 41.0983339530001, −111.942395214.

215 | 32.7930228270001, −106.204383402 | 33.0771885310001, −106.204383402 | 33.0771885310001, −106.049512667 | 32.7930228270001, −106.049512667.

216 | 36.4958650950001, −82.684996348 | 36.5518898770001, −82.684996348 | 36.5518898770001, −82.546522187 | 36.4958650950001, −82.546522187.

217 | 32.828679521, −115.288498013 | 32.846906967, −115.288498013 | 32.846906967, −115.14568048 | 32.828679521, −115.14568048.

218 | 25.4901310220001, −80.4045291039999 | 25.5181528940001, −80.4045291039999 | 25.5181528940001, −80.3779792709999 | 25.4901310220001, −80.3779792709999.

219 | 39.446631245, −87.304009056 | 39.458100621, −87.304009056 | 39.458100621, −87.290668741 | 39.446631245, −87.290668741.

220 | 31.3751890450001, −85.5828701299999 | 31.3850761720001, −85.5828701299999 | 31.3850761720001, −85.5773414419999 | 31.3751890450001, −85.5773414419999.

221 | 31.9832369490001, −81.198805141 | 32.0349005460001, −81.198805141 | 32.0349005460001, −81.113375475 | 31.9832369490001, −81.113375475.

222 | 30.406119645, −86.74211065 | 30.45486409, −86.74211065 | 30.45486409, −86.655360926 | 30.406119645, −86.655360926.

223 | 32.5545594160001, −117.133035356 | 32.5724338440001, −117.133035356 | 32.5724338440001, −117.089509557 | 32.5545594160001, −117.089509557.

224 | 65.9646785140001, −153.812691683 | 66.1009999220001, −153.812691683 | 66.1009999220001, −153.662067587 | 65.9646785140001, −153.662067587.

225 | 38.435308005, −85.627248303 | 38.4668353, −85.627248303 | 38.4668353, −85.584713152 | 38.435308005, −85.584713152.

226 | 40.7516430220001, −91.325065862 | 40.8294821280001, −91.325065862 | 40.8294821280001, −91.178786412 | 40.7516430220001, −91.178786412.

227 | 32.311624454, −90.0879237459999 | 32.328439256, −90.0879237459999 | 32.328439256, −90.0778932449999 | 32.311624454, −90.0778932449999.

228 | 30.402512915, −81.628884649 | 30.408229141, −81.628884649 | 30.408229141, −81.613589029 | 30.402512915, −81.613589029.

229 | 29.9570817420001, −81.972797144 | 30.4921986090001, −81.972797144 | 30.4921986090001, −81.69382023 | 29.9570817420001, −81.69382023.

230 | 38.8109873670001, −85.4822157569999 | 39.0601368300001, −85.4822157569999 | 39.0601368300001, −85.3594923629999 | 38.8109873670001, −85.3594923629999.

231 | 48.1670940830001, −121.958243024 | 48.2248098330001, −121.958243024 | 48.2248098330001, −121.887559225 | 48.1670940830001, −121.887559225.

232 | 43.5700133340001, −96.7515566289999 | 43.5962111540001, −96.7515566289999 | 43.5962111540001, −96.7347550689999 | 43.5700133340001, −96.7347550689999.

233 | 38.823559833, −77.026428621 | 38.867319001, −77.026428621 | 38.867319001, −77.002855219 | 38.823559833, −77.002855219.

234 | 38.7822985190001, −76.90343143 | 38.829021577, −76.90343143 | 38.829021577, −76.8490210659999 | 38.7822985190001, −76.8490210659999.

235 | 41.6372929940001, −70.5993199659999 | 41.7708974620001, −70.5993199659999 | 41.7708974620001, −70.4886883249999 | 41.6372929940001, −70.4886883249999.

236 | 32.873792952, −81.104787366 | 33.621879998, −81.104787366 | 33.621879998, −79.90958174 | 32.873792952, −79.90958174.

237 | 61.1317682310001, −149.879980832 | 61.4090492570001, −149.879980832 | 61.4090492570001, −149.522914627 | 61.1317682310001, −149.522914627.

238 | 37.063373746, −76.627940713 | 37.182586941, −76.627940713 | 37.182586941, −76.336599693 | 37.063373746, −76.336599693.

239 | 45.8002376150001, −122.802079191 | 47.2187487550001, −122.802079191 | 47.2187487550001, −119.30029009 | 45.8002376150001, −119.30029009.

240 | 39.9443860000001, −74.661412648 | 40.0586108630001, −74.661412648 | 40.0586108630001, −74.304547511 | 39.9443860000001, −74.304547511.

241 | 38.8611352610001, −77.084491842 | 38.8880351040001, −77.084491842 | 38.8880351040001, −77.013817583 | 38.8611352610001, −77.013817583.

242 | 21.2966123480001, −158.17382288 | 21.6863899190001, −158.17382288 | 21.6863899190001, −157.850223188 | 21.2966123480001, −157.850223188.

243 | 29.346205018, −98.690308725 | 29.893089367, −98.690308725 | 29.893089367, −97.884281333 | 29.346205018, −97.884281333.

244 | 36.892714836, −76.1925524759999 | 36.932892732, −76.1925524759999 | 36.932892732, −75.9873603089999 | 36.892714836, −75.9873603089999.

245 | 37.8190118270001, −75.514689614 | 37.9512715100001, −75.514689614 | 37.9512715100001, −75.413609963 | 37.8190118270001, −75.413609963.

246 | 40.6939221220001, −84.148196529 | 40.7086310680001, −84.148196529 | 40.7086310680001, −84.127525454 | 40.6939221220001, −84.127525454.

247 | 41.3409958870001, −88.082958084 | 41.3733639960001, −88.082958084 | 41.3733639960001, −88.046036417 | 41.3409958870001, −88.046036417.

248 | 41.4073674850001, −88.187831293 | 41.4365859010001, −88.187831293 | 41.4365859010001, −88.107459928 | 41.4073674850001, −88.107459928.

249 | 21.560298554, −158.266932035 | 21.572360392, −158.266932035 | 21.572360392, −158.237835914 | 21.560298554, −158.237835914.

250 | 21.6027392400001, −158.033515202 | 21.6936355750001, −158.033515202 | 21.6936355750001, −157.95298898 | 21.6027392400001, −157.95298898.

251 | 22.035974347, −159.75916373 | 22.042080758, −159.75916373 | 22.042080758, −159.750865139 | 22.035974347, −159.750865139.

252 | 20.0291620130001, −155.834320072 | 20.0374297880001, −155.834320072 | 20.0374297880001, −155.823440805 | 20.0291620130001, −155.823440805.

253 | 30.398126636, −88.9508689469999 | 30.420139346, −88.9508689469999 | 30.420139346, −88.896527048 | 30.398126636, −88.896527048.

254 | 36.7153178120001, −98.128361282 | 36.7547185190001, −98.128361282 | 36.7547185190001, −98.110051089 | 36.7153178120001, −98.110051089.

255 | 60.558793666, −151.257835885 | 60.560759837, −151.257835885 | 60.560759837, −151.254274297 | 60.558793666, −151.254274297.

256 | 19.4318712580001, −155.27720251 | 19.4367646340001, −155.27720251 | 19.4367646340001, −155.271614951 | 19.4318712580001, −155.271614951.

257 | 58.638365343, −156.693447262 | 58.708746999, −156.693447262 | 58.708746999, −156.459187473 | 58.638365343, −156.459187473.

258 | 42.1444655070001, −121.753628091 | 42.1707914760001, −121.753628091 | 42.1707914760001, −121.727677654 | 42.1444655070001, −121.727677654.

259 | 21.4148860290001, −158.014284187 | 21.4580033840001, −158.014284187 | 21.4580033840001, −157.991853913 | 21.4148860290001, −157.991853913.

260 | 34.9471711320001, −106.613226109 | 35.0673284870001, −106.613226109 | 35.0673284870001, −106.360768374 | 34.9471711320001, −106.360768374.

261 | 57.816486609, −152.341066882 | 57.826001907, −152.341066882 | 57.826001907, −152.325036589 | 57.816486609, −152.325036589.

262 | 66.837046801, −162.617184378 | 66.856648663, −162.617184378 | 66.856648663, −162.565302627 | 66.837046801, −162.565302627.

263 | 36.900584673, −76.30409839 | 36.903859448, −76.30409839 | 36.903859448, −76.300769409 | 36.900584673, −76.300769409.

264 | 39.080371583, −94.283657449 | 39.111476783, −94.283657449 | 39.111476783, −94.21198472 | 39.080371583, −94.21198472.

265 | 38.0785775370001, −92.6119067879999 | 38.0962204240001, −92.6119067879999 | 38.0962204240001, −92.5989103479999 | 38.0785775370001, −92.5989103479999.

266 | 29.1085864770001, −100.811107299 | 29.3792559920001, −100.811107299 | 29.3792559920001, −100.460775759 | 29.1085864770001, −100.460775759.

267 | 39.979501278, −77.766381881 | 40.061676766, −77.766381881 | 40.061676766, −77.627738092 | 39.979501278, −77.627738092.

268 | 40.8367062990001, −96.759207222 | 40.8453505060001, −96.759207222 | 40.8453505060001, −96.74825231 | 40.8367062990001, −96.74825231.

269 | 68.865164727, −166.153805131 | 68.877996761, −166.153805131 | 68.877996761, −166.053355378 | 68.865164727, −166.053355378.

270 | 34.881841514, −92.178033909 | 34.928710282, −92.178033909 | 34.928710282, −92.097368909 | 34.881841514, −92.097368909.

271 | 33.7407601990001, −118.234788427 | 33.7451476500001, −118.234788427 | 33.7451476500001, −118.232155662 | 33.7407601990001, −118.232155662.

272 | 32.646434739, −94.170119305 | 32.694891651, −94.170119305 | 32.694891651, −94.10955796 | 32.646434739, −94.10955796.

273 | 33.916514003, −118.449299679 | 34.057048416, −118.449299679 | 34.057048416, −118.378717014 | 33.916514003, −118.378717014.

274 | 33.8581476250001, −118.23660337 | 33.8593838490001, −118.23660337 | 33.8593838490001, −118.235035273 | 33.8581476250001, −118.235035273.

275 | 38.173833589, −85.7272245249999 | 38.181490413, −85.7272245249999 | 38.181490413, −85.7200947549999 | 38.173833589, −85.7200947549999.

276 | 31.812802193, −85.654704728 | 31.818371904, −85.654704728 | 31.818371904, −85.646082241 | 31.812802193, −85.646082241.

277 | 18.439120508, −65.9970120469999 | 18.446769386, −65.9970120469999 | 18.446769386, −65.9877331199999 | 18.439120508, −65.9877331199999.

278 | 33.5136616820001, −112.545349748 | 33.7241408570001, −112.545349748 | 33.7241408570001, −112.319683167 | 33.5136616820001, −112.319683167.

279 | 27.821277411, −82.537659279 | 27.869304053, −82.537659279 | 27.869304053, −82.469154309 | 27.821277411, −82.469154309.

280 | 22.127046405, −159.731450362 | 22.13630275, −159.731450362 | 22.13630275, −159.71827724 | 22.127046405, −159.71827724.

281 | 21.5127546910001, −158.239749591 | 21.5514708600001, −158.239749591 | 21.5514708600001, −158.173991939 | 21.5127546910001, −158.173991939

282 | 47.4870471620001, −111.21562151 | 47.5233762890001, −111.21562151 | 47.5233762890001, −111.152194907 | 47.4870471620001, −111.152194907.

283 | 47.562267374, −122.556511461 | 47.570404086, −122.556511461 | 47.570404086, −122.531291341 | 47.562267374, −122.531291341.

284 | 40.8062092000001, −82.5260369709999 | 40.8156897690001, −82.5260369709999 | 40.8156897690001, −82.5130393979999 | 40.8062092000001, −82.5130393979999.

285 | 33.855508925, −117.319151995 | 33.916474896, −117.319151995 | 33.916474896, −117.239122083 | 33.855508925, −117.239122083.

286 | 34.2011154190001, −116.717969816 | 34.7339793100001, −116.717969816 | 34.7339793100001, −115.720717569 | 34.2011154190001, −115.720717569.

287 | 32.280961146, −80.76567248 | 32.510825803, −80.76567248 | 32.510825803, −80.65947492 | 32.280961146, −80.65947492.

288 | 34.6814644040001, −77.2763334639999 | 35.076192102, −77.2763334639999 | 35.076192102, −76.3302441729999 | 34.6814644040001, −76.3302441729999.

289 | 32.833111095, −117.188623475 | 32.920651119, −117.188623475 | 32.920651119, −116.984937219 | 32.833111095, −116.984937219.

290 | 34.558215246, −77.4842054699999 | 34.746048414, −77.4842054699999 | 34.746048414, −77.370277147 | 34.558215246, −77.370277147.

291 | 32.622994906, −114.64004722 | 32.679820865, −114.64004722 | 32.679820865, −114.578207704 | 32.622994906, −114.578207704.

292 | 34.4950770080001, −77.6073096539999 | 34.7485511280001, −77.6073096539999 | 34.7485511280001, −77.177756721 | 34.4950770080001, −77.177756721.

293 | 33.205532089, −117.596249485 | 33.503658101, −117.596249485 | 33.503658101, −117.249972307 | 33.205532089, −117.249972307.

294 | 21.4274913960001, −157.778625985 | 21.4626192360001, −157.778625985 | 21.4626192360001, −157.722086618 | 21.4274913960001, −157.722086618.

295 | 21.38026423, −157.914545183 | 21.392788317, −157.914545183 | 21.392788317, −157.897882367 | 21.38026423, −157.897882367.

296 | 38.4790113490001, −77.609862936 | 38.6440896410001, −77.609862936 | 38.6440896410001, −77.283059322 | 38.4790113490001, −77.283059322.

297 | 31.5437915750001, −84.095978531 | 31.5617240260001, −84.095978531 | 31.5617240260001, −84.007643854 | 31.5437915750001, −84.007643854.

298 | 34.8434594240001, −116.97121195 | 34.8817582680001, −116.97121195 | 34.8817582680001, −116.909128396 | 34.8434594240001, −116.909128396.

299 | 38.5154624990001, −77.3711151099999 | 38.5235364690001, −77.3711151099999 | 38.5235364690001, −77.3589766939999 | 38.5154624990001, −77.3589766939999.

300 | 30.391006078, −81.537656096 | 30.413437169, −81.537656096 | 30.413437169, −81.509630857 | 30.391006078, −81.509630857.

301 | 38.828254514, −77.120041471 | 38.831963061, −77.120041471 | 38.831963061, −77.114666209 | 38.828254514, −77.114666209.

302 | 39.32514001, −76.4241855929999 | 39.337202481, −76.4241855929999 | 39.337202481, −76.4075152099999 | 39.32514001, −76.4075152099999.

303 | 48.1206874690001, −122.17350321 | 48.1263336970001, −122.17350321 | 48.1263336970001, −122.168283314 | 48.1206874690001, −122.168283314.

304 | 32.365364879, −86.376531674 | 32.415623844, −86.376531674 | 32.415623844, −86.232684034 | 32.365364879, −86.232684034.

305 | 21.3463596610001, −157.732313131 | 21.3809869910001, −157.732313131 | 21.3809869910001, −157.706839578 | 21.3463596610001, −157.706839578.

306 | 34.75300134, −96.021930066 | 34.887500702, −96.021930066 | 34.887500702, −95.825334438 | 34.75300134, −95.825334438.

307 | 38.6375594030001, −121.429181885 | 38.6902393680001, −121.429181885 | 38.6902393680001, −121.382899272 | 38.6375594030001, −121.382899272.

308 | 37.5874487990001, −97.29929204 | 37.6560529930001, −97.29929204 | 37.6560529930001, −97.2134855509999 | 37.5874487990001, −97.2134855509999.

309 | 33.90292894, −80.822110255 | 33.94386779, −80.822110255 | 33.94386779, −80.780803864 | 33.90292894, −80.780803864.

310 | 35.800297926, −84.013675843 | 35.822581272, −84.013675843 | 35.822581272, −83.989979889 | 35.800297926, −83.989979889.

311 | 38.36798888, −81.594851531 | 38.378026582, −81.594851531 | 38.378026582, −81.58529054 | 38.36798888, −81.58529054.

312 | 32.7348147280001, −117.209483129 | 32.7455697900001, −117.209483129 | 32.7455697900001, −117.184267844 | 32.7348147280001, −117.184267844.

313 | 34.214686409, −103.863834999 | 34.383336857, −103.863834999 | 34.383336857, −103.668558352 | 34.214686409, −103.668558352.

314 | 35.021000852, −89.9701571149999 | 35.030015831, −89.9701571149999 | 35.030015831, −89.9638125029999 | 35.021000852, −89.9638125029999.

315 | 35.815792593, −88.754286881 | 35.946160368, −88.754286881 | 35.946160368, −88.646037805 | 35.815792593, −88.646037805.

316 | 38.015441735, −122.065438909 | 38.095180461, −122.065438909 | 38.095180461, −121.969625159 | 38.015441735, −121.969625159.

317 | 33.9560292030001, −78.0749530269999 | 34.2460740690001, −78.0749530269999 | 34.2460740690001, −77.9056468759999 | 33.9560292030001, −77.9056468759999.

318 | 44.8853655020001, −93.222511412 | 44.8980690540001, −93.222511412 | 44.8980690540001, −93.19773597 | 44.8853655020001, −93.19773597.

319 | 48.3955222490001, −101.391958779 | 48.4441800980001, −101.391958779 | 48.4441800980001, −101.29967086 | 48.3955222490001, −101.29967086.

320 | 32.792070847, −117.105638208 | 32.815502529, −117.105638208 | 32.815502529, −117.081336656 | 32.792070847, −117.081336656.

321 | 32.302879454, −86.410672153 | 32.306804183, −86.410672153 | 32.306804183, −86.3958063469999 | 32.302879454, −86.3958063469999.

322 | 30.935302703, −83.219069939 | 31.014479318, −83.219069939 | 31.014479318, −83.1288484929999 | 30.935302703, −83.1288484929999.

323 | 43.0246506180001, −115.895653384 | 43.0755981900001, −115.895653384 | 43.0755981900001, −115.836219587 | 43.0246506180001, −115.836219587.

324 | 39.041961471, −85.545884974 | 39.059126926, −85.545884974 | 39.059126926, −85.502112731 | 39.041961471, −85.502112731.

325 | 32.8074254250001, −115.698918811 | 32.8401116740001, −115.698918811 | 32.8401116740001, −115.646437997 | 32.8074254250001, −115.646437997.

326 | 28.5876565020001, −97.628083873 | 28.6265345250001, −97.628083873 | 28.6265345250001, −97.584907879 | 28.5876565020001, −97.584907879.

327 | 71.310648094, −156.674424861 | 71.344323368, −156.674424861 | 71.344323368, −156.617754628 | 71.310648094, −156.617754628.

328 | 43.8597372520001, −69.95330606 | 43.9103207020001, −69.95330606 | 43.9103207020001, −69.909873769 | 43.8597372520001, −69.909873769.

329 | 32.743470873, −97.44549275 | 32.787133199, −97.44549275 | 32.787133199, −97.413267401 | 32.743470873, −97.413267401.

330 | 30.1941004770001, −81.7076006299999 | 30.2458023780001, −81.7076006299999 | 30.2458023780001, −81.6593342339999 | 30.1941004770001, −81.6593342339999.

331 | 40.1857296150001, −75.164926593 | 40.2167846540001, −75.164926593 | 40.2167846540001, −75.134209434 | 40.1857296150001, −75.134209434.

332 | 24.5560839770001, −81.722408305 | 24.5971158050001, −81.722408305 | 24.5971158050001, −81.653518462 | 24.5560839770001, −81.653518462.

333 | 27.4674233900001, −97.832157771 | 27.5231989330001, −97.832157771 | 27.5231989330001, −97.788047634 | 27.4674233900001, −97.788047634.

334 | 36.255073843, −119.977147505 | 36.386386503, −119.977147505 | 36.386386503, −119.869576662 | 36.255073843, −119.869576662.

335 | 30.326507308, −87.352445013 | 30.375924031, −87.352445013 | 30.375924031, −87.257235015 | 30.326507308, −87.257235015.

336 | 30.683881264, −87.043781272 | 30.738102029, −87.043781272 | 30.738102029, −86.997376436 | 30.683881264, −86.997376436.

337 | 36.106696485, −86.67860059 | 36.114637747, −86.67860059 | 36.114637747, −86.67190118 | 36.106696485, −86.67190118.

338 | 32.6696509240001, −117.114230685 | 32.6740385570001, −117.114230685 | 32.6740385570001, −117.111967973 | 32.6696509240001, −117.111967973.

339 | 38.9746589920001, −76.4937690629999 | 39.0026084470001, −76.4937690629999 | 39.0026084470001, −76.4487817289999 | 38.9746589920001, −76.4487817289999.

340 | 27.61946242, −97.4505952709999 | 27.718208017, −97.4505952709999 | 27.718208017, −97.2437083949999 | 27.61946242, −97.2437083949999.

341 | 29.8014398060001, −90.0485449769999 | 29.8575240390001, −90.0485449769999 | 29.8575240390001, −89.9938950499999 | 29.8014398060001, −89.9938950499999.

342 | 32.499252175, −88.6318691439999 | 32.602832677, −88.6318691439999 | 32.602832677, −88.5064742839999 | 32.499252175, −88.5064742839999.

343 | 36.7852781730001, −76.063232016 | 36.8386906080001, −76.063232016 | 36.8386906080001, −75.99817255 | 36.7852781730001, −75.99817255.

344 | 36.760031462, −75.9846076869999 | 36.818318534, −75.9846076869999 | 36.818318534, −75.9490831369999 | 36.760031462, −75.9490831369999.

345 | 38.2488191400001, −76.46369128 | 38.3093935480001, −76.46369128 | 38.3093935480001, −76.373549279 | 38.2488191400001, −76.373549279.

346 | 48.311418739, −122.708096597 | 48.369700655, −122.708096597 | 48.369700655, −122.617753395 | 48.311418739, −122.617753395.

347 | 35.2654343400001, −117.8902031 | 36.2318077000001, −117.8902031 | 36.2318077000001, −116.9249447 | 35.2654343400001, −116.9249447.

348 | 13.3091094070001, 144.618332428 | 13.5883222610001, 144.618332428 | 13.5883222610001, 144.916357575 | 13.3091094070001, 144.916357575.

349 | 47.6909210600001, −122.628044406 | 47.705184112, −122.628044406 | 47.705184112, −122.613798201 | 47.6909210600001, −122.613798201.

350 | 47.6767991730001, −122.747424327 | 47.7726169310001, −122.747424327 | 47.7726169310001, −122.691878973 | 47.6767991730001, −122.691878973.

351 | 47.5449361660001, −122.671768178 | 47.5653870590001, −122.671768178 | 47.5653870590001, −122.623883723 | 47.5449361660001, −122.623883723.

352 | 32.675119312, −117.256218377 | 32.713082807, −117.256218377 | 32.713082807, −117.234025189 | 32.675119312, −117.234025189.

353 | 32.6582935910001, −117.135977498 | 32.6884541840001, −117.135977498 | 32.6884541840001, −117.112975083 | 32.6582935910001, −117.112975083.

354 | 34.088069982, −119.160456826 | 34.13946678, −119.160456826 | 34.13946678, −119.064184636 | 34.088069982, −119.064184636.

355 | 34.142955882, −119.221480878 | 34.175763756, −119.221480878 | 34.175763756, −119.195140105 | 34.142955882, −119.195140105.

356 | 55.5394297110001, −131.764707731 | 55.5429794870001, −131.764707731 | 55.5429794870001, −131.755720856 | 55.5394297110001, −131.755720856.

357 | 46.3564572000001, −98.3483000209999 | 46.3745994580001, −98.3483000209999 | 46.3745994580001, −98.3233449679999 | 46.3564572000001, −98.3233449679999.

358 | 28.581333934, −81.200124825 | 28.586585157, −81.200124825 | 28.586585157, −81.194259644 | 28.581333934, −81.194259644.

359 | 18.392254736, −67.185834374 | 18.405878229, −67.185834374 | 18.405878229, −67.170701901 | 18.392254736, −67.170701901.

360 | 44.6232594310001, −67.328272859 | 44.7036300010001, −67.328272859 | 44.7036300010001, −67.254518602 | 44.6232594310001, −67.254518602.

361 | 38.9186807040001, −77.070549603 | 38.9241721890001, −77.070549603 | 38.9241721890001, −77.063519892 | 38.9186807040001, −77.063519892.

362 | 38.8200046750001, −77.027450812 | 38.8300043240001, −77.027450812 | 38.8300043240001, −77.017462058 | 38.8200046750001, −77.017462058.

363 | 38.406152209, −77.110740786 | 38.43740876, −77.110740786 | 38.43740876, −77.0729468369999 | 38.406152209, −77.0729468369999.

364 | 30.33369265, −89.64817211 | 30.417826484, −89.64817211 | 30.417826484, −89.557854425 | 30.33369265, −89.557854425.

365 | 38.6769074200001, −76.34415482 | 38.6792870940001, −76.34415482 | 38.6792870940001, −76.343227801 | 38.6769074200001, −76.343227801.

366 | 42.3047750280001, −87.845909294 | 42.3249165520001, −87.845909294 | 42.3249165520001, −87.828493071 | 42.3047750280001, −87.828493071.

367 | 41.503275973, −71.330843392 | 41.554006671, −71.330843392 | 41.554006671, −71.30062478 | 41.503275973, −71.30062478.

368 | 36.9170290100001, −76.335615748 | 36.9640415810001, −76.335615748 | 36.9640415810001, −76.2618193489999 | 36.9170290100001, −76.2618193489999.

369 | 30.748875362, −81.576797991 | 30.837030033, −81.576797991 | 30.837030033, −81.479993971 | 30.748875362, −81.479993971.

370 | 41.3859700670001, −72.09385059 | 41.4104621860001, −72.09385059 | 41.4104621860001, −72.07728596 | 41.3859700670001, −72.07728596.

371 | 36.8809746540001, −76.427321462 | 36.8890977200001, −76.427321462 | 36.8890977200001, −76.419013745 | 36.8809746540001, −76.419013745.

372 | 38.74493505, −86.905209651 | 38.919755352, −86.905209651 | 38.919755352, −86.6788119869999 | 38.74493505, −86.6788119869999.

373 | 30.158883738, −85.760741626 | 30.188382598, −85.760741626 | 30.188382598, −85.738993885 | 30.158883738, −85.738993885.

374 | 40.0361710110001, −75.101397768 | 40.0471374300001, −75.101397768 | 40.0471374300001, −75.088731354 | 40.0361710110001, −75.088731354.

375 | 38.871230644, −76.9994186819999 | 38.876356839, −76.9994186819999 | 38.876356839, −76.9912418639999 | 38.871230644, −76.9912418639999.

376 | 38.9719405210001, −77.203514559 | 38.9783021020001, −77.203514559 | 38.9783021020001, −77.180406372 | 38.9719405210001, −77.180406372.

377 | 38.3186054830001, −77.051455995 | 38.3591595940001, −77.051455995 | 38.3591595940001, −77.014266139 | 38.3186054830001, −77.014266139.

378 | 38.5619658580001, −77.2103647979999 | 38.6069805630001, −77.2103647979999 | 38.6069805630001, −77.1602485849999 | 38.5619658580001, −77.1602485849999.

379 | 47.9738990070001, −116.566365931 | 47.9810063290001, −116.566365931 | 47.9810063290001, −116.520622995 | 47.9738990070001, −116.520622995.

380 | 40.2250093260001, −74.214186736 | 40.2823128210001, −74.214186736 | 40.2823128210001, −74.101728286 | 40.2250093260001, −74.101728286.

381 | 33.9177546080001, −117.576534598 | 33.9314446460001, −117.576534598 | 33.9314446460001, −117.562312486 | 33.9177546080001, −117.562312486.

382 | 37.208022726, −76.633932842 | 37.273612882, −76.633932842 | 37.273612882, −76.522493597 | 37.208022726, −76.522493597.

383 | 45.6322259620001, −119.895359741 | 45.8065550300001, −119.895359741 | 45.8065550300001, −119.455477367 | 45.6322259620001, −119.455477367.

384 | 32.681825013, −117.229713083 | 32.715125046, −117.229713083 | 32.715125046, −117.180755171 | 32.681825013, −117.180755171.

385 | 36.842303428, −76.3151234269999 | 36.849661128, −76.3151234269999 | 36.849661128, −76.3024406369999 | 36.842303428, −76.3024406369999.

386 | 35.180398117, −111.749899909 | 35.195319693, −111.749899909 | 35.195319693, −111.736545714 | 35.180398117, −111.736545714.

387 | 40.6710820530001, −112.091693872 | 40.6820119650001, −112.091693872 | 40.6820119650001, −112.057868517 | 40.6710820530001, −112.057868517.

388 | 37.4104380160001, −122.031548936 | 37.4153630160001, −122.031548936 | 37.4153630160001, −122.025261936 | 37.4104380160001, −122.025261936.

389 | 47.966605751, −122.271045712 | 47.994496312, −122.271045712 | 47.994496312, −122.21398207 | 47.966605751, −122.21398207.

390 | 30.361267243, −81.4636657189999 | 30.400329774, −81.4636657189999 | 30.400329774, −81.392276891 | 30.361267243, −81.392276891.

391 | 38.976796961, −76.4937690629999 | 38.986732986, −76.4937690629999 | 38.986732986, −76.4761382759999 | 38.976796961, −76.4761382759999.

392 | 38.9970659050001, −77.097142558 | 39.0074154440001, −77.097142558 | 39.0074154440001, −77.083297186 | 38.9970659050001, −77.083297186.

393 | 36.9181778190001, −76.317281615 | 36.933520845, −76.317281615 | 36.933520845, −76.2811604669999 | 36.9181778190001, −76.2811604669999.

394 | 40.216016376, −77.001594842 | 40.239975455, −77.001594842 | 40.239975455, −76.970791628 | 40.216016376, −76.970791628.

395 | 35.3183642820001, −89.890382347 | 35.3408744740001, −89.890382347 | 35.3408744740001, −89.85751768 | 35.3183642820001, −89.85751768.

396 | 36.593508146, −121.878756787 | 36.600645199, −121.878756787 | 36.600645199, −121.867184688 | 36.593508146, −121.867184688.

397 | 36.8096651020001, −76.311406446 | 36.8288368000001, −76.311406446 | 36.8288368000001, −76.291685476 | 36.8096651020001, −76.291685476.

398 | 32.384281554, −80.685725766 | 32.394141164, −80.685725766 | 32.394141164, −80.678089804 | 32.384281554, −80.678089804.

399 | 33.729669684, −118.099622184 | 33.774096004, −118.099622184 | 33.774096004, −118.041605831 | 33.729669684, −118.041605831.

400 | 36.5872707780001, −121.866360531 | 36.5945029280001, −121.866360531 | 36.5945029280001, −121.851862108 | 36.5872707780001, −121.851862108.

401 | 36.2034528880001, −115.073249953 | 36.3992515790001, −115.073249953 | 36.3992515790001, −114.91920859 | 36.2034528880001, −114.91920859.

402 | 36.4668551030001, −117.094718948 | 37.9076912670001, −117.094718948 | 37.9076912670001, −115.3004082 | 36.4668551030001, −115.3004082.

403 | 42.919235051, −71.671337464 | 42.952654138, −71.671337464 | 42.952654138, −71.616026331 | 42.919235051, −71.616026331.

404 | 39.6829375310001, −75.600492457 | 39.6923952360001, −75.600492457 | 39.6923952360001, −75.593307553 | 39.6829375310001, −75.593307553.

405 | 43.10473267, −70.797901469 | 43.107704771, −70.797901469 | 43.107704771, −70.7919169979999 | 43.10473267, −70.7919169979999.

406 | 33.568962911, −86.751872966 | 33.57308195, −86.751872966 | 33.57308195, −86.748821474 | 33.568962911, −86.748821474.

407 | 61.599438526, −149.390055835 | 61.606721914, −149.390055835 | 61.606721914, −149.35973238 | 61.599438526, −149.35973238.

408 | 36.013579803, −115.202476334 | 36.020786485, −115.202476334 | 36.020786485, −115.198858962 | 36.013579803, −115.198858962.

409 | 45.079114062, −93.178546539 | 45.108075439, −93.178546539 | 45.108075439, −93.147375066 | 45.079114062, −93.147375066.

410 | 33.7189514350001, −84.361650185 | 33.7254539750001, −84.361650185 | 33.7254539750001, −84.356222295 | 33.7189514350001, −84.356222295.

411 | 44.080835533, −70.290540358 | 44.094617619, −70.290540358 | 44.094617619, −70.272902712 | 44.080835533, −70.272902712.

412 | 42.546251763, −71.589424731 | 42.551133712, −71.589424731 | 42.551133712, −71.5781617369999 | 42.546251763, −71.5781617369999.

413 | 44.8040301450001, −68.8467649249999 | 44.8172629220001, −68.8467649249999 | 44.8172629220001, −68.8068680369999 | 44.8040301450001, −68.8068680369999.

414 | 30.354065667, −91.146045237 | 30.360422127, −91.146045237 | 30.360422127, −91.1353207689999 | 30.354065667, −91.1353207689999.

415 | 31.4025019330001, −92.335343385 | 31.4795765740001, −92.335343385 | 31.4795765740001, −92.245795576 | 31.4025019330001, −92.245795576.

416 | 40.0877668460001, −83.068853255 | 40.0907737950001, −83.068853255 | 40.0907737950001, −83.066002311 | 40.0877668460001, −83.066002311.

417 | 44.022196352, −121.133291583 | 44.029392756, −121.133291583 | 44.029392756, −121.123271772 | 44.022196352, −121.123271772.

418 | 30.173439579, −97.674627878 | 30.178958121, −97.674627878 | 30.178958121, −97.668747043 | 30.173439579, −97.668747043.

419 | 38.5445306760001, −75.0682735199999 | 38.5510787900001, −75.0682735199999 | 38.5510787900001, −75.0589773919999 | 38.5445306760001, −75.0589773919999.

420 | 44.1016551610001, −121.17360693 | 44.3272733540001, −121.17360693 | 44.3272733540001, −121.058161787 | 44.1016551610001, −121.058161787.

421 | 46.827120683, −100.725445186 | 46.832772324, −100.725445186 | 46.832772324, −100.715045706 | 46.827120683, −100.715045706.

422 | 44.392304805, −70.947124474 | 44.402273905, −70.947124474 | 44.402273905, −70.928234819 | 44.392304805, −70.928234819.

423 | 47.549068751, −122.684072241 | 47.556350796, −122.684072241 | 47.556350796, −122.678571789 | 47.549068751, −122.678571789.

424 | 33.4426391850001, −112.60836981 | 33.4939449270001, −112.60836981 | 33.4939449270001, −112.590831261 | 33.4426391850001, −112.590831261.

425 | 41.788965498, −80.0518139389999 | 41.798009108, −80.0518139389999 | 41.798009108, −80.0425795319999 | 41.788965498, −80.0425795319999.

426 | 44.708559069, −123.281143191 | 44.72023512, −123.281143191 | 44.72023512, −123.259641857 | 44.708559069, −123.259641857.

427 | 41.056686573, −96.34425821 | 41.096850084, −96.34425821 | 41.096850084, −96.326681639 | 41.056686573, −96.326681639.

428 | 39.2163393430001, −86.1037530039999 | 39.3929446850001, −86.1037530039999 | 39.3929446850001, −85.9785740709999 | 39.2163393430001, −85.9785740709999.

429 | 31.3661086110001, −92.4083963209999 | 31.3916242780001, −92.4083963209999 | 31.3916242780001, −92.3608840609999 | 31.3661086110001, −92.3608840609999.

430 | 31.6146126890001, −98.960277256 | 31.6667772080001, −98.960277256 | 31.6667772080001, −98.901021764 | 31.6146126890001, −98.901021764.

431 | 41.607753723, −71.505549174 | 41.623638419, −71.505549174 | 41.623638419, −71.491180453 | 41.607753723, −71.491180453.

432 | 47.6525289910001, −98.9417105379999 | 48.0636008830001, −98.9417105379999 | 48.0636008830001, −98.6003789309999 | 47.6525289910001, −98.6003789309999.

433 | 35.5952678190001, −95.22118754 | 35.7838291280001, −95.22118754 | 35.7838291280001, −95.126697455 | 35.5952678190001, −95.126697455.

434 | 41.9394829350001, −72.670901858 | 41.9441994120001, −72.670901858 | 41.9441994120001, −72.661211157 | 41.9394829350001, −72.661211157.

435 | 34.8124732220001, −92.3897548209999 | 34.9614877180001, −92.3897548209999 | 34.9614877180001, −92.2396274969999 | 34.8124732220001, −92.2396274969999.

436 | 30.3094558060001, −97.768694553 | 30.3273409100001, −97.768694553 | 30.3273409100001, −97.756391927 | 30.3094558060001, −97.756391927.

437 | 33.774194279, −95.606477742 | 33.832753059, −95.606477742 | 33.832753059, −95.526066382 | 33.774194279, −95.526066382.

438 | 32.5353248810001, −93.475517374 | 32.5878534930001, −93.475517374 | 32.5878534930001, −93.320012082 | 32.5353248810001, −93.320012082.

439 | 41.328015147, −72.192567648 | 41.334274179, −72.192567648 | 41.334274179, −72.18300523 | 41.328015147, −72.18300523.

440 | 43.2872218000001, −116.090973157 | 43.3084647600001, −116.090973157 | 43.3084647600001, −116.006279152 | 43.2872218000001, −116.006279152.

441 | 41.5296110640001, −83.029247488 | 41.5564763520001, −83.029247488 | 41.5564763520001, −83.011583492 | 41.5296110640001, −83.011583492.

442 | 44.0771040870001, −103.272190023 | 44.0820854380001, −103.272190023 | 44.0820854380001, −103.262202287 | 44.0771040870001, −103.262202287.

443 | 41.1628317710001, −81.1929117339999 | 41.2310363250001, −81.1929117339999 | 41.2310363250001, −80.97584481 | 41.1628317710001, −80.97584481.

444 | 46.07222877, −94.558733336 | 46.331943757, −94.558733336 | 46.331943757, −94.325692646 | 46.07222877, −94.325692646.

445 | 39.34839557, −82.9650961519999 | 39.360752962, −82.9650961519999 | 39.360752962, −82.9383779209999 | 39.34839557, −82.9383779209999.

446 | 41.29766305, −73.975066263 | 41.324571403, −73.975066263 | 41.324571403, −73.930650098 | 41.29766305, −73.930650098.

447 | 30.2132250780001, −97.335768978 | 30.310193057, −97.335768978 | 30.310193057, −97.247469425 | 30.2132250780001, −97.247469425.

448 | 30.310456754, −89.821504134 | 30.336315048, −89.821504134 | 30.336315048, −89.7963621059999 | 30.310456754, −89.7963621059999.

449 | 43.922486604, −90.276809935 | 43.932735952, −90.276809935 | 43.932735952, −90.261339487 | 43.922486604, −90.261339487.

450 | 45.4105970370001, −122.564234834 | 45.4146313790001, −122.564234834 | 45.4146313790001, −122.546020519 | 45.4105970370001, −122.546020519.

451 | 30.192979226, −91.136406361 | 30.209958464, −91.136406361 | 30.209958464, −91.120742129 | 30.192979226, −91.120742129.

452 | 33.671756665, −86.017370951 | 33.757794604, −86.017370951 | 33.757794604, −85.882188551 | 33.671756665, −85.882188551.

453 | 40.2117159210001, −75.432393416 | 40.2164501770001, −75.432393416 | 40.2164501770001, −75.42374491 | 40.2117159210001, −75.42374491.

454 | 33.6765084310001, −89.7534024129999 | 33.7542460250001, −89.7534024129999 | 33.7542460250001, −89.6202355929999 | 33.6765084310001, −89.6202355929999.

455 | 39.378532207, −79.708317675 | 39.454188743, −79.708317675 | 39.454188743, −79.639802717 | 39.378532207, −79.639802717.

456 | 42.27527302, −85.3763242809999 | 42.336654723, −85.3763242809999 | 42.336654723, −85.2764495459999 | 42.27527302, −85.2764495459999.

457 | 34.222785926, −84.1147041419999 | 34.225953578, −84.1147041419999 | 34.225953578, −84.1115279319999 | 34.222785926, −84.1115279319999.

458 | 46.8328736340001, −92.1598417499999 | 46.8345283600001, −92.1598417499999 | 46.8345283600001, −92.1578269679999 | 46.8328736340001, −92.1578269679999.

459 | 43.14072293, −115.657766227 | 43.147995984, −115.657766227 | 43.147995984, −115.647820427 | 43.14072293, −115.647820427.

460 | 38.949813614, −79.985745343 | 38.958420468, −79.985745343 | 38.958420468, −79.972014372 | 38.949813614, −79.972014372.

461 | 31.3824479420001, −92.317091139 | 31.4098514070001, −92.317091139 | 31.4098514070001, −92.279692875 | 31.3824479420001, −92.279692875.

462 | 44.4989956200001, −73.174626073 | 44.5216654230001, −73.174626073 | 44.5216654230001, −73.151341101 | 44.4989956200001, −73.151341101.

463 | 33.05649478, −111.387806148 | 33.118281303, −111.387806148 | 33.118281303, −111.318954206 | 33.05649478, −111.318954206.

464 | 36.276929619, −115.061711815 | 36.307014017, −115.061711815 | 36.307014017, −115.024997297 | 36.276929619, −115.024997297.

465 | 36.9652916110001, −78.019676053 | 37.1220791840001, −78.019676053 | 37.1220791840001, −77.838557255 | 36.9652916110001, −77.838557255.

466 | 35.177556168, −94.342568303 | 35.36254474, −94.342568303 | 35.36254474, −94.026321036 | 35.177556168, −94.026321036.

467 | 40.3805917540001, −76.740923494 | 40.4828843550001, −76.740923494 | 40.4828843550001, −76.526125382 | 40.3805917540001, −76.526125382.

468 | 33.7233962760001, −85.799971241 | 33.7412047100001, −85.799971241 | 33.7412047100001, −85.77787227 | 33.7233962760001, −85.77787227.

469 | 32.8348369830001, −98.0657312119999 | 32.8906953370001, −98.0657312119999 | 32.8906953370001, −97.9964332349999 | 32.8348369830001, −97.9964332349999.

470 | 32.775847904, −97.4626718379999 | 32.781682325, −97.4626718379999 | 32.781682325, −97.4528046649999 | 32.775847904, −97.4528046649999.

471 | 38.1716157600001, −84.921448944 | 38.1966283680001, −84.921448944 | 38.1966283680001, −84.894209462 | 38.1716157600001, −84.894209462.

472 | 18.002735849, −66.5139236319999 | 18.025884249, −66.5139236319999 | 18.025884249, −66.4942110159999 | 18.002735849, −66.4942110159999.

473 | 21.2573388270001, −157.811868495 | 21.2696069680001, −157.811868495 | 21.2696069680001, −157.793708924 | 21.2573388270001, −157.793708924.

474 | 33.910428789, −84.5361533929999 | 33.916196229, −84.5361533929999 | 33.916196229, −84.522565546 | 33.910428789, −84.522565546.

475 | 40.959663633, −98.301445179 | 40.964149849, −98.301445179 | 40.964149849, −98.296290336 | 40.959663633, −98.296290336.

476 | 40.515397589, −98.298239402 | 40.567785704, −98.298239402 | 40.567785704, −98.259993615 | 40.515397589, −98.259993615.

477 | 13.471680227, 144.807392696 | 13.476445623, 144.807392696 | 13.476445623, 144.812949999 | 13.471680227, 144.812949999.

478 | 30.4045289490001, −89.065284316 | 30.4205257120001, −89.065284316 | 30.4205257120001, −89.059168989 | 30.4045289490001, −89.059168989.

479 | 30.520223183, −90.417497467 | 30.526889408, −90.417497467 | 30.526889408, −90.406882911 | 30.520223183, −90.406882911.

480 | 39.528072455, −76.1100913129999 | 39.536739552, −76.1100913129999 | 39.536739552, −76.0982416589999 | 39.528072455, −76.0982416589999.

481 | 46.6059564510001, −111.975646726 | 46.6106942060001, −111.975646726 | 46.6106942060001, −111.967693583 | 46.6059564510001, −111.967693583.

482 | 40.4376721520001, −78.4170869339999 | 40.4407479890001, −78.4170869339999 | 40.4407479890001, −78.4124497679999 | 40.4376721520001, −78.4124497679999.

483 | 43.659487912, −70.674869746 | 43.67992728, −70.674869746 | 43.67992728, −70.654823081 | 43.659487912, −70.654823081.

484 | 39.7424976190001, −86.230956444 | 39.7462615480001, −86.230956444 | 39.7462615480001, −86.225390797 | 39.7424976190001, −86.225390797.

485 | 35.3048305680001, −120.756679866 | 35.3717978880001, −120.756679866 | 35.3717978880001, −120.664040578 | 35.3048305680001, −120.664040578.

486 | 35.594877598, −88.916399526 | 35.601416549, −88.916399526 | 35.601416549, −88.909521524 | 35.594877598, −88.909521524.

487 | 29.9497813040001, −90.0120117979999 | 29.9740232620001, −90.0120117979999 | 29.9740232620001, −89.9987827089999 | 29.9497813040001, −89.9987827089999.

488 | 38.8833909860001, −81.8464996549999 | 38.905765642, −81.8464996549999 | 38.905765642, −81.8170444439999 | 38.8833909860001, −81.8170444439999.

489 | 39.01630591, −95.6872730109999 | 39.022374526, −95.6872730109999 | 39.022374526, −95.6797306829999 | 39.01630591, −95.6797306829999.

490 | 36.4178126140001, −82.493381518 | 36.4246402130001, −82.493381518 | 36.4246402130001, −82.484291574 | 36.4178126140001, −82.484291574.

491 | 21.3142785630001, −158.069986235 | 21.3240454770001, −158.069986235 | 21.3240454770001, −158.056465611 | 21.3142785630001, −158.056465611.

492 | 39.764279425, −85.527190456 | 39.778947386, −85.527190456 | 39.778947386, −85.508361982 | 39.764279425, −85.508361982.

493 | 44.0647301270001, −122.982252253 | 44.0670417360001, −122.982252253 | 44.0670417360001, −122.973786312 | 44.0647301270001, −122.973786312.

494 | 42.766389845, −84.576207556 | 42.769800145, −84.576207556 | 42.769800145, −84.567413358 | 42.766389845, −84.567413358.

495 | 32.270748628, −106.939138534 | 32.280280019, −106.939138534 | 32.280280019, −106.930519974 | 32.270748628, −106.930519974.

496 | 40.2658142980001, −74.748095306 | 40.2734112650001, −74.748095306 | 40.2734112650001, −74.740257715 | 40.2658142980001, −74.740257715.

497 | 35.0150424290001, −97.239011654 | 35.0295356340001, −97.239011654 | 35.0295356340001, −97.223711786 | 35.0150424290001, −97.223711786.

498 | 40.8356006820001, −96.758767006 | 40.8404020610001, −96.758767006 | 40.8404020610001, −96.749174181 | 40.8356006820001, −96.749174181.

499 | 33.7812372280001, −118.067627933 | 33.8016134000001, −118.067627933 | 33.8016134000001, −118.032767969 | 33.7812372280001, −118.032767969.

500 | 32.8597198360001, −83.6073436619999 | 32.8630748340001, −83.6073436619999 | 32.8630748340001, −83.6039690959999 | 32.8597198360001, −83.6039690959999.

501 | 39.636663701, −92.534704178 | 39.721017576, −92.534704178 | 39.721017576, −92.464676968 | 39.636663701, −92.464676968.

502 | 41.267041534, −88.7046910729999 | 41.305913573, −88.7046910729999 | 41.305913573, −88.6608137729999 | 41.267041534, −88.6608137729999.

503 | 29.426494618, −98.3843199139999 | 29.437625079, −98.3843199139999 | 29.437625079, −98.3746227379999 | 29.426494618, −98.3746227379999.

504 | 39.6487077620001, −81.847046613 | 39.6734994180001, −81.847046613 | 39.6734994180001, −81.831592537 | 39.6487077620001, −81.831592537.

505 | 44.9048285740001, −123.003047071 | 44.9170262920001, −123.003047071 | 44.9170262920001, −122.995194144 | 44.9048285740001, −122.995194144.

506 | 41.1829986970001, −96.49160163 | 41.2049128990001, −96.49160163 | 41.2049128990001, −96.425755553 | 41.1829986970001, −96.425755553.

507 | 43.7601885300001, −98.047917175 | 43.7638707560001, −98.047917175 | 43.7638707560001, −98.039102093 | 43.7601885300001, −98.039102093.

508 | 32.4031817050001, −86.263631114 | 32.4082452810001, −86.263631114 | 32.4082452810001, −86.2557011 | 32.4031817050001, −86.2557011.

509 | 36.1649285010001, −78.833628877 | 36.2232305700001, −78.833628877 | 36.2232305700001, −78.75963967 | 36.1649285010001, −78.75963967.

510 | 37.81235573, −94.3097107569999 | 37.828354979, −94.3097107569999 | 37.828354979, −94.2731087829999 | 37.81235573, −94.2731087829999.

511 | 36.7579974450001, −94.387727354 | 36.8328900980001, −94.387727354 | 36.8328900980001, −94.326852463 | 36.7579974450001, −94.326852463.

512 | 42.5267790020001, −71.08203514 | 42.5603767370001, −71.08203514 | 42.5603767370001, −71.063291358 | 42.5267790020001, −71.063291358.

513 | 39.4912259380001, −76.8607346809999 | 39.5046787930001, −76.8607346809999 | 39.5046787930001, −76.8318924949999 | 39.4912259380001, −76.8318924949999.

514 | 46.1080148720001, −123.964495138 | 46.1501140200001, −123.964495138 | 46.1501140200001, −123.92502133 | 46.1080148720001, −123.92502133.

515 | 17.9872158480001, −66.333706182 | 18.0695436220001, −66.333706182 | 18.0695436220001, −66.240579825 | 17.9872158480001, −66.240579825.

516 | 33.780577163, −82.2952040439999 | 33.807394959, −82.2952040439999 | 33.807394959, −82.26292394 | 33.780577163, −82.26292394.

517 | 46.6005921770001, −112.190250013 | 46.6592451280001, −112.190250013 | 46.6592451280001, −112.094472322 | 46.6005921770001, −112.094472322.

518 | 39.423596381, −76.51081268 | 39.439023401, −76.51081268 | 39.439023401, −76.496156333 | 39.423596381, −76.496156333.

519 | 46.220510372, −111.635118944 | 46.337394743, −111.635118944 | 46.337394743, −111.504109039 | 46.220510372, −111.504109039.

520 | 42.1437413450001, −104.948278987 | 42.4788211760001, −104.948278987 | 42.4788211760001, −104.703889369 | 42.1437413450001, −104.703889369.

521 | 35.656031539, −95.375341077 | 35.664828514, −95.375341077 | 35.664828514, −95.369972431 | 35.656031539, −95.369972431.

522 | 36.0958233040001, −86.7615681459999 | 36.1023428190001, −86.7615681459999 | 36.1023428190001, −86.7562354 | 36.0958233040001, −86.7562354.

523 | 40.9786701780001, −80.325759923 | 40.9800945050001, −80.325759923 | 40.9800945050001, −80.323839076 | 40.9786701780001, −80.323839076.

524 | 35.2622862810001, −97.4851407689999 | 35.2681205800001, −97.4851407689999 | 35.2681205800001, −97.4768490759999 | 35.2622862810001, −97.4768490759999.

525 | 33.6157453390001, −84.3128273029999 | 33.6193347170001, −84.3128273029999 | 33.6193347170001, −84.3074772369999 | 33.6157453390001, −84.3074772369999.

526 | 33.4618850200001, −111.969623276 | 33.4727567890001, −111.969623276 | 33.4727567890001, −111.952212294 | 33.4618850200001, −111.952212294.

527 | 32.6578846960001, −111.495190228 | 32.6688813430001, −111.495190228 | 32.6688813430001, −111.481955968 | 32.6578846960001, −111.481955968.

528 | 35.804791455, −78.715406802 | 35.81355058, −78.715406802 | 35.81355058, −78.707216709 | 35.804791455, −78.707216709.

529 | 39.8002476090001, −82.9570252779999 | 39.8098625370001, −82.9570252779999 | 39.8098625370001, −82.94567622 | 39.8002476090001, −82.94567622.

530 | 35.3683435470001, −106.65493619 | 35.3777845520001, −106.65493619 | 35.3777845520001, −106.648878128 | 35.3683435470001, −106.648878128.

531 | 39.627394171, −75.6147487649999 | 39.639382105, −75.6147487649999 | 39.639382105, −75.6006753489999 | 39.627394171, −75.6006753489999.

532 | 43.9963073710001, −92.433533997 | 43.9977499120001, −92.433533997 | 43.9977499120001, −92.428949024 | 43.9963073710001, −92.428949024.

533 | 44.7463851480001, −93.12881708 | 44.7488195410001, −93.12881708 | 44.7488195410001, −93.125978095 | 44.7463851480001, −93.125978095.

534 | 32.284284584, −86.3990584479999 | 32.295043619, −86.3990584479999 | 32.295043619, −86.392323549 | 32.284284584, −86.392323549.

535 | 32.847954014, −97.3530685539999 | 32.861579522, −97.3530685539999 | 32.861579522, −97.3432426939999 | 32.847954014, −97.3432426939999.

536 | 37.030464438, −113.549169301 | 37.037578732, −113.549169301 | 37.037578732, −113.544639 | 37.030464438, −113.544639.

537 | 38.7817203050001, −97.642976177 | 38.7897490390001, −97.642976177 | 38.7897490390001, −97.633242512 | 38.7817203050001, −97.633242512.

538 | 37.49085725, −77.3171608389999 | 37.498350787, −77.3171608389999 | 37.498350787, −77.3077128829999 | 37.49085725, −77.3077128829999.

539 | 35.5622835610001, −106.10286838 | 35.5754168170001, −106.10286838 | 35.5754168170001, −106.071788538 | 35.5622835610001, −106.071788538.

540 | 40.1177429000001, −74.044914025 | 40.1299027480001, −74.044914025 | 40.1299027480001, −74.030081087 | 40.1177429000001, −74.030081087.

541 | 39.576923987, −85.816200007 | 39.580378098, −85.816200007 | 39.580378098, −85.807738311 | 39.576923987, −85.807738311.

542 | 32.519546491, −111.340100133 | 32.527987523, −111.340100133 | 32.527987523, −111.325196238 | 32.519546491, −111.325196238.

543 | 43.5730602740001, −96.6930749859999 | 43.5983048400001, −96.6930749859999 | 43.5983048400001, −96.6759672029999 | 43.5730602740001, −96.6759672029999.

544 | 25.9569713660001, −80.31070355 | 25.9681289730001, −80.31070355 | 25.9681289730001, −80.298558922 | 25.9569713660001, −80.298558922.

545 | 38.131120233, −89.745599204 | 38.190313565, −89.745599204 | 38.190313565, −89.703313722 | 38.131120233, −89.703313722.

546 | 40.1880831510001, −75.561069736 | 40.1918052850001, −75.561069736 | 40.1918052850001, −75.552580986 | 40.1880831510001, −75.552580986.

547 | 39.8160693520001, −89.673473292 | 39.8306927080001, −89.673473292 | 39.8306927080001, −89.664369884 | 39.8160693520001, −89.664369884.

548 | 37.2490490960001, −93.395772062 | 37.2571610570001, −93.395772062 | 37.2571610570001, −93.384982394 | 37.2490490960001, −93.384982394.

549 | 45.5372774640001, −94.060060866 | 45.5419761270001, −94.060060866 | 45.5419761270001, −94.051145099 | 45.5372774640001, −94.051145099.

550 | 45.5645070200001, −94.179496597 | 45.5652420030001, −94.179496597 | 45.5652420030001, −94.175345802 | 45.5645070200001, −94.175345802.

551 | 36.8110053980001, −75.9894743689999 | 36.8227442360001, −75.9894743689999 | 36.8227442360001, −75.9659250589999 | 36.8110053980001, −75.9659250589999.

552 | 41.3451753470001, −72.293373883 | 41.3813569730001, −72.293373883 | 41.3813569730001, −72.253317667 | 41.3451753470001, −72.253317667.

553 | 36.285694226, −95.309758124 | 36.300130892, −95.309758124 | 36.300130892, −95.278470963 | 36.285694226, −95.278470963.

554 | 43.2708696780001, −71.1288204539999 | 43.2848092560001, −71.1288204539999 | 43.2848092560001, −71.1155219099999 | 43.2708696780001, −71.1155219099999.

555 | 44.4965394450001, −73.168838485 | 44.5034995140001, −73.168838485 | 44.5034995140001, −73.160140825 | 44.4965394450001, −73.160140825.

556 | 44.442952367, −72.960320316 | 44.500157333, −72.960320316 | 44.500157333, −72.836710736 | 44.442952367, −72.836710736.

557 | 38.546453582, −92.080098162 | 38.556080633, −92.080098162 | 38.556080633, −92.055385571 | 38.546453582, −92.055385571.

558 | 19.696784098, −155.052848025 | 19.715068265, −155.052848025 | 19.715068265, −155.023635733 | 19.696784098, −155.023635733.

559 | 36.8796769900001, −90.310798339 | 36.9046015270001, −90.310798339 | 36.9046015270001, −90.255783907 | 36.8796769900001, −90.255783907.

560 | 39.441791832, −79.6837218599999 | 39.464465755, −79.6837218599999 | 39.464465755, −79.6475069149999 | 39.441791832, −79.6475069149999.

561 | 34.9067538520001, −85.070727678 | 34.9506642170001, −85.070727678 | 34.9506642170001, −85.045031881 | 34.9067538520001, −85.045031881.

562 | 35.814732012, −88.7542933719999 | 35.923989023, −88.7542933719999 | 35.923989023, −88.6437411839999 | 35.814732012, −88.6437411839999.

563 | 36.006276454, −86.516501852 | 36.027518046, −86.516501852 | 36.027518046, −86.492335009 | 36.006276454, −86.492335009.

564 | 44.067527784, −103.325214534 | 44.0784787400001, −103.325214534 | 44.0784787400001, −103.287313773 | 44.067527784, −103.287313773.

565 | 43.0833898060001, −72.4562338169999 | 43.0889316040001, −72.4562338169999 | 43.0889316040001, −72.4474520169999 | 43.0833898060001, −72.4474520169999.

566 | 37.2459669690001, −87.264708566 | 37.3155568590001, −87.264708566 | 37.3155568590001, −87.143105234 | 37.2459669690001, −87.143105234.

567 | 39.3487643610001, −81.448406511 | 39.3590411380001, −81.448406511 | 39.3590411380001, −81.437125672 | 39.3487643610001, −81.437125672.

568 | 43.230983715, −78.987693814 | 43.244098627, −78.987693814 | 43.244098627, −78.957641634 | 43.230983715, −78.957641634.

569 | 38.414110285, −90.4008158519999 | 38.51933631, −90.4008158519999 | 38.51933631, −89.8873624389999 | 38.414110285, −89.8873624389999.

570 | 43.1058774480001, −78.9722862359999 | 43.1213964380001, −78.9722862359999 | 43.1213964380001, −78.9269798539999 | 43.1058774480001, −78.9269798539999.

571 | 38.8465829040001, −76.9406129989999 | 38.8511023340001, −76.9406129989999 | 38.8511023340001, −76.9338436309999 | 38.8465829040001, −76.9338436309999.

572 | 36.799812242, −76.299262352 | 36.806581273, −76.299262352 | 36.806581273, −76.291663588 | 36.799812242, −76.291663588.

573 | 36.824516203, −76.2911109619999 | 36.82654125, −76.2911109619999 | 36.82654125, −76.2870895149999 | 36.824516203, −76.2870895149999.

574 | 31.0389879680001, −87.076766692 | 31.0572498550001, −87.076766692 | 31.0572498550001, −87.053283792 | 31.0389879680001, −87.053283792.

575 | 30.486569113, −86.966743959 | 30.523283452, −86.966743959 | 30.523283452, −86.940434633 | 30.486569113, −86.940434633.

576 | 31.4033835660001, −87.057347927 | 31.4251772980001, −87.057347927 | 31.4251772980001, −87.022039826 | 31.4033835660001, −87.022039826.

577 | 30.417555556, −86.9026103099999 | 30.432862018, −86.9026103099999 | 30.432862018, −86.8837180249999 | 30.417555556, −86.8837180249999.

578 | 30.599791442, −86.950876547 | 30.619098213, −86.950876547 | 30.619098213, −86.9265002429999 | 30.599791442, −86.9265002429999.

579 | 30.5546267450001, −87.8164634139999 | 30.5687059560001, −87.8164634139999 | 30.5687059560001, −87.8015463849999 | 30.5546267450001, −87.8015463849999.

580 | 30.617963515, −87.148395847 | 30.632703528, −87.148395847 | 30.632703528, −87.131141293 | 30.617963515, −87.131141293.

581 | 30.499075884, −87.6626447849999 | 30.520323757, −87.6626447849999 | 30.520323757, −87.6311911829999 | 30.499075884, −87.6311911829999.

582 | 30.338386572, −87.5495986079999 | 30.351971261, −87.5495986079999 | 30.351971261, −87.5332728869999 | 30.338386572, −87.5332728869999.

583 | 35.3381397860001, −89.875828209 | 35.3503400000001, −89.875828209 | 35.3503400000001, −89.848676466 | 35.3381397860001, −89.848676466.

584 | 36.535830635, −76.292027831 | 36.580439287, −76.292027831 | 36.580439287, −76.243039727 | 36.535830635, −76.243039727.

585 | 33.891359251, −118.072946629 | 33.894991619, −118.072946629 | 33.894991619, −118.067394654 | 33.891359251, −118.067394654.

586 | 38.3285014350001, −76.4841629759999 | 38.3442330700001, −76.4841629759999 | 38.3442330700001, −76.4639193759999 | 38.3285014350001, −76.4639193759999.

587 | 43.077684909, −73.823802707 | 43.082196982, −73.823802707 | 43.082196982, −73.818216923 | 43.077684909, −73.818216923.

588 | 18.4266523270001, −66.188700669 | 18.4276186450001, −66.188700669 | 18.4276186450001, −66.187788338 | 18.4266523270001, −66.187788338.

589 | 35.086256399, −90.1438097929999 | 35.090263498, −90.1438097929999 | 35.090263498, −90.138466962 | 35.086256399, −90.138466962.

590 | 42.4740966470001, −71.292022302 | 42.4801271500001, −71.292022302 | 42.4801271500001, −71.286586841 | 42.4740966470001, −71.286586841.

591 | 41.0982621430001, −95.9280611469999 | 41.1364452900001, −95.9280611469999 | 41.1364452900001, −95.8780365989999 | 41.0982621430001, −95.8780365989999.

592 | 32.7452306660001, −117.200217282 | 32.7528565660001, −117.200217282 | 32.7528565660001, −117.192605845 | 32.7452306660001, −117.192605845.

593 | 32.783231948, −88.8532491779999 | 32.814254912, −88.8532491779999 | 32.814254912, −88.8124127399999 | 32.783231948, −88.8124127399999.

594 | 30.37231968, −87.429057305 | 30.394059181, −87.429057305 | 30.394059181, −87.396697185 | 30.37231968, −87.396697185.

595 | 48.1708872200001, −122.648186576 | 48.2120255960001, −122.648186576 | 48.2120255960001, −122.615173447 | 48.1708872200001, −122.615173447.

596 | 30.338350216, −81.889129182 | 30.377897748, −81.889129182 | 30.377897748, −81.84492402 | 30.338350216, −81.84492402.

597 | 70.488162834, −149.926235024 | 70.509905742, −149.926235024 | 70.509905742, −149.855544128 | 70.488162834, −149.855544128.

598 | 43.098523582, −116.31428757 | 43.37173967, −116.31428757 | 43.37173967, −115.957075202 | 43.098523582, −115.957075202.

599 | 38.0231563570001, −122.170412652 | 38.0284346090001, −122.170412652 | 38.0284346090001, −122.162692799 | 38.0231563570001, −122.162692799.

600 | 21.979075729, −159.787895529 | 22.073530219, −159.787895529 | 22.073530219, −159.750843749 | 21.979075729, −159.750843749.

601 | 37.709457716, −121.91515472 | 37.747451286, −121.91515472 | 37.747451286, −121.871676143 | 37.709457716, −121.871676143.

602 | 28.2124892410001, −80.6189925959999 | 28.2719774110001, −80.6189925959999 | 28.2719774110001, −80.5967212699999 | 28.2124892410001, −80.5967212699999.

603 | 21.3812730710001, −157.972837384 | 21.3857579590001, −157.972837384 | 21.3857579590001, −157.969830103 | 21.3812730710001, −157.969830103.

604 | 43.0830098340001, −70.8265315799999 | 43.095680228, −70.8265315799999 | 43.095680228, −70.8118178159999 | 43.0830098340001, −70.8118178159999.

605 | 38.8665872170001, −77.06187689 | 38.8804333410001, −77.06187689 | 38.8804333410001, −77.0457741439999 | 38.8665872170001, −77.0457741439999.

606 | 38.805877954, −104.720171001 | 38.838836254, −104.720171001 | 38.838836254, −104.673427575 | 38.805877954, −104.673427575.

607 | 40.9140682660001, −74.590780383 | 40.9956152640001, −74.590780383 | 40.9956152640001, −74.494014259 | 40.9140682660001, −74.494014259.

608 | 18.26752057, −65.759072139 | 18.26922761, −65.759072139 | 18.26922761, −65.757502273 | 18.26752057, −65.757502273.

609 | 37.495160689, −122.500638613 | 37.504255663, −122.500638613 | 37.504255663, −122.494186302 | 37.495160689, −122.494186302.

610 | 34.2702027120001, −92.13996888 | 34.3785932240001, −92.13996888 | 34.3785932240001, −92.033468658 | 34.2702027120001, −92.033468658.

611 | 18.2467234310001, −65.600381523 | 18.2570859030001, −65.600381523 | 18.2570859030001, −65.5822592889999 | 18.2467234310001, −65.5822592889999.

612 | 37.339590329, −104.173059108 | 37.644554428, −104.173059108 | 37.644554428, −103.576450075 | 37.339590329, −103.576450075.

613 | 40.489967456, −80.215160815 | 40.497923194, −80.215160815 | 40.497923194, −80.205677052 | 40.489967456, −80.205677052.

614 | 40.4899753650001, −80.215361211 | 40.4979311050001, −80.215361211 | 40.4979311050001, −80.205680084 | 40.4899753650001, −80.205680084.

615 | 19.580002141, −155.753584385 | 19.935340889, −155.753584385 | 19.935340889, −155.482149063 | 19.580002141, −155.482149063.

616 | 33.737668318, −80.5168304859999 | 33.849728431, −80.5168304859999 | 33.849728431, −80.4450008049999 | 33.737668318, −80.4450008049999.

617 | 38.887515787, −123.552272552 | 38.895551718, −123.552272552 | 38.895551718, −123.538718114 | 38.887515787, −123.538718114.

618 | 71.323665191, −156.649567453 | 71.336534761, −156.649567453 | 71.336534761, −156.601540334 | 71.323665191, −156.601540334.

619 | 45.57436111, −122.604832246 | 45.583315392, −122.604832246 | 45.583315392, −122.585382407 | 45.57436111, −122.585382407.

620 | 42.9087822710001, −71.4221747879999 | 43.0870732990001, −71.4221747879999 | 43.0870732990001, −70.722436956 | 42.9087822710001, −70.722436956.

621 | 36.594597106, −121.926941695 | 36.608467628, −121.926941695 | 36.608467628, −121.894607972 | 36.594597106, −121.894607972.

622 | 38.263930139, −104.386297178 | 38.360999196, −104.386297178 | 38.360999196, −104.275724057 | 38.263930139, −104.275724057.

623 | 38.290060253, −77.0671300829999 | 38.31683736, −77.0671300829999 | 38.31683736, −77.0170631189999 | 38.290060253, −77.0170631189999.

624 | 21.3139823400001, −157.992793478 | 21.3226045200001, −157.992793478 | 21.3226045200001, −157.982066252 | 21.3139823400001, −157.982066252.

625 | 41.5907533440001, −71.42348666 | 41.6007626130001, −71.42348666 | 41.6007626130001, −71.41187911 | 41.5907533440001, −71.41187911.

626 | 37.163382287, −80.5791188709999 | 37.207412609, −80.5791188709999 | 37.207412609, −80.5101282629999 | 37.163382287, −80.5101282629999.

627 | 18.5087916470001, −67.099861576 | 18.5101598370001, −67.099861576 | 18.5101598370001, −67.098621282 | 18.5087916470001, −67.098621282.

628 | 33.397278645, −94.4116859869999 | 33.464838472, −94.4116859869999 | 33.464838472, −94.3047919909999 | 33.397278645, −94.3047919909999.

629 | 44.9551877580001, −70.513638005 | 45.0169721250001, −70.513638005 | 45.0169721250001, −70.379987151 | 44.9551877580001, −70.379987151.

630 | 34.550284843, −86.7237782349999 | 34.710900354, −86.7237782349999 | 34.710900354, −86.5815630549999 | 34.550284843, −86.5815630549999.

631 | 39.4978523080001, −119.778804811 | 39.5024544730001, −119.778804811 | 39.5024544730001, −119.771926612 | 39.4978523080001, −119.771926612.

632 | 39.806889794, −82.949783742 | 39.819444408, −82.949783742 | 39.819444408, −82.937417355 | 39.806889794, −82.937417355.

633 | 38.1508457090001, −78.418005901 | 38.1586875990001, −78.418005901 | 38.1586875990001, −78.409329548 | 38.1508457090001, −78.409329548.

634 | 37.7110124880001, −120.921809782 | 37.7227924600001, −120.921809782 | 37.7227924600001, −120.9168393 | 37.7110124880001, −120.9168393.

635 | 32.5734846130001, −83.613041736 | 32.6644753900001, −83.613041736 | 32.6644753900001, −83.555394419 | 32.5734846130001, −83.555394419.

636 | 41.5101975790001, −90.566624136 | 41.5236820390001, −90.566624136 | 41.5236820390001, −90.515679261 | 41.5101975790001, −90.515679261.

637 | 39.816797712, −104.880637268 | 39.895272909, −104.880637268 | 39.895272909, −104.796958344 | 39.816797712, −104.796958344.

638 | 61.756264087, −166.062507434 | 61.799913075, −166.062507434 | 61.799913075, −165.913701567 | 61.756264087, −165.913701567.

639 | 43.2183336890001, −75.415282906 | 43.2263537340001, −75.415282906 | 43.2263537340001, −75.407014028 | 43.2183336890001, −75.407014028.

640 | 39.762626991, −94.904952104 | 39.769793541, −94.904952104 | 39.769793541, −94.897835881 | 39.762626991, −94.897835881.

641 | 31.3342942350001, −86.0977289259999 | 31.3453725330001, −86.0977289259999 | 31.3453725330001, −86.085558079 | 31.3342942350001, −86.085558079.

642 | 40.7838318330001, −111.959489583 | 40.7949147800001, −111.959489583 | 40.7949147800001, −111.953751907 | 40.7838318330001, −111.953751907.

643 | 32.8003673640001, −118.606292107 | 33.0377362220001, −118.606292107 | 33.0377362220001, −118.348994062 | 32.8003673640001, −118.348994062.

644 | 33.2121599560001, −119.582134532 | 33.29062044, −119.582134532 | 33.29062044, −119.418213784 | 33.2121599560001, −119.418213784.

645 | 33.7662733170001, −118.309268541 | 33.7813000720001, −118.309268541 | 33.7813000720001, −118.293960351 | 33.7662733170001, −118.293960351.

646 | 33.991029047, −119.635878529 | 33.997444378, −119.635878529 | 33.997444378, −119.625797527 | 33.991029047, −119.625797527.

647 | 30.458179069, −87.351595059 | 30.481667064, −87.351595059 | 30.481667064, −87.33104122 | 30.458179069, −87.33104122.

648 | 42.1757726720001, −90.4077834729999 | 42.284196191, −90.4077834729999 | 42.284196191, −90.2282601739999 | 42.1757726720001, −90.2282601739999.

649 | 32.119801635, −81.1976294959999 | 32.13505162, −81.1976294959999 | 32.13505162, −81.1837630719999 | 32.119801635, −81.1837630719999.

650 | 42.5925001000001, −115.678838723 | 42.8511848830001, −115.678838723 | 42.8511848830001, −115.453730372 | 42.5925001000001, −115.453730372.

651 | 42.8436851000001, −73.932567765 | 42.8583933770001, −73.932567765 | 42.8583933770001, −73.917508999 | 42.8436851000001, −73.917508999.

652 | 38.7843530810001, −104.551986183 | 38.8241032480001, −104.551986183 | 38.8241032480001, −104.48867271 | 38.7843530810001, −104.48867271.

653 | 38.524439918, −89.882877352 | 38.558372905, −89.882877352 | 38.558372905, −89.822791153 | 38.524439918, −89.822791153.

654 | 41.402655098, −75.6679100109999 | 41.405858099, −75.6679100109999 | 41.405858099, −75.6641420559999 | 41.402655098, −75.6641420559999.

655 | 36.9172616480001, −76.320386974 | 36.9234795100001, −76.320386974 | 36.9234795100001, −76.310890414 | 36.9172616480001, −76.310890414.

656 | 48.26740571, −122.645903557 | 48.3084303770001, −122.645903557 | 48.3084303770001, −122.555529232 | 48.26740571, −122.555529232.

657 | 42.5944000000001, −82.8511999999999 | 42.6303400000001, −82.8511999999999 | 42.6303400000001, −82.8038799999999 | 42.5944000000001, −82.8038799999999.

658 | 36.237894413, −119.894821285 | 36.250497998, −119.894821285 | 36.250497998, −119.869682611 | 36.237894413, −119.869682611.

659 | 60.1318770720001, −149.434449035 | 60.1347511870001, −149.434449035 | 60.1347511870001, −149.431802327 | 60.1318770720001, −149.431802327.

660 | 35.3214638170001, −77.997073351 | 35.368940398, −77.997073351 | 35.368940398, −77.930639313 | 35.3214638170001, −77.930639313.

661 | 33.9530524190001, −80.494323712 | 33.9954038330001, −80.494323712 | 33.9954038330001, −80.441564645 | 33.9530524190001, −80.441564645.

662 | 31.3582318730001, −85.856088056 | 31.3677829840001, −85.856088056 | 31.3677829840001, −85.84143832 | 31.3582318730001, −85.84143832.

663 | 33.956330827, −98.528137592 | 34.017271784, −98.528137592 | 34.017271784, −98.4775551939999 | 33.956330827, −98.4775551939999.

664 | 40.1402214060001, −120.185906595 | 40.2702161240001, −120.185906595 | 40.2702161240001, −120.074522544 | 40.1402214060001, −120.074522544.

665 | 32.585610327, −117.134530157 | 32.609517949, −117.134530157 | 32.609517949, −117.121573696 | 32.585610327, −117.121573696.

666 | 42.3865801530001, −96.377733927 | 42.3986855140001, −96.377733927 | 42.3986855140001, −96.3700527519999 | 42.3865801530001, −96.3700527519999.

667 | 31.2790279390001, −86.135253897 | 31.2921867390001, −86.135253897 | 31.2921867390001, −86.12630462 | 31.2790279390001, −86.12630462.

668 | 38.5971126590001, −97.891769008 | 38.7549420740001, −97.891769008 | 38.7549420740001, −97.731700038 | 38.5971126590001, −97.731700038.

669 | 32.665275626, −117.245056924 | 32.670651139, −117.245056924 | 32.670651139, −117.237168313 | 32.665275626, −117.237168313.

670 | 61.088401402, −155.608677328 | 61.118439774, −155.608677328 | 61.118439774, −155.558809541 | 61.088401402, −155.558809541.

671 | 39.8435710260001, −83.84415892 | 39.8525313250001, −83.84415892 | 39.8525313250001, −83.827046603 | 39.8435710260001, −83.827046603.

672 | 36.7792288150001, −76.316870104 | 36.7960357240001, −76.316870104 | 36.7960357240001, −76.304641406 | 36.7792288150001, −76.304641406.

673 | 38.5886024650001, −90.211334345 | 38.5936509870001, −90.211334345 | 38.5936509870001, −90.205345975 | 38.5886024650001, −90.205345975.

674 | 41.491597375, −74.096301663 | 41.493603532, −74.096301663 | 41.493603532, −74.09231513 | 41.491597375, −74.09231513.

675 | 41.4957478590001, −74.093456875 | 41.5071142860001, −74.093456875 | 41.5071142860001, −74.076705335 | 41.4957478590001, −74.076705335.

676 | 31.3556919110001, −86.019020089 | 31.3632965050001, −86.019020089 | 31.3632965050001, −86.009368893 | 31.3556919110001, −86.009368893.

677 | 38.5366165980001, −77.2462204349999 | 38.5562248710001, −77.2462204349999 | 38.5562248710001, −77.1968327609999 | 38.5366165980001, −77.1968327609999.

678 | 43.093425804, −76.13209217 | 43.105369507, −76.13209217 | 43.105369507, −76.117106326 | 43.093425804, −76.117106326.

679 | 31.1194852620001, −85.983038227 | 31.1263987840001, −85.983038227 | 31.1263987840001, −85.975130114 | 31.1194852620001, −85.975130114.

680 | 32.90171336, −115.830667748 | 33.00155658, −115.830667748 | 33.00155658, −115.679781585 | 32.90171336, −115.679781585.

681 | 62.864848431, −156.051764799 | 62.942582989, −156.051764799 | 62.942582989, −155.664968137 | 62.864848431, −155.664968137.

682 | 32.418304849, −113.683744005 | 32.912746437, −113.683744005 | 32.912746437, −112.306115231 | 32.418304849, −112.306115231.

683 | 38.9884924360001, −105.010363219 | 39.0140804660001, −105.010363219 | 39.0140804660001, −104.991241919 | 38.9884924360001, −104.991241919.

684 | 65.5522801760001, −168.013053723 | 65.5830229910001, −168.013053723 | 65.5830229910001, −167.912258962 | 65.5522801760001, −167.912258962.

685 | 35.384500001, −97.4236999999999 | 35.4497, −97.4236999999999 | 35.4497, −97.3502865429999 | 35.384500001, −97.3502865429999.

686 | 41.1825353090001, −75.443820828 | 41.2131432310001, −75.443820828 | 41.2131432310001, −75.411887882 | 41.1825353090001, −75.411887882.

687 | 41.58166204, −83.799456627 | 41.59389898, −83.799456627 | 41.59389898, −83.786432604 | 41.58166204, −83.786432604.

688 | 40.2607276530001, −112.497273742 | 40.5755204400001, −112.497273742 | 40.5755204400001, −112.279088302 | 40.2607276530001, −112.279088302.

689 | 31.2251159510001, −85.564347313 | 31.2323695170001, −85.564347313 | 31.2323695170001, −85.553616915 | 31.2251159510001, −85.553616915.

690 | 31.3753255780001, −81.894810498 | 31.6654206230001, −81.894810498 | 31.6654206230001, −81.52596687 | 31.3753255780001, −81.52596687.

691 | 38.231289094, −121.98346892 | 38.294736015, −121.98346892 | 38.294736015, −121.881230384 | 38.231289094, −121.881230384.

692 | 38.3228969080001, −121.933846122 | 38.3283655290001, −121.933846122 | 38.3283655290001, −121.915378048 | 38.3228969080001, −121.915378048.

693 | 21.351128573, −157.898178476 | 21.367812054, −157.898178476 | 21.367812054, −157.879404163 | 21.351128573, −157.879404163.

694 | 21.4642480200001, −158.148373992 | 21.5218182430001, −158.148373992 | 21.5218182430001, −157.901772211 | 21.4642480200001, −157.901772211.

695 | 43.1244504040001, −89.341539911 | 43.1368306370001, −89.341539911 | 43.1368306370001, −89.328466326 | 43.1244504040001, −89.328466326.

696 | 24.5433363610001, −81.811655077 | 24.5555222860001, −81.811655077 | 24.5555222860001, −81.797521593 | 24.5433363610001, −81.797521593.

697 | 24.5614307340001, −81.798222455 | 24.5672092190001, −81.798222455 | 24.5672092190001, −81.782640081 | 24.5614307340001, −81.782640081.

698 | 32.127406367, −110.955077243 | 32.133937736, −110.955077243 | 32.133937736, −110.945092818 | 32.127406367, −110.945092818.

699 | 36.2121647440001, −95.878742446 | 36.2203832320001, −95.878742446 | 36.2203832320001, −95.868966625 | 36.2121647440001, −95.868966625.

700 | 45.07910944, −93.181911062 | 45.104247148, −93.181911062 | 45.104247148, −93.166136656 | 45.07910944, −93.166136656.

701 | 29.953597589, −85.6870879419999 | 30.141953697, −85.6870879419999 | 30.141953697, −85.444996611 | 29.953597589, −85.444996611.

702 | 38.983678555, −76.5010465079999 | 38.992477092, −76.5010465079999 | 38.992477092, −76.4868322629999 | 38.983678555, −76.4868322629999.

703 | 21.469739594, −158.057058607 | 21.479496623, −158.057058607 | 21.479496623, −158.050204602 | 21.469739594, −158.050204602.

704 | 38.750330283, −104.304283339 | 38.795708158, −104.304283339 | 38.795708158, −104.298582551 | 38.750330283, −104.298582551.

705 | 38.9545078850001, −104.910763947 | 39.0421097770001, −104.910763947 | 39.0421097770001, −104.830835276 | 38.9545078850001, −104.830835276.

706 | 33.2114718620001, −117.39895734 | 33.2146081990001, −117.39895734 | 33.2146081990001, −117.395706525 | 33.2114718620001, −117.395706525.

707 | 40.339366355, −114.13239866 | 41.187663286, −114.13239866 | 41.187663286, −112.775026182 | 40.339366355, −112.775026182.

708 | 36.3075026230001, −97.932652751 | 36.3645349300001, −97.932652751 | 36.3645349300001, −97.890961956 | 36.3075026230001, −97.890961956.

709 | 34.5107894400001, −120.645844615 | 34.9069803380001, −120.645844615 | 34.9069803380001, −120.439765984 | 34.5107894400001, −120.439765984.

710 | 43.125429819, −75.5932489149999 | 43.128384246, −75.5932489149999 | 43.128384246, −75.5892130629999 | 43.125429819, −75.5892130629999.

711 | 18.093746783, −65.5171222009999 | 18.099320238, −65.5171222009999 | 18.099320238, −65.5081834699999 | 18.093746783, −65.5081834699999.

712 | 43.9198868560001, −90.281512146 | 44.2491740180001, −90.281512146 | 44.2491740180001, −89.9961840639999 | 43.9198868560001, −89.9961840639999.

713 | 42.308018614, −85.261730616 | 42.319058737, −85.261730616 | 42.319058737, −85.241088866 | 42.308018614, −85.241088866.

714 | 43.1194738070001, −87.9811739899999 | 43.1294331440001, −87.9811739899999 | 43.1294331440001, −87.969765633 | 43.1194738070001, −87.969765633.

715 | 21.444134852, −158.193880164 | 21.449106118, −158.193880164 | 21.449106118, −158.188834873 | 21.444134852, −158.188834873.

716 | 33.30623532, −116.726204555 | 33.348258648, −116.726204555 | 33.348258648, −116.681746107 | 33.30623532, −116.681746107.

717 | 40.416741642, −74.074863319 | 40.428227856, −74.074863319 | 40.428227856, −74.066019589 | 40.416741642, −74.066019589.

718 | 42.715762833, −73.715197659 | 42.723757367, −73.715197659 | 42.723757367, −73.7014418059999 | 42.715762833, −73.7014418059999.

719 | 38.131610059, −76.4415151439999 | 38.158782096, −76.4415151439999 | 38.158782096, −76.4141914209999 | 38.131610059, −76.4141914209999.

720 | 29.9448494910001, −90.0376652149999 | 29.9527562370001, −90.0376652149999 | 29.9527562370001, −90.028618848 | 29.9448494910001, −90.028618848.

721 | 39.905374947, −113.701870713 | 40.419222199, −113.701870713 | 40.419222199, −112.723055564 | 39.905374947, −112.723055564.

722 | 41.3164009720001, −74.104566558 | 41.4138497160001, −74.104566558 | 41.4138497160001, −73.950569356 | 41.3164009720001, −73.950569356.

723 | 42.1732117120001, −72.560346443 | 42.2183966200001, −72.560346443 | 42.2183966200001, −72.513149263 | 42.1732117120001, −72.513149263.

724 | 21.4548202730001, −158.05113405 | 21.4906567190001, −158.05113405 | 21.4906567190001, −158.023893229 | 21.4548202730001, −158.023893229.

725 | 47.6996152880001, −117.582780473 | 47.7046436220001, −117.582780473 | 47.7046436220001, −117.571913796 | 47.6996152880001, −117.571913796.

726 | 32.3256631690001, −106.751912813 | 33.9110868210001, −106.751912813 | 33.9110868210001, −106.097200035 | 32.3256631690001, −106.097200035.

727 | 38.7024149040001, −93.5961699699999 | 38.7611248150001, −93.5961699699999 | 38.7611248150001, −93.530993696 | 38.7024149040001, −93.530993696.

728 | 35.403434766, −97.615579224 | 35.411418204, −97.615579224 | 35.411418204, −97.607653269 | 35.403434766, −97.607653269.

729 | 30.5215171080001, −88.98512068 | 30.5592917870001, −88.98512068 | 30.5592917870001, −88.952736979 | 30.5215171080001, −88.952736979.

730 | 39.7790113880001, −84.122505244 | 39.8514988460001, −84.122505244 | 39.8514988460001, −84.013795999 | 39.7790113880001, −84.013795999.

731 | 28.235254233, −98.748507381 | 28.257299957, −98.748507381 | 28.257299957, −98.699312525 | 28.235254233, −98.699312525.

732 | 34.8723464400001, −116.88720812 | 34.9011810040001, −116.88720812 | 34.9011810040001, −116.849270991 | 34.8723464400001, −116.849270991.

733 | 37.211273261, −76.4914782399999 | 37.220744848, −76.4914782399999 | 37.220744848, −76.4804938719999 | 37.211273261, −76.4804938719999.

734 | 41.2592384490001, −80.6956297689999 | 41.2720857920001, −80.6956297689999 | 41.2720857920001, −80.6669307879999 | 41.2592384490001, −80.6669307879999.

735 | 64.7319686270001, −147.051773314 | 64.8134110040001, −147.051773314 | 64.8134110040001, −146.755123322 | 64.7319686270001, −146.755123322.

736 | 32.765238373, −114.588551663 | 33.551544978, −114.588551663 | 33.551544978, −113.648148435 | 32.765238373, −113.648148435.

§ 301.101 Purpose and scope.

Pursuant to the authority granted at 18 U.S.C. 4126, the procedures set forth in this part govern the payment of accident compensation, necessitated as the result of work-related injuries, to federal prison inmates or their dependents. Compensation may be awarded via two separate and distinct programs:

(a) Inmate Accident Compensation may be awarded to former federal inmates or their dependents for physical impairment or death resultant from injuries sustained while performing work assignments in Federal Prison Industries, Inc., in institutional work assignments involving the operation or maintenance of a federal correctional facility, or in approved work assignments for other federal entities; or,

(b) Lost-time wages may be awarded to inmates assigned to Federal Prison Industries, Inc., to paid institutional work assignments involving the operation or maintenance of a federal correctional facility, or in approved work assignments for other federal entities for work-related injuries resulting in time lost from the work assignment.

[55 FR 9296, Mar. 12, 1990, as amended at 59 FR 2666, Jan. 18, 1994]

§ 301.102 Definitions.

(a) For purposes of this part, the term work-related injury shall be defined to include any injury, including occupational disease or illness, proximately caused by the actual performance of the inmate's work assignment.

(b)(1) For purposes of this part, the term release is defined as the removal of an inmate from a Bureau of Prisons correctional facility upon expiration of sentence, parole, final discharge from incarceration of a pretrial inmate, or transfer to a community corrections center or other non-federal facility, at the conclusion of the period of confinement in which the injury occurred.

(2) In the case of an inmate who suffers a work-related injury while housed at a community corrections center, release is defined as the removal of the inmate from the community corrections center upon expiration of sentence, parole, or transfer to any non-federal facility, at the conclusion of the period of confinement in which the injury occurred.

(3) In the case of an inmate who suffers a work-related injury while housed at a community corrections center and is subsequently transferred to a Bureau of Prisons facility, release is defined as the removal of the inmate from the Bureau of Prisons facility upon expiration of sentence, parole, or transfer to a community corrections center or other non-federal facility.

(c) For purposes of this part, the term dependent is defined as the legally recognized spouse or child of an inmate for whose support the inmate is legally responsible in whole or part.

(d) For purposes of this part, the term work detail supervisor may refer to either a Bureau of Prisons or a non-Bureau of Prisons supervisor.

(e) For the purposes of this part, the phrase housed at or based at a “Bureau of Prisons institution” shall refer to an inmate that has a work assignment with a Bureau of Prisons institution or with another federal entity and is incarcerated at a Bureau of Prisons institution. For the purposes of this part, the phrase based at or housed at a “community corrections center” shall refer to an inmate who has a work assignment for a non-Bureau of Prisons federal entity and is incarcerated at a community corrections center.

[55 FR 9296, Mar. 12, 1990, as amended at 59 FR 2666, Jan. 18, 1994]

§ 301.103 Inmate work assignments.

The unit team of each inmate, which ordinarily designates work assignments, or whoever makes work assignments, shall review appropriate medical records, presentence reports, admission summaries, and all other available information prior to the designation of an inmate to a work assignment in an effort to preclude the assignment of an inmate to a work assignment not compatible with the inmate's physical ability or condition.

[55 FR 9296, Mar. 12, 1990, as amended at 59 FR 2667, Jan. 18, 1994]

§ 301.104 Medical attention.

Whenever an inmate worker is injured while in the performance of assigned duty, regardless of the extent of the injury, the inmate shall immediately report the injury to his official work detail supervisor. In the case of injuries on work details for other federal entities, the inmate shall also report the injury as soon as possible to community corrections or institution staff, as appropriate. The work detail supervisor shall immediately secure such first aid, medical, or hospital treatment as may be necessary for the proper treatment of the injured inmate. First aid treatment may be provided by any knowledgeable individual. Medical, surgical, and hospital care shall be rendered under the direction of institution medical staff for all inmates based at Bureau of Prisons institutions. In the case of inmates based at community corrections centers, medical care shall be arranged by the work supervisor or by community corrections center staff in accordance with the medical needs of the inmate. Refusal by an inmate worker to accept such medical, surgical, hospital, or first aid treatment recommended by medical staff or by other medical professionals may result in denial of any claim for compensation for any impairment resulting from the injury.

[59 FR 2667, Jan. 18, 1994]

§ 301.105 Investigation and report of injury.

(a) After initiating necessary action for medical attention, the work detail supervisor shall immediately secure a record of the cause, nature, and exact extent of the injury. The work detail supervisor shall complete a BP-140, Injury Report (Inmate), on all injuries reported by the inmate, as well as injuries observed by staff. In the case of injuries on work details for other federal entities, the work supervisor shall also immediately inform community corrections or institution staff, as appropriate, of the injury. The injury report shall contain a signed statement from the inmate on how the accident occurred. The names and statements of all witnesses (e.g., staff, inmates, or others) shall be included in the report. If the injury resulted from the operation of mechanical equipment, an identifying description or photograph of the machine or instrument causing the injury shall be obtained, to include a description of all safety equipment used by the injured inmate at the time of the injury. Staff shall provide the inmate with a copy of the injury report. Staff shall then forward the original and remaining copies of the injury report to the Institutional Safety Manager for review. In the case of inmates based at community corrections centers, the work detail supervisor shall provide the inmate with a copy of the injury report and shall forward the original and remaining copies of the injury report to the Community Corrections Manager responsible for the particular community corrections center where the inmate is housed.

(b) The Institution Safety Manager or Community Corrections Manager shall ensure that a medical description of the injury is included on the BP-140 whenever the injury requires medical attention. The Institution Safety Manager or Community Corrections Manager shall also ensure that the appropriate sections of BP-140, Page 2, Injury—Lost-Time Follow-Up Report, are completed and that all reported work injuries are properly documented.

[59 FR 2667, Jan. 18, 1994]

§ 301.106 Repetitious accidents.

If an inmate worker is involved in successive accidents on a particular work site in a comparatively short period of time, regardless of whether injury occurs, and the circumstances of the accidents indicate an awkwardness or ineptitude that, in the opinion of the inmate's work supervisor, implies a danger of further accidents in the task assigned, the inmate shall be assigned to another task more suitable to the inmate's ability.

§ 301.201 Applicability.

Lost-time wages shall be available only for inmates based at Bureau of Prisons institutions.

[59 FR 2667, Jan. 18, 1994]

§ 301.202 Determination of work-relatedness.

(a) When the institution safety manager receives notice, or has reason to believe, a work-related injury may result in time lost from the work assignment, he or she shall present BP-140, Pages 1 and 2 (with the appropriate sections completed) to the Institution Safety Committee at the Committee's next regularly scheduled meeting. The Safety Committee shall make a determination of the injury's work-relatedness based on the available evidence and testimony. The determination shall be recorded on BP-140, Page 2, a copy of which shall be provided to the inmate.

(b) A determination of work-relatedness for purposes of awarding lost-time wages is not confirmation on the validity of any subsequent claim to receive compensation for work-related physical impairment or death.

[55 FR 9296, Mar. 12, 1990. Redesignated at 59 FR 2667, Jan. 18, 1994]

§ 301.203 Payment of lost-time wages.

(a) An inmate worker may receive lost-time wages for the number of regular work hours absent from work due to injury sustained in the performance of the assigned work.

(b) Lost-time wages are paid for time lost in excess of three consecutively scheduled workdays. The day of injury is considered to be the first workday regardless of the time of injury.

(c) An inmate may receive lost-time wages at the rate of 75% of the standard hourly rate of the inmate's regular work assignment at the time of the injury.

[55 FR 9296, Mar. 12, 1990. Redesignated at 59 FR 2667, Jan. 18, 1994]

§ 301.204 Continuation of lost-time wages.

(a) Once approved, the inmate shall receive lost-time wages until the inmate:

(1) Is released;

(2) Is transferred to another institution for reasons unrelated to the work injury;

(3) Returns to the pre-injury work assignment;

(4) Is reassigned to another work area or program for reasons unrelated to the sustained work injury, or is placed into Disciplinary Segregation; or,

(5) Refuses to return to a regular work assignment or to a lighter duty work assignment after medical certification of fitness for such duty.

(b) An inmate medically certified as fit for return to work shall sustain no monetary loss due to a required change in work assignment. Where there is no light duty or regular work assignment available at the same rate of pay as the inmate's pre-injury work assignment, the difference shall be paid in lost-time wages. Lost-time wages are paid until a light duty or regular work assignment at the same pay rate as the inmate's pre-injury work assignment is available.

[55 FR 9296, Mar. 12, 1990. Redesignated at 59 FR 2667, Jan. 18, 1994]

§ 301.205 Appeal of determination.

An inmate who disagrees with the decision regarding payment of lost-time wages may appeal that decision exclusively through the Administrative Remedy Procedure. (See 28 CFR part 542.)

[55 FR 9296, Mar. 12, 1990. Redesignated at 59 FR 2667, Jan. 18, 1994]

§ 301.301 Compensable and noncompensable injuries.

(a) No compensation for work-related injuries resulting in physical impairment shall be paid prior to an inmate's release.

(b) Compensation may only be paid for work-related injuries or claims alleging improper medical treatment of a work-related injury. This ordinarily includes only those injuries suffered during the performance of an inmate's regular work assignment. However, injuries suffered during the performance of voluntary work in the operation or maintenance of the institution, when such work has been approved by staff, may also be compensable.

(c) Compensation is not paid for injuries sustained during participation in institutional programs (such as programs of a social, recreational, or community relations nature) or from maintenance of one's own living quarters. Furthermore, compensation shall not be paid for injuries suffered away from the work location (e.g., while the claimant is going to or leaving work, or going to or coming from lunch outside of the work station or area).

(d) Injuries sustained by inmate workers willfully or with intent to injure someone else, or injuries suffered in any activity not related to the actual performance of the work assignment are not compensable, and no claim for compensation for such injuries will be approved. Willful violation of rules and regulations may result in denial of compensation for any resulting injury.

§ 301.302 Work-related death.

A claim for compensation as the result of work-related death may be filed by a dependent of the deceased inmate up to one year after the inmate's work-related death. The claim shall be submitted directly to the Claims Examiner, Federal Bureau of Prisons, 320 First Street NW., Washington, DC 20534.

§ 301.303 Time parameters for filing a claim.

(a) No more than 45 days prior to the date of an inmate's release, but no less than 15 days prior to this date, each inmate who feels that a residual physical impairment exists as a result of an industrial, institution, or other work-related injury shall submit a FPI Form 43, Inmate Claim for Compensation on Account of Work Injury. Assistance will be given the inmate to properly prepare the claim, if the inmate wishes to file. In each case a definite statement shall be made by the claimant as to the impairment caused by the alleged injury. The completed claim form shall be submitted to the Institution Safety Manager or Community Corrections Manager for processing.

(b) In the case of an inmate based at a community corrections center who is being transferred to a Bureau of Prisons institution, the Community Corrections Manager shall forward all materials relating to an inmate's work-related injury to the Institution Safety Manager at the particular institution where an inmate is being transferred, for eventual processing by the Safety Manager prior to the inmate's release from that institution.

(c) Each claimant shall submit to a medical examination to determine the degree of physical impairment. Refusal, or failure, to submit to such a medical examination shall result in the forfeiture of all rights to compensation. In each case of visible impairment, disfigurement, or loss of member, photographs shall be taken to show the actual condition and shall be transmitted with FPI Form 43.

(d) The claim, after completion by the physician conducting the impairment examination, shall be returned to the Institution Safety Manager or Community Corrections Manager for final processing. It shall then be forwarded promptly to the Claims Examiner, Federal Bureau of Prisons, 320 First Street NW., Washington, DC 20534.

(e) It is the responsibility of each claimant to advise the Claims Examiner of his or her current address, in writing, at all times during the pendency of a claim for Inmate Accident Compensation.

(f) When circumstances preclude submission in accordance with the provisions of paragraph (a) of this section, a claim may be accepted up to 60 days following release. Additionally, a claim for impairment may be accepted up to one year after release, for good cause shown. In such cases the claim shall be submitted directly to the Claims Examiner, Federal Bureau of Prisons, 320 First Street NW., Washington, DC 20534.

[55 FR 9296, Mar. 12, 1990, as amended at 59 FR 2667, Jan. 18, 1994]

§ 301.304 Representation of claimant.

(a) Any person may represent the claimant's interest in any proceeding for determination of a claim under this part, so long as that person is not confined in any federal, state or local correctional facility. Written appointment of a representative, signed by the claimant, must be submitted before the representative's authority to act on behalf of the claimant may be acknowledged.

(b) It is not necessary that a claimant employ an attorney or other person to assert a claim or effect collection of an award. Under no circumstances will the assignment of any award be recognized, nor will attorney fees be paid by Federal Prison Industries, Inc.

§ 301.305 Initial determination.

A claim for inmate accident compensation shall be determined by a Claims Examiner under authority delegated by the Board of Directors of Federal Prison Industries, Inc., pursuant to 28 CFR 0.99. In determining the claim, the Claims Examiner will consider all available evidence. Written notice of the determination, including the reasons therefore, together with notification of the right to appeal the determination, shall be mailed to the claimant at the claimant's last known address, or to the claimant's duly appointed representative.

§ 301.306 Appeal of determination.

(a) An Inmate Accident Compensation Committee (hereafter referred to as the “Committee”) shall be appointed by the Chief Operating Officer, Federal Prison Industries, Inc., under authority delegated by the Board of Directors of Federal Prison Industries, Inc., pursuant to 28 CFR 0.99. The Committee shall consist of four members and four alternate members, with any three thereof required to form a quorum for decision-making purposes.

(b) Any claimant not satisfied with any decision of the Claims Examiner concerning the amount or right to compensation shall, upon written request made within 30 days after the date of issuance of such determination, or up to 30 days thereafter upon a showing of reasonable cause, be afforded an opportunity for either an in-person hearing before the Committee, or Committee reconsideration of the decision. A claimant may request an in-person hearing or reconsideration by writing to the Inmate Accident Compensation Committee, Federal Bureau of Prisons, 320 First Street NW., Washington, DC 20534.

(c) Upon receipt of claimant's request, a determination will be made regarding the timeliness of the filing. If the request is timely filed, or if reasonable cause exists to accept the request filed in an untimely manner, the request shall be accepted. Once accepted, a copy of the information upon which the Claims Examiner's initial determination was based shall be mailed to the claimant at the claimant's last known address, or to claimant's duly appointed representative, provided the release of such information is not determined to pose a threat to the safety of the claimant, any other inmate, or staff.

§ 301.307 Notice, time and place of committee action.

(a) Committee action shall ordinarily occur within 60 days of the receipt of claimant's request, except as provided in this section. Notice of the date set for Committee action shall be mailed to the claimant at the claimant's last known address, or to claimant's duly appointed representative. All Committee action shall be conducted at the Central Office of the Bureau of Prisons, 320 First Street NW., Washington, DC 20534.

(b) A hearing or reconsideration may be postponed at the option of the Committee, or, if good cause is shown, upon request of the claimant. A claimant may change the request from either hearing to reconsideration or reconsideration to hearing, provided notice of such change is received at least 10 days prior to the previously scheduled action.

§ 301.308 Committee reconsideration.

If the claimant elects to have the Committee reconsider any decision of the Claims Examiner, the claimant may submit documentary evidence which the Committee shall consider in addition to the original record. The Committee must receive evidence no less than 10 days prior to the date of reconsideration, and may request additional documentary evidence from the claimant or any other source.

§ 301.309 In-person hearing before the committee.

(a) The appeal shall be considered to have been abandoned if the claimant fails to appear at the time and place set for the hearing and does not, within 10 days after the time set for that hearing, show good cause for failure to appear.

(b) In conducting the hearing, the Committee is not bound by common law or statutory rules of evidence, or by technical or formal rules of procedure, but may conduct the hearing in such manner as to best ascertain the rights and obligations of the claimant and the government. At such hearing, the claimant shall be afforded an opportunity to present evidence in support of the claim under review.

(c) The Committee shall consider all evidence presented by the claimant, and shall, in addition, consider any other evidence as the Committee may determine to be useful in evaluating the claim. Evidence may be presented orally and/or in the form of written statements and exhibits.

(d) A representative appointed in accordance with the provisions of this section may make or give, on behalf of the claimant, any request or notice relative to any proceeding before the Committee. A representative shall be entitled to present or elicit evidence or make allegations as to fact and law in any proceeding affecting the claimant and to request information with respect to the claim. Likewise, any request for additional information, or notice to any claimant of any administrative action, determination, or decision, may be sent to the representative of such claimant, and shall have the same force and effect as if it had been sent to the claimant.

(e) In order to fully evaluate the claim, the Committee may question the claimant and any witness(es) appearing before the Committee on behalf of the claimant or government.

(f) Claimant, or claimant's representative, may question the Committee or any witness(es) appearing before the Committee on behalf of the government, but only on matters determined by the Committee to be relevant to its evaluation of the claim.

(g) The hearing shall be recorded, and a copy of the recording or, at the discretion of the Committee, a transcript thereof shall be made available to the claimant upon request, provided such request is made not later than 90 days following the date of the hearing.

§ 301.310 Witnesses.

(a) If a claimant wishes to present witnesses at the hearing, the claimant must provide the Committee, no less than 10 days before the scheduled hearing date, the name and address of each proposed witness, along with an outline of each witness' testimony. The Committee may limit the number of witnesses who may appear at a hearing, however, the Committee has no authority to compel the attendance of any witness.

(b) Any person confined in a Federal, State, or local penal or correctional institution at the time of the hearing may not appear as a witness, but that person's testimony may be submitted in the form of a written statement.

§ 301.311 Expenses associated with appearance at committee hearing.

Federal Prison Industries, Inc., may not assume responsibility for any expenses incurred by the claimant, claimant's representative, or any witness appearing on behalf of the claimant in connection with attendance at the hearing, as well as any other costs relating to any representative, witnesses, or evidence associated with a hearing before the Committee.

§ 301.312 Notice of committee determination.

The Committee shall mail written notice of its decision to affirm, reverse, or amend the Claims Examiner's initial determination, with the reasons for its decision, to the claimant at the claimant's last known address, or to claimant's duly appointed representative, no later than 30 days after the date of the hearing unless the Committee needs to make a further investigation as a result of information received at the hearing. If the Committee conducts further investigation subsequent to the hearing, the decision notice shall be mailed no later than 30 days after the conclusion of the Committee's investigation.

§ 301.313 Chief Operating Officer review.

Any claimant not satisfied with the Committee's reconsidered decision or decision after a hearing may appeal such decision to the Chief Operating Officer, Federal Prison Industries, Inc., 320 First Street NW., Washington, DC 20534. A written request for such an appeal must be received no later than 90 days after the date of notice of the Committee's decision. The Chief Operating Officer shall review the record and affirm, reverse or amend the Committee's decision no later than 90 days after receipt of claimant's notice of appeal. Written notice of the Chief Operating Officer's decision shall be mailed to the claimant's last known address, or to the claimant's representative.

§ 301.314 Establishing the amount of award.

(a) If a claim for Inmate Accident Compensation is approved, the amount of compensation shall be based upon the degree of physical impairment existent at the time of the claimant's release regardless of when during the claimant's period of confinement the injury was sustained. No claim for compensation will be approved if full recovery occurs while the inmate is in custody and no impairment remains at the time of release.

(b) In determining the amount of accident compensation to be paid, the permanency and severity of the injury in terms of functional impairment shall be considered. The provisions of the Federal Employees' Compensation Act (FECA) (5 U.S.C. 8101, et seq.) shall be followed when practicable. The FECA establishes a set number of weeks of compensation applicable for injuries to specific body members or organs (section 8107).

(c) All awards of Inmate Accident Compensation shall be based upon the minimum wage (as prescribed by the Fair Labor Standards Act).

(1) For body members or organs covered under section 8107, the minimum wage applicable at the time of the award shall be used as the basis for determining the amount of compensation. Awards regarding injury to body members or organs covered under section 8107 shall be paid in a lump sum. Acceptance of such an award shall constitute full and final settlement of the claim for compensation.

(2) For body members or organs not covered under section 8107, awards will be paid on a monthly basis because such awards are subject to periodic review of entitlement. The minimum wage applicable at the time of each monthly payment shall be used in determining the amount of each monthly payment. Monthly payments are ordinarily mailed the first day of the month following the month in which the award is effective.

§ 301.315 Review of entitlement.

(a) Each monthly compensation recipient shall be required, upon request of the Claims Examiner, to submit to a medical examination, by a physician specified or approved by the Claims Examiner, to determine the current status of his physical impairment. Any reduction in the degree of physical impairment revealed by this examination shall result in a commensurate reduction in the amount of monthly compensation provided. Failure to submit to this physical examination shall be deemed refusal, and shall ordinarily result in denial of future compensation. The costs associated with this examination shall be borne by Federal Prison Industries, Inc.

(b) Inasmuch as compensation awards are based upon the minimum wage, any income received by a compensation recipient which exceeds the annual income available at the minimum wage (based upon a 40 hour work week), including Social Security or veterans benefits received as the result of the work-related injury for which Inmate Accident Compensation has been awarded, shall be deemed excessive. The amount of compensation payable to a claimant with an income deemed excessive shall be reduced at the rate of one dollar for each two dollars of earned and benefit income which exceeds the annual income available at minimum wage. Each monthly compensation recipient shall be required to provide a statement of earnings on an annual basis, or as otherwise requested. Failure to provide this statement shall result in the suspension or denial of all Inmate Accident Compensation benefits until such time as satisfactory evidence of continued eligibility is provided.

§ 301.316 Subsequent incarceration of compensation recipient.

If a claimant, who has been awarded compensation on a monthly basis, is or becomes incarcerated at any federal, state, or local correctional facility, monthly compensation payments payable to the claimant shall ordinarily be suspended until such time as the claimant is released from the correctional facility.

[59 FR 2667, Jan. 18, 1994]

§ 301.317 Medical treatment following release.

Federal Prison lndustries, Inc., may not pay the cost of medical, hospital treatment, or any other related expense incurred after release from confinement unless such cost is authorized by the Claims Examiner in advance, or the Claims Examiner determines that circumstances warrant the waiver of this requirement. Generally, the payment of such costs is limited to impairment evaluations, or treatments intended to reduce the degree of physical impairment, conducted at the direction of the Claims Examiner. The amount of a payment for medical treatment is limited to reasonable expenses incurred, such as those amounts authorized under the applicable fee schedule established pursuant to 42 U.S.C. 1395w-4 for the Department of Health and Human Services Medicare program.

[55 FR 9296, Mar. 12, 1990, as amended at 59 FR 2667, Jan. 18, 1994]

§ 301.318 Civilian compensation laws distinguished.

The Inmate Accident Compensation system is not obligated to comply with the provisions of any other system of worker's compensation except where stated in this part. Awards made under the provisions of the Inmate Accident Compensation procedure differ from awards made under civilian workmen's compensation laws in that hospitalization is usually completed prior to the inmate's release from the institution and, except for a three-day waiting period, the inmate receives wages while absent from work. Other factors necessarily must be considered that do not enter into the administration of civilian workmen's compensation laws. As in the case of federal employees who allege they have sustained work-related injuries, the burden of proof lies with the claimant to establish that the claimed impairment is causally related to the claimant's work assignment.

§ 301.319 Exclusiveness of remedy.

Inmates who are subject to the provisions of these Inmate Accident Compensation regulations are barred from recovery under the Federal Tort Claims Act (28 U.S.C. 2671 et seq.). Recovery under the Inmate Accident Compensation procedure was declared by the U.S. Supreme Court to be the exclusive remedy in the case of work-related injury. U.S. v. Demko, 385 U.S. 149 (1966).

[55 FR 9296, Mar. 12, 1990, as amended at 59 FR 2667, Jan. 18, 1994]

§ 302.1 Public and private sector comment procedures.

(a) Any interested party having any comment concerning the business operations of Federal Prison Industries, Inc. (UNICOR) may write to the Chief Operating Officer of UNICOR, or to the Chairman of the Board of Directors of UNICOR, and bring such matters to the attention of either or both officials. Where appropriate, a response shall promptly be made. The Board shall be kept advised of all comments and responses.

(b) Address correspondence as follows:

(1) Chief Operating Officer, Federal Prison Industries, Inc., 320 First Street, NW., Washington, DC 20534, Attn: Comment Procedures; or

(2) Board of Directors, Federal Prison Industries, Inc., 320 First Street, NW., Washington, DC 20534, Attn: Comment Procedures.

(c) This section does not apply to inmate complaints which are properly raised through the procedures provided in the Bureau of Prisons' rule on Administrative Remedy (28 CFR part 42).

[55 FR 30668, July 26, 1990, as amended at 69 FR 1524, Jan. 9, 2004]

§ 345.10 Purpose and scope.

It is the policy of the Bureau of Prisons to provide work to all inmates (including inmates with a disability who, with or without reasonable accommodations, can perform the essential tasks of the work assignment) confined in a federal institution. Federal Prison Industries, Inc. (FPI) was established as a program to provide meaningful work for inmates. This work is designed to allow inmates the opportunity to acquire the knowledge, skills, and work habits which will be useful when released from the institution. There is no statutory requirement that inmates be paid for work in an industrial assignment. 18 U.S.C. 4126, however, provides for discretionary compensation to inmates working in Industries. Under this authority, inmates of the same grade jobs, regardless of the basis of pay (hourly, group piece, or individual piece rates) shall receive approximately the same compensation. All pay rates under this part are established at the discretion of Federal Prison Industries, Inc. Any alteration or termination of the rates shall require the approval of the Federal Prison Industries' Board of Directors. While the Warden is responsible for the local administration of Inmate Industrial Payroll regulations, no pay system is initiated or changed without prior approval of the Assistant Director, Industries, Education and Vocational Training (Assistant Director).

§ 345.11 Definitions.

(a) Federal Prison Industries, Inc. (FPI)—A government corporation organizationally within the Bureau of Prisons whose mission is to provide work simulation programs and training opportunities for inmates confined in Federal correctional facilities. The commercial or “trade” name of Federal Prison Industries, Inc. is UNICOR. Most factories or shops of Federal Prison Industries, Inc. are commonly referred to as “UNICOR” or as “Industries”. Where these terms are used, they refer to FPI production locations and to the corporation as a whole. UNICOR, FPI, and Industries are used interchangeably in this manner. For these purposes, Federal Prison Industries, Inc. will hereinafter be referred to as FPI.

(b) Superintendent of Industries (SOI)—The Superintendent of Industries, also referred to as Associate Warden/Industries and Education, is responsible for the efficient management and operation of an FPI factory. Hereinafter, referred to as SOI.

(c) FPI work status—Assignment to an Industries work detail.

(1) An inmate is in FPI work status if on the job, on sick call during the inmate's assigned hours, on furlough, on vacation, for the first thirty days on writ, for the first 30 days in administrative detention, or for the first 30 days on medical idle for FPI work-related injury so long as the injury did not result from an intentional violation by the inmate of work safety standards.

(2) Full-time work status. A work schedule for an inmate consisting of 90% or more of the normal FPI factory work week.

(3) Part-time work status. A work schedule of less than 90% of the normal FPI factory work week.

(d) Unit Team—Bureau of Prisons staff responsible for the management of inmates and the delivery of programs and services. The Unit Team may consist of a unit manager, case manager, correctional counselor, unit secretary, unit officer, education representative, and psychologist.

(e) Unit Discipline Committee (UDC)—The term Unit Discipline Committee refers to one or more institution staff members delegated by the Warden with the authority and duty to hold an initial hearing upon completion of the investigation concerning alleged charge(s) of inmate misconduct (see 28 CFR 541.15). The Warden shall authorize these staff members to impose minor sanctions for violation of prohibited act(s).

(f) Discipline hearing officer (DHO)—This term refers to an independent discipline hearing officer who is responsible for conducting Institution Discipline Hearings and who imposes appropriate sanctions for incidents of inmate misconduct referred for disposition following the hearing required by 28 CFR 541.15 before the UDC.

(g) Pretrial inmate—The definition of pretrial inmate in 28 CFR 551.101(a) is applicable to this part.

[60 FR 15827, Mar. 27, 1995, as amended at 61 FR 59168, Nov. 20, 1996; 64 FR 32169, June 15, 1999]

§ 345.20 Position classification.

(a) Inmate worker positions must be assigned an appropriate level of pay. All inmate workers shall be informed of the objectives and principles of pay classification as a part of the routine orientation of new FPI inmate workers.

(b) The Warden and SOI have the responsibility for position classification at each location.

§ 345.31 Recruitment.

Inmate workers for FPI locations may be recruited through admission and orientation lectures or through direct recruiting.

§ 345.32 Hiring.

(a) Inmate workers are ordinarily hired through waiting lists. Except as noted in § 345.33, inmates are to be placed on the waiting lists in order of receipt of applications for work with Industries, and are to be hired in the same sequence.

(b) Waiting lists are to be maintained and kept available for scrutiny by auditors and other staff with a need to know. SOI's are encouraged to maintain a waiting list for each FPI factory.

§ 345.33 Waiting list hiring exceptions.

(a) Needed skills. An inmate may be hired ahead of other inmates on the waiting list if the inmate possesses needed skills and the SOI documents the reasons for the action in the position classification files.

(b) Prior FPI work assignment. An inmate with prior FPI work experience during the inmate's current commitment and with no break in custody will ordinarily be placed within the top ten percent of the waiting lists unless the inmate was transferred for disciplinary reasons, was placed in segregation, or voluntarily left the FPI work assignment for non-program reasons (i.e. for some reason other than formal education, vocational training, drug abuse or similar formal programs). For example, an inmate transferred administratively for nondisciplinary reasons, and who has documented credit as a prior worker, is covered under the provisions of this paragraph.

(c) Industry closing and relocation. When an FPI factory closes in a location with two or more FPI factories, an inmate worker affected may be transferred to remaining FPI factories ahead of the top portion of the inmates on the waiting lists, so there is no break in active duty with FPI. Such actions are also in order where the work force of an industry is reduced to meet institution or FPI needs. An inmate transferred under the provisions of this part will have the same benefits as any intra-industry transfer.

(d) Disciplinary transfers. An inmate who is a disciplinary transfer from the last institution designated and who wishes re-assignment in FPI at the receiving institution may be hired on a case-by-case basis at the discretion of the SOI, who should consider the security level and reasons for the misconduct. Such an inmate, despite prior experience, is not due special placement on the waiting list, is not given advance hiring preference, and does not receive consideration for accelerated promotion back to the grade held at time of transfer.

(e) Special needs. For special needs, such as Inmate Financial Responsibility assignment to assist in paying a significant financial obligation or for release preparation, the unit team may recommend an inmate for priority placement on the waiting list. Such placement must be documented and include the reason for the exception.

§ 345.34 Refusal to employ.

(a) The SOI has authority to refuse an FPI assignment to an inmate who, in the judgment of the SOI, would constitute a serious threat to the orderly and safe operation of the FPI factory. A refusal to assign must be documented by a memorandum to the unit team listing reasons for the refusal, with a copy to the position classification files in FPI. Typically, the reasons should include other earlier (ordinarily within the past twelve months) documented violations of the FPI inmate worker standards or institution disciplinary regulations.

(b) The refusal to assign is to be rescinded when, in the judgment of the SOI, the worker no longer constitutes a serious threat to the FPI industrial operation.

§ 345.35 Assignments to FPI.

(a) An inmate or detainee may be considered for assignment with FPI unless the inmate is a pretrial inmate or is currently under an order of deportation, exclusion, or removal. However, an inmate or detainee who is currently under an order of deportation, exclusion, or removal may be considered for assignment with FPI if the Attorney General has determined that the inmate or detainee cannot be removed from the United States because the designated country of removal will not accept his/her return. Any request by an inmate for consideration must be made through the unit team. FPI does not discriminate on the bases of race, color, religion, ethnic origin, age, or disability.

(b) The SOI ordinarily makes assignments based on the recommendation of the unit team.

(1) New workers are ordinarily assigned at pay grade five. All first-time inmate workers shall enter at pay grade five and may be required to successfully complete a course in pre-industrial training or on-the-job training (as available) before promotion to pay grade four.

(2) An inmate who has not successfully completed pre-industrial or on-the-job training remains at pay grade five for at least 30 days.

(3) An inmate hired after having resigned voluntarily from FPI may be excused from pre-industrial training and may be hired at a pay grade based on previous training and experience.

[60 FR 15827, Mar. 27, 1995, as amended at 64 FR 32169, June 15, 1999]

§ 345.40 General.

This subpart authorizes the establishment of minimum work standards for inmate workers assigned to the Industries program at all field locations. The SOI may reproduce these standards and may also develop additional local guidelines to augment these standards and to adapt them to local needs and conditions. Local Industries shall place these standards and any additional local guidelines on display at appropriate locations within the industrial sites. Inmates shall be provided with a copy of these standards and local guidelines, and shall sign receipts acknowledging they have received and understand them before beginning work in the Industries program. In the case of a disabled inmate, alternate media or means of communicating this information and indicating the inmate's receipt may be provided, if necessary as a reasonable accommodation.

(a) At a minimum, each industrial location is to have work standards for each of the following areas:

(1) Safety—ensuring the promotion of workplace safety and the avoidance of activities that could result in injury to self or others.

(2) Quality assurance—ensuring that work is done as directed by the supervisor in an attentive manner so as to minimize the chance of error.

(3) Personal conduct and hygiene—ensuring the promotion of harmony and sanitary conditions in the workplace through observation of good hygiene and full cooperation with other inmate workers, work supervisors, and training staff.

(4) Punctuality and productivity—ensuring the productive and efficient use of time while the inmate is on work assignment or in training.

(b) Compliance with work standards. Each inmate assigned to FPI shall comply with all work standards pertaining to his or her work assignment. Adherence to the standards should be considered in evaluating the inmate's work performance and documented in individual hiring, retention, and promotion/demotion situations.

§ 345.41 Performance appraisal for inmate workers.

Work supervisors should complete a performance appraisal form for each inmate semi-annually, by March 31 and September 30, or upon termination or transfer from the industrial work assignment. Copies shall be sent to the unit team. Inmate workers should discuss their appraisals with their supervisors at a mutually agreeable time in order to improve their performance. Satisfactory and unsatisfactory performance ratings shall be based on the standards in § 345.40(a).

(a) The SOI is to ensure that evaluations are done and are submitted to unit teams in a timely manner.

(b) The SOI or a designee may promote an inmate to a higher grade level if an opening exists when the inmate's skills, abilities, qualifications, and work performance are sufficiently developed to enable the inmate to carry out a more complex FPI factory assignment successfully, when the inmate has met the institution's time-in-grade (unless waived by the SOI), and when the inmate has abided by the inmate worker standards. Conversely, the SOI or SOI designee may demote an inmate worker for failing to abide by the inmate worker standards. Such demotions shall be fully documented.

§ 345.42 Inmate worker dismissal.

The SOI may remove an inmate from Industries work status in cooperation with the unit team.

(a) The SOI may remove an inmate from FPI work status according to the conditions outlined in the pay and benefits section of this policy and in cooperation with the unit team.

(b) An inmate may be removed from FPI work status for failure to comply with any court-mandated financial responsibility. (See 28 CFR 545.11(d)).

(c) An inmate found to have committed a prohibited act (whether or not it is FPI related) resulting in segregation or disciplinary transfer is also to be dismissed from Industries based on an unsatisfactory performance rating for failure to be at work.

(d) Any inmate or detainee who is a pretrial inmate or who is currently under an order of deportation, exclusion, or removal shall be removed from any FPI work assignment and reassigned to a non-FPI work assignment for which the inmate is eligible. However, an inmate or detainee who is currently under an order of deportation, exclusion, or removal may be retained in the FPI assignment if the Attorney General has determined that the inmate or detainee cannot be removed from the United States because the designated country of removal will not accept his/her return.

[60 FR 15827, Mar. 27, 1995, as amended at 64 FR 32170, June 15, 1999]

§ 345.50 General.

Title 18 U. S. Code section 4126 authorizes FPI to compensate inmates under rules and regulations promulgated by the Attorney General. It is the policy of FPI to provide compensation to FPI inmate workers through various conditions of pay and benefits, except as otherwise provided in these regulations.

§ 345.51 Inmate pay.

(a) Grade levels. Inmate workers in FPI locations receive pay at five levels ranging from 5th grade pay (lowest) to 1st grade pay (highest).

(b) Eligibility. (1) An inmate shall accrue vacation time, longevity service credit, and shall receive holiday pay for the period of time the inmate is officially assigned to the Industries work detail. For limitations on claims, refer to § 345.66.

(2) Inmate workers may be eligible for premium pay as specified in § 345.52. Eligibility for other pay and benefits are described separately in this subpart.

(3) FPI pay and benefits are lost in cases of disciplinary transfer and segregation.

(4) An inmate returned to the institution due to program failure at a Community Corrections Center or while on parole or escape is not entitled to credit for time spent in Industries prior to said program failure. This rule also applies to any other program failure which results in a break in confinement status.

§ 345.52 Premium pay.

Payment of premium pay to selected inmates is authorized. The total number of qualifying inmates may not exceed 15% of first grade inmates at a location.

(a) Eligibility. Inmates in first grade pay status may be considered for premium pay.

(b) The selection process. Candidates for premium pay must be nominated by a foreman on the FPI staff, and recommended on the basis of specific posted criteria by a selection committee assigned by the SOI.

(1) The SOI, as the chief selecting official, must sign approval for all premium pay inmate selections. This authority may not be delegated below the level of Acting SOI.

(2) The selected candidate(s) are notified by the FPI Manager or by a posted list on the FPI bulletin board. A record of the selection and who was on the selection board is kept for documentation purposes. An inmate nominated to be a premium pay inmate may refuse the appointment without prejudice.

(c) [Reserved]

(d) Pay rate. Premium pay inmates receive a specified amount over and above all other pay and benefits to which they may be entitled (e.g., longevity pay, overtime, piecework rates, etc.). Premium pay is also paid for vacation, holiday, and administrative hours.

(e) Duties of premium pay inmates. Premium pay is a means of recognizing the value of those traits supportive of morale and good institutional adjustment. It is not a form of bonus or incentive pay for highly productive inmates.

(f) Transfer status of premium pay inmates. Premium pay status may not be transferred from institution to institution with the inmate worker. Premium pay status must be earned at each location.

(g) Removals from premium pay status. Removal from premium pay status may occur for failure to demonstrate the premium pay selection traits or for failure to abide by the inmate worker standards set forth in this policy. All removals from premium pay status shall be documented on the inmate's evaluation form. The following conditions also may result in removal from premium pay status:

(1) Any premium pay inmate found to have committed any level 100 or 200 series offense by the DHO is automatically removed from premium pay status whether or not the offense was FPI-related.

(2) Inmates absent from work for more than 30 consecutive calendar days may be removed from premium pay status by the SOI.

§ 345.53 Piecework rates.

Piecework rates are incentives for workers to strive for higher pay and production benefiting both the worker and FPI. Piecework rates may be of two major types: individual piecework (in which an individual's pay goes up or down depending upon his/her own output) or Group Wage Fund (in which all members of a group strive for higher rates or production output as a unit, and all share in a pool of funds distributed among work group members equally).

§ 345.54 Overtime compensation.

An inmate worker is entitled to overtime pay at a rate of two times the hourly or unit rate for hourly, individual, and group piecework rate workers, when the total hours worked (including administrative pay) exceed the FPI factory's regularly scheduled workday. Hours worked on days other than the scheduled work week (e.g., Saturday) shall be compensated at the overtime rate.

§ 345.55 Longevity pay.

(a) Except as provided in paragraph (b) of this section, an inmate earns longevity pay raises after 18 months spent in FPI work status regardless of whether or not the work was continuous. The service may have occurred in one or more FPI factories or shops. An inmate qualifies for longevity pay raises as provided in the table below:

Length of Service With FPI After 18 months of service and payable in the 19th month After 30 months of service and payable in the 31st month After 42 months of service and payable in the 43rd month After 60 months of service and payable in the 61st month After 84 months of service (& more) and payable in the 85th month

Longevity pay allowances shall be added after the wages for each actual hour in pay status have been properly computed.

(b) Exceptions. (1) FPI work status during service of a previous sentence with a subsequent break in custody may not be considered in determining longevity pay.

(2) An inmate in segregation or who is given a disciplinary transfer loses any longevity status previously achieved.

(3) An inmate who voluntarily transfers to a non-FPI work assignment loses any longevity status previously achieved. An inmate who leaves FPI to enter education, vocational training, or drug abuse treatment programs, however, generally retains longevity and pay grade status upon return to FPI, unless the inmate withdraws from those programs without a good faith effort to complete them. The decision on whether there was a good faith effort is to be made by the SOI in concert with the staff member in charge of the program.

§ 345.56 Vacation pay.

Inmate workers are granted FPI vacation pay by the SOI when their continued good work performance justifies such pay, based on such criteria as quality of work, attendance and punctuality, attentiveness, and adherence to industry operating regulations. The inmate must submit a written request for vacation time, ordinarily two weeks in advance of the requested vacation time. The work supervisor must recommend to the SOI the vacation time to be taken or paid. Eligibility for vacation pay must be verified by the Business Office prior to approval by the SOI. The SOI may declare an inmate ineligible for vacation credit because of an inmate's unsatisfactory work performance during the month in which such credit was to occur.

(a) An inmate may take accrued vacation time for visits, participation in institution programs or for other good reasons at the discretion of the SOI. Industrial managers should make every reasonable attempt to schedule an inmate worker's vacations so as not to conflict with the workforce requirements of FPI factory production schedules and Inmate Systems Management requirements.

(b) An inmate temporarily assigned to the Industrial detail, e.g., on construction details, also earns vacation credit which he or she must take or be paid for at the end of the temporary assignment.

(c) An inmate must take and/or be paid for vacation credit within sixty days after each annual eligibility date of the inmate's most recent date of assignment to FPI. An inmate who elects not to take vacation time must indicate this in writing. That inmate shall receive pay for the annual vacation credit in a lump sum on the regular monthly payroll. This amount is ordinarily paid within sixty days after the annual eligibility date of the inmate's most recent date of assignment to FPI. An inmate whose employment is terminated by release, reassignment, transfer, or other reasons, and who has unused vacation credit shall be paid for this credit on the monthly payroll.

§ 345.57 Administrative pay.

An inmate excused from a job assignment may receive administrative pay for such circumstances as a general recall for an institution, power outages, blood donations, or other situations at the discretion of the SOI. Such pay may not exceed an aggregate of three hours per month.

§ 345.58 Holiday pay.

An inmate worker in FPI work status shall receive pay at the standard hourly rate, plus longevity where applicable, for all Federal holidays provided the inmate is in work status on the day before and the day after the holiday occurs. Full-time workers receive one full day's pay. Part-time workers receive one-half day's pay.

§ 345.59 Inmate performance pay.

Inmate workers for FPI may also receive Inmate Performance Pay for participation in programs where this award is made. However, inmate workers may not receive both Industries Pay and Performance Pay for the same program activity. For example, an inmate assigned to a pre-industrial class may not receive FPI pay as well as inmate performance pay for participation in the class.

§ 345.60 Training pay.

Inmates directed by the SOI to take a particular type of training in connection with a FPI job are to receive FPI pay if the training time occurs during routine FPI factory hours of operation. This does not include ABE/GED or pre-industrial training.

§ 345.61 Inmate earnings statement.

Each inmate worker in FPI shall be given a monthly earnings statement while actively working for FPI.

§ 345.62 Inmate accident compensation.

An inmate worker shall be paid lost-time wages while hospitalized or confined to quarters due to work-related injuries (including occupational disease or illnesses directly caused by the worker's job assignments) as specified by the Inmate Accident Compensation Program (28 CFR part 301).

§ 345.63 Funds due deceased inmates.

Funds due a deceased inmate for work performed for FPI are payable to a legal representative of the inmate's estate or in accordance with the law of descent and distribution of the state of domicile.

§ 345.64 Referral of releasable medical data to FPI staff.

The SOI is responsible for ensuring that appropriate releasable information pertaining to an inmate's medical limitation (e.g., back injury) is made available to the FPI staff member who directly supervises the assignment.

§ 345.65 Inmate medical work limitation.

In addition to any prior illnesses or injuries, medical limitations also include any illness or injury sustained by an inmate which necessitates removing the ill worker from an FPI work assignment. If an inmate worker is injured more than once in a comparatively short time, and the circumstances of the injury suggest an awkwardness or ineptitude which in turn indicates that further danger exists, the inmate may be removed to another FPI detail or to a non-FPI detail.

§ 345.66 Claims limitation.

Claims relating to pay and/or benefits must occur within one calendar year of the period of time for which the claim is made. Inmate claims submitted more than one year after the time in question require the approval of the Assistant Director before an inmate may receive such pay and/or benefit.

§ 345.67 Retention of benefits.

(a) Job retention. Ordinarily, when an inmate is absent from the job for a significant period of time, the SOI will fill that position with another inmate, and the first inmate will have no entitlement to continued FPI employment.

(1) For up to the first 30 days when an inmate is in medical idle status, that inmate will retain FPI pay grade status, with suspension of actual pay, and will be able to return to FPI when medically able, provided the absence was not because of a FPI work-related injury resulting from the inmate's violation of safety standards. If the medical idle lasts longer than 30 days, was not caused by a violation of safety standards, and the unit team approves the inmate's return to FPI, the SOI shall place that inmate within the top ten percent of the FPI waiting list.

(2) Likewise, for up to the first 30 days when an inmate is in Administrative Detention, that inmate may retain FPI pay grade status, with actual pay suspended, and will be able to return to FPI, provided the inmate is not found to have committed a prohibited act. If Administrative Detention lasts longer than 30 days, and the inmate is not found to have committed a prohibited act, and the unit team approves the inmate's return to FPI, the SOI shall place that inmate within the top ten percent of the FPI waiting list.

(3) An inmate in Administrative Detention, and found to have committed a prohibited act, may return to FPI work status at the discretion of the SOI.

(4) If an inmate is injured and absent from the job because of a violation of FPI safety standards, the SOI may reassign the inmate within FPI or recommend that the unit team reassign the inmate to a non-FPI work assignment.

(5) If an inmate is transferred from one institution to another for administrative (not disciplinary) reasons, and the unit team approves the inmate's return to FPI, the SOI shall place that inmate within the top ten percent of the FPI waiting list.

(b) Longevity and vacation credit. Ordinarily, when an inmate's FPI employment is interrupted, the inmate loses all accumulated longevity and vacation credit with the following exceptions:

(1) The inmate retains longevity and vacation credit when placed in medical idle status, provided the medical idle is not because of a FPI work-related injury resulting from the inmate's violation of safety standards. If the medical idle results from a FPI work-related injury where the inmate was not at fault, the inmate also continues to earn longevity and vacation credit.

(2) Likewise, the inmate retains, and continues earning for up to 30 days, longevity and vacation credit if placed in Administrative Detention, provided the inmate is not found to have committed a prohibited act.

(3) The inmate retains, but does not continue earning, longevity and vacation credit when transferring from one institution to another for administrative (not disciplinary) reasons, when absent from the institution on writ, or when placed in administrative detention and found to have committed a prohibited act.

(c) Pay grade retention. Ordinarily, when an inmate's FPI employment is interrupted, that inmate is not entitled to retain his or her pay grade, with the following exceptions.

(1) An inmate retains pay grade status, with actual pay suspended, for up to 30 days in Administrative Detention. However, the inmate is not reimbursed for the time spent in detention.

(2) Likewise, an inmate retains pay grade status for up to 30 days while absent from the institution on writ, with actual pay suspended. The SOI may approve pay grade retention when an inmate is on writ for longer than 30 days on a case-by-case basis.

(3) If an inmate is absent because of a FPI work-related injury where the inmate was not at fault, the inmate retains his or her pay grade, with actual pay suspended.

§ 345.70 General.

FPI provides incentive awards of various types to inmate workers for special achievements in their work, scholarship, suggestions, for inventions which improve industry processes or safety or which conserve energy or materials consumed in FPI operations, and for outstanding levels of self-development.

§ 345.71 Official commendations.

An inmate worker may receive an official written commendation for any suggestion or invention adopted by FPI, or for any special achievement, as determined by the SOI, related to the inmate's industrial work assignment. A copy of the commendation is to be placed in the inmate's central file.

§ 345.72 Cash bonus or cash award.

An inmate worker may receive a cash bonus or cash award for any suggestion or invention which is adopted by FPI and produces a net savings to FPI of at least $250.00. Cash awards shall be one percent of the net estimated savings during the first year, with the minimum award being $25.00, and the maximum award being $1,000.00.

§ 345.73 Procedures for granting awards for suggestions or inventions.

Inmate suggestions for improvements in operations or safety, or for conservation of energy or material, must be submitted in writing.

(a) The inmate's immediate supervisor shall review the suggestion and forward it with comments and award recommendation to the SOI.

(b) The SOI shall ensure that all inmate suggestions and/or inventions formally submitted are considered for incentive awards by a committee comprised of Industries personnel designated by the SOI.

(1) The committee is authorized to award a cash award of up to $100.00 or an equivalent gift not to exceed $100.00 in value to an inmate whose suggestion has been adopted. A recommendation for an award in excess of $100.00 shall be forwarded to the Assistant Director for a final decision.

(2) The committee shall forward all recommendations for awards for inventions through the SOI to the Warden. The Warden may choose to add his or her comments before forwarding to the Assistant Director for a final decision.

(3) Incentive awards are the exclusive methods for recognizing inmates for suggestions or inventions.

§ 345.74 Awards for special achievements for inmate workers.

While recognition of inmate worker special achievements may originate from any FPI staff member, the achievement ordinarily will be submitted in writing by the inmate's immediate supervisor.

(a) The SOI shall appoint a local institution committee to consider inmates for special achievement awards.

(b) The committee shall forward its recommendations to the SOI, who is authorized to approve individual awards (cash or gifts) not to exceed $100 in value. A recommendation for an award in excess of $100 (cash or gifts) shall be forwarded, with the Superintendent's recommendation and the justification for it, through the Warden to the Assistant Director. The Warden may submit comments on the recommendation.

§ 345.80 General.

As earnings permit, FPI provides appropriate training for inmates which is directly related to the inmate worker's job assignment. Additionally, FPI administers a scholarship program to provide inmates with an opportunity to begin, or to continue with business and industry courses or vocational training.

(a) An applicant for FPI-funded training programs should be evaluated to determine sufficient interest and preparation to successfully complete the course content. The evaluation may be done by the Education Department, unit team, or other qualified personnel.

(b) An inmate selected to participate in FPI-funded training programs ordinarily must have enough sentence time remaining to serve to complete the training.

§ 345.81 Pre-industrial training.

FPI encourages the development and use of pre-industrial training programs. Such training ordinarily provides benefits to the inmate and to the FPI factory. Pre-industrial training also provides an additional management tool for replacing inmate idleness with constructive activity. Accordingly, each FPI factory location may provide a pre-industrial training program.

(a) Pre-industrial program trainees shall ordinarily begin at the entry level pay grade (grade 5). Positions for pre-industrial training programs are filled in the same manner as other grade five positions.

(b) Pre-industrial training is not a prerequisite for work placement if the inmate already possesses the needed skill.

(c) If pre-industrial training is available and the worker has not completed both the skill training and orientation phases of pre-industrial training, the inmate should be put into the first available training class.

(d) When pre-industrial training is not available, new FPI assignees will receive on-the-job training in pre-industrial pay status for a period of at least 30 days before being promoted into available fourth grade jobs.

§ 345.82 Apprenticeship training.

FPI provides inmate workers with an opportunity to participate in apprenticeship training programs to the extent practicable. Such programs help prepare workers for post-release employment in a variety of trades. Apprentices are given related trades classroom instruction in addition to the skill training during work hours, where necessary.

§ 345.83 Job safety training.

FPI provides inmates with regular job safety training which is developed and scheduled in coordination with the institution Safety Manager. Participation in the training shall be documented in a safety training record signed by the inmate.

§ 345.84 The FPI scholarship fund.

FPI shall award post-secondary school scholarships to selected, qualified inmate workers. These scholarships provide an inmate with the opportunity to begin or continue with business and industry courses or vocational training as approved and deemed appropriate by the Supervisor of Education.

(a) Eligibility requirements. The SOI and the Supervisor of Education at each institution shall develop application procedures to include, at a minimum, the following criteria:

(1) The inmate shall be a full-time FPI worker.

(2) The inmate has a favorable recommendation for participation from his or her work supervisor.

(3) The inmate meets all relevant institution requirements for participation (e.g. disciplinary record, custody level).

(4) The inmate is accepted by the institution of higher learning offering the course or program which is requested.

(5) The inmate must maintain a verifiable average of “C” or better to continue program eligibility.

(6) Before beginning the course of study, the inmate must sign an agreement to provide the SOI with an unaltered, original copy of his or her grades.

(b) Scholarship selection procedures. FPI scholarship awards shall be made by a three member Selection Committee comprised of the SOI, the Supervisor of Education, and one other person designated by the SOI.

(c) Scholarship program operation. (1) Ordinarily, one scholarship may be awarded per school period for every fifty workers assigned. At least one scholarship may be awarded at each institution location, regardless of the number of inmates assigned.

(2) Individual scholarships ordinarily should not exceed the cost of tuition and books for one course. Where several courses may be taken for the same cost as one, the inmate worker may be allowed to take more than one course.

(3) Scholarship monies are to be paid only to the institution providing instruction, or to the Education Department for transfer of funds to the college, university, or technical institution providing instruction.

(4) An inmate may not receive more than one scholarship per school period.

(5) An inmate must maintain at least a “C” average to be continued as eligible for further assistance. An inmate earning less than “C” must wait one school period of eligibility before reapplying for further assistance. Where a course grade is based on a “pass/fail” system, the course must be “passed” to be eligible for further assistance.

(6) An inmate awarded a correspondence course must successfully complete the course during a school year (e.g., 2 semesters, 3 quarters).

(7) An inmate receiving scholarship aid must have approval from the SOI and the Supervisor of Education before withdrawing from classes for good reason. An inmate withdrawing or “dropping” courses without permission shall wait one school year before applying for further scholarship assistance. An inmate may withdraw from courses without penalty for medical or non-disciplinary administrative reasons such as transfer, writ, release, etc., without first securing permission, although withdrawals for medical reasons must be certified in writing by the Hospital Administrator.

§ 500.1 Definitions.

As used in this chapter,

(a) The Warden means the chief executive officer of a U.S. Penitentiary, Federal Correctional Institution, Medical Center for Federal Prisoners, Federal Prison Camp, Federal Detention Center, Metropolitan Correctional Center, or any federal penal or correctional institution or facility. Warden also includes any staff member with authority explicitly delegated by any chief executive officer.

(b) Staff means any employee of the Bureau of Prisons or Federal Prison Industries, Inc.

(c) Inmate means all persons in the custody of the Federal Bureau of Prisons or Bureau contract facilities, including persons charged with or convicted of offenses against the United States; D.C. Code felony offenders; and persons held as witnesses, detainees, or otherwise.

(d) Institution means a U.S. Penitentiary, a Federal Correctional Institution, a Federal Prison Camp, a Federal Detention Center, a Metropolitan Correctional Center, a Metropolitan Detention Center, a U.S. Medical Center for Federal Prisoners, a Federal Medical Center, or a Federal Transportation Center.

(e) Shall means an obligation is imposed.

(f) May means a discretionary right, privilege, or power is conferred.

(g) May not means a prohibition is imposed.

(h) Contraband is material prohibited by law, regulation, or policy that can reasonably be expected to cause physical injury or adversely affect the safety, security, or good order of the facility or protection of the public.

(i) Qualified health personnel includes physicians, dentists, and other professional and technical workers who engage in activities within their respective levels of health care training or experience which support, complement, or supplement the administration of health care.

[44 FR 38244, June 29, 1979, as amended at 48 FR 48969, Oct. 21, 1983; 56 FR 31530, July 10, 1991; 63 FR 55775, Oct. 16, 1998; 66 FR 55065, Oct. 31, 2001; 80 FR 45885, Aug. 3, 2015]

§ 501.1 Bureau of Prisons emergencies.

(a) Suspension of rules during an emergency. The Director of the Bureau of Prisons (Bureau) may suspend operation of the rules in this chapter as necessary to handle an institutional emergency or an emergency affecting the Bureau. When there is an institutional emergency which the Director or Warden considers a threat to human life or safety, the Director or Warden may suspend the operation of the rules in this chapter as necessary to handle the emergency.

(b) Responsibilities of the Warden—(1) Notifying the Director. If the Warden suspends operation of the rules, the Warden must, within 24 hours of the suspension or as soon as practicable, notify the Director by providing written documentation which:

(i) Describes the institutional emergency that threatens human life or safety;

(ii) Sets forth reasons why suspension of the rules is necessary to handle the institutional emergency;

(iii) Estimates how long suspension of the rules will last; and

(iv) Describes criteria which would allow normal rules application to resume.

(2) Submitting certification to Director of continuing emergency. 30 days after the Warden suspends operation of the rules, and every 30 days thereafter, the Warden must submit to the Director written certification that an institutional emergency threatening human life or safety and warranting suspension of the rules continues to exist. If the Warden does not submit this certification to the Director, or if the Director so orders at any time, the suspension of the rules will cease.

[70 FR 29191, May 20, 2005]

§ 501.2 National security cases.

(a) Upon direction of the Attorney General, the Director, Bureau of Prisons, may authorize the Warden to implement special administrative measures that are reasonably necessary to prevent disclosure of classified information upon written certification to the Attorney General by the head of a member agency of the United States intelligence community that the unauthorized disclosure of such information would pose a threat to the national security and that there is a danger that the inmate will disclose such information. These special administrative measures ordinarily may include housing the inmate in administrative detention and/or limiting certain privileges, including, but not limited to, correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to prevent the disclosure of classified information. The authority of the Director under this paragraph may not be delegated below the level of Acting Director.

(b) Designated staff shall provide to the affected inmate, as soon as practicable, written notification of the restrictions imposed and the basis for these restrictions. The notice's statement as to the basis may be limited in the interest of prison security or safety or national security. The inmate shall sign for and receive a copy of the notification.

(c) Initial placement of an inmate in administrative detention and/or any limitation of the inmate's privileges in accordance with paragraph (a) of this section may be imposed for a period of time as determined by the Director, Bureau of Prisons, up to one year. Special restrictions imposed in accordance with paragraph (a) of this section may be extended thereafter by the Director, Bureau of Prisons, in increments not to exceed one year, but only if the Attorney General receives from the head of a member agency of the United States intelligence community an additional written certification that, based on the information available to the agency, there is a danger that the inmate will disclose classified information and that the unauthorized disclosure of such information would pose a threat to the national security. The authority of the Director under this paragraph may not be delegated below the level of Acting Director.

(d) The affected inmate may seek review of any special restrictions imposed in accordance with paragraph (a) of this section through the Administrative Remedy Program, 28 CFR part 542.

(e) Other appropriate officials of the Department of Justice having custody of persons for whom special administrative measures are required may exercise the same authorities under this section as the Director of the Bureau of Prisons and the Warden.

[62 FR 33732, June 20, 1997, as amended at 66 FR 55065, Oct. 31, 2001]

§ 501.3 Prevention of acts of violence and terrorism.

(a) Upon direction of the Attorney General, the Director, Bureau of Prisons, may authorize the Warden to implement special administrative measures that are reasonably necessary to protect persons against the risk of death or serious bodily injury. These procedures may be implemented upon written notification to the Director, Bureau of Prisons, by the Attorney General or, at the Attorney General's direction, by the head of a federal law enforcement agency, or the head of a member agency of the United States intelligence community, that there is a substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons. These special administrative measures ordinarily may include housing the inmate in administrative detention and/or limiting certain privileges, including, but not limited to, correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to protect persons against the risk of acts of violence or terrorism. The authority of the Director under this paragraph may not be delegated below the level of Acting Director.

(b) Designated staff shall provide to the affected inmate, as soon as practicable, written notification of the restrictions imposed and the basis for these restrictions. The notice's statement as to the basis may be limited in the interest of prison security or safety or to protect against acts of violence or terrorism. The inmate shall sign for and receive a copy of the notification.

(c) Initial placement of an inmate in administrative detention and/or any limitation of the inmate's privileges in accordance with paragraph (a) of this section may be imposed for up to 120 days or, with the approval of the Attorney General, a longer period of time not to exceed one year. Special restrictions imposed in accordance with paragraph (a) of this section may be extended thereafter by the Director, Bureau of Prisons, in increments not to exceed one year, upon receipt by the Director of an additional written notification from the Attorney General, or, at the Attorney General's direction, from the head of a federal law enforcement agency or the head of a member agency of the United States intelligence community, that there continues to be a substantial risk that the inmate's communications or contacts with other persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons. The authority of the Director under this paragraph may not be delegated below the level of Acting Director.

(d) In any case where the Attorney General specifically so orders, based on information from the head of a federal law enforcement or intelligence agency that reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism, the Director, Bureau of Prisons, shall, in addition to the special administrative measures imposed under paragraph (a) of this section, provide appropriate procedures for the monitoring or review of communications between that inmate and attorneys or attorneys' agents who are traditionally covered by the attorney-client privilege, for the purpose of deterring future acts that could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.

(1) The certification by the Attorney General under this paragraph (d) shall be in addition to any findings or determinations relating to the need for the imposition of other special administrative measures as provided in paragraph (a) of this section, but may be incorporated into the same document.

(2) Except in the case of prior court authorization, the Director, Bureau of Prisons, shall provide written notice to the inmate and to the attorneys involved, prior to the initiation of any monitoring or review under this paragraph (d). The notice shall explain:

(i) That, notwithstanding the provisions of part 540 of this chapter or other rules, all communications between the inmate and attorneys may be monitored, to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism;

(ii) That communications between the inmate and attorneys or their agents are not protected by the attorney-client privilege if they would facilitate criminal acts or a conspiracy to commit criminal acts, or if those communications are not related to the seeking or providing of legal advice.

(3) The Director, Bureau of Prisons, with the approval of the Assistant Attorney General for the Criminal Division, shall employ appropriate procedures to ensure that all attorney-client communications are reviewed for privilege claims and that any properly privileged materials (including, but not limited to, recordings of privileged communications) are not retained during the course of the monitoring. To protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a privilege team shall be designated, consisting of individuals not involved in the underlying investigation. The monitoring shall be conducted pursuant to procedures designed to minimize the intrusion into privileged material or conversations. Except in cases where the person in charge of the privilege team determines that acts of violence or terrorism are imminent, the privilege team shall not disclose any information unless and until such disclosure has been approved by a federal judge.

(e) The affected inmate may seek review of any special restrictions imposed in accordance with paragraph (a) of this section through the Administrative Remedy Program, 28 CFR part 542.

(f) Other appropriate officials of the Department of Justice having custody of persons for whom special administrative measures are required may exercise the same authorities under this section as the Director of the Bureau of Prisons and the Warden.

[62 FR 33732, June 20, 1997, as amended at 66 FR 55065, Oct. 31, 2001]

§ 503.1 Structure of the Bureau of Prisons.

The Bureau of Prisons consists of a Central Office, located at 320 First Street, NW., Washington, DC 20534, a Staff Training Center, and six Regional Offices (Northeast, Mid-Atlantic, Southeast, North Central, South Central, and Western). For further information, please contact the Central Office at the address referenced, or visit www.bop.gov for a complete list of contact information for Bureau Regional Offices and facilities.

§ 505.1 Purpose and scope.

This part establishes procedures for the assessment and collection of a fee to cover the cost of incarceration. The Director of the Bureau of Prisons has been delegated the authority of the Attorney General (see 28 CFR 0.96c) to assess and collect a fee imposed by the Bureau in the event the court neither imposes nor waives a fine pursuant to the Sentencing Guidelines 5E1.2(d). For purposes of this part, revocation of parole or supervised release is to be treated as a separate period of incarceration for which a fee may be imposed.

§ 505.2 Annual determination of average cost of incarceration.

Pursuant to 28 CFR 0.96c, the Bureau of Prisons staff is responsible for calculating the annual average cost of incarceration. This calculation is reviewed annually and the revised figure is published as a notice in the Federal Register.

§ 505.3 Inmates exempted from fee assessment.

Inmates who began service of sentence before January 1, 1995, or who have had a fine either imposed or expressly waived by the United States District Court, pursuant to Section 5E1.2 (e) of the United States Sentencing Guidelines, or any successor provisions, are exempt from fee assessment otherwise required by this part.

§ 505.4 Calculation of assessment by unit staff.

Bureau of Prisons Unit Team staff are responsible for computing the amount of the fee to be paid by each inmate who has not been exempted from fee assessment. The inmate will only be assessed an amount once for the cost of incarceration for each separate period of incarceration.

(a) Unit Team staff are to rely exclusively on the information contained in the Presentence Investigation Report and findings and orders of the sentencing court in order to determine the extent of an inmate's assets, liabilities and dependents.

(b) The fee is assessed in accordance with the following formula: If an inmate's assets are equal to or less than the poverty level, as established by the United States Department of Health and Human Services and published annually in the Federal Register, no fee is to be imposed. If an inmate's assets are above the poverty level, Unit Team staff are to impose a fee equal to the inmate's assets above the poverty level up to the average cost to the Bureau of Prisons of confining an inmate for one year.

(c) If the amount of time that the inmate is in custody is less than 334 days (including pretrial custody time), the maximum fee to be imposed is to be computed by prorating the fee on a monthly basis.

§ 505.5 Waiver of fee by Warden.

The Warden may reduce or waive the fee if the inmate establishes that:

(a) He or she is not able and, even with the use of a reasonable installment schedule, is not likely to become able to pay all or part of the fee, or

(b) Imposition of a fee would unduly burden the inmate's dependents.

§ 505.6 Procedures for payment.

Fees imposed pursuant to this part are due and payable after notice of the Unit Team actions. When the inmate participates in the inmate financial responsibility program (see 28 CFR part 545, subpart B), fees are to be included under the category “other federal government obligations” and are to be paid before other financial obligations included in that same category. Fees may be subject to interest charges.

§ 505.7 Procedures for final disposition.

Before the inmate completes his or her sentence, Unit Team staff must review the status of the inmate's fee. Any unpaid amount will be referred for collection in accordance with Federal Claims Collection Standards (4 CFR Chapter II).

§ 506.1 What is the purpose of individual inmate commissary accounts?

The purpose of individual inmate commissary accounts is to allow the Bureau to maintain inmates' monies while they are incarcerated. Family, friends, or other sources may deposit funds into these accounts.

§ 506.2 How may family, friends, or other sources deposit funds into an inmate commissary account?

(a) Family and friends must mail deposits to the centralized inmate commissary account at the address we provide.

(1) The deposit envelope must not contain any enclosures intended for delivery to the inmate. We may dispose of any enclosure.

(2) The deposit must be in the form of a money order made out to the inmate's full name and complete register number. We will return checks to the sender provided the check contains an adequate return address.

(b) Other sources, (such as tax refunds, dividends from stocks, or state benefits) must be forwarded for deposit to the centralized inmate commissary account.

§ 511.10 Purpose and scope.

(a) This subpart facilitates our legal obligations to ensure the safety, security, and orderly operation of Bureau of Prisons (Bureau) facilities, and protect the public. These goals are furthered by carefully managing non-inmates, the objects they bring, and their activities, while inside a Bureau facility or upon the grounds of any Bureau facility (Bureau grounds).

(b) Purpose. This subpart covers:

(1) Searching non-inmates and their belongings (for example, bags, boxes, vehicles, containers in vehicles, jackets or coats, etc.) to prevent prohibited objects from entering a Bureau facility or Bureau grounds;

(2) Authorizing, denying, and/or terminating a non-inmate's presence inside a Bureau facility or upon Bureau grounds; and

(3) Authorizing Bureau staff to remove from inside a Bureau facility or upon Bureau grounds, and possibly arrest and detain, non-inmates suspected of engaging in prohibited activity.

(c) Scope/Application. This subpart applies to all persons who wish to enter, or are present inside a Bureau facility or upon Bureau grounds, other than inmates in Bureau custody. This subpart applies at all Bureau facilities and Bureau grounds, including administrative offices.

§ 511.11 Prohibited activities.

(a) “Prohibited activities” include any activities that could jeopardize the Bureau's ability to ensure the safety, security, and orderly operation of Bureau facilities, and protect the public, whether or not such activities are criminal in nature.

(b) Examples of “prohibited activities” include, but are not limited to: Introducing, or attempting to introduce, prohibited objects into a Bureau facility or upon Bureau grounds; assisting an escape; and any other conduct that violates criminal laws or is prohibited by federal regulations or Bureau policies.

§ 511.12 Prohibited objects.

(a) “Prohibited objects,” as defined in 18 U.S.C. 1791(d)(1), include any objects that could jeopardize the Bureau's ability to ensure the safety, security, and orderly operation of Bureau facilities, and protect the public.

(b) Examples of “prohibited objects” include, but are not limited to, the following items and their related paraphernalia: Weapons; explosives; drugs; intoxicants; currency; cameras of any type; recording equipment; telephones; radios; pagers; electronic devices; and any other objects that violate criminal laws or are prohibited by Federal regulations or Bureau policies.

§ 511.13 Searches before entering, or while inside, a Bureau facility or Bureau grounds.

Bureau staff may search you and your belongings (for example, bags, boxes, vehicles, containers in vehicles, jackets or coats, etc.) before entering, or while inside, any Bureau facilities or Bureau grounds, to keep out prohibited objects.

§ 511.14 Notification of possible search.

We display conspicuous notices at the entrance to all Bureau facilities, informing all non-inmates that they, and their belongings, are subject to search before entering, or while inside, Bureau facilities or grounds. Furthermore, these regulations and Bureau national and local policies provide additional notice that you and your belongings may be searched before entering, or while inside, Bureau facilities or grounds. By entering or attempting to enter a Bureau facility or Bureau grounds, non-inmates consent to being searched in accordance with these regulations and Bureau policy.

§ 511.15 When searches will be conducted.

You and your belongings may be searched, either randomly or based on reasonable suspicion, before entering, or while inside, a Bureau facility or Bureau grounds, as follows:

(a) Random Searches. This type of search may occur at any time, and is not based on any particular suspicion that a non-inmate is attempting to bring a prohibited object into a Bureau facility or Bureau grounds.

(1) Random searches must be impartial and not discriminate among non-inmates on the basis of age, race, religion, national origin, or sex.

(2) Non-inmates will be given the option of either consenting to random searches as a condition of entry, or refusing such searches and leaving Bureau grounds. However, if a non-inmate refuses to submit to a random search and expresses an intent to leave Bureau grounds, he or she may still be required to be searched if “reasonable suspicion” exists as described in paragraph (b) of this section.

(b) Reasonable Suspicion Searches. Notwithstanding staff authority to conduct random searches, staff may also conduct reasonable suspicion searches to ensure the safety, security, and orderly operation of Bureau facilities, and protect the public. “Reasonable suspicion” exists if a staff member knows of facts and circumstances that warrant rational inferences by a person with correctional experience that a non-inmate may be engaged in, attempting, or about to engage in, criminal or other prohibited activity.

§ 511.16 How searches will be conducted.

You may be searched by any of the following methods before entering, or while inside, a Bureau facility or Bureau grounds:

(a) Electronically. (1) You and your belongings may be electronically searched for the presence of contraband, either randomly or upon reasonable suspicion.

(2) Examples of electronic searches include, but are not limited to, metal detectors and ion spectrometry devices.

(b) Pat Search. (1) You and your belongings may be pat searched either randomly or upon reasonable suspicion.

(2) A pat search of your person or belongings involves a staff member pressing his/her hands on your outer clothing, or the outer surface of your belongings, to determine whether prohibited objects are present.

(3) Whenever possible, pat searches of your person will be performed by staff members of the same sex. Pat searches may be conducted by staff members of the opposite sex only in emergency situations with the Warden's authorization.

(c) Visual Search. You and your belongings may be visually searched as follows:

(1) Person. (i) A visual search of your person involves removing all articles of clothing, including religious headwear, to allow a visual (non-tactile) inspection of your body surfaces and cavities.

(ii) Visual searches of your person must always be authorized by the Warden or his/her designee and based on reasonable suspicion; random visual searches are prohibited.

(iii) When authorized, visual searches will be performed discreetly, in a private area away from others, and by staff members of the same sex as the non-inmate being searched. Visual searches may be conducted by staff members of the opposite sex in emergency situations with the Warden's authorization.

(iv) Body cavity (tactile) searches of non-inmates are prohibited.

(2) Belongings. A visual search of your belongings involves opening and exposing all contents for visual and manual inspection, and may be done either as part of a random search or with reasonable suspicion.

(d) Drug Testing. (1) You may be tested for use of intoxicating substances by any currently reliable testing method, including, but not limited to, breathalyzers and urinalysis.

(2) Drug testing must always be authorized by the Warden or his/her designee and must be based on reasonable suspicion that you are under the influence of an intoxicating substance upon entering, or while inside, a Bureau facility or Bureau grounds.

(3) Searches of this type will always be performed discreetly, in a private area away from others, and by staff members adequately trained to perform the test. Whenever possible, urinalysis tests will be conducted by staff members of the same sex as the non-inmate being tested. Urinalysis tests may be conducted by staff members of the opposite sex only in emergency situations with the Warden's authorization.

§ 511.17 When a non-inmate will be denied entry to or required to leave a Bureau facility or Bureau grounds.

At the Warden's, or his/her designee's, discretion, and based on this subpart, you may be denied entry to, or required to leave, a Bureau facility or Bureau grounds if:

(a) You refuse to be searched under this subpart; or

(b) There is reasonable suspicion that you may be engaged in, attempting, or about to engage in, prohibited activity that jeopardizes the Bureau's ability to ensure the safety, security, and orderly operation of its facilities, or protect the public. “Reasonable suspicion,” for this purpose, may be based on the results of a search conducted under this subpart, or any other reliable information.

§ 511.18 When Bureau staff can arrest and detain a non-inmate.

(a) You may be arrested and detained by Bureau staff anytime there is probable cause indicating that you have violated or attempted to violate applicable criminal laws while at a Bureau facility, as authorized by 18 U.S.C. 3050.

(b) “Probable cause” exists when specific facts and circumstances lead a reasonably cautious person (not necessarily a law enforcement officer) to believe a violation of criminal law has occurred, and warrants consideration for prosecution.

(c) Non-inmates arrested by Bureau staff under this regulation will be physically secured, using minimally necessary force and restraints, in a private area of the facility away from others. Appropriate law enforcement will be immediately summoned to investigate the incident, secure evidence, and commence criminal prosecution.

§ 512.10 Purpose and scope.

General provisions for the protection of human subjects during the conduct of research are contained in 28 CFR part 46. The provisions of this subpart B specify additional requirements for prospective researchers (both employees and non-employees) to obtain approval to conduct research within the Bureau of Prisons (Bureau) and responsibilities of Bureau staff in processing proposals and monitoring research projects. Although some research may be exempt from 28 CFR part 46 under § 46.101(b)(5), as determined by the Office of Research and Evaluation (ORE) of the Bureau, no research is exempt from 28 CFR part 512. For the purpose of this subpart, implementation of Bureau programmatic or operational initiatives made through pilot projects is not considered to be research.

[59 FR 13860, Mar. 23, 1994, as amended at 62 FR 6661, Feb. 12, 1997]

§ 512.11 Requirements for research projects and researchers.

(a) Except as provided for in paragraph (b) of this section, the Bureau requires the following:

(1) In all research projects the rights, health, and human dignity of individuals involved must be respected.

(2) The project must have an adequate research design and contribute to the advancement of knowledge about corrections.

(3) The project must not involve medical experimentation, cosmetic research, or pharmaceutical testing.

(4) The project must minimize risk to subjects; risks to subjects must be reasonable in relation to anticipated benefits. The selection of subjects within any one institution must be equitable. When applicable, informed consent must be sought and documented (see §§ 512.15 and 512.16).

(5) Incentives may not be offered to help persuade inmate subjects to participate. However, soft drinks and snacks to be consumed at the test setting may be offered. Reasonable accommodations such as nominal monetary recompense for time and effort may be offered to non-confined research subjects who are both:

(i) No longer in Bureau of Prisons custody, and

(ii) Participating in authorized research being conducted by Bureau employees or contractors.

(6) The researcher must have academic preparation or experience in the area of study of the proposed research.

(7) The researcher must assume responsibility for actions of any person engaged to participate in the research project as an associate, assistant, or subcontractor to the researcher.

(8) Except as noted in the informed consent statement to the subject, the researcher must not provide research information which identifies a subject to any person without that subject's prior written consent to release the information. For example, research information identifiable to a particular individual cannot be admitted as evidence or used for any purpose in any action, suit or other judicial, administrative, or legislative proceeding without the written consent of the individual to whom the data pertains.

(9) The researcher must adhere to applicable provisions of the Privacy Act of 1974 and regulations pursuant to this Act.

(10) The research design must be compatible with both the operation of prison facilities and protection of human subjects. The researcher must observe the rules of the institution or office in which the research is conducted.

(11) Any researcher who is a non-employee of the Bureau must sign a statement in which the researcher agrees to adhere to the provisions of this subpart.

(12) Except for computerized data records maintained at an official Department of Justice site, records which contain nondisclosable information directly traceable to a specific person may not be stored in, or introduced into, an electronic retrieval system.

(13) If the researcher is conducting a study of special interest to the Office of Research and Evaluation (ORE), but the study is not a joint project involving ORE, the researcher may be asked to provide ORE with the computerized research data, not identifiable to individual subjects, accompanied by detailed documentation. These arrangements must be negotiated prior to the beginning of the data collection phase of the project.

(14) The researcher must submit planned methodological changes in a research project to the IRB for approval, and may be required to revise study procedures in accordance with the new methodology.

(b) Requests from Federal agencies, the Congress, the Federal judiciary, or State or local governments to collect information about areas for which they are responsible and requests by private organizations for organizational rather than personal information from Bureau staff shall be reviewed by ORE to determine which provisions of this subpart may be waived without jeopardizing the safety of human subjects. ORE shall document in writing the waiver of any specific provision along with the justification.

[62 FR 6661, Feb. 12, 1997]

§ 512.12 Content of research proposal.

When submitting a research proposal, the applicant shall provide the following information:

(a) A summary statement which includes:

(1) Name(s) and current affiliation(s) of the researcher(s);

(2) Title of the study;

(3) Purpose of the project;

(4) Location of the project;

(5) Methods to be employed;

(6) Anticipated results;

(7) Duration of the study;

(8) Number of subjects (staff/inmates) required and amount of time required from each; and

(9) Indication of risk or discomfort involved as a result of participation.

(b) A comprehensive statement which includes:

(1) Review of related literature;

(2) Detailed description of the research method;

(3) Significance of anticipated results and their contribution to the advancement of knowledge;

(4) Specific resources required from the Bureau;

(5) Description of all possible risks, discomforts, and benefits to individual subjects or a class of subjects, and a discussion of the likelihood that the risks and discomforts will actually occur;

(6) Description of steps taken to minimize any risks described in (b)(5) of this section.

(7) Description of physical and/or administrative procedures to be followed to:

(i) Ensure the security of any individually identifiable data that are being collected for the project, and

(ii) Destroy research records or remove individual identifiers from those records when the research has been completed.

(8) Description of any anticipated effects of the research project on institutional programs and operations; and

(9) Relevant research materials such as vitae, endorsements, sample informed consent statements, questionnaires, and interview schedules.

(c) A statement regarding assurances and certification required by 28 CFR part 46, if applicable.

§ 512.13 Institutional Review Board.

(a) The Bureau of Prisons' central institutional review board shall be called the Bureau Research Review Board (BRRB). It shall consist of the Chief, ORE, at least four other members, and one alternate, appointed by the Director, and shall meet a sufficient number of times to insure that each project covered by 28 CFR part 46 receives an annual review. A majority of members shall not be Bureau employees. The BRRB shall include an individual with legal expertise and a representative for inmates whom the Director determines is able to identify with inmate concerns and evaluate objectively a research proposal's impact on, and relevance to, inmates and to the correctional process.

(b) The Chief, ORE, shall serve as chairperson of the BRRB. If a potential conflict of interest exists for the BRRB chairperson on a particular research proposal, the Assistant Director, Information, Policy, and Public Affairs Division, shall appoint another individual to serve as chairperson on matters pertaining to that project.

§ 512.14 Submission and processing of proposal.

(a) An applicant may submit a preliminary research proposal for review by the Office of Research and Evaluation, Federal Bureau of Prisons, 320 First Street, NW., Washington, DC 20534. Staff response to the preliminary proposal does not constitute a final decision.

(b) If the study is to be conducted at only one institution, the applicant shall submit a formal proposal to the warden of that institution. Proposal processing will be as follows:

(1) The warden shall appoint a local research review board to consult with operational staff, to evaluate the proposal for compliance with research policy, and to make recommendations to the warden. The local research review board is encouraged, but not required, to meet the membership requirements of an IRB, as specified in 28 CFR part 46.

(2) The warden shall review the comments of the board, make a recommendation regarding the proposal, and forward the proposal package to the Regional Director, with a copy to the Chief, ORE.

(3) The Regional Director shall review the proposal and forward recommendations to the Chief, ORE.

(c) If the study is to be conducted at more than one institution or at any other Bureau location, the applicant shall submit the research proposal to the Chief, Office of Research and Evaluation, Federal Bureau of Prisons, 320 First Street, NW., Washington, DC 20534. The Chief, ORE, shall determine an appropriate review process.

(d) All formal proposals will be reviewed by the BRRB.

(e) The BRRB chairperson may exercise the authority of the full BRRB under an expedited review process when another official IRB (either within or outside the Bureau) has approved the research, or when, in his/her judgment, the research proposal meets the minimal risk standard and involves only the following:

(1) The study of existing data, documents, or records; and/or

(2) The study of individual or group behavior or characteristics of individuals, where the investigator does not manipulate subjects' behavior and the research will not involve stress to subjects. Such research would include test development and studies of perception, cognition, or game theory. If a proposal is processed under expedited review, the BRRB chairperson must document in writing the reason for that determination.

(f) The Chief, ORE, shall review all recommendations made and shall submit them in writing to the Director, Bureau of Prisons.

(g) The Director, Bureau of Prisons, has final authority to approve or disapprove all research proposals. The Director may delegate this authority to the Assistant Director, Information, Policy, and Public Affairs Division.

(h) The approving authority shall notify in writing the involved region(s), institution(s), and the prospective researcher of the final decision on a research proposal.

[59 FR 13860, Mar. 23, 1994, as amended at 62 FR 6661, Feb. 12, 1997]

§ 512.15 Access to Bureau of Prisons records.

(a) Employees, including consultants, of the Bureau who are conducting authorized research projects shall have access to those records relating to the subject which are necessary to the purpose of the research project without having to obtain the subject's consent.

(b) A non-employee of the Bureau is limited in access to information available under the Freedom of Information Act (5 U.S.C. 552).

(c) A non-employee of the Bureau may receive records in a form not individually identifiable when advance adequate written assurance that the record will be used solely as a statistical research or reporting record is provided to the agency (5 U.S.C. 552a(b)(5)).

§ 512.16 Informed consent.

(a) Before commencing a research project requiring participation by staff or inmates, the researcher shall give each participant a written informed consent statement containing the following information:

(1) Identification of the principal investigator(s);

(2) Objectives of the research project;

(3) Procedures to be followed in the conduct of research;

(4) Purpose of each procedure;

(5) Anticipated uses of the results of the research;

(6) A statement of benefits reasonably to be expected;

(7) A declaration concerning discomfort and risk, including a description of anticipated discomfort and risk;

(8) A statement that participation is completely voluntary and that the participant may withdraw consent and end participation in the project at any time without penalty or prejudice (the inmate will be returned to regular assignment or activity by staff as soon as practicable);

(9) A statement regarding the confidentiality of the research information and exceptions to any guarantees of confidentiality required by federal or state law. For example, a researcher may not guarantee confidentiality when the subject indicates an intent to commit future criminal conduct or harm himself/herself or someone else, or, if the subject is an inmate, indicates an intent to leave the facility without authorization.

(10) A statement that participation in the research project will have no effect on the inmate participant's release date or parole eligibility;

(11) An offer to answer questions about the research project; and

(12) Appropriate additional information as needed to describe adequately the nature and risks of the research.

(b) A researcher who is an employee of the Bureau shall include in the informed consent statement a declaration of the authority under which the research is conducted.

(c) A researcher who is an employee of the Bureau, in addition to presenting the statement of informed consent to the subject, shall also obtain the subject's signature on the statement of informed consent, when:

(1) The subject's activity requires something other than response to a questionnaire or interview; or

(2) The Chief, ORE, determines the research project or data-collection instrument is of a sensitive nature.

(d) A researcher who is a non-employee of the Bureau, in addition to presenting the statement of informed consent to the subject, shall also obtain the subject's signature on the statement of informed consent prior to initiating the research activity. The researcher may not be required to obtain the signature if the researcher can demonstrate that the only link to the subject's identity is the signed statement of informed consent or that there is significantly more risk to the subject if the statement is signed. The signed statement shall be submitted to the chairperson of the appropriate local research review board.

§ 512.17 Monitoring approved research projects.

The BRRB shall monitor all research projects for compliance with Bureau policies. At a minimum, yearly reviews will be conducted.

§ 512.18 Termination or suspension.

The Director, Bureau of Prisons, may suspend or terminate a research project if it is believed that the project violates research policy or that its continuation may prove detrimental to the inmate population, the staff, or the orderly operation of the institution.

§ 512.19 Reports.

The researcher shall prepare reports of progress on the research and at least one report of findings.

(a) At least once a year, the researcher shall provide the Chief, ORE, with a report on the progress of the research.

(b) At least 12 working days before any report of findings is to be released, the researcher shall distribute one copy of the report to each of the following: the chairperson of the BRRB, the regional director, and the warden of each institution which provided data or assistance. The researcher shall include an abstract in the report of findings.

§ 512.20 Publication of results of research project.

(a) A researcher may publish in book form and professional journals the results of any research project conducted under this subpart.

(1) In any publication of results, the researcher shall acknowledge the Bureau's participation in the research project.

(2) The researcher shall expressly disclaim approval or endorsement of the published material as an expression of the policies or views of the Bureau.

(b) Prior to submitting for publication the results of a research project conducted under this subpart, the researcher shall provide two copies of the material, for informational purposes only, to the Chief, Office of Research and Evaluation, Central Office, Bureau of Prisons.

[59 FR 13860, Mar. 23, 1994, as amended at 62 FR 6662, Feb. 12, 1997]

§ 512.21 Copyright provisions.

(a) An employee of the Bureau may not copyright any work prepared as part of his/her official duties.

(b) As a precondition to the conduct of research under this subpart, a non-employee shall grant in writing to the Bureau a royalty-free, non-exclusive, and irrevocable license to reproduce, publish, translate, and otherwise use and authorize others to publish and use original materials developed as a result of research conducted under this subpart.

(c) Subject to a royalty-free, non-exclusive and irrevocable license, which the Bureau of Prisons reserves, to reproduce, publish, translate, and otherwise use and authorize others to publish and use such materials, a non-employee may copyright original materials developed as a result of research conducted under this subpart.

[59 FR 13860, Mar. 23, 1994, as amended at 62 FR 6662, Feb. 12, 1997]

§ 513.10 Purpose and scope.

This subpart describes the procedures to be followed by an inmate who requests a copy of his or her FBI identification record or National Crime Information Center Interstate Identification Index (NCIC/III) record and references the procedures to follow in order to challenge the contents of such record.

§ 513.11 Procedures for requesting a FBI identification record or a NCIC/III record.

(a) FBI identification record. (1) An inmate may request a copy of his or her current FBI identification record directly from the FBI by following the procedure outlined in 28 CFR 16.30 through 16.34.

(i) Bureau of Prisons staff shall assist the inmate to obtain the fingerprint impressions required to be submitted with such an application.

(ii) The inmate may direct that funds be withdrawn from his or her institution account to pay the applicable fee.

(2) An inmate may request a copy of his or her FBI identification record from institution staff.

(i) If the requested FBI identification record is in the inmate's institution file, staff shall provide the inmate with a copy.

(ii) If the requested FBI identification record is not in the inmate's institution file, staff shall direct the inmate to the procedure referenced in paragraph (a)(1) of this section.

(b) NCIC/III identification record. An inmate who wishes to obtain a copy of his or her NCIC/III record must submit a written request to the FBI. The procedures outlined in 28 CFR 16.32, 16.33, and paragraphs (a)(1)(i) and (ii) of this section apply to such request.

§ 513.12 Inmate request for record clarification.

Where the inmate believes that his or her FBI identification record is incorrect or inaccurate, the inmate may follow procedures outlined in 28 CFR 16.34. The procedures in 28 CFR 16.34 also apply for the clarification of an inmate's NCIC/III record.

§ 513.20 Release of information to law enforcement agencies.

(a) The Bureau of Prisons will provide to the head of any law enforcement agency of a state or of a unit of local government in a state information on federal prisoners who have been convicted of felony offenses and who are confined at a residential community treatment center located in the geographical area in which the requesting agency has jurisdiction. Law enforcement personnel interested in obtaining this information must forward a written request to the appropriate Regional Community Programs Administrator (see 28 CFR part 503 for the mailing address). The type of information that the Bureau of Prisons may provide is set forth in 18 U.S.C. 4082(f). That information includes: names, dates of birth, FBI numbers, nature of the offenses against the United States, fingerprints, photographs, and the designated community treatment centers, with prospective dates of release.

(b) Any law enforcement agency which receives information under this rule may not disseminate such information outside of such agency. If an agency disseminates information contrary to this restriction, the Bureau of Prisons may terminate or suspend release of information to that agency.

[53 FR 15538, Apr. 29, 1988]

§ 513.30 Purpose and scope.

This subpart establishes procedures for the release of requested records in possession of the Federal Bureau of Prisons (“Bureau”). It is intended to implement provisions of the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a, and to supplement Department of Justice (DOJ) regulations concerning the production or disclosure of records or information, 28 CFR part 16.

§ 513.31 Limitations.

(a) Social Security Numbers. As of September 27, 1975, Social Security Numbers may not be used in their entirety as a method of identification for any Bureau record system, unless such use is authorized by statute or by regulation adopted prior to January 1, 1975.

(b) Employee records. Access and amendment of employee personnel records under the Privacy Act are governed by Office of Personnel Management regulations published in 5 CFR part 297 and by Department of Justice regulations published in 28 CFR part 16.

§ 513.32 Guidelines for disclosure.

The Bureau provides for the disclosure of agency information pursuant to applicable laws, e.g. the Freedom of Information Act (5 U.S.C. 552), and the Privacy Act (5 U.S.C. 552a).

§ 513.33 Production of records in court.

Bureau records are often sought by subpoena, court order, or other court demand, in connection with court proceedings. The Attorney General has directed that these records may not be produced in court without the approval of the Attorney General or his or her designee. The guidelines are set forth in 28 CFR part 16, subpart B.

§ 513.34 Protection of individual privacy—disclosure of records to third parties.

(a) Information that concerns an individual and is contained in a system of records maintained by the Bureau shall not be disclosed to any person, or to another agency except under the provisions of the Privacy Act, 5 U.S.C. 552a, the Freedom of Information Act, 5 U.S.C. 552, and Departmental regulations.

(b) Lists of Bureau inmates shall not be disclosed.

§ 513.35 Accounting/nonaccounting of disclosures to third parties.

Accounting/nonaccounting of disclosures to third parties shall be made in accordance with Department of Justice regulations contained in 28 CFR 16.52.

§ 513.36 Government contractors.

(a) No Bureau component may contract for the operation of a record system by or on behalf of the Bureau without the express written approval of the Director or the Director's designee.

(b) Any contract which is approved shall contain the standard contract requirements promulgated by the General Services Administration (GSA) to ensure compliance with the requirements imposed by the Privacy Act. The contracting component shall have the responsibility to ensure that the contractor complies with the contract requirements relating to privacy.

§ 513.40 Inmate access to Inmate Central File.

Inmates are encouraged to use the simple access procedures described in this section to review disclosable records maintained in his or her Inmate Central File, rather than the FOIA procedures described in §§ 513.60 through 513.68 of this subpart. Disclosable records in the Inmate Central File include, but are not limited to, documents relating to the inmate's sentence, detainer, participation in Bureau programs such as the Inmate Financial Responsibility Program, classification data, parole information, mail, visits, property, conduct, work, release processing, and general correspondence. This information is available without filing a FOIA request. If any information is withheld from the inmate, staff will provide the inmate with a general description of that information and also will notify the inmate that he or she may file a FOIA request.

(a) Inmate review of his or her Inmate Central File. An inmate may at any time request to review all disclosable portions of his or her Inmate Central File by submitting a request to a staff member designated by the Warden. Staff are to acknowledge the request and schedule the inmate, as promptly as is practical, for a review of the file at a time which will not disrupt institution operations.

(b) Procedures for inmate review of his or her Inmate Central File. (1) Prior to the inmate's review of the file, staff are to remove the Privacy Folder which contains documents withheld from disclosure pursuant to § 513.32.

(2) During the file review, the inmate is to be under direct and constant supervision by staff. The staff member monitoring the review shall enter the date of the inmate's file review on the Inmate Activity Record and initial the entry. Staff shall ask the inmate to initial the entry also, and if the inmate refuses to do so, shall enter a notation to that effect.

(3) Staff shall advise the inmate if there are documents withheld from disclosure and, if so, shall advise the inmate of the inmate's right under the provisions of § 513.61 to make a FOIA request for the withheld documents.

§ 513.41 Inmate access to Inmate Central File in connection with parole hearings.

A parole-eligible inmate (an inmate who is currently serving a sentence for an offense committed prior to November 1, 1987) may review disclosable portions of the Inmate Central File prior to the inmate's parole hearing, under the general procedures set forth in § 513.40. In addition, the following guidelines apply:

(a) A parole-eligible inmate may request to review his or her Inmate Central File by submitting the appropriate Parole Commission form. This form ordinarily shall be available to each eligible inmate within five work days after a list of eligible inmates is prepared.

(b) Bureau staff ordinarily shall schedule an eligible inmate for a requested Inmate Central File review within seven work days of the request after the inmate has been scheduled for a parole hearing. A reasonable extension of time is permitted for documents which have been provided (prior to the inmate's request) to originating agencies for clearance, or which are otherwise not available at the institution.

(c) A report received from another agency which is determined to be nondisclosable (see § 513.40(b)) will be summarized by that agency, in accordance with Parole Commission regulations. Bureau staff shall place the summary in the appropriate disclosable section of the Inmate Central File. The original report (or portion which is summarized in another document) will be placed in the portion of the Privacy File for Joint Use by the Bureau and the Parole Commission.

(d) Bureau documents which are determined to be nondisclosable to the inmate will be summarized for the inmate's review. A copy of the summary will be placed in the disclosable section of the Inmate Central File. The document from which the summary is taken will be placed in the Joint Use Section of the Privacy Folder. Nondisclosable documents not summarized for the inmate's review are not available to the Parole Commission and are placed in a nondisclosable section of the Inmate Central File.

(e) When no response regarding disclosure has been received from an originating agency in time for inmate review prior to the parole hearing, Bureau staff are to inform the Parole Commission Hearing Examiner.

§ 513.42 Inmate access to medical records.

(a) Except for the limitations of paragraphs (c) and (d) of this section, an inmate may review records from his or her medical file (including dental records) by submitting a request to a staff member designated by the Warden.

(b) Laboratory reports which contain only scientific testing results and which contain no staff evaluation or opinion (such as Standard Form 514A, Urinalysis) are ordinarily disclosable. Lab results of HIV testing may be reviewed by the inmate. However, an inmate may not retain a copy of his or her test results while the inmate is confined in a Bureau facility or a Community Corrections Center. A copy of an inmate's HIV test results may be forwarded to a third party outside the institution and chosen by the inmate, provided that the inmate gives written authorization for the disclosure.

(c) Medical records containing subjective evaluations and opinions of medical staff relating to the inmate's care and treatment will be provided to the inmate only after the staff review required by paragraph (d) of this section. These records include, but are not limited to, outpatient notes, consultation reports, narrative summaries or reports by a specialist, operative reports by the physician, summaries by specialists as the result of laboratory analysis, or in-patient progress reports.

(d) Prior to release to the inmate, records described in paragraph (c) of this section shall be reviewed by staff to determine if the release of this information would present a harm to either the inmate or other individuals. Any records determined not to present a harm will be released to the inmate at the conclusion of the review by staff. If any records are determined by staff not to be releasable based upon the presence of harm, the inmate will be so advised in writing and provided the address of the agency component to which the inmate may address a formal request for the withheld records. An accounting of any medical records will be maintained in the inmate's medical file.

§ 513.43 Inmate access to certain Bureau Program Statements.

Inmates are encouraged to use the simple local access procedures described in this section to review certain Bureau Program Statements, rather than the FOIA procedures described in §§ 513.60 through 513.68 of this subpart.

(a) For a current Bureau Program Statement containing rules (regulations published in the Federal Register and codified in 28 CFR), local access is available through the institution law library.

(b) For a current Bureau Program Statement not containing rules (regulations published in the Federal Register and codified in 28 CFR), inmates may request that it be placed in the institution law library. Placement of a requested Program Statement in the law library is within the discretion of the Warden, based upon local institution conditions.

(c) Inmates are responsible for the costs of making personal copies of any Program Statements maintained in the institution law library. For copies of Program Statements obtained under the FOIA procedures described in §§ 513.60 through 513.68 of this subpart, fees will be calculated in accordance with 28 CFR 16.10.

§ 513.44 Fees for copies of Inmate Central File and Medical Records.

Within a reasonable time after a request, Bureau staff are to provide an inmate personal copies of requested disclosable documents maintained in the Inmate Central File and Medical Record. Fees for the copies are to be calculated in accordance with 28 CFR 16.10.

§ 513.50 Privacy Act requests by inmates.

Because inmate records are exempt from disclosure under the Privacy Act (see 28 CFR 16.97), inmate requests for records under the Privacy Act will be processed in accordance with the FOIA. See §§ 513.61 through 513.68.

§ 513.60 Freedom of Information Act requests.

Requests for any Bureau record (including Program Statements and Operations Memoranda) ordinarily shall be processed pursuant to the Freedom of Information Act, 5 U.S.C. 552. Such a request must be made in writing and addressed to the Director, Federal Bureau of Prisons, 320 First Street, NW., Washington, D.C. 20534. The requester shall clearly mark on the face of the letter and the envelope “FREEDOM OF INFORMATION REQUEST,” and shall clearly describe the records sought. See §§ 513.61 through 513.63 for additional requirements.

§ 513.61 Freedom of Information Act requests by inmates.

(a) Inmates are encouraged to use the simple access procedures described in § 513.40 to review disclosable records maintained in his or her Inmate Central File.

(b) An inmate may make a request for access to documents in his or her Inmate Central File or Medical File (including documents which have been withheld from disclosure during the inmate's review of his or her Inmate Central File pursuant to § 513.40) and/or other documents concerning the inmate which are not contained in the Inmate Central File or Medical File. Staff shall process such a request pursuant to the applicable provisions of the Freedom of Information Act, 5 U.S.C. 552.

(c) The inmate requester shall clearly mark on the face of the letter and on the envelope “FREEDOM OF INFORMATION ACT REQUEST”, and shall clearly describe the records sought, including the approximate dates covered by the record. An inmate making such a request must provide his or her full name, current address, date and place of birth. In addition, if the inmate requests documents to be sent to a third party, the inmate must provide with the request an example of his or her signature, which must be verified and dated within three (3) months of the date of the request.

§ 513.62 Freedom of Information Act requests by former inmates.

Former federal inmates may request copies of their Bureau records by writing to the Director, Federal Bureau of Prisons, 320 First Street, NW., Washington, D.C. 20534. Such requests shall be processed pursuant to the provisions of the Freedom of Information Act. The request must be clearly marked on the face of the letter and on the envelope “FREEDOM OF INFORMATION ACT REQUEST”, and must describe the record sought, including the approximate dates covered by the record. A former inmate making such a request must provide his or her full name, current address, date and place of birth. In addition, the requester must provide with the request an example of his or her signature, which must be either notarized or sworn under penalty of perjury, and dated within three (3) months of the date of the request.

§ 513.63 Freedom of Information Act requests on behalf of an inmate or former inmate.

A request for records concerning an inmate or former inmate made by an authorized representative of that inmate or former inmate will be treated as in § 513.61, on receipt of the inmate's or former inmate's written authorization. This authorization must be dated within three (3) months of the date of the request letter. Identification data, as listed in 28 CFR 16.41, must be provided.

§ 513.64 Acknowledgment of Freedom of Information Act requests.

(a) All requests for records under the Freedom of Information Act received by the FOI/PA Administrator, Office of General Counsel, will be reviewed and may be forwarded to the appropriate Regional Office for proper handling. Requests for records located at a Bureau facility other than the Central Office or Regional Office may be referred to the appropriate staff at that facility for proper handling.

(b) The requester shall be notified of the status of his or her request by the office with final responsibility for processing the request.

§ 513.65 Review of documents for Freedom of Information Act requests.

If a document is deemed to contain information exempt from disclosure, any reasonably segregable portion of the record shall be provided to the requester after deletion of the exempt portions. If documents, or portions of documents, in an Inmate Central File have been determined to be nondisclosable by institution staff but are later released by Regional or Central Office staff pursuant to a request under this section, appropriate instructions will be given to the institution to move those documents, or portions, from the Inmate Privacy Folder into the disclosable section of the Inmate Central File.

§ 513.66 Denials and appeals of Freedom of Information Act requests.

If a request made pursuant to the Freedom of Information Act is denied in whole or in part, a denial letter must be issued and signed by the Director or his or her designee, and shall state the basis for denial under § 513.32. The requester who has been denied such access shall be advised that he or she may appeal that decision to the Office of Information and Privacy, U.S. Department of Justice, Suite 570, Flag Building, Washington, D.C. 20530. Both the envelope and the letter of appeal itself should be clearly marked: “Freedom of Information Act Appeal.”

§ 513.67 Fees for Freedom of Information Act requests.

Fees for copies of records disclosed under the FOIA, including fees for a requester's own records, may be charged in accordance with Department of Justice regulations contained in 28 CFR 16.10.

§ 513.68 Time limits for responses to Freedom of Information Act requests.

Consistent with sound administrative practice and the provisions of 28 CFR 16.1, the Bureau strives to comply with the time limits set forth in the Freedom of Information Act.

§ 522.10 Purpose.

(a) This subpart describes the procedures for federal civil contempt of court commitments (civil contempt commitments) referred to the Bureau of Prisons (Bureau). These cases are not commitments to the custody of the Attorney General for service of terms of imprisonment following criminal convictions.

(b) We cooperate with the federal courts to implement civil contempt commitments by making our facilities and resources available. When we receive notification from the federal court that the reason for the civil contempt commitment has ended or that the inmate is to be released for any other reason, we will terminate the inmate's civil contempt commitment.

§ 522.11 Civil contempt commitments.

Inmates can come into Bureau custody for civil contempt commitments in two ways:

(a) The U.S. Marshals Service may request a designation from the Bureau for a civil contempt commitment if local jails are not suitable due to medical, security or other reasons; or

(b) The committing court may specify a Bureau institution as the place of incarceration in its contempt order. We will designate the facility specified in the court order unless there is a reason for not placing the inmate in that facility.

§ 522.12 Relationship between existing criminal sentences imposed under the U.S. or D.C. Code and new civil contempt commitment orders.

If a criminal sentence imposed under the U.S. Code or D.C. Code exists when a civil contempt commitment is ordered, we delay or suspend credit towards service of the criminal sentence for the duration of the civil contempt commitment, unless the committing judge orders otherwise.

§ 522.13 Relationship between existing civil contempt commitment orders and new criminal sentences imposed under the U.S. or D.C. Code.

(a) Except as stated in (b), if a civil contempt commitment order is in effect when a criminal sentence of imprisonment is imposed under the U.S. or D.C. Code, the criminal sentence runs consecutively to the commitment order, unless the sentencing judge orders otherwise.

(b) For federal criminal sentences imposed for offenses committed before November 1, 1987, under 18 U.S.C. Chapter 227: If a civil contempt commitment order is in effect when a criminal sentence of imprisonment is imposed, the criminal sentence runs concurrent with the commitment order, unless the sentencing judge orders otherwise.

§ 522.14 Inmates serving civil contempt commitments.

We treat inmates serving civil contempt commitments in Bureau institutions the same as pretrial inmates. If an inmate is serving a civil contempt commitment and a concurrent criminal sentence, we treat the inmate the same as a person serving a criminal sentence.

§ 522.15 No good time credits for inmates serving only civil contempt commitments.

While serving only the civil contempt commitment, an inmate is not entitled to good time sentence credit.

§ 522.20 Purpose and scope.

Bureau of Prisons staff screen newly arrived inmates to ensure that Bureau health, safety, and security standards are met.

[45 FR 44229, June 30, 1980]

§ 522.21 Procedures.

(a) Except for such camps and other satellite facilities where segregating a newly arrived inmate in detention is not feasible, the Warden shall ensure that a newly arrived inmate is cleared by the Medical Department and provided a social interview by staff before assignment to the general population.

(1) Immediately upon an inmate's arrival, staff shall interview the inmate to determine if there are non-medical reasons for housing the inmate away from the general population. Staff shall evaluate both the general physical appearance and emotional condition of the inmate.

(2) Within 24 hours after an inmate's arrival, medical staff shall medically screen the inmate in compliance with Bureau of Prisons' medical procedures to determine if there are medical reasons for housing the inmate away from the general population or for restricting temporary work assignments.

(3) Staff shall place recorded results of the intake medical screening and the social interview in the inmate's central file.

[45 FR 44229, June 30, 1980]

§ 522.30 Purpose and scope.

When the court orders or recommends an unescorted commitment to a Bureau of Prisons institution, the Bureau of Prisons authorizes the commitment and designates the institution for service of sentence. The Bureau of Prisons also authorizes furlough transfers of inmates between Bureau of Prisons institutions or to nonfederal institutions in appropriate circumstances in accordance with 18 U.S.C. 3622 or 4082, and within the guidelines of the Bureau of Prisons policy on furloughs, which allows inmates to travel unescorted and to report voluntarily to an assigned institution.

[61 FR 64953, Dec. 9, 1996]

§ 523.1 Definitions.

(a) Statutory good time means a credit to a sentence as authorized by 18 U.S.C. 4161. The total amount of statutory good time which an inmate is entitled to have deducted on any given sentence, or aggregate of sentences, is calculated and credited in advance, when the sentence is computed.

(b) Extra good time means a credit to a sentence as authorized by 18 U.S.C. 4162 for performing exceptionally meritorious service or for performing duties of outstanding importance in an institution or for employment in a Federal Prison Industry or Camp. “Extra Good Time” thus includes Meritorious Good Time, Work/Study Release Good Time, Community Corrections Center Good Time, Industrial Good Time, Camp or Farm Good Time, and Lump Sum Awards. Extra good time and seniority are inseparable with the exception of lump sum awards for which no seniority is earned.

(c) Seniority refers to the time accrued in an extra good time earning status. Twelve months of “seniority” automatically cause the earning rate to increase from three days per month to five days per month and seniority is then vested.

(d) Earning status refers to the status of an inmate who is in an assignment or employment which accrues extra good time.

§ 523.2 Good time credit for violators.

(a) An inmate conditionally released from imprisonment either by parole or mandatory release can earn statutory good time, upon being returned to custody for violation of supervised release, based on the number of days remaining to be served on the sentence. The rate of statutory good time for the violator term is computed at the rate of the total sentence from which released.

(b) An inmate whose special parole term is revoked can earn statutory good time based on the number of days remaining to be served on the special parole violator term. The rate of statutory good time for the violator term is computed at the rate of the initial special parole term plus the total sentence that was served prior to the special parole term and to which the special parole term was attached.

(c) Once an inmate is conditionally released from imprisonment, either by parole, including special parole, or mandatory release, the good time earned (extra or statutory) during that period of imprisonment is of no further effect either to shorten the period of supervision or to shorten the period of imprisonment which the inmate may be required to serve for violation of parole or mandatory release.

§ 523.10 Purpose and scope.

(a) The Bureau of Prisons awards extra good time credit for performing exceptionally meritorious service, or for performing duties of outstanding importance or for employment in an industry or camp. An inmate may earn only one type of extra good time award at a time (e.g., an inmate earning industrial or camp good time is not eligible for meritorious good time), except that a lump sum award as provided in § 523.16 may be given in addition to another extra good time award. The Warden or the Discipline Hearing Officer may not forfeit or withhold extra good time. The Warden may disallow or terminate the awarding of any type of extra good time (except lump sum awards), but only in a nondisciplinary context and only upon recommendation of staff. The Discipline Hearing Officer may disallow or terminate the awarding of any type of extra good time (except lump sum awards), as a disciplinary sanction. Once an awarding of meritorious good time has been terminated, the Warden must approve a new staff recommendation in order for the award to recommence. A “disallowance” means that an inmate does not receive an extra good time award for only one calendar month. Unless other action is taken, the award resumes the following calendar month. A “disallowance” must be for the entire amount of extra good time for that calendar month. There may be no partial disallowance. A decision to disallow or terminate extra good time may not be suspended pending future consideration. A retroactive award of meritorious good time may not include a month in which extra good time has been disallowed or terminated.

(b) The provisions of this rule do not apply to inmates sentenced under the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984. This means that inmates sentenced under the Sentencing Reform Act provisions for offenses committed on or after November 1, 1987 are not eligible for either statutory or extra good time, but may be considered for a maximum of 54 days of good conduct time credit per year (see 18 U.S.C. 3624(b)).

§ 523.11 Meritorious good time.

(a) Staff are responsible for recommending meritorious good time based upon work performance. Each recommendation must include a justification which clearly shows that the work being performed is of an exceptionally meritorious nature or is of outstanding importance in connection with institutional operations. Work performance and the importance of the work performed are the only criteria for awarding meritorious good time.

(b) A retroactive award of meritorious good time is ordinarily limited to three months, excluding the month in which the recommendation is made. A retroactive award in excess of three months requires the approval of the Warden or designee (may not be delegated below the level of Associate Warden). Staff are to include with any recommendation for an inmate to receive a retroactive award of meritorious good time, a written statement confirming the inmate's eligibility for the retroactive award.

(c) Meritorious good time continues uninterrupted regardless of work assignment changes unless the Warden or the Discipline Hearing Officer takes specific action to terminate or disallow the award.

§ 523.12 Work/study release good time.

Extra good time for an inmate in work or study release programs is awarded automatically, beginning on the date the inmate is assigned to the program and continuing without further approval as long as the inmate is participating in the program, unless the award is disallowed.

§ 523.13 Community corrections center good time.

Extra good time for an inmate in a Federal or contract Community Corrections Center is awarded automatically, beginning on arrival at the facility and continuing as long as the inmate is confined at the Center, unless the award is disallowed.

§ 523.14 Industrial good time.

Extra good time for an inmate employed in Federal Prison Industries, Inc., is automatically awarded, beginning on the first day of such employment, and continuing as long as the inmate is employed by Federal Prison Industries, unless the award is disallowed. An inmate on a waiting list for employment in Federal Prison Industries is not awarded industrial good time until actually employed.

§ 523.15 Camp or farm good time.

An inmate assigned to a farm or camp is automatically awarded extra good time, beginning on the date of commitment to the camp or farm, and continuing as long as the inmate is assigned to the farm or camp, unless the award is disallowed.

§ 523.16 Lump sum awards.

Any staff member may recommend to the Warden the approval of an inmate for a lump sum award of extra good time. Such recommendations must be for an exceptional act or service that is not part of a regularly assigned duty. The Warden may make lump sum awards of extra good time not to exceed thirty days. If the recommendation is for an award in excess of thirty days and the Warden concurs, the Warden shall refer the recommendation to the Regional Director who may approve the award. No award may be approved which would exceed the maximum number of days allowed under 18 U.S.C. 4162. The actual length of time served on the sentence, to the date that the exceptional act or service terminated, is the basis on which the maximum amount possible to award is calculated. No seniority is accrued for such awards. Staff may recommend lump sum awards of extra good time for the following reasons:

(a) An act of heroism;

(b) Voluntary acceptance and satisfactory performance of an unusually hazardous assignment;

(c) An act which protects the lives of staff or inmates or the property of the United States; this is to be an act and not merely the providing of information in custodial or security matters;

(d) A suggestion which results in substantial improvement of a program or operation, or which results in significant savings; or

(e) Any other exceptional or outstanding service.

§ 523.17 Procedures.

(a) Extra good time is awarded at a rate of three days per month during the first twelve months of seniority in an earning status and at the rate of five days per month thereafter. The first twelve months of seniority need not be based on a continuous period of twelve months. If the beginning or termination date of an extra good time award occurs after the first day of a month, a partial award of days is made.

(b) An inmate may be awarded extra good time even though some or all of the inmate's statutory good time has been forfeited or withheld.

(c) Parole and mandatory release violators may earn extra good time the same as other inmates. Once an inmate is conditionally released from imprisonment, either by parole, including special parole, or mandatory release, the good time earned during that period of imprisonment is of no further effect either to shorten the period of supervision or to shorten the period of imprisonment which the inmate may be required to serve for violation of parole or mandatory release.

(d) Staff working in the community have the same extra good time authority as the Warden when approving the award of good time for an inmate confined in a non-federal facility and may approve meritorious good time or lump sum awards in accordance with this rule upon recommendations made by a responsible person employed by the non-federal facility. The appropriate staff in the Regional Office may review all such awards if the Regional Director requires the review.

(e) An inmate who is transferred remains in the earning status at time of transfer, unless the reason for transfer would otherwise have caused removal from an earning status, and provided the inmate's behavior is such while in transit that it does not justify removal. Where the receiving institution is a camp, farm, or community corrections center, the extra good time continues automatically upon the inmate's arrival. Where the receiving institution is other than a camp, farm, or community corrections center, the extra good time is terminated upon arrival, and staff at the receiving institution shall review each case to determine if the inmate should continue in meritorious good time earning status if not immediately employed in Federal Prison Industries or assigned to a work/study release program. If the inmate then is not continued in meritorious good time earning status, later awards must comply with procedures outlined in § 523.11.

(f) An inmate serving a life sentence may earn extra good time even though there is no mandatory release date from which to deduct the credit since the possibility exists that the sentence may be reduced or commuted to a definite term.

(g) Extra good time is not automatically discontinued while an inmate is hospitalized, on furlough, out of the institution on a writ of habeas corpus, or removed under the Interstate Agreement on Detainers. Extra good time may be terminated or disallowed during such absences if the Warden or the Discipline Hearing Officer finds that the inmate's behavior warrants such action.

(h) Extra good time earned by an inmate in a District of Columbia Department of Corrections facility is treated the same as if earned in a Bureau of Prisons institution, upon transfer to a Bureau institution.

(i) An inmate committed under the provisions of 18 U.S.C. 3651 (split sentence) may earn extra good time credits provided the sentence imposed is not under the provisions of 18 U.S.C. 5010 (b) or (c) (YCA). All extra good time and seniority earned is carried over to any subsequent probation violator sentence based on the original split sentence.

(j) An inmate committed under the provisions of 18 U.S.C. 4205(c) may earn extra good time credits towards the final sentence that may be imposed. Such extra good time credits do not reduce the three months allowed for study. An inmate committed under the provisions of 18 U.S.C. 4244, as amended effective October 12, 1984, may earn extra good time credits toward the final sentence that may be imposed. Such extra good time credits do not reduce the provisional sentence. Extra good time may continue during a commitment for examination of hospitalization and treatment under 18 U.S.C. 4245, as amended effective October 12, 1984.

(k) Inmates committed under the provisions of 18 U.S.C. 4244, 4246-47, 4252, 5010 (b), (c), (e), or 5037(c) as these sections were in effect prior to October 12, 1984, are not entitled to extra good time deductions. Inmates committed under the provisions of 18 U.S.C. 4241, 4242, 4243, or 4246 as these sections were amended effective October 12, 1984, are not entitled to extra good time deductions.

(l) A pretrial detainee may not earn good time while in pretrial status. A pretrial detainee, however, may be recommended for good time credit. This recommendation shall be considered in the event that the pretrial detainee is later sentenced on the crime for which he or she was in pretrial status.

(m) An inmate committed for civil contempt is not entitled to extra good time deductions while serving the civil contempt sentence.

(n) A military or Coast Guard inmate may earn extra good time. Extra good time earned in Federal Prison Industries in a military or Coast Guard installation is treated the same as if earned in Federal Prison Industries in the Bureau of Prisons. Other forms of military or Coast Guard extra good time, such as Army Abatement time, are fully credited, but no seniority is allowed.

(o) American citizens who are serving sentences in foreign countries and who are subsequently returned to this country under the provisions of 18 U.S.C. chapter 306 (Pub. L. 95-144) may have earned work, labor, or program time credits in the foreign country similar to extra good time earned under 18 U.S.C. 4162. Such foreign “extra good time” credits shall be treated as if awarded under § 523.16, Lump Sum Awards, with any future lump sum award consideration in this country calculated on the basis of time served in custody of the Bureau of Prisons. After return to this country an inmate may earn extra good time at the three-day rate and advance to the five-day rate after one year of seniority is accrued. No seniority is accrued for foreign “extra good time” credits.

(p) An inmate in extra good time earning status may not waive or refuse extra good time credits.

(q) Once extra good time is awarded, it becomes vested and may not be forfeited or withheld, or retroactively terminated or disallowed.

§ 523.20 Good conduct time.

(a) The Bureau of Prisons (Bureau or BOP) awards good conduct time (GCT) credit to inmates under conditions described in this section. GCT credit may be reduced if an inmate:

(1) Commits prohibited acts which result in certain disciplinary sanctions (see part 541 of this chapter); or

(2) Fails to comply with literacy requirements in this section and part 544 of this chapter.

(b) For inmates serving a sentence for offenses committed on or after November 1, 1987:

(1) The Bureau will award inmates up to 54 days of GCT credit for each year of the sentence imposed by the court. Consistent with this methodology, the Bureau will initially determine a projected release date by calculating the maximum GCT credit possible based on the length of an inmate's imposed sentence. The projected release date is subject to change during the inmate's incarceration.

(2) The Bureau will award prorated credit for any partial final year of the sentence imposed, subject to the requirements in this section. Accordingly, BOP calculates the projected GCT credit to be awarded for any portion of a sentence that is less than a full year at a prorated amount.

(3) An inmate may receive up to 54 days of GCT credit on each anniversary date of his or her imposed sentence, subject to the requirements in this section. Credit for the last year of a term of imprisonment is awarded the day after the end of the final “anniversary period,” unless the final year is a complete year, in which case credit for the last year is awarded on the first day of the final anniversary period

(4) When the inmate reaches the Bureau-projected release date, the sentence will be satisfied and the inmate will be eligible for release.

(c) For inmates serving a sentence for offenses committed on or after November 1, 1987, but before September 13, 1994, GCT credit is vested once received and cannot be withdrawn.

(d)(1) For inmates serving a sentence for offenses committed on or after September 13, 1994, but before April 26, 1996, all GCT credit will vest annually only for inmates who have earned, or are making satisfactory progress toward earning, a high school diploma, equivalent degree, or Bureau-authorized alternative program credit (see part 544 of this chapter).

(2) For inmates serving a sentence for an offense committed on or after April 26, 1996, the Bureau will award:

(i) Up to 54 days of GCT credit for each year of the sentence imposed, applied on the anniversary date of his or her imposed sentence, if the inmate has earned or is making satisfactory progress toward earning a high school diploma, equivalent degree, or Bureau-authorized alternative program credit; or

(ii) Up to 42 days of GCT credit for each year of the sentence imposed, applied on the anniversary date of his/her imposed sentence, if the inmate does not meet conditions described in paragraph (d)(2)(i) of this section.

(3) Notwithstanding the requirements of paragraphs (d)(1) and (2) of this section, a noncitizen (inmate who is not a citizen of the United States) who is subject to a final order of removal, deportation, or exclusion, is not required to participate in a literacy program to earn yearly awards of GCT credit. However, such inmates remain eligible to participate in literacy programs under part 544 of this chapter.

[87 FR 7943, Feb. 11, 2022]

§ 523.30 What is educational good time sentence credit?

Educational good time sentence credit is authorized by District of Columbia (D.C.) Code § 24-221.01, and reduces the amount of time to serve under a term of imprisonment. In these rules, we refer to D.C. educational good time as “DCEGT.”

§ 523.31 Who is eligible for DCEGT?

You are eligible for DCEGT if:

(a) You are incarcerated in a Bureau of Prisons' (Bureau) institution or a Bureau contract facility;

(b) You are serving a term of imprisonment for a D.C. criminal code violation committed before August 5, 2000;

(c) Your Unit Team approved or designed a plan for you to complete a program designated by the Bureau as eligible for DCEGT;

(d) The Supervisor of Education (SOE) finds that you successfully completed a Bureau-designated education program on or after August 5, 1997; and

(e) You did not violate prison discipline rules while enrolled in the program (see § 523.33).

§ 523.32 How much DCEGT can I earn?

(a) You can earn 5 days DCEGT for each month you were enrolled in a designated program, up to the maximum amount designated by the Bureau for the type of program successfully completed.

(b) You are limited to 5 days per month DCEGT, even if enrolled in more than one designated program.

(c) Enrollment in a designated program for any portion of a calendar month earns one full month's worth of DCEGT.

(d) You are not eligible for DCEGT which, if awarded, would make you past due for release.

(e) Once appropriately awarded, DCEGT vests, and cannot be forfeited.

§ 523.33 How is eligibility for DCEGT limited?

Eligibility for DCEGT is limited in two ways:

(a) If you violate prison rules, you are not eligible for one month's worth of DCEGT for each disciplinary incident committed during the program enrollment period. A Discipline Hearing Officer, or other staff using procedures similar to those in 28 CFR 541.17, must determine that you committed a prohibited act.

(b) The nature of your offense may limit your eligibility for DCEGT under D.C. Code 24-221.01b or 24-221.06.

§ 523.34 How can I challenge DCEGT award decisions?

You can use the Administrative Remedy Program, 28 CFR 542.10 through 542.19, to challenge Bureau of Prisons decisions regarding DCEGT.

§ 523.40 Purpose.

(a) The purpose of this subpart is to describe procedures for the earning and application of Time Credits as authorized by 18 U.S.C. 3632(d)(4) and Section 101 of the First Step Act of 2018 (Pub. L. 115-391, December 21, 2018, 132 Stat. 5194) (FSA), hereinafter referred to as “FSA Time Credits” or “Time Credits.”

(b) Generally, as defined and described in this subpart, an eligible inmate who successfully participates in Evidence-Based Recidivism Reduction (EBRR) Programs or Productive Activities (PAs) that are recommended based on the inmate's risk and needs assessment may earn FSA Time Credits to be applied toward prerelease custody or early transfer to supervised release under 18 U.S.C. 3624(g).

§ 523.41 Definitions.

(a) Evidence-Based Recidivism Reduction (EBRR) Program. An EBRR Program is a group or individual activity that has been shown by empirical evidence to reduce recidivism or is based on research indicating that it is likely to be effective in reducing recidivism; and is designed to help prisoners succeed in their communities upon release from prison. EBRR Programs may include, but are not limited to, those involving the following types of activities:

(1) Social learning and communication, interpersonal, anti-bullying, rejection response, and other life skills;

(2) Family relationship building, structured parent-child interaction, and parenting skills;

(3) Classes on morals or ethics;

(4) Academic classes;

(5) Cognitive behavioral treatment;

(6) Mentoring;

(7) Substance abuse treatment;

(8) Vocational training;

(9) Faith-based classes or services;

(10) Civic engagement and reintegrative community services;

(11) Inmate work and employment opportunities;

(12) Victim impact classes or other restorative justice programs; and

(13) Trauma counseling and trauma-informed support programs.

(b) Productive Activity (PA). A PA is a group or individual activity that allows an inmate to remain productive and thereby maintain or work toward achieving a minimum or low risk of recidivating.

(c) Successful participation. (1) An eligible inmate must be “successfully participating” in EBRR Programs or PAs to earn FSA Time Credits for those EBRR Programs or PAs.

(2) “Successful participation” requires a determination by Bureau staff that an eligible inmate has participated in the EBRR programs or PAs that the Bureau has recommended based on the inmate's individualized risk and needs assessment, and has complied with the requirements of each particular EBRR Program or PA.

(3) Temporary operational or programmatic interruptions authorized by the Bureau that would prevent an inmate from participation in EBRR programs or PAs will not ordinarily affect an eligible inmate's “successful participation” for the purposes of FSA Time Credit eligibility.

(4) An eligible inmate, as described in paragraph (d) of this section, will generally not be considered to be “successfully participating” in EBRR Programs or PAs in situations including, but not limited to:

(i) Placement in a Special Housing Unit;

(ii) Designation status outside the institution (e.g., for extended medical placement in a hospital or outside institution, an escorted trip, a furlough, etc.);

(iii) Temporary transfer to the custody of another Federal or non-Federal government agency (e.g., on state or Federal writ, transfer to state custody for service of sentence, etc.);

(iv) Placement in mental health/psychiatric holds; or

(v) “Opting out” (choosing not to participate in the EBRR programs or PAs that the Bureau has recommended based on the inmate's individualized risk and needs assessment).

(5)(i) If an eligible inmate “opts out,” or chooses not to participate in any of the EBRR programs or PAs that the Bureau has recommended based on the inmate's individualized risk and needs assessment, the inmate's choice must be documented by staff.

(ii) Opting out will not, by itself, be considered a disciplinary violation. However, violation of specific requirements or rules of a particular recommended EBRR Program or PA, including refusal to participate or withdrawal, may be considered a disciplinary violation (see this part).

(iii) Opting out will result in exclusion from further benefits or privileges allowable under the FSA, until the date the inmate “opts in” (chooses to participate in the EBRR programs or PAs that the Bureau has recommended based on the inmate's individualized risk and needs assessment, as documented by staff).

(d) Eligible inmate—(1) Eligible to earn FSA Time Credits. An inmate who is eligible to earn FSA Time Credits is an eligible inmate for the purposes of this subpart. Any inmate sentenced to a term of imprisonment pursuant to a conviction for a Federal criminal offense, or any person in the custody of the Bureau, is eligible to earn FSA Time Credits, subject to the exception described in paragraph (d)(2) of this section.

(2) Exception. If the inmate is serving a term of imprisonment for an offense specified in 18 U.S.C. 3632(d)(4)(D), the inmate is not eligible to earn FSA Time Credits.

§ 523.42 Earning First Step Act Time Credits.

(a) When an eligible inmate begins earning FSA Time Credits. An eligible inmate begins earning FSA Time Credits after the inmate's term of imprisonment commences.

(b) Dates of participation in EBRRs or PAs. (1) An inmate cannot earn FSA Time Credits for programming or activities in which he or she participated before December 21, 2018, the date of enactment of the First Step Act of 2018.

(2) An eligible inmate, as defined in this subpart, may earn FSA Time Credits for programming and activities in which he or she participated from December 21, 2018, until January 14, 2020.

(3) An eligible inmate, as defined in this subpart, may earn FSA Time Credit if he or she is successfully participating in EBRR programs or PAs that the Bureau has recommended based on the inmate's individualized risk and needs assessment on or after January 15, 2020.

(c) Amount of FSA Time Credits that may be earned. (1) For every thirty-day period that an eligible inmate has successfully participated in EBRR Programs or PAs recommended based on the inmate's risk and needs assessment, that inmate will earn ten days of FSA Time Credits.

(2) For every thirty-day period that an eligible inmate has successfully participated in EBRR Programs or PAs recommended based on the inmate's risk and needs assessment, that inmate will earn an additional five days of FSA Time Credits if the inmate:

(i) Is determined by the Bureau to be at a minimum or low risk for recidivating; and

(ii) Has maintained a consistent minimum or low risk of recidivism over the most recent two consecutive risk and needs assessments conducted by the Bureau.