81 FR 85877 - Conforming STOP Violence Against Women Formula Grant Program Regulations to Statutory Change; Definitions and Confidentiality Requirements Applicable to All OVW Grant Programs
DEPARTMENT OF JUSTICE
Federal Register Volume 81, Issue 229 (November 29, 2016)
Page Range
85877-85897
FR Document
2016-28437
This rule amends the regulations for the STOP (Services<bullet<ls-thn-eq>Training<bullet<ls-thn-eq>Officers<bullet<ls-thn-eq> Prosecutors) Violence Against Women Formula Grant Program (STOP Program) and the general provisions governing Office on Violence Against Women (OVW) programs to comply with statutory changes and reduce repetition of statutory language. Also, this rule implements statutory requirements for nondisclosure of confidential or private information relating to all OVW grant programs.
Federal Register, Volume 81 Issue 229 (Tuesday, November 29, 2016)
[Federal Register Volume 81, Number 229 (Tuesday, November 29, 2016)]
[Rules and Regulations]
[Pages 85877-85897]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2016-28437]
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DEPARTMENT OF JUSTICE
28 CFR Part 90
[OVW Docket No. 120]
RIN 1105-AB46
Conforming STOP Violence Against Women Formula Grant Program
Regulations to Statutory Change; Definitions and Confidentiality
Requirements Applicable to All OVW Grant Programs
AGENCY: Office on Violence Against Women, Justice.
ACTION: Final rule.
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SUMMARY: This rule amends the regulations for the STOP
(ServicesTrainingOfficers
Prosecutors) Violence Against Women Formula Grant Program (STOP
Program) and the general provisions governing Office on Violence
Against Women (OVW) programs to comply with statutory changes and
reduce repetition of statutory language. Also, this rule implements
statutory requirements for nondisclosure of confidential or private
information relating to all OVW grant programs.
DATES: This rule is effective December 29, 2016.
FOR FURTHER INFORMATION CONTACT: Marnie Shiels, Office on Violence
Against Women, 145 N Street NE., Suite 10W.100, Washington, DC 20530,
by telephone (202) 307-6026 or by email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
The Violence Against Women Act (VAWA) was enacted on September 13,
1994, by title IV of the Violent Crime Control and Law Enforcement Act
of 1994, Public Law 103-322, 108 Stat. 1796. The STOP Program is
codified at 42 U.S.C. 3796gg through 3796gg-5 and 3796gg-8. The final
rule for this program, found at 28 CFR part 90, subpart B, was
promulgated on April 18, 1995. General provisions affecting all OVW
grant programs are found at 28 CFR part 90, subpart A.
This rule amends the general provisions applicable to all OVW grant
programs and the regulations governing the STOP Program to comply with
the amendments to these programs enacted by 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, 114 Stat. 1464
(Oct. 28, 2000), the Violence Against Women and Department of Justice
Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162, 119 Stat.
2960 (Jan. 5, 2006), and the Violence Against Women Reauthorization Act
of 2013 (VAWA 2013), Public Law 113-4, 127 Stat. 54 (Mar. 7, 2013).
These changes to the regulations incorporate the statutory changes,
make minor technical corrections, implement enhanced administrative and
planning practices for formula grantees, and streamline existing
regulations to reduce repetition of statutory language.
In addition, this rule amends an existing regulatory provision,
Sec. 90.2, that sets forth certain definitions that apply to all OVW
grant programs. Furthermore, the rule adds a new regulatory provision,
Sec. 90.4, that is applicable to all OVW grant programs to implement
statutory amendments requiring nondisclosure of confidential or private
information pertaining to victims of domestic violence, dating
violence, sexual assault and stalking.
II. Background
A. Overview of the Violence Against Women Act and Subsequent
Reauthorizations
In 1994, Congress passed the Violence Against Women Act (VAWA), a
comprehensive legislative package aimed at ending violence against
women. VAWA was enacted on September 13, 1994, as title IV of the
Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-
322, 108 Stat. 1796. VAWA was designed to improve criminal justice
system responses to domestic violence, sexual assault, and stalking,
and to
[[Page 85878]]
increase the availability of services for victims of these crimes. VAWA
was reauthorized and amended in 2000, 2005, and 2013, with each new
reauthorization making improvements to the law and adding new programs
and provisions.
VAWA recognized the need for specialized responses to violence
against women given the unique barriers that impede victims from
accessing assistance from the justice system. To help communities
develop these specialized responses, VAWA authorized the STOP Program,
among others. See 42 U.S.C. 3796gg through 3796gg-5 and 3796gg-8; 28
CFR part 90, subpart B.
VAWA requires a coordinated community response to domestic
violence, dating violence, sexual assault and stalking crimes and
encourages jurisdictions to bring together stakeholders from multiple
disciplines to share information and to improve community responses.
These often include victim advocates, police officers, prosecutors,
judges, probation and corrections officials, health care professionals,
and survivors. In some communities, these multidisciplinary teams also
include teachers, leaders within faith communities, public officials,
civil legal attorneys, health care providers, advocates from
population-specific community-based organizations representing
underserved populations, and others.
VAWA's legislative history indicates that Congress passed VAWA to
improve justice system responses to violence against women. For
example, Congress wanted to encourage jurisdictions to treat domestic
violence as a serious crime, by instituting comprehensive reforms in
their arrest, prosecution, and judicial policies. Congress was further
interested in giving law enforcement and prosecutors the tools to
pursue domestic violence and sexual assault cases without blaming
victims for behavior that is irrelevant in determining whether a crime
occurred, while discouraging judges from issuing lower sentences for
sexual assault crimes than for other violent crimes. VAWA was intended
to bring an end to archaic prejudices throughout the justice system,
provide support for victims and assurance that their attackers will be
prosecuted, and focus criminal proceedings on the conduct of attackers
rather than the conduct of victims.\1\
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\1\ See S. Rep. No. 103-138, at 37-48 (Sept. 10, 1993).
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VAWA added a part T to the Omnibus Crime Control and Safe Streets
Act of 1968, Public Law 90-351, codified at 42 U.S.C. 3711 et seq.,
titled Grants to Combat Violent Crimes Against Women, which authorizes
four OVW-administered grant programs, including the STOP Program. STOP
Program grants are awarded by population-based formula to states to
develop and strengthen the justice system's response to violence
against women and to support and enhance services for victims.
On October 28, 2000, Congress enacted 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, 114 Stat. 1464.
VAWA 2000 continued and strengthened the federal government's
commitment to helping communities change the way they respond to
violence against women. VAWA 2000 reauthorized critical grant programs,
established new programs, and strengthened federal law. It had an
emphasis on increasing responses to victims of dating violence and
expanding options and services for immigrant and other vulnerable
victims.
VAWA 2000 made several changes relevant to the STOP Program. First,
it amended the statutory purposes for which grant funds may be used.
Second, it clarified the eligibility of courts as subgrantees. Third,
it modified the requirement under the STOP Program that, to be eligible
for funding, states must certify that victims not bear the costs for
certain filing fees related to domestic violence cases. Finally, it
added a new provision applicable to all OVW grant programs requiring
grantees to report on the effectiveness of activities carried out with
program funds.
On January 5, 2006, Congress enacted the Violence Against Women and
Department of Justice Reauthorization Act (VAWA 2005), Public Law 109-
162, 119 Stat. 2960. VAWA 2005 strengthened provisions of the previous
Acts, including revising the STOP Program, and created a number of new
grant programs. It also created a set of universal definitions and
grant conditions, including a confidentiality provision, that apply to
all programs authorized by VAWA and subsequent legislation. VAWA 2005
had an emphasis on enhancing responses to sexual assault, youth
victims, and victims in Indian country. Its provisions included new
sexual-assault-focused programs, the addition of sexual assault to a
number of OVW grant programs, new youth-focused programs, and the
creation of a comprehensive violence against women program for tribal
governments.
The revisions to the STOP Program made by VAWA 2005 included adding
new purpose areas to the program and modifying the requirements for the
development of state implementation plans, the allocation of funds to
subgrantees, and documentation of consultation with victim service
programs. VAWA 2005 also required that the regulations governing the
program ensure that states would recognize and meaningfully respond to
the needs of underserved populations and distribute funds intended for
culturally specific services--for which the Act created a new set-
aside--equitably among culturally specific populations. It further
amended the certification requirement under the program related to
payment for forensic medical exams for victims of sexual assault and
added new certifications related to prohibiting the use of polygraph
examinations in sexual assault cases and to judicial notification to
domestic violence offenders of laws prohibiting their possession of a
firearm.
On March 7, 2013, Congress enacted the Violence Against Women
Reauthorization Act of 2013 (VAWA 2013), Public Law 113-4, 127 Stat.
54. VAWA 2013 made further improvements to the OVW grant programs,
including several new requirements for the STOP Program. It also
included two new historic provisions, one extending civil rights
protections based on gender identity and sexual orientation and another
recognizing the inherent jurisdiction of Indian tribes to prosecute
non-Indians who commit certain domestic violence offenses in Indian
country.\2\
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\2\ These two provisions are not addressed in this rule but were
addressed in a set of frequently asked questions on the new civil
rights provision and in two Federal Register notices related to the
implementation of the new provision on tribal jurisdiction. See U.S.
Department of Justice, Office of Justice Programs, Office for Civil
Rights, ``Frequently Asked Questions: Nondiscrimination Grant
Condition in the Violence Against Women Reauthorization Act of
2013'' (April 9, 2014), available at: http://www.justice.gov/sites/default/files/ovw/legacy/2014/06/20/faqs-ngc-vawa.pdf; Pilot Project
for Tribal Jurisdiction Over Crimes of Domestic Violence, 78 FR
35961 (June 14, 2013); Pilot Project for Tribal Jurisdiction Over
Crimes of Domestic Violence, 78 FR 71645 (Nov. 29, 2013).
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VAWA 2013 amended the universal definitions and grant conditions
established by VAWA 2005 for all OVW grant programs and amended and
added to the STOP Program purpose areas. It also amended the
requirements under the STOP Program that states develop and submit with
their applications and implementation plan--including documentation of
planning committee members' participation in the development of the
plan--and consult
[[Page 85879]]
and coordinate with a variety of entities and stakeholders. VAWA 2013
modified the allocation requirements governing STOP subgrants, creating
a set-aside for projects addressing sexual assault, and made changes to
the statute's requirement that states provide matching funds for their
grant awards. It also made several changes to provisions governing
payment for forensic medical exams for sexual assault victims and
certain filing costs related to cases of domestic violence, dating
violence, sexual assault, and stalking.
B. History Regarding the STOP Program and General Provisions Applicable
to OVW Grant Programs
The STOP Program regulations and general provisions were originally
promulgated in April, 1995. On December 30, 2003, OVW published a
proposed rule to clarify the match requirement for the STOP Program,
which was never finalized and subsequently was superseded by changes to
the statute made by VAWA 2005. On January 21, 2004, section 90.3,
regarding participation by faith based organizations was added to the
general provisions. OVW published the Notice of Proposed Rulemaking for
the current update on May 11, 2016 at 81 Federal Register 29215. In
developing the proposed rule, OVW held a series of listening sessions
with relevant constituencies to solicit input on updating the STOP
Program regulations and general provisions. The specific sessions were
focused on state STOP Program administrators, state coalitions,
culturally specific and underserved populations, tribes and tribal
coalitions, nonprofit organizations, and the justice system. Comments
on the proposed rule were due by July 11, 2016.
C. Costs and Benefits
As discussed in more detail under Executive Orders 12866 and 13563
(in the Regulatory Review discussion below), the rule clarifies the
statutory requirements, but does not alter the existing program
structure. Updating the existing regulations to clearly and accurately
reflect the statutory parameters will facilitate state compliance with
VAWA, and thus avoid potentially costly non-compliance findings.
III. Discussion of Comments and Changes Made by This Rule
As discussed above, this rule updates the regulations for the STOP
Program and the general provisions governing OVW grant programs,
including definitions and requirements for nondisclosure of
confidential victim information, to comply with statutory changes and
reduce repetition of statutory language. The structure and section
numbering of the proposed rule has not been changed in the final rule,
but some of the specific provisions have, as described below.
A. Summary of Comments and Changes from the Proposed Rule
OVW received 12 comments from state STOP grant administrators,
national organizations focusing on violence against women, one state
domestic violence coalition, individuals, and one creator of a cloud-
based database for domestic violence and sexual assault service
providers. Comments generally fell into six categories: (1) Reducing
administrative burdens on state administering agencies, (2) encouraging
victim-centered best practices, (3) clarifying requirements about the
states' STOP implementation planning processes, (4) clarifying other
STOP Program requirements, particularly those related to underserved
and culturally specific populations, (5) clarifying the statutory
confidentiality provision that restricts the release of victim
identifying information, and (6) enhancing language access. The most
significant changes in response to the comments are as follows:
1. Changed the definition of ``prevention'' to clarify the
difference between primary and secondary prevention (90.2(d)).
2. Provided additional detail and clarification regarding the
confidentiality provision (90.4(b)).
3. Provided additional guidance to states on assessing
qualifications of applicants for the culturally specific set aside of
funds and clarified that they are encouraged to exceed the minimum
statutory set aside of three percent (90.11(c)(3)).
4. Increased the time period covered by state implementation plans
from three years to four (90.12(a)).
5. Clarified the requirement to consult with various entities in
the process of developing and updating implementation plans and the
documentation required regarding such consultation (90.12(b) and (c)).
6. Clarified that, if the Prison Rape Elimination Act (PREA)
requirements no longer apply to the STOP Program, then states will not
need to address PREA compliance in their implementation plans and that
only states that submitted assurances under PREA need to submit
information on how they will spend the funds toward coming into
compliance with PREA (90.12(g)(7)).
7. Clarified when states may reallocate returned STOP funds and
funds from allocations for which the state did not receive sufficient
applications (90.25).
B. Overarching Comments
OVW received one comment expressing overall support for the
proposed rule. OVW also received an overarching comment stating that
the commenter would like to see more flexibility in categories within
the STOP Program to better meet victim needs, such as more flexibility
in emergency victim assistance. As long as a particular cost is related
to victim safety and allowable under the cost principles in 2 CFR part
200, states have flexibility regarding how to use victim service funds.
For example, states may use STOP funds to support emergency
transportation, medical expenses, and other necessities where needed
for victim safety. Because states already have considerable discretion
to direct funding to emergency victim assistance, no change was made in
the final rule. The other comments all pertained to specific sections
of the proposed rule.
C. Definitions and Confidentiality Requirements Applicable to All OVW
Grant Programs
VAWA 2005 established universal definitions and grant conditions
for OVW grant programs, and VAWA 2013 amended these provisions. One of
these grant conditions protects the confidentiality and privacy of
persons receiving victim services for the purpose of ensuring victim
safety. This section discusses the comments received on Subpart A, the
definitions and grant conditions sections of the proposed rule,
including provisions dealing with confidentiality, and any changes made
to this subpart in the final rule.
Sec. 90.1. General
Section 90.1 provides general information, including specification
of which statutes are implemented by the rule and an explanation of the
different subparts of the rule. In the final rule OVW also has added
language to clarify to which grants and subgrants this updated rule
will apply. Specifically, it will take effect with grants issued by OVW
after the effective date of the rule (30 days from publication in the
Federal Register). For subgrants, it will take effect with subgrants
issued by states under the STOP and Sexual Assault Services Formula
Grant Programs after that date, even if such subgrants are
[[Page 85880]]
made with grant funds awarded by OVW prior to that date.
Sec. 90.2. Definitions
The universal definitions added by VAWA 2005, codified at 42 U.S.C.
13925(a), superseded previous program-specific definitions originally
enacted in 1994. The rule revises the definitions section of part 90,
28 CFR 90.2, by removing definitions from the existing regulations that
are codified in statute, adding definitions for terms that are used in
statute but not defined, and clarifying statutory definitions that,
based on OVW's experience managing its grant programs, require further
explanation.
Section 90.2 currently contains definitions for the following
terms: Domestic violence, forensic medical examination, Indian tribe,
law enforcement, prosecution, sexual assault, state, unit of local
government, and victim services. This rule removes the definitions for
domestic violence, Indian tribe, law enforcement, sexual assault,
state, and victim services, as they all appear in the statute and do
not need further clarification.
The rule revises the definition of ``forensic medical
examination,'' a term that is used but not defined in a statutory
provision directing that states, Indian tribal governments, and units
of local government may not receive STOP Program funds unless they
incur the full out-of-pocket cost of forensic medical exams for victims
of sexual assault. See 42 U.S.C. 3796gg-4(a)(1). The rule changes the
list of minimum elements that the exam should include to bring the
definition in line with best practices for these exams as they have
developed since part 90 was implemented in 1995, and, in particular,
with the Department of Justice's national protocol for sexual assault
medical forensic examinations (SAFE Protocol), which was updated in
April 2013.\3\ OVW received several comments on this definition. Three
commenters recommended adding ``obtaining informed consent'' to the
definition and two of them also suggested adding an assessment of the
patient's state of mind. Although these are best practices as discussed
in the SAFE Protocol, they are not appropriate for inclusion here,
because this definition applies to the specific context of meeting the
certification requirement for the STOP Program that states must ensure
victims do not incur ``out of pocket'' costs for forensic medical
examinations. The definition is not intended to be a comprehensive
description of best practices for conducting the examination but rather
a list of elements for which victims should not incur ``out of pocket''
costs.
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\3\ U.S. Department of Justice, Office on Violence Against
Women, ``A National Protocol for Sexual Assault Medical Forensic
Examinations: Adults/Adolescents'' (2d ed. 2013), available at
https://www.ncjrs.gov/pdffiles1/ovw/241903.pdf.
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One commenter also suggested adding ``medical care and treatment''
to the definition of ``forensic medical examination.'' Again, although
this does represent best practice as exemplified in the SAFE Protocol,
it is not appropriate for inclusion in this context because it would
impose an increased cost to states not mandated by the STOP Program
statute. The current rule allows states flexibility in determining
whether to cover medical costs that are not within the definition of
forensic medical examination, such as testing and treatment for
sexually transmitted diseases. Many states do cover such expenses, but
not all do. Payment for such expenses is often available through
programs funded through the Victims of Crime Act (VOCA). OVW also notes
that the definition does include ``head-to-toe examination of the
patient,'' which is for both medical and forensic purposes. This
examination is used to identify injuries for treatment purposes and
provide documentation that could potentially be used by the criminal
justice system. This commenter also suggested changing ``sexual assault
victim'' to ``victim of sexual assault'' to clarify that the provision
also applies to domestic violence survivors who are sexually assaulted.
OVW agrees and has made this change to paragraph 90.2(c).
The rule's definition of ``prosecution'' contains minor technical
changes from the definition in the existing regulation. These changes
implement the VAWA 2005 provision making the definitions applicable to
all OVW grant programs and conform the definition to the statute. The
definition retains the existing regulation's clarification of the
statutory definition, which explains that prosecution support services
fall within the meaning of the term for funding purposes. This
clarification continues to be important because allocating prosecution
grant funds to activities such as training and community coordination
helps to achieve the statutory goal of improving prosecution response
to domestic violence, dating violence, sexual assault, and stalking.
OVW received one comment on this definition, noting that it included
participation in domestic violence task forces and enforcing domestic
violence restraining orders, but did not include task forces and
restraining orders focused on sexual assault, dating violence, or
stalking. OVW has added dating violence, sexual assault, and stalking
to paragraph 90.2(e) to correct this oversight.
In addition, the statutory definition for ``prosecution'' uses, but
does not define, the term ``public agency,'' which the rule defines
using the definition for this term in the Omnibus Crime Control and
Safe Streets Act. See 42 U.S.C. 3791.
The rule revises the definition of ``unit of local government,''
which did not have a statutory definition specific to all OVW grant
programs until the enactment of VAWA 2013, to make it consistent with
the statutory language. In addition, it includes in the definition a
list of entities and organizations that do not qualify as units of
local government for funding purposes and would need a unit of local
government to apply on their behalf for those programs where ``unit of
local government'' is an eligible entity but other types of public or
private entities are not eligible. The list reflects OVW's long-
standing interpretation of the term ``unit of local government'' and is
consistent with OVW's practice of excluding these entities and
organizations from eligibility to apply for OVW funding as units of
local government. The one comment on this definition was a
recommendation for OVW to consult with tribes on the impact of the
change. OVW declines to take this suggestion for two reasons. First,
the change eliminating tribes from the definition of ``unit of local
government'' is dictated by the definition in VAWA 2013 and cannot be
changed by regulation. By excluding tribes from the definition of
``unit of local government,'' VAWA 2013 excluded tribes from a
provision in the authorizing statute for the Grants to Encourage Arrest
Policies and Enforcement of Protection Orders Program that reduces the
award amount to states and units of local government by five percent if
the jurisdiction does not have certain laws, regulations, or policies
regarding HIV testing of sex offenders. Second, even if the regulation
could alter the statutory definition, OVW notes that this statutory
change has no impact on tribal eligibility for OVW grants. ``Tribal
government'' is an eligible entity for every OVW grant program that
includes ``unit of local government'' as an eligible entity.
The rule also adds definitions to the regulation for terms that are
used in OVW grant program statutes but are undefined and that OVW
believes would be helpful to applicants and grantees. The term
``community-based organization'' is defined in 42 U.S.C. 13925(a), but
the term ``community-based program,'' which also appears in
[[Page 85881]]
OVW grant program statutes, is not. To preserve consistency across OVW
programs and minimize confusion, OVW is proposing to use the statutory
definition for both terms.
The rule provides a definition of ``prevention'' that distinguishes
the term from ``outreach'' both because OVW has observed that some
grant applicants propose outreach activities to implement prevention
programming under OVW programs and because funding for ``prevention''
is more limited than funding for ``outreach.'' The proposed rule
defined ``prevention program'' as ``a program that has a goal of
stopping domestic violence, dating violence, sexual assault, or
stalking from happening in the first place. Prevention is distinguished
from `outreach,' which has the goal of informing victims and potential
victims about available services.'' OVW received three different
comments on this definition. The first recommends that the definition
describe the distinction between ``primary'' and ``secondary''
prevention so that programs that interrupt and prevent future domestic
violence, dating violence, sexual assault, and stalking after it has
taken place can be distinguished from programs that focus on these
crimes in a context where they have not yet taken place. This commenter
specifically recommended using language from the Family Violence
Prevention and Services Office within the Department of Health and
Human Services. The second commenter recommended changing ``programs''
in the definition to ``activities and strategies.'' The third commenter
recommended deleting ``in the first place'' from the definition. OVW
agrees with all the comments and the definition in paragraph 90.2(d)
has been revised to make clear that ''prevention'' includes both
primary and secondary prevention efforts and to define the terms
primary and secondary prevention. The final sentence from the proposed
rule, which distinguishes ``prevention'' from ``outreach'' is retained
in the final rule.
Finally, the rule adds a definition for ``victim services division
or component of an organization, agency, or government'' because the
rule uses this term in implementing the confidentiality provision
enacted by VAWA 2005 and amended by VAWA 2013, which is discussed in
more detail in the next section.
Sec. 90.4. Grant Conditions
VAWA 2005 added grant conditions for all OVW grant programs,
including a provision on confidentiality and privacy of victim
information and these provisions were amended by VAWA 2013. See 42
U.S.C. 13925(b). Section 90.4(a) provides that the grant conditions in
42 U.S.C. 13925(b) apply to all grants awarded by OVW and all subgrants
under such awards. One commenter requested that OVW also specify that
grantees and subgrantees are required to comply with Title VI of the
Civil Rights Act of 1964 and section 504 of the Rehabilitation Act. The
commenter correctly notes that all grantees and subgrantees must comply
with these laws. The grantmaking process, however, already requires
grantees and subgrantees to comply with these and other civil rights
statutes through standard assurances that the grantee signs. These are
available on the OVW Web site at www.usdoj.gov/OVW. Because compliance
with all applicable civil rights laws is already addressed through
these assurances, it is not necessary to include compliance with two of
these laws in this regulation.
The statutory confidentiality provision recognizes the critical
importance to victim safety of protecting victims' personally
identifying information. It generally requires grantees and subgrantees
to protect victim confidentiality and privacy to ensure the safety of
victims and their families and prohibits the disclosure of victims'
information without their informed, written, and reasonably time-
limited consent. These requirements, implemented in section 90.4(b),
apply to all OVW grant programs, not just STOP grants. In administering
this confidentiality provision, OVW has received numerous inquiries
regarding what kinds of disclosures require written consent, and OVW is
attempting to answer these questions in this rule.
In the Notice of Proposed Rulemaking, OVW requested comments about
the propriety of placing victim information on third-party (or
``cloud'') servers. Seven commenters responded to this request.
Commenters were generally concerned about the privacy of information on
such third-party servers, but also noted the need for flexibility in
access to client information as service provision models expand from
just office-based services. Commenters raised specific questions
related to the use of third-party servers, such as who owns the data,
who has access to the data, what security measures are in place to
prevent unauthorized release of information, and what happens if the
provider receives a subpoena for release of client information. Some
commenters recommended specifying the answers to the above questions in
the agreement between the victim service provider and the cloud storage
provider. Some commenters also recommended the use of encryption to
protect the client information. Two commenters specifically recommended
the use of ``zero knowledge'' encryption, where the encryption key is
stored on the victim service provider's server so the storage provider
only has access to encrypted (and therefore unreadable) information.
Two commenters recommended the use of background checks of the
employees of the storage providers. One commenter noted that, while
they felt that cloud storage should be acceptable, it should not
include sharing of client information in regional or statewide
databases such as Homeless Management Information Systems. Based on
these comments, OVW added a new paragraph (b)(5) to Sec. 90.4:
``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).'' The reasonable efforts mentioned here
apply not just to third-party electronic storage, but also protections
for paper copies of information or information stored on internet-
connected computers at the victim service provider. As suggested by one
commenter, the use of third-party storage is not, by itself, a release,
but can lead to release without sufficient precautions. ``Reasonable
efforts'' in the case of third-party storage include, but are not
limited to, ensuring that the contract with the storage provider
specifies that the service provider owns the information and ensuring
that there are sufficient security protocols to protect the
information.
Section 90.4(b)(2)(iii) provides that the confidentiality provision
applies to disclosures from victim service divisions or components of
an organization, agency, or government to other non-victim services
divisions or components and to the leadership of such organization,
agency, or government. It also provides that the leadership shall have
access without releases only in ``extraordinary and rare''
circumstances. OVW requested comments on this provision and received
three comments. Two commenters were concerned that the phrase
``extraordinary and rare circumstances'' is too vague and asked OVW to
provide additional guidance. In response, OVW has added a statement
clarifying that ``Such [extraordinary and rare] circumstances do not
include routine monitoring and supervision[]'' to the end of paragraph
(b)(2)(iii). OVW
[[Page 85882]]
decided against including a list of circumstances that justify
disclosure because such determinations will be fact-based. OVW notes,
however, that one example of such an extraordinary and rare
circumstance justifying release to an organization's leadership would
be where there are allegations of fraud against the victim service
division or one of its staff members. One commenter was concerned that
this provision could be read to include victim-witness programs at
prosecution or law enforcement offices. By statute (42 U.S.C.
13925(b)(2)(D)(i)(III)), the confidentiality provision does not apply
to ``law enforcement-generated and prosecution-generated information
necessary for law enforcement and prosecution purposes.'' In addition,
Sec. 90.2(h) of this rule defines ``victim services division or
component of an organization, agency, or government'' as a ``division
within a larger organization, agency, or government, where the agency
has as its primary purpose to assist or advocate for victims of
domestic violence, dating violence, sexual assault, or stalking and has
a documented history of work concerning such victims.'' Victim-witness
programs in prosecution or law enforcement offices would generally be
for law enforcement or prosecution purposes, even if they are also
assisting victims.
Section 90.4(b)(3) governs releases of personally identifying
information or individual information collected in connection with
services. One commenter requested that OVW add language providing that
releases must be accessible to all victims, including those with
limited literacy and/or English language proficiency. OVW declines to
make this change because it is not necessary. Both the statute and the
regulation require informed releases; if the victim does not understand
the release, it cannot be truly ``informed.'' Section 90.4(b)(3)(ii),
as revised, requires that the grantee or subgrantee engage in a
conversation with the victim regarding the purpose for and limits on
the release, and the grantee or subgrantee should record the agreement
as to the scope of the release. This conversation should ensure that
the victim understands the release. In addition, with regard to
language access, there are already civil rights laws and regulations
requiring that grantees and subgrantees take reasonable steps to
provide meaningful access to their programs and activities for persons
with limited English proficiency. Grantees and subgrantees explicitly
agree to comply with these laws by signing relevant assurances and
certifications when applying for OVW grants and upon the receipt of OVW
financial assistance. For more information on language access
requirements, the Office of Justice Programs, Office for Civil Rights
(OCR) has information on its Web page at http://ojp.gov/about/ocr/lep.htm.
Section 90.4(b)(3)(i) addresses the circumstances under which
identifying information about victims served by OVW grantees and
subgrantees may be released, one of which is when the release is
compelled by a court mandate (Sec. 90.4(b)(3)(i)(C)). One commenter
requested that OVW clarify that ``court mandates'' include case law
mandates, such as those imposing a ``duty to warn'' when there is a
specified threat of harm. OVW accepts this comment. It is consistent
with guidance that OVW has provided to grantees. Section
90.4(b)(3)(i)(C) has been revised to read ``release is compelled by
court mandate, which includes a legal mandate created by case law, such
as a common-law duty to warn.''
Section 90.4(b)(3)(ii) addresses criteria for victim releases. One
commenter recommended that, within the context of signing a release of
information, grantees and subgrantees must reach agreement with the
victim about what information the victim wants shared and record that
agreement as part of the release. Another commenter recommended that
the victim specify to whom and what specific information is to be
shared. OVW agrees and has rewritten the third sentence of this
paragraph to specify that 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. They must also reach agreement with the victim about what
information would be shared and with whom and record the agreement
about the scope of the release.
Section 90.4(b)(3)(ii)(C) and (D) address releases for minors and
legally incapacitated persons with court-appointed guardians. With
regard to minor children, the rule provides that both the minor and the
parent or guardian sign the release. One commenter noted that the rule
should account for situations where the child is too young to sign the
release. OVW agrees and has added language to clarify that, if a minor
is incapable of knowingly consenting, the parent or guardian of that
minor may provide consent. The rule also provides that, if a parent or
guardian consents for a minor, the service provider should attempt to
notify the minor as appropriate. Another commenter requested that OVW
include language that consent for release may not be given by the
abuser of the minor or the abuser of the other parent of the minor.
Such language already was included in section 90.4(b)(3)(ii)(C) of the
proposed rule.
Section 90.4(b)(4) addresses release of information about deceased
victims for fatality reviews. OVW solicited comments on this provision
and received four responses. The proposed rule provided that the
prohibition on sharing information did not apply to information about
deceased victims being sought for fatality reviews if the review met
certain criteria. All commenters were concerned about the impact on
victims if, prior to their deaths, they were aware of the possibility
of release and recommended not allowing release without consent. Four
commenters noted that such consent could be provided by a personal
representative of the victim, if available. OVW is seeking to balance
these concerns with the important work that is done by fatality
reviews. In a fatality review, community responders examine homicides
and suicides resulting from domestic violence to identify gaps in
services, responses, and prevention efforts. These reviews can lead to
systemic improvements that can prevent future deaths. The final rule
requires grantees to make a reasonable effort to gain consent from a
personal representative, but, if they are not able to do so after such
efforts, it does not preclude their full participation in the fatality
review. Also, the final rule permits sharing identifying victim
information only when the fatality review has an underlying objective
to prevent future deaths, enhance victim safety, and increase offender
accountability, and includes both policies and protocols to protect
against the release of information outside the fatality review team and
limits release to information that is necessary for the purposes of the
fatality review. OVW notes that many states or tribes have specific
confidentiality and privilege laws that apply to victim service
providers and other OVW grantees and subgrantees. This provision would
allow release for VAWA purposes but would not override state or tribal
laws that do not allow for release. Some laws, however, specifically
authorize victim service providers to release information for fatality
reviews. The language of the final rule is an attempt to ensure that
the VAWA confidentiality provision is implemented in a manner that is
compatible with such state or tribal
[[Page 85883]]
laws, including both where those laws are more protective of victim
confidentiality and where they authorize release.
Section 90.4(b)(6) (renumbered from (5) in the proposed rule)
requires grantees and subgrantees to document their compliance with the
confidentiality requirement by submitting an acknowledgement form
indicating that they have notice of the requirement and that they will
create and maintain documentation of compliance. OVW received one
comment on this provision. The commenter recommended that OVW also
require grantees and subgrantees to document their compliance with
Title VI of the Civil Rights Act of 1964 and section 504 of the
Rehabilitation Act. The standard assurances (available at https://www.justice.gov/ovw/how-apply) contain a provision that requires STOP
Program grantees and subgrantees to comply with applicable civil rights
laws, including the Civil Rights Act, the Rehabilitation Act, and VAWA.
Title VI requires grantees and subgrantees to provide appropriate
language-access services to limited English proficient (LEP)
beneficiaries. See 28 CFR 42.405(d). The U.S. Department of Justice has
issued guidance for recipients on their responsibility under Title VI
to provide language-access services. See Department of Justice,
Guidance to Federal Financial Assistance Recipients Regarding Title VI
Prohibition Against National Origin Discrimination Affecting Limited
English Proficient Persons, 67 FR 41,455 (June 18, 2002). OVW, through
the Office of Justice Programs, Office on Civil Rights (OCR), conducts
compliance reviews to ensure that recipients are serving LEP
beneficiaries and LEP service populations. State administering agencies
that subgrant STOP Program funds to other organizations must have
``Methods of Administration'' (28 CFR 42.105(d)(2)) that monitor
whether their subrecipients have a language assistance plan. OCR
provides technical assistance to recipients about their obligation to
provide language-access services through an online training program
(http://ojp.gov/about/ocr/ocr-training-videos/video-ocr-training.htm
(last visited July 21, 2016)), in-person presentations, and telephone
consultations. In addition, aggrieved parties (and third parties) may
file an administrative complaint with the OCR alleging a recipient's
failure to provide appropriate language-access services in violation of
Title VI (28 CFR. 42.107(b)) and VAWA (28 CFR 42.205). OCR will
investigate the complaint, and, if the complaint has merit, OCR will
seek appropriate remedies. The enforcement scheme that is already in
place holds recipients accountable for providing appropriate language-
access services to LEP beneficiaries in accordance with Title VI and
VAWA. Therefore there is no need for additional documentation under
this rule.
An additional comment on this paragraph recommended the language,
which was already included in the proposed rule, that requires grantees
and subgrantees to document compliance with the confidentiality
requirement.
OVW also has added a new section 90.4(c) to specify that victim
eligibility for direct services is not dependent on the victim's
immigration status, for consistency with the Office for Victims of
Crime Victims of Crime Act (VOCA) Assistance Program Final Rule, which
was issued after the OVW proposed rule. This is also consistent with
the Attorney General Order on Specification of Community Programs
Necessary for Protection of Life or Safety under Welfare Reform
Legislation (Attorney General Order No. 2353-2001, 66 F. R. 3616 (Jan.
16, 2001)). In addition, on August 5, 2016, Attorney General Loretta E.
Lynch, Secretary Sylvia Mathews Burwell of the U.S. Department of
Health and Human Services (HHS) and Secretary Juli[aacute]n Castro of
the U.S. Department of Housing and Urban Development (HUD) released a
letter \4\ to recipients of federal funding to provide more information
on access to services for immigrant victims. The letter explains that
immigrants cannot be denied access to certain services necessary to
protect life or safety on the basis of their immigration status.
---------------------------------------------------------------------------
\4\ https://www.justice.gov/ovw/file/883641/download.
---------------------------------------------------------------------------
D. STOP Formula Grant Program
1. Organization
OVW proposed significant changes in the proposed rule to the
organization of Subpart B, the STOP Program regulations, and is
retaining these changes, without further alteration, in the final rule.
The following chart shows the changes from the current rule to both the
proposed and final rules.
------------------------------------------------------------------------
Disposition of Proposed rule/
Section No. Current rule current section final rule
------------------------------------------------------------------------
90.10.............. Description of Same............ STOP (Services-
STOP (Services- Training-
Training- Officers--Pros
Officers--Prose ecutors)
cutors) Violence
Violence Against Women
Against Women Formula Grant
Formula Grant Program--Gener
Program. al.
90.11.............. Program Criteria Merged with State office.
90.10 and 90.12.
90.12.............. Eligible Merged with Implementation
Purposes. 90.10. plans.
90.13.............. Eligibility..... Now in 90.10.... Forensic
medical
examination
payment
requirement.
90.14.............. Forensic Medical Now 90.13....... Judicial
Examination notification
Payment requirement.
Requirement.
90.15.............. Filing Costs for Same............ Costs for
Criminal criminal
Charges. charges and
protection
orders.
90.16.............. Availability and (a) Is now in Polygraph
Allocation of 90.17, (b) and testing
Funds. (c) are merged prohibition.
with 90.12.
90.17.............. Matching Now 90.18....... Subgranting of
Requirements. funds.
90.18.............. Non- Removed......... Matching funds.
supplantation.
90.19.............. State Office.... Now 90.11....... Application
content.
90.20.............. Application Now 90.19.......
Content.
90.21.............. Evaluation...... Same............ Evaluation.
90.22.............. Review of State Same............ Review of State
Applications. applications.
[[Page 85884]]
90.23.............. State Now 90.12....... Annual grantee
Implementation and subgrantee
Plan. reporting.
90.24.............. Grantee Now 90.23....... Activities that
Reporting. may compromise
victim safety
and recovery.
90.25.............. ................ ................ Reallocation of
funds.
------------------------------------------------------------------------
2. Removing Duplicative Regulatory Language
OVW is removing much of the existing regulation to avoid
duplication with the statute. Specifically, OVW is removing the
following sections and paragraphs of the current regulation for this
reason: Sec. Sec. 90.10; 90.11(a); 90.12; 90.16(a); and 90.18. Other
sections have been streamlined by referencing the statutory provision
rather than repeating the statutory language.
3. Statutory Changes
As discussed above, VAWA of 2000, VAWA 2005, and VAWA 2013 have
amended and enhanced the STOP Program. Specific changes are as follows:
Expanded purpose areas (incorporated by reference in Sec.
90.10)
Changes in allocations: (1) The victim services allocation
increased from 25 percent to 30 percent; (2) a set aside was added of
ten percent of the victim services funds (or three percent of the total
award) for culturally specific community-based organizations; (3) a set
aside was added of five percent to courts; and (4) a 20-percent set
aside was added for programs that meaningfully address sexual assault
in two or more of the specified allocations (Sec. 90.11(c))
Changes in the implementation planning process, including an
expanded list of entities with which the state is required to consult
and additional information that needs to be included in a state's
implementation plan (Sec. 90.12)
Changes to the existing certification requirements and
additions of new certification requirements (Sec. 90.13, forensic
medical examination payment; Sec. 90.14, judicial notification; Sec.
90.15, costs for criminal charges and protection orders; and Sec.
90.16, polygraph testing prohibition)
The rule also removes references to the Assistant Attorney General for
the Office of Justice Programs to reflect statutory changes made by 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. Section-by-Section Summary of the Regulatory Text
This section describes each provision of the regulatory text, any
comments received, and any changes made to the final rule.
Sec. 90.10 STOP (Services-Training-Officers-Prosecutors) Violence
Against Women Formula Grant Program--General
Section 90.10 lists the eligible applicants for the program and
specifies that the purposes, criteria, and requirements for the program
are established by 42 U.S.C. 3796gg et seq. The only comments on this
section expressed support.
Sec. 90.11 State Office
Section 90.11 describes the role of the state office, which is to
be designated by the chief executive of the state. As detailed in Sec.
90.11(a) and (b), the state office is responsible for submitting the
application, including certifications, developing the implementation
plan, and administering the funds. Three commenters felt that paragraph
(b) was too burdensome in that it required the state administering
agencies for various programs to coordinate on disbursement of funds
(rather than implementation planning). The requirement to coordinate on
disbursement is in the current rule, but, since the issuance of that
rule, VAWA 2013 added the requirement to coordinate on implementation
planning. OVW agrees that the existing requirement to coordinate with
other state administering agencies on disbursement of funds is no
longer necessary in light of the VAWA 2013 amendment and is removing it
from the final rule. The requirement to coordinate on implementation
planning is at Sec. 90.12(b)(6).
Section 90.11(c) is intended to ensure that statutorily allocated
funds are meaningfully targeted to the appropriate entities and
activities. Paragraph (c)(3) discusses the allocation for culturally
specific services. One commenter recommended changing the second
sentence to clarify that recipients should have expertise specifically
on services to address the demonstrated needs of the targeted racial
and ethnic minority group. OVW agrees and has changed the second
sentence accordingly. This commenter also requested that the rule make
clear that the set aside of ten percent (out of the thirty percent for
victim services) is a minimum and not a cap. OVW agrees and has added
language to Sec. 90.11(c)(3) to encourage states to provide funding
above the three percent minimum to address the needs of racial and
ethnic minority groups.
Another commenter expressed support for the paragraph's language
clarifying eligibility for the culturally specific set aside and
recommended that OVW go further in delineating an assessment approach
for subgrant applications under this category. OVW accepts this
recommendation and is adding a new sentence to paragraph (c)(3) that
provides that states should tailor their subgrant application process
to meaningfully assess the qualifications of applicants for the
culturally specific set aside.
One additional commenter noted that the definition of ``culturally
specific'' is not the same as the definition of ``underserved'' and
that therefore some populations of victims (such as Deaf and lesbian,
gay, bisexual, and transgender (LGBT)) are excluded. OVW cannot alter
the definition to include additional underserved populations because of
a statutory change in VAWA 2013. Prior to VAWA 2013, states could use
the culturally specific set aside to provide culturally specific
services to any underserved population. VAWA 2013 changed the
definition of culturally specific so that it now means ``primarily
directed toward racial and ethnic minority groups.'' 42 U.S.C.
13925(b)(6). As a result, the STOP Program's set aside for culturally
specific community-based organizations may only fund subgrantees that
target racial and ethnic minority groups. 42 U.S.C. 3796gg-1(c)(4)(C).
States are still required to consider the full range of underserved
populations in the state and ensure that funds are equitably
distributed toward the needs of such populations, 42 U.S.C. 3796gg-
1(e)(2)(D).
Section 90.11(c)(4) provides guidance with regard to the twenty-
percent sexual
[[Page 85885]]
assault set aside. One commenter supported language directing how
states evaluate whether projects qualify for the sexual assault set
aside generally, but objected to allowing states to assess the
percentage of a project that addresses sexual assault and count that
percentage toward the set aside. The commenter noted that projects that
primarily address other crimes should not count toward the sexual
assault set aside. OVW agrees that only projects that truly address
sexual assault should be counted and has removed the sentence that
would permit states to aggregate percentages from projects that do not
primarily address sexual assault. Projects that qualify for the set
aside may include, but are not limited to, sexual assault victim
advocacy services, sexual assault forensic examiner programs, Sexual
Assault Response Teams, law enforcement or prosecution training on or
specialized units for sexual assault, projects addressing rape kit
backlogs, and projects that involve implementation of the Prison Rape
Elimination Act of 2012 (PREA) standards in working with incarcerated
victims.
OVW also has added a new paragraph (d) on pass-through
administration, based on the Office for Victims of Crime's VOCA Victim
Assistance Program Final Rule, which was issued after the OVW proposed
rule. Under both the STOP and Victim Assistance Programs, some states
administer the program by awarding the funds to an organization such as
a state domestic violence or sexual assault coalition and permitting
that organization to identify and monitor subgrantees. OVW wishes to be
consistent with OVC's regulations regarding this practice.
Sec. 90.12 Implementation Plans
Section 90.12 implements new requirements for the state planning
process added by VAWA 2013. One commenter had an overarching
recommendation that this section refer to the statute without any
additional detail. The commenter opined that such detail is more
appropriate for guidance and ``frequently asked questions'' issued by
OVW, rather than regulations. Finally, the commenter maintained that
the requirements spelled out in this section are too burdensome for
states and not consistent with existing state processes. OVW disagrees.
The procedures in this rule are consistent with guidance that OVW
previously provided to states and therefore state processes should
already align with the rule's requirements. Although the rule does
require certain documentation, OVW has determined that this
documentation is necessary for OVW to ensure compliance with the
detailed statutory requirements that Congress put in place in VAWA
2013. The provisions of this section balance the needs of the state
with the complexity of the statute. As discussed below, however, state
plans will be due on a four-year cycle instead of a three-year one.
The proposed rule included language in section 90.12(a)
incorporating a long-standing OVW practice of allowing states to submit
a full implementation plan every three years and then submit updates to
the plan in the other two years. Several commenters requested that the
plan extend for five years, to cover the period between VAWA
reauthorizations, rather than three, to reduce the burden on states.
OVW is partially accepting this recommendation by making the plan due
every four years, starting with the FY 2017 application. Accordingly,
the plan submitted in FY 2017 must cover the years 2017-2020. This will
give the states more time to develop their plans each cycle and reduce
the burden on states, while ensuring that the plans are updated with
reasonable frequency. OVW declines to align the plan cycle with VAWA
reauthorizations because OVW cannot know if or when Congress will
reauthorize VAWA. Depending on the changes made to the STOP Program
statute in a reauthorization, however, a new state plan may not be
required due to a reauthorization. For example, if purpose areas are
added or changed, the state could develop an update noting whether or
not it plans to use the new purpose areas. Because of the longer plan
period, the final rule provides in paragraph (b) that consultation is
required for updating a plan as well as for developing the full plan.
If there are no updates, or only minor changes, then the consultation
may be brief.
Paragraphs (b) and (c) of section 90.12 are new to the regulation,
but incorporate provisions from 42 U.S.C. 3796gg-1(c)(2) and (i)
regarding consultation and coordination. The statute, as amended by
VAWA 2013, provides a list of entities that states must consult with
during the implementation planning process and requires documentation
from members of the planning committee as to their participation in the
planning process. OVW must ensure that states consult with all the
required entities and fully document such consultation. The final rule
strikes a balance between requiring sufficient documentation within the
implementation plan and minimizing the burdens on state administrators
inherent in providing such documentation.
Section 90.12(b) addresses consultation and coordination with the
entities specified in 42 U.S.C. 3796gg-1(c)(2). Paragraph (b)(2)
addresses population-specific organizations, representatives from
underserved populations, and culturally specific organizations. Two
commenters noted that the proposed rule required the inclusion of
``significant underserved or culturally specific populations in the
state'' but did not define ``significant.'' OVW declines to define
``significant'' because what significant means will be different for
every state. Instead, OVW has inserted language in paragraph (c) that
requires states to explain in their implementation plans how they
determined which underserved and culturally specific populations to
include. OVW also has amended paragraph (b)(2) to provide that states
consider, in addition to demographics, barriers to service, including
historical lack of access to services, for each population. These
commenters noted a similar concern with paragraph (b)(7), which is
addressed in the final rule through these change to paragraphs (b)(2)
and (c).
Two commenters requested that OVW add language to paragraph (b)(2)
with specific recommendations on how states should engage in meaningful
outreach, such as having a mailing list with organizations in specific
areas, including nonprofit and faith-based organizations, and
conducting information sessions beyond regular business hours and in
local communities. Although OVW agrees in principle with these
suggestions, OVW believes they are too detailed and specific for
inclusion in the regulations and more appropriate for technical
assistance.
Section 90.12(b)(3) requires consultation with all state and
federally recognized tribes in the planning process. One commenter
agreed but also noted that there is a need for states to have
mechanisms for tribes to participate meaningfully and recommended that
OVW require states to document their attempts to reduce barriers to
participation by tribes. OVW agrees and has added this to paragraph
(c)(2)(iii). Examples of ways that states have successfully reached
tribes include tours of the reservations in the state and regional
meetings with tribal leaders.
Section 90.12(b)(4) provides that, if possible, states should
include survivors of domestic violence, dating violence, sexual
assault, and stalking in the planning process. One commenter noted the
value and importance of including survivors in the planning process.
Another recommended changing the
[[Page 85886]]
provision to reflect that states are ``encouraged'' to include
survivors, but also noted concerns that states could recruit and
solicit input from survivors in ways that violate survivor
confidentiality and autonomy. As a result, OVW has changed the
provision to remind states that include survivors in their consultation
process that they should address safety and confidentiality concerns.
OVW recommends that state STOP administrators work with organizations
within their states, such as state coalitions, victim service
providers, and culturally and population specific organizations, that
may have survivor advisory panels or may be able to assist with
recruiting survivors who are interested in providing input regarding
the state plan. Survivors do not need to participate in person and
their input may be obtained through means such as online or paper
surveys, conference calls, or web meetings.
Section 90.12(b)(6) implements the statutory requirement at 42
U.S.C. 3796gg-1(c)(3) that the state coordinate the plan with the plans
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). Two commenters noted that this coordination can be
difficult if the STOP Program administrator does not control the other
funding streams. They also noted that the VOCA Assistance state
administrator may be better positioned to lead this coordination, as
that program disburses substantially more funding. Because each state
is structured differently, OVW will give states discretion how to
handle this statutory requirement. Some examples include a single
meeting with the various state administrators to discuss plan
priorities, having a shared planning process, having the different
administrators serve on the STOP planning committee, and sharing a
draft plan with the other administrators for feedback. If a state
chooses to have another administrator, such as the VOCA administrator,
lead the processes, it may do that at its discretion.
Section 90.12(c) provides information on how states must document
their consultation with the various required entities. The rule
requires states to submit to OVW documentation of the extent of each
partner's participation, a summary of any significant concerns that
were raised during the planning process, and a description of how those
concerns were resolved. Paragraph (c) is intended to ensure meaningful
collaboration with partners, while minimizing the administrative burden
on states. One commenter noted that the term ``checklist'' can be
confusing because OVW also uses a checklist of the required plan
elements. The commenter recommended changing ``checklist'' to
``documentation of collaboration.'' OVW agrees and has made this
change.
OVW received several comments on this section, both expressing
support and expressing concerns about the burden on STOP
administrators. Some commenters recommended using a certification of
compliance with collaboration instead of requiring the documentation.
One commenter recommended removing some of the specific details
regarding what to retain and instead provide a general requirement for
states to document and keep on file a description of the planning
process. One commenter noted that the requirement to provide a summary
of major concerns is duplicative. However, another commenter
specifically supported the level of documentation and the focus on
documenting major issues and how they are resolved. After consideration
of these diverging views, OVW has determined that the level of
documentation required by the rule is necessary for management of the
program and is consistent with current practices and OVW guidance. OVW,
however, has rewritten this section to clarify what documentation must
be retained and what must be submitted as part of the implementation
plan. OVW may review the retained documentation as part of monitoring,
such as a site visit or where there is a suspicion of noncompliance
with the collaboration requirements. Furthermore, by amending section
90.12(a) to require a new plan every four years instead of every three
years, OVW has reduced the burden of retaining or submitting this
documentation. Also, one commenter noted that requiring participants to
fax or email proof of their attendance on calls and webinars is not
necessary. OVW agrees and has modified that paragraph accordingly.
Section 90.12(d) implements 42 U.S.C. 3796gg-1(e)(2), which
requires states to describe in the implementation plan how they will
provide for equitable distribution of funds with certain
considerations, such as geographic diversity and meeting the needs of
underserved populations. One commenter noted that states must ensure
that eligible underserved and culturally specific entities are aware of
the funding opportunity. OVW agrees but recognizes that this kind of
outreach is needed not just for underserved populations, but for other
categories in this paragraph such as different types of geographic
areas. Therefore, OVW has added a new paragraph (d)(5) to require that
states 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. Another commenter expressed a concern with
paragraph (d)(4), which specifies that states must recognize and
meaningfully respond to the needs of underserved populations and ensure
that monies set aside to fund linguistically and culturally specific
services and activities for underserved populations are distributed
equitably among ``those populations.'' This commenter was concerned
that the term ``those populations'' will be seen as limiting the
equitable distribution to culturally specific populations under the
ten-percent set aside. OVW agrees and has amended paragraph (d)(4) to
clarify that it applies to both culturally specific populations and the
broader range of underserved populations.
Section 90.12(e) implements 42 U.S.C. 3796gg-1(i)(2)(E). The
paragraph allows states the flexibility to identify underserved
populations, while requiring a description of why the specific
populations were selected. One commenter noted in response to both this
paragraph and paragraph (d) that the states must address statewide
needs and that the ten-percent set aside is a minimum and not a cap. As
discussed above, OVW has made changes to section 90.12(c)(3) that
address these concerns. This commenter also requested that OVW include
a reminder that states must develop language access plans to ensure
that, in distribution of funding, they provide ``meaningful access''
for persons with limited English proficiency. This specific reminder is
not needed because it is already required and addressed through other
mechanisms, as discussed above in response to a similar comment
regarding Sec. 90.4(b)(6). OVW does include language in all its
solicitations about language access and use of funds for this purpose.
OVW encourages states to use the same or similar language in their
solicitations. The 2016 STOP Program solicitation includes the
following:
Accommodations and Language Access
Recipients of OVW funds must comply with applicable federal
civil rights laws, which, among other things, prohibit
discrimination on the basis of disability and national origin. This
includes taking reasonable steps to ensure that persons with
[[Page 85887]]
limited English proficiency (LEP) have meaningful access to
recipients' programs or activities. More information on these
obligations is available in the OVW FY 2014 Solicitation Companion
Guide and at www.lep.gov. Applicants are encouraged to allocate
grant funds to support activities that help to ensure individuals
with disabilities, Deaf individuals, and persons with limited
English proficiency have meaningful and full access to their
programs. For example, grant funds can be used to support American
Sign Language (ASL) interpreter services, language interpretation
and translation services, or the purchase of adaptive equipment.
Applicants proposing to use grant funds to create Web sites,
videos, and other materials must ensure that the materials are
accessible to persons with disabilities. Grant funds may be
allocated for these purposes.
Section 90.12(f) implements 42 U.S.C. 3796gg-1(i)(2)(G), which
requires state implementation plans to include goals and objectives for
reducing domestic violence-related homicide. This paragraph requires
states to include statistics on domestic violence homicide within the
state, consult with relevant entities such as law enforcement and
victim service providers, and establish specific goals and objectives
to reduce homicide, including addressing challenges specific to the
state and how the plan can overcome them.
Section 90.12(g) outlines additional content that implementation
plans must include. These required elements are designed to help OVW
ensure that states meet statutory requirements for the program and to
provide a better understanding of how the state plans to allocate its
STOP Program funds. One commenter requested that OVW remind states to
provide outreach to targeted community groups, which should be
translated or interpreted to other languages and broadcast in ethnic
media. The need for outreach has been addressed in paragraph (d)(5) as
discussed above. Also, as discussed above, the specific reminder about
interpretation is unnecessary because it is covered by other laws,
regulations, guidance, and resources for grantees.
Paragraph (g)(7), regarding the Prison Rape Elimination Act (PREA),
is designed to ensure that states that submit assurances under PREA
that they will spend five percent of ``covered funds'' towards
compliance with PREA are including such funds in their planning. One
commenter noted that there is pending legislation that could separate
PREA from STOP. To address this possibility, OVW has added the phrase,
``if applicable'' to paragraph (g)(7). If the legislation passes, it
will no longer be applicable, and states will not need to address it.
Another commenter opined that, because the decision whether to submit a
certification, assurance, or neither under PREA is the responsibility
of the governor, it should only be included in the implementation plan
if the grantee is using PREA set-aside funds for victim services and
has control through direct contracting. OVW agrees in part and
disagrees in part. Although it is true that the state STOP
administrator does not have control over PREA certification and
assurance decisions, the administrator should be aware of the
governor's decisions and should be able to report on the use of STOP
funds if the state submitted an assurance that it would use five
percent of covered funds under STOP towards coming into compliance with
PREA. Therefore, OVW has changed the paragraph to note that the state
needs to specify whether it submitted a certification, assurance, or
neither under PREA, and, if an assurance, how it plans to spend the
STOP funds set aside for PREA compliance.
Section 90.12(h) implements a change in VAWA 2013 that makes the
implementation plans due at the time of application rather than 180
days after award. One commenter complained that this does not give
states enough time to complete the plan and requested 90 days after the
award to complete the plan. OVW disagrees because states do not need to
wait for the solicitation to write the plan. Since the previous plan
was due in 2014, OVW has been encouraging states to work on their 2017
plans. States may use the 2014 solicitation, guidance on the OVW Web
page, and this rule to help develop their plans. In addition, if a
state is not able to complete their plan by the application deadline,
they may submit information on what is needed to complete the plan. If
they have not completed the plan by the time the award is issued, the
state will still receive the award, but with a condition withholding
all the funds until the plan is submitted and approved.
Sec. 90.13 Forensic Medical Examination Payment Requirement
Section 3796gg-4 of Title 42 requires states to ensure that the
state or another governmental entity bears the ``full out-of-pocket''
costs of sexual assault medical forensic examinations. Section 90.13(b)
provides a definition of ``full out-of-pocket costs.'' Paragraph (d)
clarifies that, if states use victims' personal health insurance to pay
for the exams, they must ensure that any expenses not covered by
insurance are not billed to the victims, as these would constitute
``out-of-pocket'' costs. Paragraph (e) implements a new provision from
VAWA 2013, 42 U.S.C. 3796gg-4(a)(1)(B), which requires states to
coordinate with health care providers in the region to notify victims
of the availability of forensic examinations.
Two commenters expressed that the victim's insurance should never
be billed. In some cases, insurance billing can present a hardship for
victims. For example, a victim of spousal rape may not want her husband
to find out that she sought a forensic exam. If the victim is forced to
submit the claim to her insurance company and she is covered by her
husband's insurance, he may receive a statement from the insurance
indicating that she received the exam. OVW agrees and strongly
discourages the practice of billing a victim's insurance. The statute,
however, clearly permits it. See 42 U.S.C. 3796gg-4(c) (specifying that
states may only use grant funds to pay for forensic examinations if the
examinations are performed by a trained examiner and victims are not
required to seek reimbursement from their insurance). OVW, however, has
added language to section 90.13(d) to discourage the practice. Another
commenter wrote in response to this section as well as sections 90.15
(the provision prohibiting polygraph testing) and 90.16 (regarding fees
and costs for criminal charges and protection orders) to request that
states be required to provide notice to victims of their rights in
relevant languages. Section 90.13(e) (implementing 42 U.S.C. 3796gg-
4(1)(B)) already contains a notice requirement regarding rape
examination payment. Additional reminders with regard to language
access are not needed in this rule because it is covered by the
relevant federal civil rights laws and regulations. Finally, although
OVW encourages states to inform victims about the prohibition on
polygraph testing and the provisions relating to costs for criminal
charges and protection orders, OVW declines to impose a notice
requirement, because Congress included it in the rape examination
payment certification but did not in the certifications regarding
polygraph testing and costs for criminal charges and protection orders.
Sec. 90.14 Judicial Notification Requirement
Section 90.14 implements the requirements of 42 U.S.C. 3796gg-4(e),
which provides that states and units of local government are not
entitled to funds unless they certify that their judicial
administrative policies and practices include notification to domestic
violence offenders of relevant federal, state, and local firearms
prohibitions that might affect them. This requirement was added by VAWA
2005.
[[Page 85888]]
One commenter stated that the judicial notice should be in the language
of the offender and that funding should be reduced if it is not. OVW
declines to make this change because, as discussed above, language
access is addressed by existing civil rights laws and regulations.
Sec. 90.15 Costs for Criminal Charges and Protection Orders
Section 90.15 implements the requirements of 42 U.S.C. 3796gg-5,
which provides that states, tribes, and units of local government are
not entitled to funds unless they certify that victims of domestic
violence, dating violence, sexual assault, or stalking are not charged
certain costs associated with criminal prosecution or protection
orders. These requirements were amended by VAWA 2000 and VAWA 2013. No
comments were received on this section other than the comment regarding
notice discussed above under Sec. 90.13.
Sec. 90.16 Polygraph Testing Prohibition
Section 90.16 implements 42 U.S.C. 3796gg-8, which provides that,
to be eligible for STOP Program funding, states, tribes, and units of
local government must certify that their laws, policies, and practices
ensure that law enforcement officers, prosecutors, and other government
officials do not ask or require sexual assault victims to submit to a
polygraph examination or other truth telling device as a condition for
investigating the offense. These requirements were added by VAWA 2005.
OVW received two comments on this section, in addition to the comment
regarding notice discussed above under Sec. 90.13. The first
recommended language to clarify that state-level police and prosecutors
must comply with this requirement. OVW has not accepted this
suggestion, because although it is correct that the state must comply,
OVW believes the language of the proposed rule is clear. The second
commenter recommended that polygraphing be prohibited outright. OVW
lacks the authority to do this because the statute (and therefore the
regulation) only prohibits polygraphing as a condition of proceeding
with the investigation of the offense. OVW, however, has changed
``restricting'' in paragraph (a) to ``prohibiting'' to track the
language of the statute. OVW also agrees that polygraphing of victims
should not be done as a routine matter. The Attorney General Guidelines
for Victim and Witness Assistance (2011 Edition, https://www.justice.gov/sites/default/files/olp/docs/ag_guidelines2012.pdf)
provides that investigating agents may request victims to take a
polygraph only in extraordinary circumstances and only with the
concurrence of the Special Agent in Charge or the Supervisory Assistant
United States Attorney. The guidelines further provide that all
reasonable alternative investigatory methods should be exhausted before
requesting or administering a sexual assault victim polygraph
examination. OVW recommends that states and local jurisdictions adopt
similar guidelines to limit the improper use of polygraph tests on
sexual assault victims.
Sec. 90.17 Subgranting of Funds
Section 90.17(a) describes the type of entities that may receive
subgrants from the state (state agencies and offices, courts, local
governments, public agencies, tribal governments, victim service
providers, community-based organizations, and legal services programs).
Section 90.17(b) allows states to use up to ten percent of each
allocation category (law enforcement, prosecution, victim services,
courts, and discretionary) to support the state's administrative costs.
Examples of such costs include the salary and benefits of staff who
administer the program and costs of conducting peer review. This
paragraph codifies a long-standing OVW policy regarding state
administrative costs. OVW added language from the OVC VOCA Assistance
Program Rule regarding the use of funds for administrative costs. The
programs often have the same administrators, so it is important that
the regulations governing the two programs are consistent.
Sec. 90.18 Matching Funds
Section 90.18 implements the match provisions of 42 U.S.C. 3796gg-
1(f) and 13925(b)(1). VAWA 2005 provided that match could not be
required for subgrants to tribes, territories, or victim service
providers. It also authorized a waiver of match for states that have
``adequately demonstrated [their] financial need.'' 42 U.S.C.
13925(b)(1). VAWA 2013 further specified that the costs of subgrants
for victim services or tribes would not count toward the total amount
of the STOP award in calculating match. 42 U.S.C. 3796gg-1(f).
Section 90.18(a) states the match requirement in general and
reflects that the match requirement does not apply to territories.
Section 90.18(b) allows for in-kind match, consistent with 2 CFR
200.306, and provides information on calculating the value of in-kind
match.
Section 90.18(c) provides that states may not require match for
subgrants for Indian tribes or victim service providers. This is
consistent with 42 U.S.C. 13925(b)(1), as added by VAWA 2005.
Section 90.18(d) implements the waiver provisions of 42 U.S.C.
13925(b)(1), as added by VAWA 2005. In developing the criteria for
waiver, OVW balanced the importance of state and local support for the
efforts funded under the STOP Program with the need for waiver where
there is demonstrated financial need. The paragraph ensures that the
financial need identified by the state is specifically tied to funding
for violence against women programs. For example, if a state has had
across-the-board budget cuts, it would need to show how those cuts have
impacted state funding for violence against women programs (and hence,
its ability to provide matching funds). In most cases, a state would
receive a partial waiver based on the specific impact of the cuts. For
example, if the state had a 20 percent reduction in violence against
women funding, then it would receive a 20 percent waiver. The 20
percent cut should leave the state with 80 percent of funds that could
still be used toward match. In most cases, the states pass the match on
to subgrantees, except for Indian tribes and victim service providers.
In cases of awards to Indian tribes or awards to victim service
providers for victim services purposes, as opposed to another purpose,
such as law enforcement training, the state is exempted from the match
requirement.
Section 90.18(e) provides that matching funds must be used for the
same purposes as the federal funds and must be tracked for
accountability purposes.
OVW received one comment on section 90.18. The commenter was
seeking clarification that subgrants to victim service providers that
are either awarded from the discretionary allocation or from funds that
were returned from subgrantees under other allocations are exempt from
match. OVW agrees and has amended paragraph (a) in the final rule to
clarify that funds awarded under these two scenarios are excluded from
the total award amount for purposes of calculating match.
Sec. 90.19 Application Content
Section 90.19 provides that states must apply for STOP Program
funding using an annual solicitation issued by OVW. VAWA 2013
streamlined the application process by including most information and
documentation in the implementation plan, but also requiring
[[Page 85889]]
the plan to be submitted at the time of application. No comments were
received on this section.
Sec. 90.21 Evaluation
Section 90.21 encourages states to have plans for evaluating the
impact and effectiveness of their projects and requires them to
cooperate with federally-sponsored evaluations of their projects. No
comments were received on this section.
Sec. 90.22 Review of State Applications
Section 90.22 provides the statutory basis for review of state
applications and implements the Single Point of Contact requirement of
Executive Order 12372 (Intergovernmental Review of Federal Programs).
No comments were received on this section.
Sec. 90.23 Annual Grantee and Subgrantee Reporting
Section 90.23 describes the annual reporting requirement for the
program. Subgrantees submit annual progress reports to the state, which
then forwards them to OVW, or as otherwise directed by OVW. States also
must submit an annual progress report. Information on progress reports,
along with the forms and instructions, are available at http://muskie.usm.maine.edu/vawamei/stopformulamain.htm. OVW received one
comment on this section. The commenter was concerned that the current
annual reports are time consuming, expensive, and intrusive to
survivors and recommended that OVW consider whether the reporting
process can be simplified. OVW is considering ways to improve the
progress reporting process. Under the current process, it is expected
that grantees and subgrantees will determine in some cases that, under
the circumstances, it is not appropriate to ask a victim for certain
information. The grantee or subgrantee only needs to report demographic
information to the extent that it can be obtained in the course of
providing victim-centered services, and there is generally an
``unknown'' category they can use, if needed. The information generated
from the progress reports is used for a report to Congress, which
highlights the accomplishments of the program, and also has other
valuable uses. For example, progress reports are used by both OVW and
states for monitoring purposes, and data from the progress reports may
be used at the state and national level for identifying trends,
promising practices, and areas of need.
Sec. 90.24 Activities That May Compromise Victim Safety and Recovery
Section 90.24 provides that grant funds may not be used to support
activities that compromise victim safety and recovery. This section is
based on the overall purpose of VAWA to enhance victim safety. Specific
examples of such activities are included in the STOP Program
solicitation each year and in special conditions attached to each OVW
grant award. For example, past solicitations explained that such unsafe
activities include procedures or policies that exclude victims from
receiving safe shelter, advocacy services, counseling, and other
assistance based on their actual or perceived age, immigration status,
race, religion, sexual orientation, gender identity, mental health
condition, physical health condition, criminal record, work in the sex
industry, or the age and/or gender of their children. No comments were
received on this section.
Sec. 90.25 Reallocation of Funds
Section 90.25 implements a new provision from VAWA 2013, 42 U.S.C.
3796gg-1(j), which allows states to reallocate funds in the law
enforcement, prosecution, courts, and victim services (including
culturally specific services) allocation categories if they did not
receive ``sufficient eligible applications.'' The section defines an
``eligible'' application and provides the information that states must
maintain on file to document a lack of sufficient eligible
applications. The section ensures that states conduct sufficient
outreach to the eligible category of subgrantees before reallocating
the funds. One commenter noted that, while they generally agree with
the provision, they request more detail on what is needed for a state
to be allowed to reallocate funds to another category. Another
commenter specifically stated that, if there have been insufficient
applications in the culturally specific category, the state should also
provide documentation as to whether there were applicants that applied
but failed to qualify and if the state reached out to any applicants
that failed to apply. OVW agrees with these suggestions but has
concluded that they apply not just to the culturally specific category,
but to all of the categories. OVW has added a requirement regarding
additional documentation on applications that were unfunded for all of
the categories (i.e., law enforcement, courts, victim services,
prosecution, and culturally-specific) and reorganized the section for
better clarity.
IV. Regulatory Certifications
Executive Orders 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation, and in accordance with Executive Order
13563, ``Improving Regulation and Regulatory Review,'' section 1(b).
General Principles of Regulation.
The Department of Justice has determined that this rule is not a
``significant regulatory action'' under Executive Order 12866, section
3(f) because it is not likely to: (1) Have an annual effect on the
economy of $100 million or more; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues.
(1) The rule's impact is limited to OVW grant funds. It does not
change the economic impact of the grant funds and will impose very few
economic costs as discussed below.
(2) The Department of Health and Human Services (HHS) has a similar
program under the Family Violence Prevention and Services Act (FVPSA),
which uses some of the same definitions and a similar confidentiality
provision. OVW and the HHS FVPSA office coordinate to ensure
consistency in implementation of programs.
(3) The requirements in the rule are statutory and apply only to
OVW grantees. In some cases, OVW has added some additional specificity
to clarify the statutory requirements. The rule provides details on
what information the states must provide as ``documentation,'' but does
not impose new requirements.
(4) This rule does not raise any novel legal or policy issues.
Further, both Executive Orders 12866 and 13563 direct agencies to
assess all costs and benefits of available regulatory alternatives and
to select regulatory approaches that maximize net benefits. The
Department has assessed the costs and benefits of this regulation and
believes that the regulatory approach selected maximizes net benefits.
In most cases, the rule simply clarifies the statutory requirements,
such as providing definitions, which would not have any cost or might
reduce costs by providing administrators with clear guidance.
[[Page 85890]]
OVW provides the following analysis of the most noteworthy costs,
benefits, and alternative choices.
Subpart A. In general, most of this subpart comes from the statute.
OVW developed all of these provisions to answer questions received
regularly from grantees and provide greater clarity for grantees and
save them the time and effort of analyzing the requirements and seeking
further guidance from OVW staff. Under this final rule, a victim
service component of a larger organization, agency, or government will
need a victim release to share identifying victim information with
other divisions or leadership of the organization, agency or
government. The use of the release will increase the degree of control
that the victim has over his/her information, which is widely
considered a best practice in the violence against women field. The
cost of the rule is the time and administrative burden in executing and
tracking the release. This cost cannot be quantified, however, because
the discussion of release with the victim would take place in the
context of a larger conversation between the victim and the service
provider about options for the victim and next steps. OVW considered
whether to prevent the release of information about deceased victims in
the context of fatality reviews, out of consideration for surviving
family members. OVW found a balance that allows for release but also
requires the fatality review to attempt to get permission from an
authorized representative and surviving minor children (and/or
guardians of such) and limits the release to information necessary for
the fatality review.
Subpart B. In general, changes to subpart B reflect a balance
between the burden on the state administrators and the need to ensure
compliance with the statute. The relevant statute requires state
implementation plans that must identify how the state will use STOP
funds and meet certain statutory requirements. OVW opted to require
full plans only every four years to reduce the burden on states in
developing these plans. In the other years, states only submit updates
to their plans.
Executive Order 13132--Federalism
This regulation will not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Regulatory Flexibility Act
The OVW, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this regulation and, by approving it,
certifies that this regulation will not have a significant economic
impact upon a substantial number of small entities for the following
reason: Except for the match provisions in Sec. 90.18, the direct
economic impact is limited to the OVW's appropriated funds. For more
information on economic impact, please see above.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
This rule will not result in substantial direct increased costs to
Indian tribal governments. The definitions and confidentiality
provisions of the rule will impact grantees that are tribes. OVW
currently has 351 active awards to 226 tribes and tribal organizations,
for a total of over $182 million. As discussed above, any financial
costs imposed by the rule are minimal.
In addition, although a small number of tribes are subgrantees of
the STOP Program, discussed in subpart B, the requirements of the rule
are imposed on grantees, not subgrantees. The one provision in subpart
B that will have a direct effect on tribes is Sec. 90.12(b)(3), which
implements the statutory requirement that states consult with ``tribal
governments in those States with State or federally recognized Indian
tribes.'' 42 U.S.C. 3796gg-1(c)(2)(F). The rule requires states to
invite all state or federally recognized tribes in the state to
participate in the planning process. This approach was recommended by
tribal participants in the tribal listening session and at OVW's annual
government-to-government tribal consultations in 2013 and 2014.
As discussed above, OVW included regulatory implementation of
statutory changes to the STOP Program as a topic at its annual tribal
consultations in 2013 and 2014. At the 2013 consultation, tribal
leaders were asked for testimony on terms that should be defined in the
regulations, additional entities that states should consult with in
developing their implementation plans, how states should document the
participation of planning committee members, and how states should
consult with tribes, among other specific questions. The questions
presented at the 2014 consultation included how states might better
consult with tribes during STOP implementation planning, and how states
should include tribes in the equitable distribution of funds for
underserved populations and culturally specific services. At both
consultations, tribal leaders emphasized the importance of states
engaging in meaningful consultation with all tribes in their state.
Tribal leaders noted that such consultation should involve a
cooperative decision-making process designed to reach consensus before
a decision is made or action is taken, and that effective consultation
leads to an implementation plan that takes into account the needs of
tribes. Tribal leaders also pointed out that a state's failure to
consult with tribes can prevent tribes from accessing STOP funds or
even being aware that they are available. Finally, testimony at the
tribal consultations raised concerns about states asking tribal
shelters to volunteer to provide matching funds in order to receive
STOP subgrant funding.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not uniquely affect
small governments. Therefore, no actions were deemed necessary under
the provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in cost or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete in domestic and export markets.
List of Subjects in 28 CFR Part 90
Grant programs; Judicial administration.
For the reasons set forth in the preamble, the Office on Violence
Against Women amends 28 CFR part 90 as follows:
[[Page 85891]]
PART 90--VIOLENCE AGAINST WOMEN
0
1. The authority for part 90 is revised to read as follows:
Authority: 42 U.S.C. 3796gg et seq.; 42 U.S.C. 3796hh et seq.,
42 U.S.C. 13925
Subpart A--General Provisions
0
2. Section 90.1 is revised to read as follows:
Sec. 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.
0
3. Section 90.2 is revised to read as follows:
Sec. 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.
0
4. Section 90.4 is added to subpart A to read as follows:
Sec. 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
[[Page 85892]]
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.
0
5. Subpart B is revised to read as follows:
Subpart B--The STOP (Services * Training * Officers * Prosecutors)
Violence Against Women Formula Grant Program
Sec.
90.10 STOP (Services * Training * Officers * Prosecutors) Violence
Against Women Formula Grant Program--general.
90.11 State office.
90.12 Implementation plans.
90.13 Forensic medical examination payment requirement.
90.14 Judicial notification requirement.
90.15 Costs for criminal charges and protection orders.
90.16 Polygraph testing prohibition.
90.17 Subgranting of funds.
90.18 Matching funds.
90.19 Application content.
90.21 Evaluation.
90.22 Review of State applications.
90.23 Annual grantee and subgrantee reporting.
90.24 Activities that may compromise victim safety and recovery.
90.25 Reallocation of funds.
[[Page 85893]]
Sec. 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.''
Sec. 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 Sec. 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 Sec. 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.
Sec. 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.
[[Page 85894]]
(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
[[Page 85895]]
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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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;
[[Page 85896]]
(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.
Sec. 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.
Sec. 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 Sec. 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).
Sec. 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
[[Page 85897]]
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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Dated: November 17, 2016.
Bea Hanson,
Principal Deputy Director.
[FR Doc. 2016-28437 Filed 11-28-16; 8:45 am]
BILLING CODE 4410-FX-P
Office of the Federal Register, National Archives and Records Administration
Section
Rules and Regulations
Action
Final rule.
Dates
This rule is effective December 29, 2016.
Contact
Marnie Shiels, Office on Violence Against Women, 145 N Street NE., Suite 10W.100, Washington, DC 20530, by telephone (202) 307-6026 or by email at [email protected]