Victims of Crime Act Victim Assistance Program, 44515-44535 [2016-16085]

Agencies

• Department of Justice

[Federal Register Volume 81, Number 131 (Friday, July 8, 2016)]
[Rules and Regulations]
[Pages 44515-44535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16085]


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DEPARTMENT OF JUSTICE

28 CFR Part 94

[Docket No.: OJP (OVC) 1523]
RIN 1121-AA69


Victims of Crime Act Victim Assistance Program

AGENCY: Office for Victims of Crime, Justice.

ACTION: Final rule.

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SUMMARY: The Office for Victims of Crime (``OVC'') of the U.S. 
Department of Justice's Office of Justice Programs (``OJP''), publishes 
this final rule to implement the victim assistance formula grant 
program (``Victim Assistance Program'') authorized by the Victims of 
Crime Act of 1984 (``VOCA''). VOCA authorizes OVC to provide an annual 
grant from the Crime Victims Fund to each State and eligible territory 
for the financial support of services to crime victims by eligible 
crime victim assistance programs. The rule codifies and updates the 
existing VOCA Victim Assistance Program Guidelines (``Guidelines'') to 
reflect changes in OVC policy, needs of the crime victim services 
field, and VOCA itself.

DATES: Effective Date: This rule is effective August 8, 2016.
    Compliance Date: See 28 CFR 94.101(d), as added by this final rule.

FOR FURTHER INFORMATION CONTACT: Toni Thomas, Office for Victims of 
Crime, at (202) 307-5983.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of the Regulatory Action

    The Victims of Crime Act of 1984 (VOCA) authorizes the Office for 
Victims of Crime (OVC) to provide an annual formula grant from the 
Crime Victims Fund to each State and eligible territory for the purpose 
of providing assistance to victims of crime.\1\ These annual Victim 
Assistance Program formula grants are used by the States to provide 
financial support to eligible crime victim assistance programs. See 42 
U.S.C. 10603. OVC promulgates this rule pursuant to the rulemaking 
authority granted to the OVC Director by 42 U.S.C. 10604(a). This rule 
codifies and updates the existing Program Guidelines to reflect changes 
in OVC policy, the needs of the crime victim services field, and VOCA 
itself.
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    \1\ Pursuant to 42 U.S.C. 10603(d)(1), and as used in this 
preamble and rule unless context indicates otherwise, ``the term 
`State' includes the District of Columbia, the Commonwealth of 
Puerto Rico, the United States Virgin Islands, and any other 
territory or possession of the United States.''
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B. Summary of the Major Provisions of the Final Rule

    Most provisions in this final rule are substantively the same as 
the corresponding provisions of the Guidelines. The final rule 
reorganizes the program rules into six major divisions: (1) General 
Provisions; (2) State Administering Agency (``SAA'') Program 
Requirements; (3) SAA Use of Funds for Administration and Training; (4) 
Sub-Recipient Program Requirements; (5) Sub-Recipient Project 
Requirements; and (6) Sub-Recipient Allowable/Unallowable Costs.
    The rules in the General Provisions heading do not depart 
substantively from the Guidelines. OVC defines frequently-used terms, 
most of which are consistent with those in the Guidelines. OVC adds a 
new definition of the statutory term ``victim of child abuse'' to make 
clear OVC's existing flexible approach of allowing States to address a 
broad variety of harm to children. Additional technical changes were 
made in response to comments, and are described below.
    The SAA Program Requirements heading sets forth general 
considerations for SAA use of VOCA funding under the VOCA Assistance 
Program at the State level, and sets forth the rules SAAs must follow 
in meeting the statutory eligibility and certification requirements. 
OVC clarifies that pass-through funding is permissible, and sets 
parameters for such funding arrangements. OVC explains how States must 
allocate VOCA funding among various types of victim service programs, 
but does not change the allocation percentages set out in the 
Guidelines. OVC adds a requirement that States maintain a documented 
methodology for selecting all sub-recipients. Finally, OVC maintains 
the default monitoring requirements of the Guidelines, but now permits 
States to seek a waiver from the OVC Director to use alternatives.

[[Page 44516]]

    The revised State Administering Agency Use of Funds for 
Administration and Training heading updates the Guideline provisions 
regarding SAA use of funds for administration and training to make 
those consistent with statutory changes that occurred after the 
Guidelines were issued in 1997. The rule lists allowable administrative 
and training costs at the SAA level, all of which are consistent with 
those set out in the Guidelines.
    The Sub-Recipient Program Requirements heading sets out the 
eligibility and organizational requirements for sub-recipients. These 
provisions mostly track the Guidelines, except that OVC adds a 
provision addressing non-disclosure of confidential or private 
information.
    The Sub-Recipient Project Requirements heading sets out rules that 
VOCA-funded victim service projects must follow. These provisions 
generally are consistent with the Guidelines. OVC maintains the 
existing project match rules, requiring that sub-recipients provide a 
20% project match, but excepting U.S. territories (not including Puerto 
Rico). OVC adds an exception to match for projects undertaken by 
American Indian and Alaskan Native tribes, and projects that operate on 
tribal lands, as these projects, like those operating in U.S. 
territories, often have difficulties accessing matching resources.
    The Sub-Recipient Allowable/Unallowable Costs heading lists 
activities that sub-recipients may undertake using VOCA funding. The 
majority of the listed costs are the same as those listed in the 
existing Guidelines; but OVC makes some substantive changes. OVC now 
allows the States to provide a broader array of legal support services 
(outside of the emergency context permitted by the Guidelines) to 
victims, should States choose to do so. OVC removes the prohibition on 
providing services to incarcerated victims (e.g., victims of sexual 
assault in prison). Although VOCA funding may not support prison costs, 
such as prison guard salaries or administrative expenses, States are no 
longer prohibited from allowing VOCA-funded organizations to assist 
incarcerated victims. OVC also adds greater flexibility for States to 
support transitional housing and relocation expenses using VOCA funds. 
OVC adds greater flexibility for States to allow sub-recipients to use 
VOCA funds for coordination activities, which help leverage community 
resources to provide better and more cost-effective direct services. 
Finally, to better align the program rules with the government-wide 
grant rules at 2 CFR part 200, OVC makes allowable indirect 
organizational costs at the sub-recipient level, by removing the 
provision in the Guidelines that prohibited sub-recipients from 
charging these to VOCA funds.

C. Cost and Benefits

    As discussed in more detail under the Executive Orders 12866 and 
13563 (in the Regulatory Review discussion below), the rule clarifies 
and updates existing Guidelines, but does not alter the existing 
program structure. Updating the existing Guidelines to clearly and 
accurately reflect the statutory parameters will facilitate State 
compliance with VOCA, and thus avoid potentially costly non-compliance 
findings. The rule makes only a few substantive changes to the existing 
Guidelines, and most of the changes expand State flexibility in the use 
of VOCA funding. Some changes, like allowing more flexibility to 
coordinate and leverage community resources, and adopt alternative 
monitoring strategies, impose no costs but allow States to use existing 
funding more efficiently. Other changes, which allow States to allocate 
funding to services not presently allowable under the Guidelines, could 
expand the types of victim service organizations funded with VOCA funds 
and the services provided by existing organizations. Such allocations 
of funding, however, are not mandated under the rule, and each State 
will continue to make the final decision about whether to change its 
funding allocations. This is not a change from the present discretion 
that States have to allocate funding according to their priorities. OVC 
anticipates that most States will continue to allocate the majority of 
VOCA funding to victim services for certain types of crimes (i.e., 
intimate partner violence, sexual assault, child abuse) at consistent 
levels and that any potential reallocations would be relatively minor 
(even when taken in aggregate across States) in comparison to the 
overall range of allowable victim services, and thus unlikely to create 
new costs or significant fund transfers. In any event, the real 
benefits of additional allowable services for currently underserved and 
unserved victims are significant.

III. Background

A. Overview

    This rule implements OVC's Victim Assistance Program, a formula 
grant program authorized by Section 1404 of the Victims of Crime Act of 
1984, Public Law 98-473, codified at 42 U.S.C. 10603. This section of 
VOCA authorizes OVC to provide an annual grant from the Crime Victims 
Fund to each State for the financial support of services to victims of 
crime by eligible crime victim assistance programs. This rule 
supersedes the VOCA Guidelines (published at 62 FR 19607) that have 
been in effect since April 22, 1997, and reflects changes in OVC 
policy, the needs of the crime victim services' field, and VOCA itself, 
as well as the comments submitted in response to the Notice of Proposed 
Rulemaking.
    OVC's Victim Assistance Program is funded from the Crime Victims 
Fund. The Fund receives Federal criminal fines, penalties, and 
assessments, as well as certain gifts and bequests, but does not 
receive any general tax revenue. The Crime Victims Fund is administered 
by OVC and amounts that may be obligated therefrom are allocated each 
year according to the VOCA formula at 42 U.S.C. 10601. The amount 
annually available for obligation through the VOCA formula allocations 
typically has been set by statute, through limits in the annual DOJ 
appropriation act, at less than the total amount available in the Fund. 
The VOCA formula specifies that (in most years) the first $20M 
available in the Fund for that year will go toward child abuse 
prevention and treatment programs, with a certain amount to be set-
aside for programs to address child abuse in Indian Country. After 
that, such sums as may be necessary are available to the Federal Bureau 
of Investigation and the U.S. Attorneys Offices to improve services to 
victims of Federal crime, and to operate a victim notification system. 
The remaining balance is allocated as follows: 47.5% for OVC's Victim 
Compensation Program, 47.5% for OVC's Victim Assistance Program, and 5% 
for the OVC Director to distribute in discretionary awards in certain 
statutorily defined categories. Generally, under the distribution rules 
for the Victim Compensation Program, if a portion of the 47.5% 
available for Compensation is not needed for that purpose, it is (per 
the statutory formula) made available to augment the Victim Assistance 
Program. The Victim Assistance Program distributes funds to States as 
mandated by VOCA, at 42 U.S.C. 10603. The VOCA statutory distribution 
formula provides each State with a base amount (presently $500,000 for 
each State and the District of Columbia; $200,000 for each eligible 
territory), and distributes the remainder proportionately, based on 
population.

[[Page 44517]]

B. History of This Rulemaking

    OVC published the Final Program Guidelines, Victims of Crime Act, 
FY1997 Victim Assistance Program on April 22, 1997 (62 FR 19607). Those 
Guidelines were based on OVC experience with the Victim Assistance 
Program, legal opinions rendered since the inception of the program in 
1986, and comments from the field on the Proposed Program Guidelines, 
which were published in the Federal Register on February 18, 1997 (62 
FR 7256).
    On September 3, 2002, OVC published a notice of Proposed Program 
Guide at 67 FR 56444, seeking comments to refine the administration of 
the Victim Assistance Program further; thereafter, however, OVC chose 
not to issue final guidance to supersede the 1997 Guidelines. After 
receiving comments on the 2002 Proposed Program Guide, OVC instead 
decided to pursue the publication of codified program regulations 
rather than merely revise the guideline document. Throughout 2010, OVC 
sought preliminary input from the victim services field regarding 
improving victim services and potential modifications to the Victim 
Assistance Program rules that would facilitate such improvement.
    OVC incorporated this input into a Notice of Proposed Rulemaking, 
which it published at 78 FR 52877 (Aug. 27, 2013), and OVC received 108 
public comments over a 60 day period. OVC considered all comments 
submitted during the comment period in drafting this final rule.

IV. Discussion of Comments and Changes Made by This Rule

    The 1997 Guidelines have been outpaced by changes in VOCA, 
developments in the crime victim services field, technological 
advances, and new approaches to State administration of VOCA funding. 
This rule updates the program Guidelines to account for developments 
over the last decade and a half, and to reflect more accurately program 
parameters applicable to each participating entity. In so doing, OVC 
hopes to allow administering agencies and victim service providers 
fully to leverage the progress that the field has made over the last 
decade in knowledge of victim needs, victim service strategies, and 
efficient program administration, with the end goal of assisting crime 
victims more effectively. Many of the provisions in the existing 
Guidelines have been retained in substance, though the text has been 
reformatted in some cases. OVC describes below the main substantive 
changes to the program Guidelines, and the comments received.
Structure and General Comments
    The rule reorganizes the provisions of the Guidelines, primarily to 
accommodate the requirements for publication in the Code of Federal 
Regulations (CFR), but also to organize information more logically. The 
rule omits repetition of statutory language, except where needed for 
context and ease of use. OVC notes that the rule is drafted to be read 
in conjunction with VOCA (42 U.S.C. 10603). OVC also uses consistent 
terminology throughout the document.
    Some commenters expressed concern that the proposed rule conflated 
provisions applicable to VOCA-funded projects in some cases with 
provisions relating to a VOCA-eligible program, and several endorsed 
the National Association of Victim Assistance Administrators' (NAVAA) 
suggestions for reorganizing it. In the final rule, OVC more clearly 
distinguishes between the two concepts, and adopts most of the NAVAA's 
helpful suggestions for reorganizing the rule.
    In connection with reorganizing the provisions of the final rule 
for greater logical consistency and clarity, OVC has moved or 
renumbered many of the sections of the proposed rule. In order to 
assist readers, a derivation table is included listing the sections of 
the final rule and the corresponding section or sections of the 
proposed rule. The public comments on provisions of the proposed rule 
are discussed below according to where those provisions are codified in 
the final rule.

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                Final rule                              NPRM
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Sec.   94.101.............................  Sec.   94.101
Sec.   94.102.............................  Sec.   94.102
Sec.   94.103.............................  Sec.   94.103; Sec.
                                             94.112(i)-(j);
Sec.   94.103(f),(g)......................  NEW
Sec.   94.104.............................  Sec.   94.105; Sec.
                                             94.108(d)
Sec.   94.105(a),(b)......................  Sec.   94.106
Sec.   94.105(c)..........................  New
Sec.   94.106.............................  Sec.   94.107
Sec.   94.107(a)-(d)......................  Sec.   94.110
Sec.   94.107(e)..........................  Sec.   94.118(f)
Sec.   94.108(a),(b)(1)...................  Sec.   94.111(b),(c)
Sec.   94.108(b)(2).......................  Sec.   94.103(b)(3)
Sec.   94.109(a),(b)(1-11)................  Sec.   94.111(a); Sec.
                                             94.112
Sec.   94.109(b)(12)......................  New
Sec.   94.110.............................  Sec.   94.113
Sec.   94.111.............................  Sec.   94.104(a); Sec.
                                             94.106(c)
Sec.   94.112(a)..........................  Sec.   94.104(b); Sec.
                                             94.108(b)-(e)
Sec.   94.112(b)..........................  Sec.   94.104(c)-(e)
Sec.   94.112(c)..........................  Sec.   94.115(d)
Sec.   94.113.............................  Sec.   94.104(g); Sec.
                                             94.115(a)-(c)
Sec.   94.114.............................  Sec.   94.104(h)
Sec.   94.115.............................  NEW
Sec.   94.116.............................  Sec.   94.114
Sec.   94.117.............................  Sec.   94.115(e); Sec.
                                             94.109
Sec.   94.118.............................  Sec.   94.104(f); Sec.
                                             94.116
Sec.   94.119.............................  Sec.   94.117
Sec.   94.120(a)-(f)......................  Sec.   94.118
Sec.   94.120(g)..........................  New
Sec.   94.121.............................  Sec.   94.108(a); Sec.
                                             94.119
Sec.   94.122.............................  Sec.   94.120
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    Many commenters expressed their desire that the Crime Victims Fund 
``cap'' be raised substantially. As such a change requires legislative 
action, it is beyond the scope of OVC's authority to do so. However, we 
note that the Department of Justice Fiscal Years 2015 and 2016 
Appropriation Acts did substantially increase--more than threefold--the 
cap for those years. See Department of Justice Appropriation Act, 2015, 
Public Law 113-235, Div. B, Title II, Sec. 510 (setting the obligation 
cap at $2.361B compared to $745M available to OVC in FY 2014); 
Department of Justice Appropriation Act, 2016, Public Law 114-113, Div. 
B, Title II, Sec. 510 (setting the cap at $3.042B, of which 
approximately $2.663B is available to OVC).
General Provisions
Sec.  94.101 Purpose and Scope; Future Guidance; Construction and 
Severability; Compliance Date
    The general provisions of the final rule--including statement of 
purpose, future guidance, and construction and severability--are 
largely unchanged from the proposed rule. OVC added a paragraph 
describing the date on which SAAs must comply with the rule. The rule 
applies upon its effective date to all OVC grants made after that date, 
except for funding under such grants that was obligated before the 
effective date. Pre-award obligations are a standard practice of SAAs 
under the VOCA Assistance Program, as the annual appropriation cycle 
typically does not permit for awards to be made until late in the 
fiscal year. VOCA Assistance grants typically have an award period that 
extends retroactively to October 1st of the fiscal year of the award, 
thus there may be funds under grants made after the effective date that 
were obligated by the SAA prior to the effective date, and subsequently 
ratified by OVC's approval of the grant. The final rule does not apply 
retroactively, and thus it does not require that SAAs anticipate rules 
that are not in effect when making such obligations. However, OVC will 
permit SAAs to apply the provisions that expand SAA discretion in the 
use funds (e.g., the final rule permits SAAs to fund a greater range of 
transitional housing services

[[Page 44518]]

than the Guidelines permit) to VOCA assistance funding under OVC grants 
made before the effective date of the rule that is obligated on or 
after the effective date. As most of the changes in this rule are of a 
permissive nature and expand SAA discretion, OVC does not anticipate 
that implementation of the rule will be burdensome, though some effort 
by SAAs to understand the changes and communicate these to applicants 
for sub-awards will be necessary.
Sec.  94.102 Definitions
    The final rule contains several terms and definitions that are used 
throughout. These are set out in section 94.102 for ease of reference.
    The definition of crime victim and victim of crime remains 
unchanged from the Guidelines, and is meant to be a broad definition, 
taking into account many kinds of harm resulting from criminal acts. 
States are encouraged to include those domiciled in their states who 
are victimized while working in their official capacities overseas as 
VOCA eligible victims.
    Some commenters liked the proposed definition, but others wanted 
OVC to include more examples in the definition to illustrate coverage 
of a broader range of harms. OVC kept the more conceptual definition 
from the proposed rule, as it is substantively the same as the long-
standing Guideline definition and because--as one commenter pointed 
out--this definition has been sufficiently broad to encompass the harm 
from various crimes on a wide and diverse range of individuals.
    OVC has added a definition of the term spousal abuse that clarifies 
that the term includes domestic and intimate partner violence. Spousal 
abuse was the terminology used in the victim services field in the 
1980s, and consequently in VOCA, but the term has since fallen out of 
use, as it is under-inclusive of the range of relationships in which 
this type of victimization frequently occurs. OVC retains the term in 
the final rule because it is a statutory term, but clarifies that OVC 
understands it to encompass domestic and intimate partner violence. 
This is consistent with longstanding OVC practice and the Guidelines, 
which use the term ``domestic abuse'' when describing the priority 
category of ``spousal abuse.'' Several commenters supported the 
proposed definition, but asked that OVC include the more commonly-used 
term ``domestic violence'' in the definition. OVC agrees, and has done 
this. OVC has also removed ``dating violence,'' as this concept is 
encompassed already by the more general concept of ``intimate partner 
violence.'' Some commenters asked that OVC clarify how this definition 
(which affects the priority category of ``spousal abuse'') would affect 
LGBTQ survivors of domestic or intimate partner violence. OVC notes 
that States may serve (and count those services toward the priority 
category) all victims of domestic and intimate partner violence--
encompassing violence or abuse by one person against another in a 
domestic context or intimate-partner context--as the OVC definition 
does not require legal recognition of any particular relationship, nor 
does it implicate State or territorial laws concerning marriage rights.
    A commenter noted that OVC did not propose to define ``sub-
recipient'' or ``VOCA project,'' and asked that OVC define these terms 
so as to differentiate between a VOCA-funded project, and the 
organization that is eligible to receive VOCA funds to undertake the 
project. OVC agrees and adds these definitions, and has made conforming 
changes throughout the rule.
    The final rule adds a definition of the statutory term victim of 
child abuse, in order to clarify that the term covers a broad variety 
of harm to children. Child abuse victims are a statutorily-mandated 
priority category, and the clarification makes plain that VOCA-funded 
State victim assistance programs may support a broad variety of victim 
assistance projects that address the abuse of children.
    OVC received many comments on the proposed definition of child 
abuse. Many commenters supported the proposed definition. Other 
commenters supported the proposed definition, but recommended changes 
or expressed concerns about certain parts of it. One commenter worried 
that the inclusion of the concept of children exposed to violence may 
lead states to view a non-offending parent who cannot leave an abusive 
household as a co-offender. OVC notes that the definition of child 
abuse in this rule does not control (or affect) how a state views or 
treats potential offenders. Nonetheless, it is OVC's express intent 
that the definition should not be misconstrued to mean that failure to 
leave an abusive relationship, in the absence of other action 
constituting abuse or neglect, is itself abuse or neglect. A commenter 
asked that the definition encompass sex and labor trafficking, and 
several others asked OVC to include slurs and family rejection as 
examples of the emotional abuse of children encompassed by the 
definition. OVC notes that the definition of child abuse is 
sufficiently broad to encompass these harms without listing specific 
abusive activities, if States consider them to be child abuse. Some 
commenters worried that the inclusion of exposure to violence would 
dilute available resources, and confuse States operating victim 
assistance programs.
    OVC acknowledges resource limitations facing many States, but keeps 
the expanded definition in the final rule to allow States to prioritize 
within the category based on local capacity and needs. The Department's 
own Defending Childhood initiative demonstrated the importance of 
services for children exposed to violence, and the new definition will 
permit services addressing this. OVC, in response to several comments, 
has clarified in the definition that it encompasses harm to children, 
and is not meant to include adults who were victimized as children. 
This does not, however, preclude States from funding services to adults 
victimized as children; it merely means that States cannot count such 
services under the child-abuse priority category.
SAA Program Requirements
Sec.  94.103 Purpose of State-Level VOCA Funding; SAA Eligibility
    Section 94.103(a) sets forth the purpose of OVC's annual VOCA 
formula grants to the States. Several commenters asked that OVC re-
draft the language to make it less confusing. OVC agrees and has done 
so. Commenters also asked that OVC add a statement about State 
discretion in determining sub-award recipients and amounts. OVC agrees 
and has added a sentence accordingly.
    Section 94.103(b) sets forth the general rules for State 
eligibility certifications required by VOCA. OVC requires States to 
submit these certifications annually in their applications for funding. 
Reporting and technical requirements specific to a given fiscal year 
are set out in the annual program solicitation, or in supplemental OVC 
communications if time does not permit publication in the solicitation.
    Section 94.103(c) clarifies that a SAA may award its VOCA funds to 
another organization to distribute--known as pass-through 
administration--and highlights SAA obligations with regard to use of 
administrative and training funds, monitoring, and reporting should 
this method be used. Several commenters supported pass-through 
administration, but advocated that pass-through entities should have 
specific expertise and experience related to the use of the funding 
(e.g., a pass through entity administering funds for sexual assault 
services would have experience/expertise related to sexual violence).

[[Page 44519]]

OVC does not disagree with the commenters' views, but believes that 
States are in the best position to choose which entity should 
administer pass-through funding, and thus maintains the rule as 
proposed. A commenter asked for clarification regarding the proposed 
requirement that SAAs not use a pass-through mechanism to bypass the 
statutory limitation on use of administrative funds. OVC has rewritten 
this statement to be clearer.
    A commenter was concerned that the proposed rule eliminated 
language in the guidelines about things that States should consider in 
strategic planning and asked that OVC add it back to the final rule. 
OVC agrees that the language is desirable and has added a new paragraph 
(d) with this language. Finally, several commenters expressed concern 
that OVC did not highlight the need for States to consider 
sustainability of services in strategic planning. OVC agrees that 
sustainability is an important consideration, and has added this to 
paragraph (d).
    Section 94.103(g) sets forth that SAAs shall, upon request, and 
consistent with 2 CFR 200.336, permit OVC access to all records related 
to the use of VOCA funding. Access to SAAs' records is subject to the 
provision of the government-wide grant rules at 2 CFR 200.336, which 
permits access to the true names of crime victims only in extraordinary 
and rare circumstances, not for routine monitoring, and requires 
protection of sensitive information by all agencies involved if access 
is granted.
Sec.  94.104 Allocation of Subawards
    OVC moved the provisions of proposed section 94.104, Eligible crime 
victim assistance programs, to a new heading titled ``Sub-recipient 
Program Requirements,'' which includes sections 94.111 through 94.115 
of the final rule. Comments on the proposed section 94.104 are 
addressed below in the discussion of sections 94.111 through 94.114.
    In the final rule, section 94.104, Allocation of subawards (which 
was proposed as section 94.105), sets forth--pursuant to 42 U.S.C. 
10603(a)(2)(A) (priority category), and (B) (underserved category)--how 
SAAs must allocate their subawards. The allocation amounts in the final 
rule are the same as those in the Guidelines and proposed rule. Some 
commenters noted that victims of a priority category might also be 
underserved victims in some circumstances (e.g., child victims of sex 
trafficking might be underserved in a particular jurisdiction, however, 
sex trafficking of a minor would also be child sexual abuse), and that 
this causes confusion in reporting allocation amounts to OVC. Moreover, 
some victims with certain demographics (e.g., LGBTQ, American Indian/
Alaskan Native) may be underserved even in the priority categories 
(e.g., victims of sexual assault). In response, the final rule 
clarifies that SAAs may count funds allocated to such projects in 
either the priority or underserved category, but not both.
    Section 94.104(c) sets out the criteria by which SAAs must identify 
(for allocation of funds, reporting, and compliance purposes) services 
that assist previously underserved populations of victims of violent 
crime. SAAs must identify such a service for underserved victims of 
violent crime by the type of crime they experience (e.g., victims of 
elder abuse) or the characteristics of the victim (e.g., LGBTQ 
victims), or both (e.g., victims of violent crime in high crime urban 
areas). Underserved victims may differ between jurisdictions, but some 
examples of victim populations often underserved at the time of this 
rulemaking may include, but are not limited to, DUI/DWI victims; 
survivors of homicide victims; American Indian/Alaskan Native victims 
in certain jurisdictions with insufficient victim service resources; 
victims of physical assault; adults molested as children; victims of 
elder abuse; victims of hate and bias crimes; victims of kidnapping; 
child victims and adult survivors of child pornography; child victims 
of sex trafficking; victims of violent crime in high crime areas; LGBTQ 
victims; victims of federal crimes, victims of robbery; and victims of 
gang violence. OVC has removed from the final rule the examples of 
possibly underserved victim populations, as such a list may change over 
time and is more appropriately set out in the preamble and 
supplementary OVC guidance, as necessary.
    A commenter asked that OVC add economic crimes, such as identity 
theft, to the list of examples of underserved victims. OVC notes that, 
for the underserved victim category, VOCA requires funding be allocated 
to projects serving ``previously underserved populations of victims of 
violent crime'', and identity theft is not a violent crime. OVC, 
therefore, declines to make the change, but does note that States may 
still fund services for victims of such crimes, but cannot count those 
services toward meeting the required allocation for the underserved 
victim category.
    A commenter asked that OVC increase the percentage of funding 
required to be allocated to underserved populations. OVC has kept the 
mandated percentage at its present level, which balances the need for 
stability in state victim assistance funding with the need to ensure 
State victim assistance programs are responsive to emerging needs. The 
commenter also asked that OVC clarify that the exception allowing 
States to deviate from the underserved and priority percentages should 
be used sparingly. OVC notes that such requests are extremely rare (OVC 
has record of only one); thus, as a practical matter, an additional 
limitation of the exception is unnecessary. Other commenters asked OVC 
to require States to consult with sub-recipients prior to requesting 
approval to change allocations. As explained above, OVC anticipates 
such requests will be extremely rare, and declines to add such a 
requirement. The same commenter asked that OVC not tie exceptions for 
allocations for the sexual-assault priority category to overall crime 
rates, explaining that crime rates in a given time period are not 
necessarily reflective of victim service needs during the corresponding 
time period, as victims may not seek services immediately. OVC agrees, 
and the final rule allows other types of data to be used in supporting 
an exemption request.
    A commenter asked that OVC require States to consult with rape 
crisis centers and sexual assault coalitions about the needs of sexual 
violence victims. OVC agrees that such consultation may be useful, but 
declines to include such a requirement in the rule, as OVC prefers to 
allow States to consult with a wide variety of stakeholders as 
appropriate.
    Section 94.104(e) sets for the minimum requirements for SAAs sub-
award process. It requires that SAAs have a documented methodology for 
selecting sub-recipients, follow DOJ grant rules regarding conflicts of 
interest, and encourages SAAs to fund eligible sub-recipients through a 
competitive process, which is described.
    The proposed rule would have required competition of all sub-
awards. Some commenters liked the proposed competition requirement, but 
others were opposed to it. Several commenters noted that requiring 
competition could increase administrative costs for SAAs, and could 
destabilize small victim assistance programs that would no longer be 
able to rely on consistent funding. Commenters noted that this may 
decrease the availability of services in rural areas where there are 
not many providers. A commenter from a SAA explained that it uses a 
conduit funding process in which it distributes funds to local victim 
witness units based on a formula, and these units then sub-award

[[Page 44520]]

the funding to local non-profit victim service organizations in 
accordance with State and county procurement rules. The commenter 
expressed concern that a competition requirement may undermine this 
process. Other commenters expressed concern that the requirement might 
cause problems with State contract cycles, and could undermine some 
prosecutor-based victim-witness assistance programs. Commenters also 
questioned whether there is evidence that competition creates 
innovation.
    OVC appreciates the thoughtful comments submitted in response to 
this proposal, and recognizes the importance of allowing States 
discretion in determining which organizations receive funds and in what 
amounts. Due to the potential administrative burden of requiring 
competition (particularly in jurisdictions with a limited number of SAA 
staff), OVC has not included such a requirement, though OVC does 
encourage SAAs to use a competitive process where feasible.
    Many commenters expressed their opinion that VOCA funding should 
not be used as seed money for new organizations. OVC notes that any 
organization funded with VOCA Assistance funding--even through a 
competitive process--must meet the statutory program eligibility 
criteria, which requires either a record of effective victim services 
and financial support from non-VOCA funding, or substantial support 
from non-VOCA funding. One commenter asked that OVC require States to 
have a strategic state plan for allocating funding. The final rule 
encourages States to develop a funding strategy, and requires States to 
have a documented method of making funding decisions.
Sec.  94.105 Reporting Requirements
    OVC renumbered this section from 94.106 in the proposed rule to 
94.105 in the final rule. This section sets out SAA reporting 
requirements. The two key reports--subgrant award reports and 
performance reports--are the same reports required by the Guidelines, 
and the proposed rule. The rule does not specify time or manner in 
which these reports are to be submitted. The Government Performance and 
Results Modernization Act of 2010, Public Law 111-352 (Jan. 4, 2011), 
shifted many federal performance reporting requirements to a quarterly 
default, and OVC has changed the default performance reporting period 
in the rule accordingly. OVC will communicate the technical details of 
each year's reporting requirements to grantees via annual program 
solicitations and supplemental guidance.
    A commenter noted that multiple budget revisions may occur during 
the grant period, and that the proposed requirement that SAAs update 
the subgrant award report within 30 days of such revisions would be 
burdensome. The commenter requested that OVC retain its current 
practice of allowing SAAs to submit a revised subgrant award report 
before project closeout. In response, OVC notes that the subgrant award 
report contains only minimal budget information, and the importance of 
having accurate and timely information on subawards outweighs the 
minimal additional burden of updating this report within the specified 
timeframe. Recent upgrades to OVC's performance reporting systems 
should reduce the burden on SAAs as subrecipients now have the ability 
to enter SAR data directly. The final rule keeps the thirty-day 
reporting requirement.
    Another commenter suggested that OVC should require additional 
reporting, specifically on unmet needs of victims and the estimated 
costs of providing such services. OVC declines to add such a 
requirement to the rule. One commenter suggested that the final rule 
should allow flexibility for OVC to change the reporting period for the 
performance report; OVC agrees and has added this but keeps the Federal 
fiscal year as the default reporting period.
Sec.  94.106 Monitoring Requirements
    OVC renumbered this section from 94.107 in the proposed rule to 
94.106 in the final. This section sets out the SAA's obligation to 
monitor its sub-awards. Many commenters complained that the proposed 
two-year on-site monitoring timeframe would be too burdensome and would 
be difficult for large jurisdictions to implement, and may lead to 
unintended consequences, such as SAAs' making fewer awards but of 
larger dollar amounts. Commenters pointed out that many states use risk 
assessment tools to determine priority for on-site monitoring, and some 
requested that OVC make the default rule three years instead of two 
years. Another commenter asked that OVC clarify that SAAs may request 
alternative monitoring plans as well as alternative monitoring 
frequency.
    The final rule requires SAAs to develop and implement monitoring 
plans based on a default of regular desk monitoring, and biennial on-
site monitoring, of all sub-awards. OVC also adds a requirement that 
such monitoring plans contain a risk assessment plan. The rule, 
consistent with 2 CFR 200.331(b), (d) and (e), continues to permit SAAs 
to develop and implement alternative monitoring plans (e.g., quarterly 
reports and desk audits instead or in addition to site visits), and 
further clarifies that SAAs may also implement alternative monitoring 
timeframes as well. OVC believes that biennial on-site monitoring is a 
reasonable timeframe that balances resource demands with effective 
oversight, but SAAs may propose alternative plans. OVC recognizes that 
certain sub-recipients may have a long established history of 
appropriately administering a sub-award and may therefore require less 
intensive scrutiny than a relatively new sub-recipient or an 
established sub-recipient providing new services.
SAA Use of VOCA Funds for Administration and Training
Sec.  94.107 Administration and Training
    OVC renumbered this section from 94.110 in the proposed rule to 
94.107 in the final rule. This section is substantively unchanged from 
the proposed rule, except that OVC clarifies that SAAs must certify, 
pursuant to VOCA, at 42 U.S.C. 10604(h), in the notification of use of 
training/administrative funds, that they will not use VOCA funds to 
supplant State or local government funding. (The substantive rules 
regarding supplantation are set out in the next section, section 
94.108.)
    Overall, this section makes the program rules match the statutory 
provisions, which had changed after issuance of the Guidelines. VOCA 
limits administrative and training costs to five percent total for the 
combined costs of administration and training at the SAA level.
Sec.  94.108 Prohibited Supplantation of Funding for Administrative 
Costs
    OVC renumbered this section from 94.111 in the proposed rule, to 
94.108 in the final rule, and re-titled it to more accurately reflect 
what the section addresses. (Proposed section 94.108(a) is moved to 
section 94.121 in the final rule. Proposed section 94.108(b) through 
(e) is moved to section 94.112 in the final rule.) Section 94.108 sets 
out the rules for SAA use of VOCA funds for administrative costs and 
prohibits supplantation of State and local government funding with VOCA 
funding.
    One commenter asked whether the baseline is to be established and 
documented on a one-time basis or each year of the grant. OVC currently 
requires SAAs to document a baseline each fiscal

[[Page 44521]]

year, based on its expenditures for administrative costs during that 
fiscal year and the previous fiscal year. A commenter pointed out that 
OJP has a definition of supplanting in its Financial Guide that differs 
from that in the proposed rule, and suggested that OVC simply adopt the 
DOJ Grants Financial Guide definition of the term instead of setting 
forth a separate definition. OVC agrees and has revised this paragraph 
to reference the Financial Guide definition. OVC requires SAAs to 
certify that they are not supplanting State administrative support for 
the State crime victim assistance program with VOCA funding.
Sec.  94.109 Allowable Administrative Costs
    OVC renumbered this section from 94.112 in the proposed rule, to 
94.109 in the final rule. (Proposed section 94.109 is moved to section 
94.117 in the final rule.) Section 94.109 sets out allowable 
administrative costs.
    Several commenters asked OVC to add a category for ``activities 
that impact the delivery and quality of services to crime victims 
throughout the state,'' including training managers of victim service 
agencies, State-wide victim notification systems, and support for 
victims' rights compliance programs. OVC has added these activities. 
(OVC notes that direct service funding also may be used to support 
victim notification systems as well.) Direct service provider manager 
training is allowed, but categorized as a training expense under 
section 94.110. Several commenters expressed concern that allowing 
program evaluation would divert funding from direct services. OVC notes 
that the provision does not require evaluation, but merely allows it; 
furthermore, the total amount of funding for administrative costs is 
already capped by VOCA.
Sec.  94.110 Allowable Training Costs
    OVC renumbered this section from 94.113 in the proposed rule, to 
94.110 in the final rule. (Proposed section 94.110 is moved to section 
94.107 in the final rule.) This section sets out allowable uses of 
training funds.
    A commenter asked OVC to clarify that the allowable training costs 
are not limited by the two listed examples. In response, OVC edited the 
text to clearly state that such costs ``generally include, but are not 
limited to'' the two listed examples; these are merely examples and not 
limitations. Commenters also asked OVC to clarify that SAAs may use 
training funds to train managers and board members of victim service 
agencies, as is permitted under the current Guidelines. OVC has added 
this to the final rule. Several commenters asked OVC to raise the 
percentage limits on administrative and training costs; as these are 
statutory requirements, however, OVC has no authority to do so.
Sub-Recipient Program Requirements
    Sections 94.111 through 94.115 of the final rule set out the 
requirements that an entity must meet to be an ``eligible crime victim 
assistance program.'' (Sections 94.111 through 94.114 of the proposed 
rule are moved to section 94.108, 94.109, 94.110, and 94.116, 
respectively, of the final rule. Section 94.115(a) through (d) of the 
proposed rule is moved to section 94.112 of the final rule; and 
94.115(e) of the proposed rule is moved to section 94.117 of the final 
rule. The responses to comments addressing those provisions of the 
proposed rule are found in the discussions of the corresponding 
sections as set forth in the final rule.)
    Several commenters suggested that OVC reorganize the rule such that 
the requirements for eligibility as a sub-recipient entity versus the 
requirements for operating a sub-recipient project, are clearly 
delineated. OVC agrees, and has created a new heading ``Sub-Recipient 
Program Requirements'' and moved the requirements in the proposed rule 
section 94.104 Eligible crime victim assistance programs, to sections 
94.111 through 94.115 of the final rule, under this heading. OVC also 
moved proposed 94.108(b) through (e) to section 94.112 of the final 
rule. Thus, sections 94.111 through 94.115 of this rule consolidate the 
eligibility requirements for the sub-recipient organization (i.e., 
program).
Sec.  94.111 Eligible Crime Victim Assistance Programs
    VOCA establishes the criteria for an ``eligible crime victim 
assistance program,'' and the final rule merely provides clarifying 
interpretation needed for practical implementation. Section 94.111 of 
the final rule sets out the basic principle that the SAA may fund only 
eligible programs, and contains a provision requiring compliance with 
additional SAA criteria and reporting requirements. Several commenters 
asked that OVC strengthen language (in proposed section 94.115(d)) 
requiring sub-recipients to follow reporting requirements of the SAA. 
OVC has done so in section 94.111.
Sec.  94.112 Types of Eligible Organizations and Organizational 
Capacity
    This section sets out the general types of eligible entities, and 
special considerations for specific types of entities (moved from 
proposed section 94.108), as well as criteria for determining the 
organizational capacity of the entity's program.
    In section 94.112(a)(3) of the final rule, OVC modifies the 
proposed provision (proposed section 94.108(e)) on victim assistance 
organizations located in an adjacent state to eliminate unnecessarily 
bureaucratic requirements in the Guidelines, while keeping the 
requirement to provide notice to the SAA where the organization is 
located, and encouraging co-ordination on various award oversight 
matters. Several commenters asked for clarification of the rules for 
SAA programs operating direct services projects with VOCA funds 
(proposed section 94.108(d)). In response, OVC has modified section 
94.112(a)(4) of the final rule to clarify these points by eliminating 
confusing and redundant text that reiterated the statutory requirement 
that SAAs use no more than five percent of VOCA funds for 
administrative and training costs.
    With regard to determining the organizational capacity of a sub-
recipient, under section 94.112(b) of the final rule, the SAA 
determines what constitutes ``a record of effective services to victims 
of crime,'' and this may vary depending on the State, and community 
served, and the entity providing services. Though this provision is 
reworded slightly for clarity, OVC leaves unchanged in the final rule 
the non-exclusive list of considerations that SAAs may take into 
account when making this determination. The SAA should be able to 
articulate the basis for its determination, should OVC request it. SAAs 
may also consider additional factors, such as the type of victim the 
entity's services address, the type of services provided, best 
practices within that service field, and the characteristics of the 
entity (e.g. small, specialized service provider; larger, comprehensive 
service provider).
Sec.  94.113 Use of Volunteers, Community Efforts, Compensation 
Assistance
    Commenters urged OVC to make it clear that the mandated use-of-
volunteers provision, at section 94.115(a) of the proposed rule, 
applies as an eligibility requirement for sub-recipient organizations 
(programs), not as a requirement for individual projects. OVC agrees 
with the commenters that the use-of-volunteers provision applies to 
programs, not individual projects, and has thus placed the final rule 
provision addressing waiver of this

[[Page 44522]]

statutory requirement in section 94.113(a) of the final rule.
    Commenters asked that OVC clarify proposed section 94.115(c), to 
state that a sub-recipient may comply with the VOCA requirement to 
assist victims in applying for compensation by providing referrals. OVC 
agrees and has made this clarification in section 94.113(d) of the 
final rule.
    A commenter asked that OVC add additional requirements to the VOCA 
mandate that sub-recipients assist victims in applying for victim 
compensation by requiring that sub-recipients also assist victims in 
understanding their State and federal rights, how to assert those 
rights, and what to do if their rights are not considered or denied. 
OVC has not added such a mandate, as these are not eligibility criteria 
mandated by VOCA, but OVC does encourage all victim assistance 
organizations to assist victims in understanding their rights, or 
providing referrals to organizations that can do so, where appropriate. 
A commenter asked that OVC clarify that victim assistance programs 
should also assist victims of federal crime in applying for 
compensation. OVC agrees, and has added language accordingly.
Sec.  94.114 Prohibited Discrimination
    OVC received several comments on proposed section 94.104(h) (now 
section 94.114 of the final rule), which stated ``The VOCA non-
discrimination provisions specified at 42 U.S.C. 10604(e) shall be 
implemented in accordance with 28 CFR part 42, and guidance from the 
Office for Civil Rights within the Office of Justice Programs.'' 
Several commenters advocated that OVC add explicit regulatory language 
prohibiting discrimination based on sexual orientation and gender 
identity to the final rule and offered several reasons why such a 
provision would benefit victims. OVC acknowledges that people who 
identify as lesbian, gay, bisexual, transgender, or questioning/queer 
(``LGBTQ'') suffer disproportionately from violence and its effects, 
and often do not have access to informed services to help them recover 
in the aftermath of a crime. However, because OVC did not include in 
the proposed rule a definition that discrimination based on sex 
includes discrimination based on sexual orientation, and because OVC 
anticipates that the law will continue to evolve on this issue, OVC 
declines to include such language at this time. OVC will continue to 
monitor legal developments in this area. With respect to gender 
identity, the Department of Justice has concluded that statutory 
prohibitions on discrimination on the basis of sex encompass 
discrimination based on gender identity in other contexts. See, e.g., 
Memorandum from Eric H. Holder, Attorney General, Re: Treatment of 
Transgender Employment Discrimination Claims Under Title VII of the 
Civil Rights Act of 1964 (Dec. 15, 2014). OVC is aware of no reason why 
the statutory phrase ``on the ground of . . . sex'' in 42 U.S.C. 
10604(e) should receive a different construction.
Sec.  94.115 Non-Disclosure of Confidential or Private Information
    Several commenters noted that OVC had not included a provision 
regarding confidentiality in the proposed rule, and suggested that OVC 
add such a provision. The commenters noted that the 2013 
reauthorization of the Violence Against Women Act contained a 
provision, 42 U.S.C. 13935(b)(2), that many VOCA-funded organizations 
would have to comply with as a condition of their VAWA funding, and 
suggested that OVC model its provision on that. OVC agrees and has done 
this in section 94.115 of the final rule.
Sub-Recipient Project Requirements
 Sec.  94.116 Purpose of VOCA-Funded Projects.
    OVC renumbered section 94.114 of the proposed rule as section 
94.116 of the final rule, under the heading ``Sub-Recipient Project 
Requirements'' instead of ``Sub-Recipient Program Requirements.'' 
(Section 94.116 of the proposed rule is moved to section 94.118 of the 
final rule.) This section sets forth a brief statement of the purpose 
of VOCA sub-awards. The proposed provision was confusing, and OVC has 
attempted to draft the statement more clearly in the final rule.
    Additionally, the requirement in the Guidelines (sec. IV.B.11) that 
sub-recipients must provide services to victims of federal crimes on 
the same basis as to victims of crimes under State or local law is 
added to the final rule, as it was inadvertently omitted from the 
proposed rule but is a long-standing principle applicable to federal 
victim assistance funding. The final rule also sets forth OVC's policy 
clarification that victim eligibility for direct services under the 
VOCA Assistance Program is not dependent on the victim's immigration 
status. This principle derives from the nature of services provided by 
most VOCA-funded victim service providers in light of the Personal 
Responsibility Work Opportunity Reconciliation Act of 1996, and was 
communicated to all VOCA Assistance (and Compensation) SAAs in a June 
28, 2010, OVC Director Memorandum.
Sec.  94.117 Cost of Services; Sub-Recipient Program Income
    This section sets forth the rules for VOCA-funded projects that 
will charge for victim services. (Section 94.117 of the proposed rule 
is moved to section 94.119 of the final rule.) OVC has long held that 
VOCA-funded victim services should be free of charge for victims where 
possible, although it recognizes that in some situations a service 
provider may be justified in charging for services or otherwise 
generating program income.
    The provisions in section 94.117 of the final rule are adapted from 
sections 94.115(e) and 94.109 of the proposed rule. A commenter 
suggested that this section be moved to a new division setting out VOCA 
project requirements; OVC has done this. Commenters also suggested that 
OVC re-word the provision to be more direct. OVC has done this, as 
well. OVC also simplified the provision to state that program income 
must be used consistently with Federal grant rules and the DOJ Grants 
Financial Guide (available on the Office of Justice Programs' Web site, 
at www.ojp.gov), instead of reiterating those requirements here. This 
aligns the program income rules for this program with the recently 
issued government-wide grant rules, and this simplification will reduce 
the burden of compliance on SAAs and sub-recipients.
    A commenter requested that OVC add a requirement that sub-
recipients provide proof or certification of compliance with the 
program income requirements when seeking reimbursement from State 
compensation programs. OVC declines to add such a requirement to this 
rule, as this type of requirement is more appropriately created in the 
application requirements and collateral source verification procedures 
for victim compensation programs, or as an arrangement among State 
agencies.
Sec.  94.118 Project Match Requirements
    This section is renumbered from 94.116 in the proposed rule to 
94.118 in the final rule, and moved under the ``Sub-recipient Project 
Requirements'' heading, as commenters correctly pointed out that match 
is applicable to the VOCA project, not the program. (Section 94.118 of 
the proposed rule is moved to section 94.120 of the final rule.)
    Some commenters suggested eliminating match all together, while 
others suggested various different levels for match. OVC has kept a 
match

[[Page 44523]]

requirement, as it serves several purposes, including leveraging 
federal funding, indicating organizational capacity, and encouraging 
local investment and engagement in VOCA-funded projects.
    Some commenters recommended that OVC consider allowing match at the 
State level, rather than on a sub-recipient by sub-recipient basis, as 
this would bring VOCA grant rules into harmony with match requirements 
under other programs (e.g., those in Family Violence Prevention and 
Services Act and Violence Against Women Act). OVC has declined to make 
this change, as it would be a major departure from the Guidelines, and 
as match required on the project level ensures that sub-recipients have 
a stake in, and are invested and engaged in, the VOCA-funded project. 
OVC does note, however, that an SAA is authorized to contribute to 
match using non-federal funds for any (or all) sub-recipient projects, 
which authorization, as a practical matter, permits SAAs to provide 
match at the State level.
    A commenter asked that OVC modify the proposed requirement that 
match be used for the same uses and timing as the project's VOCA 
funding. OVC declines to do so, as this rule is long-standing and 
consistent with similar rules that apply to other OVC and federal 
awards. OVC does note, however, that non-cash contributions--for 
example, professional services--may be counted as match.
    Commenters also questioned why Native American and Alaskan Native 
sub-recipients and projects on tribal lands, as well as projects in 
U.S. territories and possessions (excluding Puerto Rico), are not 
required to provide match. Some commenters asked OVC to keep the 5% 
match for tribes, while other commenters asked that OVC keep the rule 
as proposed. OVC has found that these communities often lack victim 
services, have great victim service needs, and are more often likely to 
have difficulty meeting match requirements. Match serves the purpose of 
encouraging collaboration among service providers, and creating a local 
stake in project outcomes, but it also can present a barrier to 
applying for VOCA assistance funding in tribal and territorial 
communities that have relatively few victim service organizations, and 
have not traditionally been supported by resources available to 
organizations operating in states. Not requiring match as a default for 
such communities is designed to streamline application requirements in 
these areas where, in OVC's experience, the benefits of a match 
requirement are outweighed by its burdens. OVC agrees that other areas 
of the country may face similar circumstances, and, therefore, the 
final rule provides that OVC will consider exceptions to match upon SAA 
request, and sets forth generally how OVC will evaluate such requests.
Sub-Recipient Allowable/Unallowable Costs
Sec.  94.119 Allowable Direct Service Costs
    This section is renumbered from 94.117 in the proposed rule to 
94.119 in the final rule. (Section 94.119 of the proposed rule is moved 
to section 94.121 of the final rule.) This section sets forth allowable 
direct service costs for VOCA projects. Most of these allowable costs 
(and the parameters under which the direct services may be provided) 
are essentially the same as those in the existing Guidelines and in the 
proposed rule, but there are some differences, which are discussed 
below.
    General comments. Some general comments asked OVC to clarify that 
it is not encouraging States to significantly shift funding by allowing 
new activities. Nowhere in the proposed or this final rule does OVC 
state that it is encouraging States to significantly shift funding by 
allowing new activities. Rather, the changes to costs allowed under 
this program, described below, are important, but marginal, changes 
that should give States more flexibility when compared to the 
Guidelines to best serve victims in their communities, but does not 
require a significant reallocation of resources. Thus, no change is 
being made in section 94.119 of the final rule to address this comment.
    The commenter also asked that OVC clarify that all services 
provided by VOCA-funded projects are voluntary and should not be 
contingent upon the client participating in certain support services. 
OVC is unclear what support services the commenter refers to and so 
declines to make a change to the rule based on this comment but notes 
that there are existing rules in place (see 28 CFR part 42) prohibiting 
services being contingent upon participation in religious activity.
    Emergency medical/health care. A commenter expressed concern that 
proposed section 94.117(a)(1)(ix), which allowed for certain emergency 
costs for medical and health care, would have limited the amount of 
time that such services could be provided to 48 hours. OVC believes 
that the commenter misunderstood the proposed provision, which does not 
limit such costs, but merely requires that the service provider 
reasonably believe that an alternative source of payment will not be 
available within 48 hours. OVC has clarified, in final section 
94.119(a)(9), that service providers may pay these costs when other 
resources are not expected to be available in time to meet emergency 
victim needs.
    Facilitation of participation in criminal justice and other 
proceedings. A commenter suggested that OVC expand the proposed section 
94.117(a)(5) to allow service providers to facilitate victim 
participation in any public proceeding (e.g., juvenile justice 
hearings; probation, parole, pardon proceedings; grievance procedures, 
and sexual predator civil commitment proceedings), not merely criminal 
justice proceedings. OVC agrees that victims often have an interest in 
participating as a victim in various fora, and has modified the 
provisions of section 94.119(e) of the final rule accordingly, to allow 
the facilitation of such participation.
    Legal assistance. The final rule, section 94.119(a)(10), is 
substantively equivalent to the corresponding section of the proposed 
rule (which was substantively the same as the Guidelines) regarding use 
of VOCA funds for emergency legal assistance. In the proposed rule, 
section 94.117(a)(6) would have expanded allowable legal assistance for 
victims beyond the emergency context. OVC received many comments on 
this proposed paragraph, which is renumbered as section 94.119(f) in 
the final rule.
    Many of the comments opined that the proposed provision on 
allowable legal assistance was either too broad or too narrow in what 
it allowed. One commenter asked that OVC state expressly that legal 
services for divorce, child support, criminal defense, and tort 
lawsuits are not appropriate uses of VOCA funding. Other commenters 
asked that OVC clarify that criminal defense services may be 
appropriate where it is directly related to intimate partner violence.
    OVC has clarified the rule to state expressly which costs are 
unallowable--those for criminal defense and tort lawsuits. This 
clarification makes the program consistent with the OVW Legal 
Assistance for Victims program (many organizations receive both OVC and 
OVW funding), which also does not fund criminal defense or tort 
lawsuits, and also creates a bright-line rule that is more easily 
administered. OVC notes that some jurisdictions allow victims to file a 
motion to vacate and/or expunge certain convictions based on their 
status of being victims. OVC has clarified that such services are 
allowable with VOCA

[[Page 44524]]

funds. The OVW program does support legal assistance with victim-
related family law matters, and OVC has drafted the language of 
paragraph (f)(3) to be broad enough to include these and other non-tort 
legal services in a civil context that are reasonably necessary as a 
direct result of the victimization as allowable costs. Such non-tort, 
civil legal services include, but are not limited to, assistance in 
divorce, and child custody and support proceedings.
    Many commenters wanted OVC to expand its examples of allowable 
legal assistance costs in the proposed rule to include specific 
examples relevant to the organization commenting. On the other hand, 
some commenters expressed concern that some organizations may 
misinterpret the examples in the proposed rule as limits. OVC has 
carefully considered these comments and, in the final rule, has opted 
to move most of the examples into the preamble of the rule. OVC will 
issue supplementary guidance as may be needed to further clarify the 
applicability of the rule in specific factual scenarios.
    The following are examples (which are merely illustrative, and not 
meant to be a comprehensive listing) of some circumstances where civil 
legal services may be appropriate: Proceedings for protective/
restraining orders or campus administrative protection/stay-away 
orders; family, custody, contract, housing, and dependency matters, 
particularly for victims of intimate partner violence, child abuse, 
sexual assault, elder abuse, and human trafficking; immigration 
assistance for victims of human trafficking, sexual assault, and 
domestic violence; intervention with creditors, law enforcement (e.g., 
to obtain police reports), and other entities on behalf of victims of 
identity theft and financial fraud; intervention with administrative 
agencies, schools/colleges, tribal entities, and other circumstances 
where legal advice or intervention would assist in addressing the 
consequences of a person's victimization. OVC recognizes that the 
available resources in each State differ, and, therefore, States retain 
broad discretion to set limits on the type and scope of legal services 
that it allows its sub-recipients to provide with VOCA funding.
    Forensic medical evidence collection examinations. OVC received 
several generally supportive comments regarding proposed section 
94.117(a)(7), which allowed forensic medical evidence collection 
examinations to the extent that other funding sources are insufficient, 
the examination meets State standards, and appropriate crisis 
counseling and/or other victim services are offered in conjunction with 
the examination. The final rule, renumbered as section 94.119(g), is 
unchanged from the proposed rule, except that the final rule does not 
require examinations to meet State standards, but rather encourages 
sub-recipients to use specially trained examiners such as Sexual 
Assault Nurse Examiners to perform these exams. The final rule, 
similarly, encourages, rather than mandates, that crisis counseling or 
other services be offered in conjunction with the examination, in order 
to allow sub-recipients to provide such services as may be appropriate 
in any given situation.
    Forensic interviews. OVC received several comments on proposed 
section 94.117(a)(8), which allowed forensic interviews, and which is 
renumbered as section 94.119(h) in the final rule. Some commenters 
supported allowing VOCA funding for forensic interviews, while others 
expressed the opinion that VOCA funds should not fund investigative 
costs. Allowing States to support the costs of victim-centered forensic 
interviews, particularly those conducted in a multi-disciplinary 
setting, will help victims by reducing traumatization.
    The final rule does not include the provision in proposed section 
94.117(a)(8)(iv), which would have disallowed VOCA funding used to 
supplant other funding available for forensic interviews, including 
criminal justice funding. OVC believes that providing States additional 
flexibility to meet this important victim need (which, if unsupported, 
may lead to re-traumatization of the victim) outweighs potential 
concerns that victim service funding will supplant law enforcement 
funding for this activity.
    A commenter cautioned that forensic interviews should be conducted 
by child advocacy center forensic interviewers who have training and 
adhere to the National Child Advocacy Center guidelines. OVC believes 
this comment is well intentioned, but notes that not all victims 
needing specialized forensic interviews are children--for example, some 
victims are adults with disabilities. Moreover, the Federal Bureau of 
Investigation and some States use alternative standards. Therefore, OVC 
defers to SAAs to determine what organizations appropriately may 
provide this service.
    Services to incarcerated individuals. The existing Guidelines do 
not allow OVC Victim Assistance Program funds to be used for 
rehabilitative services or support services to incarcerated individuals 
(see Guidelines, section IV.E.3.b). OVC, in proposed section 94.120(b) 
would have modified the prohibition on perpetrator rehabilitation and 
counseling, to allow services to incarcerated victims in certain 
circumstances, and, in proposed section 94.117(a)(11), set out proposed 
rules describing such circumstances.
    In this final rule, OVC simply removes the prohibition on 
perpetrator rehabilitation and counseling, as the prohibition 
unnecessarily prevents States and communities from fully leveraging all 
available resources to provide services to these victims, who have been 
shown to have a great need for such services. States and VOCA-funded 
sub-recipients may set eligibility criteria for their victim service 
projects, and thereby determine, in accordance with VOCA and this rule, 
whether and how such victims might be served by VOCA-funded projects. 
Correspondingly, OVC does not include any provision under allowable 
costs addressing services to incarcerated victims, as the costs 
permitted for direct services to incarcerated victims are the same as 
those permitted for such services to any crime victim.
    OVC received a wide range of comments on this provision. Many were 
supportive of the removal of the prohibition on providing services to 
incarcerated victims. Some commenters wanted OVC to affirmatively 
encourage States to permit sub-grantees to use VOCA funding for such 
services. Some commenters expressed the sentiment that the prison 
system should be responsible for addressing victim services for 
incarcerated persons, in the same way that it provides medical care and 
other services. OVC agrees that the government agencies that oversee 
detention/correctional facilities have responsibilities for the care of 
victims within their custody, but believes that prohibiting VOCA-funded 
organizations from providing services to incarcerated victims deprives 
such victims of, and communities of, experienced victim service 
resources. Indeed, such organizations are often the only organizations 
able to provide such services in some communities.
    A commenter noted that the restriction causes agencies routinely to 
deny services to incarcerated victims but provides the exact same 
services for the exact same crime to those assaulted just outside the 
facility. OVC recognizes that victim service resources are finite, but 
believes that States are best positioned to make resource allocation 
decisions. Removing the prohibition on serving incarcerated victims 
will allow States to serve all victims better and more efficiently 
leverage the expertise of victim service organizations.

[[Page 44525]]

    Several commenters expressed concern that the proposed rule may 
trigger the Prison Rape Elimination Act (PREA) provision requiring a 
reduction or reallocation of federal funding available to a State for 
``prison purposes'' if the State fails to certify compliance with the 
Department's National Standards to Prevent, Detect, and Respond to 
Prison Rape. See 42 U.S.C. 15607(e); 28 CFR part 115. The commenters 
suggested various ways to re-draft the proposed rule to make it clear 
that VOCA funds are not available for ``prison purposes'' and mandated 
reduction or reallocation under PREA. Some commenters expressed support 
for the proposed rule, but only if the Department clarified that the 
change would not bring VOCA funding under the PREA penalty. In 
response, OVC notes that VOCA funds are not available for ``prison 
purposes,'' but rather, are--by statute--specifically allocated for 
victim services.
    The final rule, in response to these concerns, does not require 
that services to incarcerated victims must be provided, or how such 
services should be provided, but merely removes the express prohibition 
on such services that existed in the Guidelines. As noted in section 
94.103 of the final rule, SAAs have sole discretion to determine what 
organizations will receive funds, and in what amounts, subject to the 
minimum requirements of this final rule and VOCA. Nothing in VOCA, or 
this final rule, allows VOCA funding to be diverted to ``prison 
purposes;'' rather, VOCA funding is expressly limited by statute to 
victim services and associated activities. A letter issued to State 
governors by OVC and OVW on February 11, 2014, did not list any VOCA 
programs as being available for prison purposes. See https://www.prearesourcecenter.org/sites/default/files/content/feb_11_2014_prea_letter_with_certification_and_assurance_forms.pdf. 
VOCA funding, therefore, is not subject to mandated reduction or 
reallocation for non-compliance under PREA.
    Transitional housing. The final rule, at section 94.119(k), 
includes one noteworthy change from section 94.117(a)(12) of the 
proposed rule, in which OVC proposed to allow States more flexibility 
to allow VOCA-funded projects to support transitional housing. 
Specifically, the final rule provides examples of expenses typically 
associated with transitional housing to help illustrate allowable uses 
of this funding. OVC views transitional housing as a necessary victim 
expense for some victims. This is particularly true for victims of 
human trafficking, victims with disabilities abused by caretakers, 
domestic violence victims and their dependents, and sexual assault 
victims. Under the proposed rule, States may use VOCA funds for housing 
and shelter purposes to the extent that such is necessary as a 
consequence of the victimization and for the well-being of the victim.
    For example, shelters for victims of domestic violence or human 
trafficking would be allowable uses of VOCA funds. Similarly, it would 
be allowable in the case of sexual assault, where a victim needs to 
move. To the extent SAAs choose to permit VOCA funds to be used for 
transitional housing purposes, OVC anticipates that these agencies 
would focus on those victims with the most need.
    Some commenters liked the proposed rules on transitional housing 
and relocation, while others opposed them. A commenter noted that VOCA-
funded programs may not have the experience or resources to monitor 
housing programs. OVC recognizes that some SAAs will not have such 
experience, but the rule merely allows States to fund this activity; it 
does not require it. OVC expects that States will exercise their 
discretion to fund only projects that they believe will be able to 
undertake the allowed activities successfully.
    One commenter wanted OVC to clarify that state limits on types of 
victims eligible for transitional housing assistance must not violate 
VOCA non-discrimination provisions. OVC agrees that States may not 
violate the non-discrimination provision when prescribing limits on 
allowable costs for transitional housing. The commenter also requested 
that OVC define ``dependent child'' to include dependents of all LGBTQ 
survivors. OVC strongly agrees that dependents of LGBTQ victims should 
be eligible for such assistance to the same extent as dependents of 
non-LGBTQ victims, if such assistance is provided. The VOCA rule 
establishes the basic rules for State administration of VOCA funds, 
however, and prescribing detailed rules for eligibility for particular 
types of assistance projects, as the commenter suggests, is beyond the 
scope of the rule.
    A commenter suggested that OVC add language setting out factors 
that States should consider when setting limits on transitional housing 
expenses. OVC declines to include these in the rule, but notes that 
States may choose to consider the factors mentioned, which include the 
availability of affordable alternative and rental housing; other 
sources of support and housing for the victim, such as Section 8 
housing vouchers in the immediate locale of the victim; and waiting 
lists for Section 8 housing in the area.
    A commenter suggested that OVC use OVW's transitional housing 
program as a model. OVC is not setting detailed parameters for 
transitional housing costs in this rule. To the extent they find the 
OVW model is useful, the final rule allows States to follow that model.
    A commenter requested that OVC advise States to use their VOCA 
Compensation funds to meet transitional housing needs, before accessing 
VOCA Assistance funding for this purpose. OVC notes that it does not 
anticipate States using VOCA Assistance funding to create new programs 
for transitional housing, though this would be permissible. Instead, 
OVC anticipates that States may allow VOCA-funded service providers to 
expand the range of services offered to victims, and supported by the 
VOCA subaward, to include transitional housing. OVC further notes that 
each State Compensation program determines coverage of crimes and 
expenses for its jurisdiction. Therefore, some State Compensation 
programs may not cover transitional housing needs. OVC wishes to allow 
States the flexibility to access either VOCA Assistance or Compensation 
funding for transitional housing related needs, as would best serve 
victims and is permissible in their jurisdictions, and therefore 
declines to recommend that States access VOCA Compensation funds prior 
to accessing VOCA Assistance funds.
    Relocation expenses. The final rule, at 94.119(l), generally 
remains substantially unchanged from the proposed rule, 94.117(a)(13), 
although the language in this paragraph is reorganized from the 
proposed rule. The final rule removes the emphasis on particular 
victims (i.e., domestic violence victims, victims of sexual assault, 
and victims of human trafficking) who may be in need of relocation 
assistance. This language is removed so as not to limit inadvertently 
those victims who are eligible for relocation expenses.
    Additionally, the final rule omits the reference in the proposed 
rule to providing ``mortgage assistance'', due to the complicated 
nature of administering such assistance. Thus, under the final rule, 
while relocation expenses are allowable, mortgage expenses are not 
allowable.
Sec.  94.120 Allowable Costs for Activities Supporting Direct Services
    OVC renumbered this section from 94.118 in the proposed rule to 
94.120 in the final rule, setting forth allowable activities that 
support direct services.

[[Page 44526]]

(Section 94.120 of the proposed rule is moved to section 94.122 of the 
final rule.)
    One commenter asked (with regard to co-ordination activities, 
automated systems and technology, and volunteer trainings) whether 
these are allowable as stand-alone projects that may be funded by a 
State, or whether they must be part of a direct service project. OVC 
intends that these may be funded by a State in either manner. If they 
are funded as stand-alone activities, however, they should be 
activities that leverage resources for direct victim services (e.g., a 
stand-alone project to train volunteers may make more volunteers 
available to provide direct services).
    Coordination of activities. The final rule gives SAAs the latitude 
to allow sub-recipients to use VOCA funds for activities coordinating 
victim services. Many commenters supported this provision in the 
proposed rule. A few opposed, as they were concerned this would divert 
VOCA resources away from other activities. OVC notes that the final 
rule provides States with additional flexibility, but does not mandate 
that States reallocate any funding. Moreover, in the last decade it has 
become apparent that co-ordination and oversight activities are 
desirable and may in many cases improve the provision of direct victim 
services.
    A commenter requested that OVC add coalitions to support and assist 
victims to the list of allowable activities, and OVC has done this.
    Contracts for professional services. OVC proposed to allow sub-
recipients to contract for professional services not available within 
the sub-recipient organization (in contrast to the Guidelines, which 
does not allow this). OVC has maintained this section as proposed, in 
section 94.120(d) of the final rule, but made the examples more concise 
and conceptual to improve readability. Some commenters suggested that 
the rule needed to reflect better how contract service providers charge 
overhead costs, suggesting that the rule be made consistent with that 
for volunteered services; i.e., the contract rate must be a reasonable 
market rate for the services provided. OVC agrees and has done this.
    Automated systems and technology. The proposed rule at section 
94.118(e) would have allowed the use of funds for automated systems and 
technology that support delivery of direct services to victims, and 
provided examples of such systems and technology, and provided that 
procurement of personnel, hardware, and other items, were allowable if 
permitted by the SAA. The final rule, at section 94.120(e), reorganizes 
the proposed paragraph to fit with the revised structure of the overall 
section. It also adds a provision indicating that the allowability of 
such systems and technology is subject to the DOJ Financial Guide and 
government-wide grant rules, which provide detailed rules relating to 
the acquisition, use, and disposition of technology equipment and 
supplies. See 2 CFR part 200. Certain criteria for SAAs to consider 
when permitting sub-recipients to use funding for automated systems and 
technology were set out in the Guidelines, but were omitted from the 
proposed rule. These are added back into the final rule as factors that 
may be useful for SAAs to consider when determining whether to permit 
funding to be used for this purpose.
    Volunteer trainings. The proposed rule, at section 94.118(f) 
allowed the use of direct service funding in certain circumstances to 
train volunteer direct service providers, and OVC has kept this 
provision largely unchanged, at 94.120(6). The proposed rule focused on 
Court Appointed Special Advocate (CASA) volunteers, but commenters 
suggested that the final rule should be more general, so as not to 
limit such funding to the CASA context. OVC agrees and has made this 
edit. The use of direct service funds to support training and co-
ordination of volunteer services in such circumstances is appropriate, 
as it typically allows funded organizations to cost-effectively 
leverage the available funds and volunteer efforts to provide more 
direct services for victims.
    Restorative justice. The proposed rule inadvertently omitted 
reference to restorative justice efforts, which are permitted in the 
current Guidelines. OVC has added this back into this final rule at 
section 94.120(g). The final rule is substantially similar to the 
Guidelines, except that the paragraph is reorganized to fit 
stylistically within the final rule, and to provide examples of 
restorative justice efforts (e.g., tribal community-led meetings and 
peace-keeping activities). Also, where the Guidelines required such 
efforts to have ``possible'' beneficial or therapeutic value, the final 
rule requires that such efforts must have ``reasonably anticipated'' 
beneficial or therapeutic value. OVC believes that such a standard is 
better suited to meet victim needs.
    The final rule provides that a victim's opportunity to withdraw 
must be inherent in any restorative justice effort supported by program 
funds, whereas the Guidelines had merely included this as one of 
several criteria that SAAs should consider when deciding whether to 
fund such efforts. Lastly, the Guidelines included as another criteria 
the benefit or therapeutic value to the victim, while the final rule 
requires that SAAs also consider the costs in relation to the benefit 
or therapeutic value to the victim, as restorative justice efforts can 
be expensive and those costs may not be justified under certain 
circumstances.
Sec.  94.121 Allowable Sub-Recipient Administrative Costs
    Section 94.121 of the final rule sets out allowable sub-recipient 
administrative costs. These are substantively the same as those in the 
existing Guidelines, and as in proposed section 94.119.
    A commenter noted that there was a discrepancy in the proposed 
rule, in that training costs were allowed for non-VOCA-funded service 
providers, but travel costs to attend trainings were not allowed for 
such providers. OVC agrees that training and training-related travel 
for non-VOCA-funded service provider staff should be allowable, and has 
changed the final rule accordingly, at section 94.121(c). The commenter 
also asked that OVC include certain additional items (e.g., costs of 
Web sites, social media, mobile devices) in the examples of allowable 
administrative costs, and OVC has done this in section 94.121(f).
    Several commenters suggested that evaluation costs in section 
94.121(j) should be capped at a percentage of the grant. OVC believes 
that evaluation is an important part of improving victim services by 
developing data-driven improvements to programs and does not cap 
evaluation costs in the rule. OVC does note that the rule does not 
prevent SAAs from capping such costs (on a State-wide or project-by-
project basis, as appropriate), or limiting such costs to amounts that 
are reasonable given State goals and funding constraints.
Sec.  94.122 Expressly Unallowable Sub-Recipient Costs
    OVC has renumbered proposed 94.120 as section 94.122 of the final 
rule, setting forth expressly unallowable project costs. Most of these 
provisions are the same as those in the existing Guidelines, and the 
proposed rule, with the following exceptions:
    Perpetrator rehabilitation and counseling. The rule prohibiting use 
of VOCA funds for perpetrator rehabilitation and counseling has been 
removed to allow VOCA-funded service providers to provide victim 
assistance services to victims who are incarcerated. This is more fully 
discussed above in

[[Page 44527]]

the discussion of comments under section 94.115 of the final rule.
    Victim attendance at conferences. OVC has removed this odd 
provision from the list of unallowable costs, but expects that sub-
recipients will not use funds for this purpose.
    Purchasing vehicles. Some commenters favored allowing the purchase 
of vehicles with VOCA funds, but others opposed it. OVC agrees with 
comments that pointed out that in some jurisdictions purchasing a 
vehicle may be more cost effective than leasing a vehicle for victim 
service work and has removed purchasing vehicles from the list of 
unallowable costs. States now have the discretion to allow sub-
recipients to lease or purchase vehicles.
    Indirect organizational costs. The government-wide grant 
requirements in 2 CFR part 200, as implemented in December 2014 by the 
Department of Justice at 2 CFR part 2800 (79 FR 76081, Dec. 19, 2014), 
state a policy that federal awards should bear their fair share of 
costs, including reasonable, allocable, and allowable direct and 
indirect costs. This contrasts with the VOCA Guidelines, which prohibit 
indirect organizational costs. Given the policy in the recently issued 
government-wide requirements, OVC has removed the provision that 
prohibited sub-recipients from using VOCA funds for certain 
organizational costs. Removing the prohibition should simplify 
administration of VOCA sub-awards, by aligning the requirements for 
VOCA-funded projects, with the government-wide grant requirements and 
cost principles, which allow federal funding to support sub-recipient 
indirect costs (see 2 CFR 200.331 and 200.414).
    In the Guidelines, and the proposed rule at 94.120(f), liability 
insurance on buildings, and body guards (which OVC understands to mean 
security guards, as it is listed as a capital expense), were not 
allowable. OVC removes these from the list of unallowable costs in the 
final rule, as these costs may be allowable under the revised 
government-wide grant rules in 2 CFR part 200, if appropriately 
allocated to an award either directly or indirectly.

IV. Regulatory Certifications

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), the Office for Victims of Crime has reviewed this regulation 
and, by approving it, certifies that it will not have a significant 
economic impact on a substantial number of small entities. The OVC 
Victim Assistance Program distributes funding to States pursuant to the 
VOCA formula, a statutory provision, which is not affected by this 
regulation. The VOCA formula sets out the allocation of grant funds 
among States, and designates the States that will receive grant funds--
the regulation alters neither the allocation of Federal funding, nor 
the designation of which States will receive annual funding pursuant to 
that allocation. Moreover, VOCA affords substantial latitude to the 
States in determining where to allocate the formula funding within each 
jurisdiction. This rule, to the extent that it creates certain set 
asides and permissible areas of emphasis for State victim assistance 
programs, only applies to federally provided funding. As a rule 
governing a Federal grant program to States and major U.S. territories, 
the only economic impact on small entities is that of potential 
financial assistance, as the rule would not apply to any entity that 
was not a recipient of VOCA funding under this program. This 
regulation, therefore, will not have a significant economic impact on a 
substantial number of small entities.

Executive Orders 12866 and 13563--Regulatory Review

    This rule 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 Office of Justice Programs has determined that this rule is a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review, and accordingly this rule has 
been reviewed by the Office of Management and Budget.
    Executive Order 13563 directs agencies to propose or adopt a 
regulation only upon a reasoned determination that its benefits justify 
its costs; tailor the regulation to impose the least burden on society, 
consistent with obtaining the regulatory objectives; and, in choosing 
among alternative regulatory approaches, select those approaches that 
maximize net benefits. Executive Order 13563 recognizes that some 
benefits and costs are difficult to quantify and provides that, where 
appropriate and permitted by law, agencies may consider and discuss 
qualitative values that are difficult or impossible to quantify, 
including equity, human dignity, fairness, and distributive impacts.
    The rule merely clarifies and updates the existing Guidelines, but 
does not alter the existing program structure at all. Updating the 
existing Guidelines to clearly and accurately reflect the statutory 
parameters will facilitate State compliance with VOCA requirements, and 
thus avoid potentially costly non-compliance findings. The rule makes 
some substantive changes to the existing Guidelines, but most of these 
would be of a permissive, not restrictive or mandatory, nature. Some 
changes, like allowing more flexibility to co-ordinate and leverage 
community resources, and adopt alternative monitoring strategies, would 
impose no costs but will potentially allow States to use existing 
funding more efficiently. Other changes that allow States to allocate 
funding to services not presently allowable could change the allocation 
of VOCA funding among victim services provided by sub-recipient 
organizations, and among victim service organizations. Such 
reallocations of funding, however, are not mandated and each State 
would make the ultimate decision with regard to whether to change its 
current funding allocations, if it chooses to do so at all. This is not 
a change from the present discretion that States have to allocate 
funding according to State priorities. Any potential reallocations 
would be relatively minor (even when taken in aggregate across States) 
in comparison to the overall mix of allowable victim services, and thus 
they are unlikely to create new costs or significant fund transfers. In 
any event, the benefits of additional services for underserved and un-
served victims are significant.
    The provision allowing alternative risk-based monitoring procedures 
imposes no new costs on States that choose to retain their existing 
procedures, but will allow States that wish to implement more cost 
effective alternatives to do so.
    The elimination of match for American Indian and Alaskan Native 
tribes and projects on tribal lands will permit victim service 
organizations in these communities, many of which do not have the 
resources to provide matching funds, the ability to more easily seek 
VOCA funding for victim services. This will benefit victims in these 
communities, many of whom are underserved. This change is unlikely to 
impose new costs on States, as there is no requirement that the 
administering agencies fund American Indian or Alaskan Native tribes or 
organizations at a particular level, and the amount of funding 
allocated to these organizations historically is a very small 
percentage of overall VOCA funding.
    All of the changes to the provisions governing allowable and 
unallowable costs are in the nature of granting States

[[Page 44528]]

additional flexibility to fund certain activities. None of the changes 
would require States to expend additional funding in any area, or 
change funding allocations. Moreover, the changes, while important, are 
relatively minor when compared to the entire scope of costs allowable 
with VOCA funding. Consequently, to the extent that States choose to 
fund the newly allowable victim services (e.g., increased time allowed 
in transitional housing), the reallocation of funding will not result 
in a significant reallocation of overall funding, given the small 
number of newly allowable services when compared to the overall mix of 
allowable victim services. In addition, it is not certain which States 
will permit what additional services if given the flexibility to do so, 
and to what extent, as these decisions typically are often made through 
State legislative or administrative processes and address 
considerations unique to each State. The important benefit of such 
potential minor reallocations of resources, whether within 
organizations that presently receive VOCA funding and will provide 
augmented services, or (in the less common case) to new organizations, 
would be that previously underserved or un-served victims would receive 
needed assistance.

Executive Order 13132--Federalism

    This rule 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, as the rule only affects the eligibility for, and use 
of, federal funding under this program. The rule will not impose 
substantial direct compliance costs on State and local governments, or 
preempt any State laws. Therefore, in accordance with Executive Order 
No. 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
& (b)(2) of Executive Order No. 12988. Pursuant to section 3(b)(1)(I) 
of the Executive Order, nothing in this or any previous rule (or in any 
administrative policy, directive, ruling, notice, guideline, guidance, 
or writing) directly relating to the Program that is the subject of 
this rule is intended to create any legal or procedural rights 
enforceable against the United States, except as the same may be 
contained within subpart B of part 94 of title 28 of the Code of 
Federal Regulations.

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 significantly or 
uniquely affect small governments. The VOCA Victim Assistance Program 
is a formula grant program that provides funds to States to provide 
financial support to eligible crime victim assistance programs. 
Therefore, no actions are 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 costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign- based companies in domestic and export markets.

Paperwork Reduction Act

    This rule does not propose any new, or changes to existing, 
``collection[s] of information'' as defined by the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501, et seq.) and its implementing regulations 
at 5 CFR part 1320.
    OVC sets forth a requirement, in section 94.105 of the final rule 
that SAAs update their subgrant award report information within 30 days 
of a change in such information. This requirement does not change the 
overall burden of the subgrant award report, which is estimated to take 
approximately three minutes to complete. It merely provides a 
reasonable timeframe for updating information that changes during a 
grant period. As the report contains only high level summary data, not 
detailed budget data, OVC estimates that the burden of requiring 
updates of this report throughout the grant period will be minimal.

List of Subjects in 28 CFR Part 94

    Administrative practice and procedure, Formula grant program, 
Victim assistance.

    Accordingly, for the reasons set forth in the preamble, Title 28, 
part 94, of the Code of Federal Regulations is amended as follows:

PART 94--CRIME VICTIM SERVICES

0
1. The authority citation for part 94 is revised to read as follows:


    Authority:  42 U.S.C. 10603, 10603c, 10604(a), 10605.

0
2. Add subpart B to read as follows:
Subpart B--VOCA Victim Assistance Program

General Provisions

Sec.
94.101 Purpose and scope; future guidance; construction and 
severability; compliance date.
94.102 Definitions.

SAA Program Requirements

94.103 General.
94.104 Allocation of sub-awards.
94.105 Reporting requirements.
94.106 Monitoring requirements.

SAA Use of Funds for Administration and Training

94.107 Administration and training.
94.108 Prohibited supplantation of funding for administrative costs.
94.109 Allowable administrative costs.
94.110 Allowable training costs.

Sub-Recipient Program Requirements

94.111 Eligible crime victim assistance programs.
94.112 Types of eligible organizations and organizational capacity.
94.113 Use of volunteers, community efforts, compensation 
assistance.
94.114 Prohibited discrimination.
94.115 Non-disclosure of confidential or private information.

Sub-Recipient Project Requirements

94.116 Purpose of VOCA projects.
94.117 Costs of services; sub-recipient program income.
94.118 Project match requirements.

Sub-Recipient Allowable/Unallowable Costs

94.119 Allowable direct service costs.
94.120 Allowable costs for activities supporting direct services.
94.121 Allowable sub-recipient administrative costs.
94.122 Expressly unallowable sub-recipient costs.

Subpart B--VOCA Victim Assistance Program

General Provisions


Sec.  94.101  Purpose and scope; future guidance; construction and 
severability; compliance date.

    (a) Purpose and scope. This subpart implements the provisions of 
VOCA, at 42 U.S.C. 10603, which, as of July 8, 2016, authorize the 
Director to make an annual grant to the chief executive of each State 
for the financial support of

[[Page 44529]]

eligible crime victim assistance programs. VOCA sets out the statutory 
requirements governing these grants, and this subpart should be read in 
conjunction with it. Grants under this program also are subject to the 
government-wide grant rules in 2 CFR part 200, as implemented by the 
Department of Justice at 2 CFR part 2800, and the DOJ Grants Financial 
Guide.
    (b) Future guidance. The Director may, pursuant to 42 U.S.C. 
10604(a), prescribe guidance for grant recipients and sub-recipients 
under this program on the application of this subpart.
    (c) Construction and severability. Any provision of this subpart 
held to be invalid or unenforceable by its terms, or as applied to any 
person or circumstance, shall be construed so as to give it the maximum 
effect permitted by law, unless such holding shall be one of utter 
invalidity or unenforceability, in which event such provision shall be 
deemed severable from this part and shall not affect the remainder 
thereof or the application of such provision to other persons not 
similarly situated or to other, dissimilar circumstances.
    (d) Compliance date. This subpart applies to all grants under this 
program made by OVC after August 8, 2016, except for funds that the SAA 
obligated before August 8, 2016 (i.e. pre-award funds under grants made 
in 2016). SAAs may permit the use of funds that are unobligated as of 
August 8, 2016 for activities permitted by this subpart, but not by the 
Guidelines.


Sec.  94.102  Definitions.

    As used in this subpart:
    Crime victim or victim of crime means a person who has suffered 
physical, sexual, financial, or emotional harm as a result of the 
commission of a crime.
    Director means the Director of OVC.
    Direct services or services to victims of crime means those 
services described in 42 U.S.C. 10603(d)(2), and efforts that--
    (1) Respond to the emotional, psychological, or physical needs of 
crime victims;
    (2) Assist victims to stabilize their lives after victimization;
    (3) Assist victims to understand and participate in the criminal 
justice system; or
    (4) Restore a measure of security and safety for the victim.
    OVC means the Office for Victims of Crime, within the United States 
Department of Justice's Office of Justice Programs.
    Project means the direct services project funded by a grant under 
this program, unless context indicates otherwise.
    Spousal abuse includes domestic and intimate partner violence.
    State Administering Agency or SAA is the governmental unit 
designated by the chief executive of a State to administer grant funds 
under this program.
    Sub-recipient means an entity that is eligible to receive grant 
funds under this program from a State under this subpart.
    Victim of child abuse means a victim of crime, where such crime 
involved an act or omission considered to be child abuse under the law 
of the relevant SAA jurisdiction. In addition, for purposes of this 
program, victims of child abuse may include, but are not limited to, 
child victims of: Physical, sexual, or emotional abuse; child 
pornography-related offenses; neglect; commercial sexual exploitation; 
bullying; and/or exposure to violence.
    Victim of federal crime means a victim of an offense in violation 
of a federal criminal statute or regulation, including, but not limited 
to, offenses that occur in an area where the federal government has 
jurisdiction, whether in the United States or abroad, such as Indian 
reservations, national parks, federal buildings, and military 
installations.
    VOCA means the Victims of Crime Act of 1984, Public Law 98-473 
(Oct. 12, 1984), as amended.
    VOCA funds or VOCA funding means grant funds (or grant funding) 
under this program.
    VOCA grant means the annual grant from OVC to a State under this 
program.

SAA Program Requirements


Sec.  94.103  General.

    (a) Direct services. SAAs may use VOCA funds to provide direct 
services through sub-recipients or in their own projects, and to cover 
administrative and training costs of the SAA. SAAs have sole discretion 
to determine which organizations will receive funds, and in what 
amounts, subject to the minimum requirements set forth in VOCA and this 
subpart. SAAs must ensure that projects provide services to victims of 
federal crimes on the same basis as to victims of crimes under State or 
local law. SAAs may fund direct services regardless of a victim's 
participation in the criminal justice process. Victim eligibility under 
this program for direct services is not dependent on the victim's 
immigration status.
    (b) SAA eligibility certification. Each SAA must certify that it 
will meet the criteria set forth in VOCA, at 42 U.S.C. 10603(a)(2), and 
in this subpart . This certification shall be submitted by the chief 
executive of the State (or a designee) annually in such form and manner 
as OVC specifies from time to time. As of July 8, 2016, VOCA requires 
the chief executive to certify that--
    (1) Priority will be given to programs providing assistance to 
victims of sexual assault, spousal abuse, or child abuse;
    (2) Funds will be made available to programs serving underserved 
victims;
    (3) VOCA funds awarded to the State, and by the State to eligible 
crime victim assistance programs, will not be used to supplant State 
and local government funds otherwise available for crime victim 
assistance.
    (c) Pass-through administration. SAAs have broad latitude in 
structuring their administration of VOCA funding. VOCA funding may be 
administered by the SAA itself, or by other means, including the use of 
pass-through entities (such as coalitions of victim service providers) 
to make determinations regarding award distribution and to administer 
funding. SAAs that opt to use a pass-through entity shall ensure that 
the total sum of VOCA funding for administrative and training costs for 
the SAA and pass-through entity is within the VOCA limit, the reporting 
of activities at the direct-service level is equivalent to what would 
be provided if the SAA were directly overseeing sub-awards, and an 
effective system of monitoring sub-awards is used. SAAs shall report on 
the pass-through entity in such form and manner as OVC may specify from 
time to time.
    (d) Strategic planning. SAAs are encouraged to develop a funding 
strategy, which should consider the following: The range of direct 
services throughout the State and within communities; the 
sustainability of such services; the unmet needs of crime victims; the 
demographic profile of crime victims; the coordinated, cooperative 
response of community organizations in organizing direct services; the 
availability of direct services throughout the criminal justice 
process, as well as to victims who are not participating in criminal 
justice proceedings; and the extent to which other sources of funding 
are available for direct services.
    (e) Coordination. SAAs are encouraged to coordinate their 
activities with their jurisdiction's VOCA compensation programs, STOP 
Violence Against Women Formula Grant Program administrator, victim 
assistance coalitions, federal agencies, and other relevant 
organizations.
    (f) Compliance with other rules and requirements. SAAs shall comply 
(and ensure sub-recipient compliance) with all applicable provisions of 
VOCA, this subpart, and any guidance issued by

[[Page 44530]]

OVC, as well as all applicable provisions of the DOJ Grants Financial 
Guide and government-wide grant rules.
    (g) Access to records. SAAs shall, upon request, and consistent 
with 2 CFR 200.336, permit OVC access to all records related to the use 
of VOCA funding.


Sec.  94.104  Allocation of sub-awards.

    (a) Directed allocation of forty percent overall. Except as 
provided in paragraph (d) of this section, each SAA shall allocate each 
year's VOCA grant as specified below in paragraphs (b) and (c) of this 
section. Where victims of priority category crimes are determined to be 
underserved as well, an SAA may count funds allocated to projects 
serving such victims in either the priority category or the underserved 
category, but not both.
    (b) Priority categories of crime victims (thirty percent total). 
SAAs shall allocate a minimum of ten percent of each year's VOCA grant 
to each of the three priority categories of victims specified in the 
certification requirement in VOCA, at 42 U.S.C. 10603(a)(2)(A), which, 
as of July 8, 2016, includes victims of--
    (1) Sexual assault,
    (2) Spousal abuse and
    (3) Child abuse.
    (c) Previously underserved category (ten percent total). SAAs shall 
allocate a minimum of ten percent of each year's VOCA grant to 
underserved victims of violent crime, as specified in VOCA, at 42 
U.S.C. 10603(a)(2)(B). To meet this requirement, SAAs shall identify 
which type of crime victim a service project assists by the type of 
crime they have experienced or the demographic characteristics of the 
crime victim, or both.
    (d) Exceptions to required allocations. The Director may approve an 
allocation different from that specified in paragraphs (b) and (c) of 
this section, pursuant to a written request from the SAA that 
demonstrates (to the satisfaction of the Director) that there is good 
cause therefor.
    (e) Sub-award process: Documentation, conflicts of interest, and 
competition of funding to sub-recipients. (1) SAAs have sole discretion 
to determine which organizations will receive funds, and in what 
amounts, subject to the requirements of VOCA, this subpart, and the 
provisions in the DOJ Grants Financial Guide relating to conflicts of 
interest. SAAs must maintain a documented methodology for selecting all 
competitive and non-competitive sub-recipients.
    (2) SAAs are encouraged to award funds through a competitive 
process, when feasible. Typically, such a process entails an open 
solicitation of applications and a documented determination, based on 
objective criteria set in advance by the SAA (or pass-through entity, 
as applicable).
    (f) Direct-service projects run by SAAs. An SAA may use no more 
than ten percent of its annual VOCA grant to fund its own direct 
service projects, unless the Director grants a waiver.


Sec.  94.105  Reporting requirements.

    (a) Subgrant award reports. SAAs shall submit, at such times and in 
such form and manner as OVC may specify from time to time, subgrant 
award reports to OVC for each project that receives VOCA funds. If an 
SAA awards funds to a pass-through entity, the SAA also shall submit a 
report on the pass-through entity, at such times and in such form and 
manner as OVC may specify from time to time.
    (b) Performance report. SAAs shall submit, in such form and manner 
as OVC may specify from time to time, performance reports to OVC on a 
quarterly basis.
    (c) Obligation to report fraud, waste, abuse, and similar 
misconduct. SAAs shall--
    (1) Promptly notify OVC of any formal allegation or finding of 
fraud, waste, abuse, or similar misconduct involving VOCA funds;
    (2) Promptly refer any credible evidence of such misconduct to the 
Department of Justice Office of the Inspector General; and
    (3) Apprise OVC, in timely fashion, of the status of any on-going 
investigations


Sec.  94.106  Monitoring requirements.

    (a) Monitoring plan. Unless the Director grants a waiver, SAAs 
shall develop and implement a monitoring plan in accordance with the 
requirements of this section and 2 CFR 200.331. The monitoring plan 
must include a risk assessment plan.
    (b) Monitoring frequency. SAAs shall conduct regular desk 
monitoring of all sub-recipients. In addition, SAAs shall conduct on-
site monitoring of all sub-recipients at least once every two years 
during the award period, unless a different frequency based on risk 
assessment is set out in the monitoring plan.
    (c) Recordkeeping. SAAs shall maintain a copy of site visit results 
and other documents related to compliance.

SAA Use of Funds for Administration and Training


Sec.  94.107  Administration and training.

    (a) Amount. No SAA may use more than the amount prescribed by VOCA, 
at 42 U.S.C. 10603(b)(3), for training and administration. As of July 
8, 2016, the amount is five percent of a State's annual VOCA grant.
    (b) Notification. An SAA shall notify OVC of its decision to use 
VOCA funds for training or administration, either at the time of 
application for the VOCA grant or within thirty days of such decision. 
Such notification shall indicate what portion of the amount will be 
allocated for training and what portion for administration. If VOCA 
funding will be used for administration, the SAA shall follow the rules 
and submit the certification required in Sec.  94.108 regarding 
supplantation .
    (c) Availability. SAAs shall ensure that each training and 
administrative activity funded by the VOCA grant occurs within the 
award period.
    (d) Documentation. SAAs shall maintain sufficient records to 
substantiate the expenditure of VOCA funds for training or 
administration.
    (e) Volunteer training. SAAs may allow sub-recipients to use VOCA 
funds to train volunteers in how to provide direct services when such 
services will be provided primarily by volunteers. Such use of VOCA 
funds will not count against the limit described in paragraph (a) of 
this section.


Sec.  94.108  Prohibited supplantation of funding for administrative 
costs.

    (a) Non-supplantation requirement. SAAs may not use VOCA funding to 
supplant State administrative support for the State crime victim 
assistance program. Consistent with the DOJ Grants Financial Guide, 
such supplantation is the deliberate reduction of State funds because 
of the availability of VOCA funds. Where a State decreases its 
administrative support for the State crime victim assistance program, 
the SAA must submit, upon request from OVC, an explanation for the 
decrease.
    (b) Baseline for administrative costs. In each year in which an SAA 
uses VOCA funds for administration, it shall--
    (1) Establish and document a baseline level of non-VOCA funding 
required to administer the State victim assistance program, based on 
SAA expenditures for administrative costs during that fiscal year and 
the previous fiscal year, prior to expending VOCA funds for 
administration; and
    (2) Submit the certification required by 42 U.S.C. 10604(h), which, 
as of July 8, 2016, requires an SAA to certify here that VOCA funds 
will not be used to supplant State funds, but will be used to increase 
the amount of such funds that would, in the absence of VOCA

[[Page 44531]]

funds, be made available for administrative purposes.


Sec.  94.109  Allowable administrative costs.

    (a) Funds for administration may be used only for costs directly 
associated with administering a State's victim assistance program. 
Where allowable administrative costs are allocable to both the crime 
victim assistance program and another State program, the VOCA grant may 
be charged no more than its proportionate share of such costs. SAAs may 
charge a federally-approved indirect cost rate to the VOCA grant, 
provided that the total amount charged does not exceed the amount 
prescribed by VOCA for training and administration.
    (b) Costs directly associated with administering a State victim 
assistance program generally include the following:
    (1) Salaries and benefits of SAA staff and consultants to 
administer and manage the program;
    (2) Training of SAA staff, including, but not limited to, travel, 
registration fees, and other expenses associated with SAA staff 
attendance at technical assistance meetings and conferences relevant to 
the program;
    (3) Monitoring compliance of VOCA sub-recipients with federal and 
State requirements, support for victims' rights compliance programs, 
provision of technical assistance, and evaluation and assessment of 
program activities, including, but not limited to, travel, mileage, and 
other associated expenses;
    (4) Reporting and related activities necessary to meet federal and 
State requirements;
    (5) Program evaluation, including, but not limited to, surveys or 
studies that measure the effect or outcome of victim services;
    (6) Program audit costs and related activities necessary to meet 
federal audit requirements for the VOCA grant;
    (7) Technology-related costs, generally including for grant 
management systems, electronic communications systems and platforms 
(e.g., Web pages and social media), geographic information systems, 
victim notification systems, and other automated systems, related 
equipment (e.g., computers, software, fax and copying machines, and 
TTY/TDDs) and related technology support services necessary for 
administration of the program;
    (8) Memberships in crime victims' organizations and organizations 
that support the management and administration of victim assistance 
programs, and publications and materials such as curricula, literature, 
and protocols relevant to the management and administration of the 
program;
    (9) Strategic planning, including, but not limited to, the 
development of strategic plans, both service and financial, including 
conducting surveys and needs assessments;
    (10) Coordination and collaboration efforts among relevant federal, 
State, and local agencies and organizations to improve victim services;
    (11) Publications, including, but not limited to, developing, 
purchasing, printing, distributing training materials, victim services 
directories, brochures, and other relevant publications; and
    (12) General program improvements--Enhancing overall SAA operations 
relating to the program and improving the delivery and quality of 
program services to crime victims throughout the State.


Sec.  94.110  Allowable training costs.

    VOCA funds may be used only for training activities that occur 
within the award period, and all funds for training must be obligated 
prior to the end of such period. Allowable training costs generally 
include, but are not limited to, the following:
    (a) Statewide/regional training of personnel providing direct 
assistance and allied professionals, including VOCA funded and non-VOCA 
funded personnel, as well as managers and Board members of victim 
service agencies; and
    (b) Training academies for victim assistance.

Sub-Recipient Program Requirements


Sec.  94.111  Eligible crime victim assistance programs.

    SAAs may award VOCA funds only to crime victim assistance programs 
that meet the requirements of VOCA, at 42 U.S.C. 10603(b)(1), and this 
subpart. Each such program shall abide by any additional criteria or 
reporting requirements established by the SAA.


Sec.  94.112  Types of eligible organizations and organizational 
capacity.

    (a) Eligible programs. Eligible programs are not limited to 
entities whose sole purpose is to provide direct services. There are 
special considerations for certain types of entities, as described 
below:
    (1) Faith-based and neighborhood programs. SAAs may award VOCA 
funds to otherwise eligible faith-based and neighborhood programs, but 
in making such awards, SAAs shall ensure that such programs comply with 
all applicable federal law, including, but not limited to, part 38 of 
this chapter.
    (2) Crime victim compensation programs. SAAs may provide VOCA 
victim assistance funding to compensation programs only for the purpose 
of providing direct services that extend beyond the essential duties of 
the staff administering the compensation program, which services may 
include, but are not limited to, crisis intervention; counseling; and 
providing information, referrals, and follow-up for crime victims.
    (3) Victim service organizations located in an adjacent State. SAAs 
may award VOCA funds to otherwise eligible programs that are physically 
located in an adjacent State, but in making such awards, the SAA shall 
provide notice of such award to the SAA of the adjacent State, and 
coordinate, as appropriate, to ensure effective provision of services, 
monitoring, auditing of federal funds, compliance, and reporting.
    (4) Direct service programs run by the SAA. SAAs may fund their own 
direct services programs, but, under Sec.  94.104(f), may allocate no 
more than ten percent of the VOCA grant to such programs, and each such 
program shall adhere to the allowable/unallowable cost rules for sub-
recipient projects set out in this subpart at Sec. Sec.  94.119 through 
94.122.
    (b) Organizational capacity of the program. For purposes of VOCA, 
at 42 U.S.C. 10603(b)(1)(B), the following shall apply:
    (1) Record of effective services to victims of crime and support 
from sources other than the Crime Victims Fund. A program has 
demonstrated a record of effective direct services and support from 
sources other than the Crime Victims Fund when, for example, it 
demonstrates the support and approval of its direct services by the 
community, its history of providing direct services in a cost-effective 
manner, and the breadth or depth of its financial support from sources 
other than the Crime Victims Fund.
    (2) Substantial financial support from sources other than the Crime 
Victims Fund. A program has substantial financial support from sources 
other than the Crime Victims Fund when at least twenty-five percent of 
the program's funding in the year of, or the year preceding the award 
comes from such sources, which may include other federal funding 
programs. If the funding is non-federal (or meets the DOJ Grants 
Financial Guide exceptions for using federal funding for match), then a 
program may count the used funding to demonstrate non-VOCA substantial 
financial support toward its project match requirement.

[[Page 44532]]

Sec.  94.113  Use of volunteers, community efforts, compensation 
assistance.

    (a) Mandated use of volunteers; waiver. Programs shall use 
volunteers, to the extent required by the SAA, in order to be eligible 
for VOCA funds. The chief executive of the State, who may act through 
the SAA, may waive this requirement, provided that the program submits 
written documentation of its efforts to recruit and maintain 
volunteers, or otherwise demonstrate why circumstances prohibit the use 
of volunteers, to the satisfaction of the chief executive.
    (b) Waiver of use of volunteers. SAAs shall maintain documentation 
supporting any waiver granted under VOCA, at 42 U.S.C. 10603(b)(1)(C), 
relating to the use of volunteers by programs.
    (c) Promotion of community efforts to aid crime victims. Community 
served coordinated public and private efforts to aid crime victims may 
include, but are not limited to, serving on federal, State, local, or 
tribal work groups to oversee and recommend improvements to community 
responses to crime victims, and developing written agreements and 
protocols for such responses.
    (d) Assistance to victims in applying for compensation. Assistance 
to potential recipients of crime victim compensation benefits 
(including potential recipients who are victims of federal crime) in 
applying for such benefits may include, but are not limited to, 
referring such potential recipients to an organization that can so 
assist, identifying crime victims and advising them of the availability 
of such benefits, assisting such potential recipients with application 
forms and procedures, obtaining necessary documentation, monitoring 
claim status, and intervening on behalf of such potential recipients 
with the crime victims' compensation program.


Sec.  94.114  Prohibited discrimination.

    (a) The VOCA non-discrimination provisions specified at 42 U.S.C. 
10604(e) shall be implemented in accordance with 28 CFR part 42.
    (b) In complying with VOCA, at 42 U.S.C. 10604(e), as implemented 
by 28 CFR part 42, SAAs and sub-recipients shall comply with such 
guidance as may be issued from time to time by the Office for Civil 
Rights within the Office of Justice Programs.


Sec.  94.115  Non-disclosure of confidential or private information.

    (a) Confidentiality. SAAs and sub-recipients of VOCA funds shall, 
to the extent permitted by law, reasonably protect the confidentiality 
and privacy of persons receiving services under this program and shall 
not disclose, reveal, or release, except pursuant to paragraphs (b) and 
(c) of this section--
    (1) Any personally identifying information or individual 
information collected in connection with VOCA-funded services 
requested, utilized, or denied, regardless of whether such information 
has been encoded, encrypted, hashed, or otherwise protected; or
    (2) Individual client information, without the informed, written, 
reasonably time-limited consent of the person about whom information is 
sought, except that consent for release may not be given by the abuser 
of a minor, incapacitated person, or the abuser of the other parent of 
the minor. If a minor or a person with a legally appointed guardian is 
permitted by law to receive services without a parent's (or the 
guardian's) consent, the minor or person with a guardian may consent to 
release of information without additional consent from the parent or 
guardian.
    (b) Release. If release of information described in paragraph 
(a)(2) of this section is compelled by statutory or court mandate, SAAs 
or sub-recipients of VOCA funds shall make reasonable attempts to 
provide notice to victims affected by the disclosure of the 
information, and take reasonable steps necessary to protect the privacy 
and safety of the persons affected by the release of the information.
    (c) Information sharing. SAAs and sub-recipients may share--
    (1) Non-personally identifying data in the aggregate regarding 
services to their clients and non-personally identifying demographic 
information in order to comply with reporting, evaluation, or data 
collection requirements;
    (2) Court-generated information and law-enforcement-generated 
information contained in secure governmental registries for protection 
order enforcement purposes; and
    (3) Law enforcement- and prosecution-generated information 
necessary for law enforcement and prosecution purposes.
    (d) Personally identifying information. In no circumstances may--
    (1) A crime victim be required to provide a consent to release 
personally identifying information as a condition of eligibility for 
VOCA-funded services;
    (2) Any personally identifying information be shared in order to 
comply with reporting, evaluation, or data-collection requirements of 
any program;
    (e) Mandatory reporting. Nothing in this section prohibits 
compliance with legally mandated reporting of abuse or neglect.

Sub-Recipient Project Requirements


Sec.  94.116  Purpose of VOCA-funded projects.

    VOCA funds shall be available to sub-recipients only to provide 
direct services and supporting and administrative activities as set out 
in this subpart. SAAs shall ensure that VOCA sub-recipients obligate 
and expend funds in accordance with VOCA and this subpart. Sub-
recipients must provide services to victims of federal crimes on the 
same basis as to victims of crimes under State or local law. Sub-
recipients may provide direct services regardless of a victim's 
participation in the criminal justice process. Victim eligibility under 
this program for direct services is not dependent on the victim's 
immigration status.


Sec.  94.117  Cost of services; sub-recipient program income.

    (a) Cost of services. Sub-recipients shall provide VOCA-funded 
direct services at no charge, unless the SAA grants a waiver allowing 
the sub-recipient to generate program income by charging for services. 
Program income, where allowed, shall be subject to federal grant rules 
and the requirements of the DOJ Grants Financial Guide, which, as of 
July 8, 2016, require in most cases that any program income be 
restricted to the same uses as the sub-award funds and expended during 
the grant period in which it is generated.
    (b) Considerations for waiver. In determining whether to grant a 
waiver under this section, the SAA should consider whether charging 
victims for services is consistent with the project's victim assistance 
objectives and whether the sub-recipient is capable of effectively 
tracking program income in accordance with financial accounting 
requirements.


Sec.  94.118  Project match requirements.

    (a) Project match amount. Sub-recipients shall contribute (i.e., 
match) not less than twenty percent (cash or in-kind) of the total cost 
of each project, except as provided in paragraph (b) of this section.
    (b) Exceptions to project match requirement. The following are not 
subject to the requirement set forth in paragraph (a) of this section:
    (1) Sub-recipients that are federally-recognized American Indian or 
Alaska Native tribes, or projects that operate on tribal lands;
    (2) Sub-recipients that are territories or possessions of the 
United States (except for the Commonwealth of Puerto

[[Page 44533]]

Rico), or projects that operate therein; and
    (3) Sub-recipients other than those described in paragraphs (b)(1) 
and (2) of this section, that have applied (through their SAAs) for, 
and been granted, a full or partial waiver from the Director. Waiver 
requests must be supported by the SAA and justified in writing. Waivers 
are entirely at the Director's discretion, but the Director typically 
considers factors such as local resources, annual budget changes, past 
ability to provide match, and whether the funding is for new or 
additional activities requiring additional match versus continuing 
activities where match is already provided.
    (c) Sources of project match. Contributions under paragraph (a) of 
this section shall be derived from non-federal sources, except as may 
be provided in the DOJ Grants Financial Guide, and may include, but are 
not limited to, the following:
    (1) Cash; i.e., the value of direct funding for the project;
    (2) Volunteered professional or personal services, the value placed 
on which shall be consistent with the rate of compensation (which may 
include fringe benefits) paid for similar work in the program, but if 
the similar work is not performed in the program, the rate of 
compensation shall be consistent with the rate found in the labor 
market in which the program competes;
    (3) Materials/Equipment, but the value placed on lent or donated 
equipment shall not exceed its fair market value;
    (4) Space and facilities, the value placed on which shall not 
exceed the fair rental value of comparable space and facilities as 
established by an independent appraisal of comparable space and 
facilities in a privately-owned building in the same locality; and
    (5) Non-VOCA funded victim assistance activities, including but not 
limited to, performing direct service, coordinating, or supervising 
those services, training victim assistance providers, or advocating for 
victims.
    (d) Discounts. Any reduction or discount provided to the sub-
recipient shall be valued as the difference between what the sub-
recipient paid and what the provider's nominal or fair market value is 
for the good or service.
    (e) Use of project match. Contributions under paragraph (a) of this 
section are restricted to the same uses, and timing deadlines for 
obligation and expenditure, as the project's VOCA funding.
    (f) Recordkeeping for project match. Each sub-recipient shall 
maintain records that clearly show the source and amount of the 
contributions under paragraph (a) of this section, and period of time 
for which such contributions were allocated. The basis for determining 
the value of personal services, materials, equipment, and space and 
facilities shall be documented. Volunteer services shall be 
substantiated by the same methods used by the sub-recipient for its 
paid employees (generally, this should include timesheets 
substantiating time worked on the project).

Sub-Recipient Allowable/Unallowable Costs


Sec.  94.119  Allowable direct service costs.

    Direct services for which VOCA funds may be used include, but are 
not limited to, the following:
    (a) Immediate emotional, psychological, and physical health and 
safety--Services that respond to immediate needs (other than medical 
care, except as allowed under paragraph (a)(9) of this section) of 
crime victims, including, but not limited to:
    (1) Crisis intervention services;
    (2) Accompanying victims to hospitals for medical examinations;
    (3) Hotline counseling;
    (4) Safety planning;
    (5) Emergency food, shelter, clothing, and transportation;
    (6) Short-term (up to 45 days) in-home care and supervision 
services for children and adults who remain in their own homes when the 
offender/caregiver is removed;
    (7) Short-term (up to 45 days) nursing-home, adult foster care, or 
group-home placement for adults for whom no other safe, short-term 
residence is available;
    (8) Window, door, or lock replacement or repair, and other repairs 
necessary to ensure a victim's safety;
    (9) Costs of the following, on an emergency basis (i.e., when the 
State's compensation program, the victim's (or in the case of a minor 
child, the victim's parent's or guardian's) health insurance plan, 
Medicaid, or other health care funding source, is not reasonably 
expected to be available quickly enough to meet the emergency needs of 
a victim (typically within 48 hours of the crime): Non-prescription and 
prescription medicine, prophylactic or other treatment to prevent HIV/
AIDS infection or other infectious disease, durable medical equipment 
(such as wheel-chairs, crutches, hearing aids, eyeglasses), and other 
healthcare items are allowed; and
    (10) Emergency legal assistance, such as for filing for restraining 
or protective orders, and obtaining emergency custody orders and 
visitation rights;
    (b) Personal advocacy and emotional support--Personal advocacy and 
emotional support, including, but not limited to:
    (1) Working with a victim to assess the impact of the crime;
    (2) Identification of victim's needs;
    (3) Case management;
    (4) Management of practical problems created by the victimization;
    (5) Identification of resources available to the victim;
    (6) Provision of information, referrals, advocacy, and follow-up 
contact for continued services, as needed; and
    (7) Traditional, cultural, and/or alternative therapy/healing 
(e.g., art therapy, yoga);
    (c) Mental health counseling and care--Mental health counseling and 
care, including, but not limited to, out-patient therapy/counseling 
(including, but not limited to, substance-abuse treatment so long as 
the treatment is directly related to the victimization) provided by a 
person who meets professional standards to provide these services in 
the jurisdiction in which the care is administered;
    (d) Peer-support--Peer-support, including, but not limited to, 
activities that provide opportunities for victims to meet other 
victims, share experiences, and provide self-help, information, and 
emotional support;
    (e) Facilitation of participation in criminal justice and other 
public proceedings arising from the crime--The provision of services 
and payment of costs that help victims participate in the criminal 
justice system and in other public proceedings arising from the crime 
(e.g., juvenile justice hearings, civil commitment proceedings), 
including, but not limited to:--
    (1) Advocacy on behalf of a victim;
    (2) Accompanying a victim to offices and court;
    (3) Transportation, meals, and lodging to allow a victim who is not 
a witness to participate in a proceeding;
    (4) Interpreting for a non-witness victim who is deaf or hard of 
hearing, or with limited English proficiency;
    (5) Providing child care and respite care to enable a victim who is 
a caregiver to attend activities related to the proceeding;
    (6) Notification to victims regarding key proceeding dates (e.g., 
trial dates, case disposition, incarceration, and parole hearings);
    (7) Assistance with Victim Impact Statements;
    (8) Assistance in recovering property that was retained as 
evidence; and
    (9) Assistance with restitution advocacy on behalf of crime 
victims.
    (f) Legal assistance--Legal assistance services (including, but not 
limited to,

[[Page 44534]]

those provided on an emergency basis), where reasonable and where the 
need for such services arises as a direct result of the victimization. 
Such services include, but are not limited to:
    (1) Those (other than criminal defense) that help victims assert 
their rights as victims in a criminal proceeding directly related to 
the victimization, or otherwise protect their safety, privacy, or other 
interests as victims in such a proceeding;
    (2) Motions to vacate or expunge a conviction, or similar actions, 
where the jurisdiction permits such a legal action based on a person's 
being a crime victim; and
    (3) Those actions (other than tort actions) that, in the civil 
context, are reasonably necessary as a direct result of the 
victimization;
    (g) Forensic medical evidence collection examinations--Forensic 
medical evidence collection examinations for victims to the extent that 
other funding sources such as State appropriations are insufficient. 
Forensic medical evidence collection examiners are encouraged to follow 
relevant guidelines or protocols issued by the State or local 
jurisdiction. Sub-recipients are encouraged to provide appropriate 
crisis counseling and/or other types of victim services that are 
offered to the victim in conjunction with the examination. Sub-
recipients are also encouraged to use specially trained examiners such 
as Sexual Assault Nurse Examiners;
    (h) Forensic interviews--Forensic interviews, with the following 
parameters:
    (1) Results of the interview will be used not only for law 
enforcement and prosecution purposes, but also for identification of 
needs such as social services, personal advocacy, case management, 
substance abuse treatment, and mental health services;
    (2) Interviews are conducted in the context of a multi-disciplinary 
investigation and diagnostic team, or in a specialized setting such as 
a child advocacy center; and
    (3) The interviewer is trained to conduct forensic interviews 
appropriate to the developmental age and abilities of children, or the 
developmental, cognitive, and physical or communication disabilities 
presented by adults.
    (i) Transportation--Transportation of victims to receive services 
and to participate in criminal justice proceedings;
    (j) Public awareness--Public awareness and education presentations 
(including, but not limited to, the development of presentation 
materials, brochures, newspaper notices, and public service 
announcements) in schools, community centers, and other public forums 
that are designed to inform crime victims of specific rights and 
services and provide them with (or refer them to) services and 
assistance.
    (k) Transitional housing--Subject to any restrictions on amount, 
length of time, and eligible crimes, set by the SAA, transitional 
housing for victims (generally, those who have a particular need for 
such housing, and who cannot safely return to their previous housing, 
due to the circumstances of their victimization), including, but not 
limited to, travel, rental assistance, security deposits, utilities, 
and other costs incidental to the relocation to such housing, as well 
as voluntary support services such as childcare and counseling; and
    (l) Relocation--Subject to any restrictions on amount, length of 
time, and eligible crimes, set by the SAA, relocation of victims 
(generally, where necessary for the safety and well-being of a victim), 
including, but not limited to, reasonable moving expenses, security 
deposits on housing, rental expenses, and utility startup costs.


Sec.  94.120  Allowable costs for activities supporting direct 
services.

    Supporting activities for which VOCA funds may be used include, but 
are not limited to, the following:
    (a) Coordination of activities--Coordination activities that 
facilitate the provision of direct services, include, but are not 
limited to, State-wide coordination of victim notification systems, 
crisis response teams, multi-disciplinary teams, coalitions to support 
and assist victims, and other such programs, and salaries and expenses 
of such coordinators;
    (b) Supervision of direct service providers--Payment of salaries 
and expenses of supervisory staff in a project, when the SAA determines 
that such staff are necessary and effectively facilitate the provision 
of direct services;
    (c) Multi-system, interagency, multi-disciplinary response to crime 
victim needs--Activities that support a coordinated and comprehensive 
response to crime victims needs by direct service providers, including, 
but not limited to, payment of salaries and expenses of direct service 
staff serving on child and adult abuse multi-disciplinary investigation 
and treatment teams, coordination with federal agencies to provide 
services to victims of federal crimes and/or participation on Statewide 
or other task forces, work groups, and committees to develop protocols, 
interagency, and other working agreements;
    (d) Contracts for professional services--Contracting for 
specialized professional services (e.g., psychological/psychiatric 
consultation, legal services, interpreters), at a rate not to exceed a 
reasonable market rate, that are not available within the organization;
    (e) Automated systems and technology--Subject to the provisions of 
the DOJ Grants Financial Guide and government-wide grant rules relating 
to acquisition, use and disposition of property purchased with federal 
funds, procuring automated systems and technology that support delivery 
of direct services to victims (e.g., automated information and referral 
systems, email systems that allow communications among victim service 
providers, automated case-tracking and management systems, smartphones, 
computer equipment, and victim notification systems), including, but 
not limited to, procurement of personnel, hardware, and other items, as 
determined by the SAA after considering--
    (1) Whether such procurement will enhance direct services;
    (2) How any acquisition will be integrated into and/or enhance the 
program's current system;
    (3) The cost of installation;
    (4) The cost of training staff to use the automated systems and 
technology;
    (5) The ongoing operational costs, such as maintenance agreements, 
supplies; and
    (6) How additional costs relating to any acquisition will be 
supported;
    (f) Volunteer trainings--Activities in support of training 
volunteers on how to provide direct services when such services will be 
provided primarily by volunteers; and
    (g) Restorative justice--Activities in support of opportunities for 
crime victims to meet with perpetrators, including, but not limited to, 
tribal community-led meetings and peace-keeping activities, if such 
meetings are requested or voluntarily agreed to by the victim (who may, 
at any point, withdraw) and have reasonably anticipated beneficial or 
therapeutic value to crime victims. SAAs that plan to fund this type of 
service should closely review the criteria for conducting these 
meetings, and are encouraged to discuss proposals with OVC prior to 
awarding VOCA funds for this type of activity. At a minimum, the 
following should be considered:--
    (1) The safety and security of the victim;

[[Page 44535]]

    (2) The cost versus the benefit or therapeutic value to the victim;
    (3) The procedures for ensuring that participation of the victim 
and offenders are voluntary and that the nature of the meeting is 
clear;
    (4) The provision of appropriate support and accompaniment for the 
victim;
    (5) Appropriate debriefing opportunities for the victim after the 
meeting; and
    (6) The credentials of the facilitators.


Sec.  94.121  Allowable sub-recipient administrative costs.

    Administrative costs for which VOCA funds may be used by sub-
recipients include, but are not limited to, the following:
    (a) Personnel costs--Personnel costs that are directly related to 
providing direct services and supporting activities, such as staff and 
coordinator salaries expenses (including fringe benefits), and a 
prorated share of liability insurance;
    (b) Skills training for staff--Training exclusively for developing 
the skills of direct service providers, including paid staff and 
volunteers (both VOCA-funded and not), so that they are better able to 
offer quality direct services, including, but not limited to, manuals, 
books, videoconferencing, electronic training resources, and other 
materials and resources relating to such training.
    (c) Training-related travel--Training-related costs such as travel 
(in-State, regional, and national), meals, lodging, and registration 
fees for paid direct-service staff (both VOCA-funded and not);
    (d) Organizational Expenses--Organizational expenses that are 
necessary and essential to providing direct services and other 
allowable victim services, including, but not limited to, the prorated 
costs of rent; utilities; local travel expenses for service providers; 
and required minor building adaptations necessary to meet the 
Department of Justice standards implementing the Americans with 
Disabilities Act and/or modifications that would improve the program's 
ability to provide services to victims;
    (e) Equipment and furniture--Expenses of procuring furniture and 
equipment that facilitate the delivery of direct services (e.g., mobile 
communication devices, telephones, braille and TTY/TDD equipment, 
computers and printers, beepers, video cameras and recorders for 
documenting and reviewing interviews with children, two-way mirrors, 
colposcopes, digital cameras, and equipment and furniture for shelters, 
work spaces, victim waiting rooms, and children's play areas), except 
that the VOCA grant may be charged only the prorated share of an item 
that is not used exclusively for victim-related activities;
    (f) Operating costs--Operating costs include but are not limited 
to--
    (1) Supplies;
    (2) Equipment use fees;
    (3) Property insurance;
    (4) Printing, photocopying, and postage;
    (5) Courier service;
    (6) Brochures that describe available services;
    (7) Books and other victim-related materials;
    (8) Computer backup files/tapes and storage;
    (9) Security systems;
    (10) Design and maintenance of Web sites and social media; and
    (11) Essential communication services, such as web hosts and mobile 
device services.
    (g) VOCA administrative time--Costs of administrative time spent 
performing the following:
    (1) Completing VOCA-required time and attendance sheets and 
programmatic documentation, reports, and statistics;
    (2) Collecting and maintaining crime victims' records;
    (3) Conducting victim satisfaction surveys and needs assessments to 
improve victim services delivery in the project; and
    (4) Funding the prorated share of audit costs.
    (h) Leasing or purchasing vehicles--Costs of leasing or purchasing 
vehicles, as determined by the SAA after considering, at a minimum, if 
the vehicle is essential to the provision of direct services;
    (i) Maintenance, repair, or replacement of essential items--Costs 
of maintenance, repair, and replacement of items that contribute to 
maintenance of a healthy or safe environment for crime victims (such as 
a furnace in a shelter; and routine maintenance, repair costs, and 
automobile insurance for leased vehicles), as determined by the SAA 
after considering, at a minimum, if other sources of funding are 
available; and
    (j) Project evaluation--Costs of evaluations of specific projects 
(in order to determine their effectiveness), within the limits set by 
SAAs.


Sec.  94.122  Expressly unallowable sub-recipient costs.

    Notwithstanding any other provision of this subpart, no VOCA funds 
may be used to fund or support the following:
    (a) Lobbying--Lobbying or advocacy activities with respect to 
legislation or to administrative changes to regulations or 
administrative policy (cf. 18 U.S.C. 1913), whether conducted directly 
or indirectly;
    (b) Research and studies--Research and studies, except for project 
evaluation under Sec.  94.121(j);
    (c) Active investigation and prosecution of criminal activities--
The active investigation and prosecution of criminal activity, except 
for the provision of victim assistance services (e.g., emotional 
support, advocacy, and legal services) to crime victims, under Sec.  
94.119, during such investigation and prosecution;
    (d) Fundraising--Any activities related to fundraising, except for 
fee-based, or similar, program income authorized by the SAA under this 
subpart.
    (e) Capital expenses--Capital improvements; property losses and 
expenses; real estate purchases; mortgage payments; and construction 
(except as specifically allowed elsewhere in this subpart).
    (f) Compensation for victims of crime--Reimbursement of crime 
victims for expenses incurred as a result of a crime, except as 
otherwise allowed by other provisions of this subpart;
    (g) Medical care--Medical care, except as otherwise allowed by 
other provisions of this subpart; and
    (h) Salaries and expenses of management--Salaries, benefits, fees, 
furniture, equipment, and other expenses of executive directors, board 
members, and other administrators (except as specifically allowed 
elsewhere in this subpart).

    Dated: June 30, 2016.
Karol V. Mason,
Assistant Attorney General, Office of Justice Programs.
[FR Doc. 2016-16085 Filed 7-7-16; 8:45 am]
 BILLING CODE 4410-18-P