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:

Proposed rule.

SUMMARY:

This rule proposes to amend the regulations for the STOP (Services—Training—Officers—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 document would implement statutory requirements for nondisclosure of confidential or private information relating to all OVW grant programs.

DATES:

Written comments must be postmarked and electronic comments must be submitted on or before July 11, 2016. Comments received by mail will be considered timely if they are postmarked on or before that date. The electronic Federal Docket Management System (FDMS) will accept comments until Midnight Eastern Time at the end of that day.

ADDRESSES:

To ensure proper handling of comments, please reference “Docket No. OVW 120” on all electronic and written correspondence. The Department encourages the electronic submission of all comments through http://www.regulations.gov using the electronic comment form provided on that site. For easy reference, an electronic copy of this document is also available at the http://www.regulations.gov Web site. It is not necessary to submit paper comments that duplicate the electronic submission, as all comments submitted to http://www.regulations.gov will be posted for public review and are part of the official docket record. However, should you wish to submit written comments through regular or express mail, they should be sent to Marnie Shiels, Office on Violence Against Women, United States Department of Justice, 145 N Street NE., 10W.100, Washington, DC 20530.

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 marnie.shiels@usdoj.gov.

SUPPLEMENTARY INFORMATION:

Posting of Public Comments. Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying information (such as your name and address) voluntarily submitted by the commenter.

You are not required to submit personal identifying information in order to comment on this rule. If you want to submit personal identifying information (such as your name and address) as part of your comment, but do not want it posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You also must locate all personal identifying information that you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.

Personal identifying and confidential business information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. If you wish to inspect the agency's public docket file in person by appointment, please see the paragraph above entitled FOR FURTHER INFORMATION CONTACT.

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 proposes to amend 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 proposed 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 proposes to amend an existing regulatory provision, § 90.2, that sets forth certain definitions that apply to all OVW grant programs. Furthermore, the rule proposes to add a new regulatory provision, § 90.4, that would be 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

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 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.

A. The Violence Against Women Act

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 and 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.

B. Violence Against Women Act of 2000

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, 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.

C. Violence Against Women Act of 2005

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 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.

D. Violence Against Women Reauthorization Act of 2013

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.

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 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 award. 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.

E. Grants To Combat Violent Crimes Against Women

VAWA, as amended, 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. Part T authorizes four OVW-administered grant programs: the STOP Program, Grants to Indian Tribal Governments, the Grants to State Sexual Assault and Domestic Violence Coalitions Program (State Coalitions), and the Grants to Tribal Domestic Violence and Sexual Assault Coalitions Program (Tribal Coalitions).

The STOP Program grants are awarded to states to develop and strengthen the justice system's response to violence against women and to support and enhance services for victims. As described above, each subsequent VAWA reauthorization made numerous changes to this program, including adding purpose areas, imposing new or revised certification requirements, creating set-asides for sexual assault and culturally specific services, and making changes to the funding formula, funding allocations, and matching funds requirement.

III. Definitions and Confidentiality Requirements Applicable to All OVW Grant Programs

As discussed above, VAWA 2005 established universal definitions and grant conditions for OVW grant programs, and VAWA 2013 amended these provisions. This section describes how the proposed rule would implement these definitions, as well as a grant condition protecting the confidentiality and privacy of persons receiving victim services for the purpose of ensuring victim safety.

A. 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. This proposed rule would revise 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 proposed rule would remove 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 proposed rule would revise 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 proposed rule would change 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, which was updated in April 2013.

The proposed 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. In addition, the statutory definition for “prosecution” uses, but does not define, the term “public agency,” which the proposed rule would define using the definition for this term in the Omnibus Crime Control and Safe Streets Act. See 42 U.S.C. 3791.

The proposed rule would revise 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 would include 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 proposed rule also would add 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 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 proposed rule would provide 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.” Finally, the proposed rule would add a definition for “victim services division or component of an organization, agency, or government” because the proposed 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.

B. Confidentiality

VAWA 2005 added a provision on confidentiality and privacy of victim information as part of the new, universal grant conditions, and this provision was amended by VAWA 2013. See 42 U.S.C. 13925(b)(2). This 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 proposed § 90.4(b), would be applicable 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 proposing to answer these questions in this rule. OVW welcomes comments on the impact of these issues on victims as well as comments on the specific proposals enumerated in this draft rule. OVW specifically requests comments in the following three areas:

(1) OVW has received numerous questions regarding how the confidentiality provision applies when the grantee is an organization or governmental entity with multiple divisions or components, some of which do not provide victim services. For example, if the grantee is a college campus, the campus administration might seek identifying information about victims served by the campus victim services division, and the victim services division would need to know whether such a disclosure is permissible under the VAWA confidentiality provision absent victim consent. OVW has included language in proposed § 90.4(b)(2)(C) providing that, for a victim services division of such an organization or governmental entity to disclose information to non-victim services divisions, it would need a signed, informed, reasonably time-limited release from the victim. Proposed § 90.2(h) would define such a victim services division as a division within a larger organization, agency, or government, where the division has as its primary purpose to assist or advocate for victims of domestic violence, dating violence, sexual assault, or stalking. Proposed section 90.4(b)(2) also would require a release for the leadership of the larger organization, agency, or government (e.g., the executive director, mayor, tribal chair, etc.) to access identifying information. OVW welcomes comments on the impact of this proposal on grantees' and subgrantees' ability to protect victim confidentiality and ensure victim safety.

(2) OVW often receives questions about fatality reviews of domestic-violence-related homicides and release of information about deceased victims to individuals conducting such reviews. Fatality reviews examine the events leading up to domestic violence homicides to discover missed opportunities for intervention and points at which intervention was not effective so that communities can make systemic changes designed to improve identification, intervention, and prevention efforts in future cases. Fatality review teams usually are comprised of representatives from a wide variety of disciplines involved in responding to domestic violence incidents, including law enforcement, prosecution, judges, medical professionals, child protection workers, and community-based advocates. The proposed rule, at § 90.4(b)(4), would allow the sharing of information about deceased victims for the purpose of a fatality review, provided that (1) the objectives of the review are to prevent future deaths, enhance victim safety, and increase offender accountability, and (2) the review includes measures to protect information from release outside the fatality review team. This provision strikes a balance between recognizing the importance of such reviews and making sure that the reviews protect information about any surviving children, keeping in mind that the confidentiality provision and fatality reviews are both intended to enhance victim safety. OVW requests comments on the impact of this proposal on grantees' and subgrantees' ability to ensure the safety and privacy of victims and their families.

(3) OVW has received a number of questions about the propriety of placing victim-identifying data on third-party servers, such as those maintained by “cloud storage” companies. OVW is interested in receiving comments about whether and how such third-party servers can be used without compromising victim safety or violating the confidentiality provision at 42 U.S.C. 13925(b)(2) and whether this is an area where rulemaking would be desirable. In particular, the statutory prohibition on the disclosure of victim information applies to personally identifying or individual information collected in connection with grantees' and subgrantees' programs, regardless of whether the information has been encoded, encrypted, hashed, or otherwise protected. OVW welcomes comments on how this language would apply to information stored on third-party servers.

IV. Provisions of This Proposed Rule Relating to the Stop Program

A. Introduction

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. On January 21, 2004, section 90.3, regarding participation by faith based organizations, was added to the general provisions. After the enactment of VAWA 2013, OVW consulted with tribal governments about the implementation of statutory changes to the STOP Program as part of the Department of Justice's annual government-to-government violence against women tribal consultations held in October 2013 and October 2014. In addition, during November and December of 2013, OVW held a series of listening sessions with relevant constituencies to solicit input on the update to the STOP Program regulations. 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. Sessions were an hour each and were held by phone and web interface. Participants offered a diverse array of comments during the sessions. The following section summarizes the common themes of the comments and OVW's responses.

B. Listening Sessions and Tribal Consultations

State administrators for OVW's two state formula grant programs, the STOP and Sexual Assault Services Programs, requested that OVW be flexible in administering the program and reduce the amount of documentation required from state administrators. Because the STOP Program statute, as amended by the Violence Against Women Acts of 2000, 2005, and 2013, includes many requirements for the program (such as certifications, implementation planning, allocations, equitable distribution of funds, etc.), OVW must require a significant amount of documentation to ensure compliance with all the program's statutory mandates. Therefore, the proposed regulation does include some detailed documentation requirements, particularly in the area of statutorily-mandated consultation. OVW has attempted to minimize the burden of these documentation requirements by proposing to use checklists and permit states to submit summaries of significant concerns. OVW also has provided flexibility where possible. For example, proposed § 90.12(d) leaves it to the states to determine how they will achieve and document the equitable distribution of funds.

In contrast to the state administrators, state coalitions and victim service providers advocated strict documentation requirements for implementation planning consultation to ensure that coalitions and victim service providers are fully consulted, as required by statute. Some participants described instances where they were asked to support a state plan, but were not given an opportunity to provide true input into the planning process. To address these concerns, proposed § 90.12(b) outlines a robust planning process, with involvement from all of the statutorily required parties, including state coalitions and victim service providers. Proposed § 90.12(c) requires that states document their outreach to planning committee members and the extent to which such members cooperated in the development of the plan.

State coalitions also recommended adding survivors in the state planning process. In response, proposed § 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.

Victim service providers and groups representing underserved populations asked that organizations working with underserved populations be included in the state planning process and in the subgrantee pool. Proposed § 90.12(b)(2) requires each state to examine its demographics and include any significant culturally specific or underserved population in the planning process. If the state does not have any culturally specific or population specific organizations at the state or local level, the state can use national organizations to collaborate on the plan. Per the statute (42 U.S.C. 4796gg-1(e)(2)(D)), proposed § 90.12(e) requires states to include in their implementation plans information about 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. Participants in the listening sessions identified these specific populations as ones that particularly needed to be addressed by state implementation plans.

Tribal representatives and advocates from the tribal listening session and consultations strongly recommended that states meaningfully consult with all tribes in the state, including Alaska Native villages, during their planning process. Participants emphasized that tribal coalitions can assist state administrators in forging relationships with tribes, but do not speak for the tribes. Participants also emphasized that each tribe is a unique sovereign, and one tribe's input does not obviate the need for input from other tribes. Proposed § 90.12(b)(3) therefore provides that states must invite all state or federally recognized tribes to participate in the planning process. The statutory definition of “tribe” includes Alaska Native villages. Tribal coalitions and state or regional tribal consortia can help the state reach out to tribes but cannot be used as substitutes for consultation with all tribes.

The justice system participants recommended including probation and parole entities within the mandatory implementation planning participants. In response, proposed § 90.12(b)(5) provides that states should include probation and parole entities in their planning process.

VAWA 2013 included a new provision that permits states to reallocate grant funds from one statutory “allocation” category (i.e., prosecution, law enforcement, courts, and victims services) to another. Participants in all the sessions were asked what should be required before a state could reallocate funds to a different category. Many participants recommended that there should be documentation of the state's inability to award funds to entities within the assigned allocation category and that state-wide agencies, such as the administrative office of the courts, or state coalitions might be able to help both with publicizing the availability of funds and documenting the inability to award funds. For example, some participants noted that their state's administrative office of the courts will not accept the STOP funds allocated to courts. In proposed § 90.25, OVW tried to maintain a balance between ensuring that states make legitimate efforts to identify eligible subrecipients and permitting states to reallocate the funds when their efforts to adhere to the allocation categories are unsuccessful.

Participants were asked if there are any terms that should be defined in the regulations. Several commenters recommended including a definition of “prevention” to clarify the distinction between “prevention” and “outreach”. Proposed § 90.2(d) specifies that a “prevention program” is “a program that has a goal of stopping domestic violence, dating violence, sexual assault, or stalking from happening in the first place.”

Participants were also asked about the best way to ensure that states coordinate with health care providers to notify victims of the availability of sexual assault forensic medical examinations as required by 42 U.S.C. 3796gg-4. The consensus of commenters was that, because both the structure of health care and available resources for this coordination vary greatly by state, the regulations should be flexible. Tribal participants also recommended including Indian Health Services in this consultation. Proposed § 90.13(e) addresses these comments by allowing states to meet this coordination 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 are recommended to include local Indian Health Services facilities.

C. Proposed Changes to the STOP Program Regulations

In light of the statutory changes summarized above, the listening sessions with various constituencies and the tribal consultations, and OVW's experience in administering the STOP Program over the years, OVW is proposing to amend the existing STOP Program regulations in the following ways:

1. Reorganizing the Provisions of the Rule

This proposed rule would reorganize subpart B to promote a more logical flow of information, which better reflects the cycle of making and administering grants. To cite one example, the revised rule would describe the need for a state administering office, which is the starting point of a state's work under the STOP Program, at the beginning of subpart B rather than in the middle. In addition, proposed § 90.14 would implement the judicial notification requirement and proposed § 90.16 would implement the polygraph testing prohibition, which both were added by VAWA 2005. Proposed § 90.25 would implement a new provision from VAWA 2013, permitting states to reallocate STOP funds. Proposed § 90.24 would codify a long-standing OVW policy against funding activities that may compromise victim safety and recovery, based on the program's purpose to enhance victim safety and offender accountability. The following chart shows the changes from the current rule to this proposed rule.

2. Removing Duplicative Regulatory Language

OVW is proposing to remove much of the existing regulation to avoid duplication with the statute. Specifically, OVW is proposing to remove the following sections and paragraphs of the current regulation for this reason: § 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, the Violence Against Women Acts of 2000, 2005, and 2013 have amended and enhanced this program. Specific changes are as follows:

• Expanded purpose areas (incorporated by reference in proposed § 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 (proposed § 90.11(c))
• Changes in the implementation planning process, including an expanded list of entities that the state is required to consult with and additional information that needs to be included in a state's implementation plan (proposed § 90.12)
• Changes to the existing certification requirements and additions of new certification requirements (proposed § 90.13, forensic medical examination payment; proposed § 90.14, judicial notification; proposed § 90.15, costs for criminal charges and protection orders; and proposed § 90.16, polygraph testing prohibition)

The proposed rule also would remove 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 Proposed Regulatory Text

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

Proposed § 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.

§ 90.11 State Office

Proposed § 90.11 describes the role of the State office, which is to be designated by the chief executive of the state. As detailed in proposed § 90.11(a) and (b), the State office is responsible for submitting the application, including certifications, developing the implementation plan, and administering the funds. Paragraph (c) is intended to ensure that statutorily allocated funds are meaningfully targeted to the appropriate entities and activities.

§ 90.12 Implementation Plans

As discussed above, VAWA 2013 added new requirements to the state implementation planning process. Proposed § 90.12 implements these requirements. Subsection (a) is consistent with the current § 90.23(a) and follows 42 U.S.C. 3796gg-1(i), but adds language incorporating a long-standing OVW practice of allowing states to submit a full implementation plan every three years and then updates to the plan in the other two years.

Subsections (b) and (c) are new to the regulations, but incorporate provisions from 42 U.S.C. 3796gg-1(c)(2) and (i) regarding consultation and coordination. The statute 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 subsections attempt to strike a balance between sufficient documentation and the burdens on state administrators inherent in providing such documentation. The proposed rule therefore would require states to submit to OVW a checklist documenting the specific 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. In the past, when the statute required that states consult only victim service providers regarding the implementation plan, OVW heard from some state coalitions that they were being asked to document approval of an implementation plan without having any actual input into the plan. Proposed § 90.12(c) is intended to ensure meaningful collaboration with partners, while minimizing the administrative burden on states.

Based on recommendations from the tribal listening session, consultation with tribal governments must include all tribes in a state, not just a selection of tribes or organizations that work with tribes, such as tribal coalitions. In addition to the statutorily mandated planning partners, the proposed rule also encourages states to consult with probation and parole entities and survivors based on recommendations from the listening sessions.

Proposed subsection (d) implements 42 U.S.C. 3796gg-1(e)(2). This is similar to both the current § 90.16(b) and § 90.23(b). The language in current § 90.16(b) is proposed to be removed both because it is duplicative and to provide additional flexibility for states by reducing unnecessary specificity regarding how states will document compliance with this requirement.

Proposed subsection (e) implements 42 U.S.C. 3796gg-1(i)(2)(E) and includes some of the current § 90.16(b)(4). The subsection allows states the flexibility to identify underserved populations, while requiring documentation of why the specific populations were selected. The statute requires specific consideration of culturally specific populations. At the recommendation of the participants in the listening sessions, the proposed subsection also would require states to consider the needs of victims who are underserved because of sexual orientation or gender identity and victims with limited English proficiency.

Proposed paragraph (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. The proposed subsection requires states to provide 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.

Proposed subsection (g) outlines additional content that implementation plans must include, as follows:

(1) Current demographic information regarding a state's population

(2) A description 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 meet the needs of each category of victims (domestic violence, dating violence, sexual assault, and stalking) and how the state will hold offenders accountable

(4) A description of how the state will ensure that eligible entities are aware of funding opportunities

(5) Information on specific projects the state plans to fund

(6) An explanation of how the state coordinated the plan with other relevant state formula grant administering agencies as required by 42 U.S.C. 3796gg-1(c)(3)

(7) Information on the state's compliance with the Prison Rape Elimination Act (PREA, Pub. L. 108-79) and how the state plans to use program funds towards compliance, if applicable

(8) A description of how the state will identify and select applicants for subgrants

These required elements are designed to help OVW ensure that states follow statutory requirements for the program and to provide a better understanding of how the state plans to allocate its STOP Program funds. Proposed paragraph (7), regarding 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.

Proposed subsection (h) implements a change in VAWA 2013 that makes the implementation plans due at the time of application rather than 180 days after award.

§ 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. Proposed § 90.13(b) provides a definition of “full out-of-pocket costs.” Proposed subsection (c) is the same as current § 90.14(c), but text has been removed to reflect the fact that VAWA 2005 changed the statute to allow states to use STOP Formula grant funds to pay for forensic exams if certain requirements are met. Proposed subsection (d) would clarify 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. Proposed subsection (e) would implement 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.

§ 90.14 Judicial Notification Requirement

Proposed § 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.

§ 90.15 Costs for Criminal Charges and Protection Orders

Proposed § 90.15 would implement 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.

§ 90.16 Polygraph Testing Prohibition

Proposed § 90.16 would implement 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.

§ 90.17 Subgranting of Funds

Proposed § 90.17(a) describes the type of entities that can 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). This is currently addressed in § 90.13(a), but it has been separated out for clarity and expanded to reflect statutory changes to the STOP Program and the types of entities that, in practice, receive subgrants under this program.

Proposed § 90.17(b) would allow 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 proposed subsection codifies a long-standing OVW policy regarding state administrative costs.

§ 90.18 Matching Funds

Proposed § 90.18 would implement the match provisions of 42 U.S.C. 3796gg-1(f) and 13925(b)(1). This topic is currently addressed in § 90.17. 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).

Proposed subsection (a) states the match requirement in general and reflects that the match requirement does not apply to territories.

Proposed subsection (b) would allow for in-kind match, consistent with 2 CFR 200.306, and provide information on calculating the value of in-kind match.

Proposed subsection (c) would provide 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.

Proposed subsection (d) would 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 legitimate financial need. The proposed subsection would ensure that the needs identified by the state are 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.

Proposed subsection (e) would provide that matching funds must be used for the same purposes as the federal funds and must be tracked for accountability purposes. This is consistent with the current § 90.17(e).

§ 90.19 Application Content

Proposed § 90.19 would provide that states will apply for STOP Program funding using an annual solicitation issued by OVW. The proposed section differs from the current § 90.20 to reflect current practice and significant changes that VAWA 2013 made to the application process. Prior to fiscal year 2014 (the year that VAWA 2013 amendments to the STOP Program took effect), a STOP application included certain documentation and information, such as documentation from the prosecution, law enforcement, court, and victim service programs to be assisted, demonstrating the need for funds, the intended use of the funds, expected results, and demographic characteristics of the population to be served. The state then had 180 days from the date of award to complete and submit its implementation plan, which included more detail. VAWA 2013 streamlined this process by including most information and documentation in the implementation plan, but also requiring the plan to be submitted at the time of application.

§ 90.21 Evaluation

Proposed § 90.21 would encourage states to have plans for evaluating the impact and effectiveness of their programs and requires them to cooperate with federally-sponsored evaluations of their programs. This is generally consistent with current § 90.21.

§ 90.22 Review of State Applications

Proposed § 90.22 would provide the basis for review of state applications and implement the single point of contact requirement of Executive Order 12372 (Intergovernmental Review of Federal Programs). Current subsection (c) has been removed because OVW is no longer part of the Office of Justice Programs (OJP) and the section is no longer relevant.

§ 90.23 Annual Grantee and Subgrantee Reporting

Proposed § 90.23 describes the annual reporting requirement for the program. Subgrantees submit annual progress reports to the state, which then forwards them to OVW. States also 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. This is different from the current § 90.24 because OVW's grant reporting processes have changed, and OVW is no longer a component within OJP.

§ 90.24 Activities That May Compromise Victim Safety and Recovery

Proposed § 90.24 would provide that grant funds may not be used to support activities that compromise victim safety and recovery. This proposed section is based on the overall purpose of the Violence Against Women Act to enhance victim safety. Specific examples of such activities are included in the STOP Program solicitation each year. 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.

§ 90.25 Reallocation of Funds

Proposed § 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 proposed section defines an “eligible” application and provides the information that states must have on file to document a lack of sufficient eligible applications. The proposed section would ensure that states conduct sufficient outreach to the eligible category of subgrantees before reallocating the funds.

V. Request for Comments

OVW is soliciting comments on the proposed amendments to part 90 subparts A and B. OVW welcomes all comments, including comments on specific sections of the rule.

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, § 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 proposed rule simply clarifies the statutory requirements, such as providing definitions, that would not have any cost or might reduce costs by providing administrators with clear guidance.

OVW provides the following analysis of the most noteworthy costs, benefits, and alternative choices.

Subpart A. In general, most of this subsection 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 the proposed rule, the victim service component will need a victim release to share the information. 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 proposed 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, but concluded that the proposed rule could include protections that would meet the would meet the needs of the fatality reviews while protecting the privacy of surviving family members.

Subpart B. In general, proposed 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 which must identify how the state will use STOP funds and meet certain statutory requirements. OVW opted to require full plans only every three 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 Office on Violence Against Women, 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 proposed § 90.18, the direct economic impact is limited to the Office on Violence Against Women'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 246 active awards to 159 tribes, for a total of over $140 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 Formula 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 proposed § 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 proposed rule would require 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 proposes to amend 28 CFR part 90 as follows:

PART 90—VIOLENCE AGAINST WOMEN

1. The authority for part 90 is revised to read as follows:

Authority: 42 U.S.C. 3711 et seq.; 42 U.S.C. 13925.

Subpart A—General Provisions

2. Section 90.1 is revised to read as follows:

3. Section 90.2 is revised to read as follows:

4. Section 90.4 is added to read as follows:

5. Subpart B is revised to read as follows:

Subpart B—The STOP (Services—Training—Officers—Prosecutors) Violence Against Women Formula Grant Program