Conforming STOP Violence Against Women Formula Grant Program Regulations to Statutory Change; Definitions and Confidentiality Requirements Applicable to All OVW Grant Programs, 85877-85897 [2016-28437]

Agencies

• Department of Justice

[Federal Register Volume 81, Number 229 (Tuesday, November 29, 2016)]
[Rules and Regulations]
[Pages 85877-85897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28437]


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DEPARTMENT OF JUSTICE

28 CFR Part 90

[OVW Docket No. 120]
RIN 1105-AB46


Conforming STOP Violence Against Women Formula Grant Program 
Regulations to Statutory Change; Definitions and Confidentiality 
Requirements Applicable to All OVW Grant Programs

AGENCY: Office on Violence Against Women, Justice.

ACTION: Final rule.

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SUMMARY: This rule amends the regulations for the STOP 
(ServicesTrainingOfficers
Prosecutors) Violence Against Women Formula Grant Program (STOP 
Program) and the general provisions governing Office on Violence 
Against Women (OVW) programs to comply with statutory changes and 
reduce repetition of statutory language. Also, this rule implements 
statutory requirements for nondisclosure of confidential or private 
information relating to all OVW grant programs.

DATES: This rule is effective December 29, 2016.

FOR FURTHER INFORMATION CONTACT: Marnie Shiels, Office on Violence 
Against Women, 145 N Street NE., Suite 10W.100, Washington, DC 20530, 
by telephone (202) 307-6026 or by email at marnie.shiels@usdoj.gov.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

    The Violence Against Women Act (VAWA) was enacted on September 13, 
1994, by title IV of the Violent Crime Control and Law Enforcement Act 
of 1994, Public Law 103-322, 108 Stat. 1796. The STOP Program is 
codified at 42 U.S.C. 3796gg through 3796gg-5 and 3796gg-8. The final 
rule for this program, found at 28 CFR part 90, subpart B, was 
promulgated on April 18, 1995. General provisions affecting all OVW 
grant programs are found at 28 CFR part 90, subpart A.
    This rule amends the general provisions applicable to all OVW grant 
programs and the regulations governing the STOP Program to comply with 
the amendments to these programs enacted by the Violence Against Women 
Act of 2000 (VAWA 2000), Division B of the Victims of Trafficking and 
Violence Protection Act of 2000, Public Law 106-386, 114 Stat. 1464 
(Oct. 28, 2000), the Violence Against Women and Department of Justice 
Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162, 119 Stat. 
2960 (Jan. 5, 2006), and the Violence Against Women Reauthorization Act 
of 2013 (VAWA 2013), Public Law 113-4, 127 Stat. 54 (Mar. 7, 2013). 
These changes to the regulations incorporate the statutory changes, 
make minor technical corrections, implement enhanced administrative and 
planning practices for formula grantees, and streamline existing 
regulations to reduce repetition of statutory language.
    In addition, this rule amends an existing regulatory provision, 
Sec.  90.2, that sets forth certain definitions that apply to all OVW 
grant programs. Furthermore, the rule adds a new regulatory provision, 
Sec.  90.4, that is applicable to all OVW grant programs to implement 
statutory amendments requiring nondisclosure of confidential or private 
information pertaining to victims of domestic violence, dating 
violence, sexual assault and stalking.

II. Background

A. Overview of the Violence Against Women Act and Subsequent 
Reauthorizations

    In 1994, Congress passed the Violence Against Women Act (VAWA), a 
comprehensive legislative package aimed at ending violence against 
women. VAWA was enacted on September 13, 1994, as title IV of the 
Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-
322, 108 Stat. 1796. VAWA was designed to improve criminal justice 
system responses to domestic violence, sexual assault, and stalking, 
and to

[[Page 85878]]

increase the availability of services for victims of these crimes. VAWA 
was reauthorized and amended in 2000, 2005, and 2013, with each new 
reauthorization making improvements to the law and adding new programs 
and provisions.
    VAWA recognized the need for specialized responses to violence 
against women given the unique barriers that impede victims from 
accessing assistance from the justice system. To help communities 
develop these specialized responses, VAWA authorized the STOP Program, 
among others. See 42 U.S.C. 3796gg through 3796gg-5 and 3796gg-8; 28 
CFR part 90, subpart B.
    VAWA requires a coordinated community response to domestic 
violence, dating violence, sexual assault and stalking crimes and 
encourages jurisdictions to bring together stakeholders from multiple 
disciplines to share information and to improve community responses. 
These often include victim advocates, police officers, prosecutors, 
judges, probation and corrections officials, health care professionals, 
and survivors. In some communities, these multidisciplinary teams also 
include teachers, leaders within faith communities, public officials, 
civil legal attorneys, health care providers, advocates from 
population-specific community-based organizations representing 
underserved populations, and others.
    VAWA's legislative history indicates that Congress passed VAWA to 
improve justice system responses to violence against women. For 
example, Congress wanted to encourage jurisdictions to treat domestic 
violence as a serious crime, by instituting comprehensive reforms in 
their arrest, prosecution, and judicial policies. Congress was further 
interested in giving law enforcement and prosecutors the tools to 
pursue domestic violence and sexual assault cases without blaming 
victims for behavior that is irrelevant in determining whether a crime 
occurred, while discouraging judges from issuing lower sentences for 
sexual assault crimes than for other violent crimes. VAWA was intended 
to bring an end to archaic prejudices throughout the justice system, 
provide support for victims and assurance that their attackers will be 
prosecuted, and focus criminal proceedings on the conduct of attackers 
rather than the conduct of victims.\1\
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    \1\ See S. Rep. No. 103-138, at 37-48 (Sept. 10, 1993).
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    VAWA added a part T to the Omnibus Crime Control and Safe Streets 
Act of 1968, Public Law 90-351, codified at 42 U.S.C. 3711 et seq., 
titled Grants to Combat Violent Crimes Against Women, which authorizes 
four OVW-administered grant programs, including the STOP Program. STOP 
Program grants are awarded by population-based formula to states to 
develop and strengthen the justice system's response to violence 
against women and to support and enhance services for victims.
    On October 28, 2000, Congress enacted the Violence Against Women 
Act of 2000 (VAWA 2000), Division B of the Victims of Trafficking and 
Violence Protection Act of 2000, Public Law 106-386, 114 Stat. 1464. 
VAWA 2000 continued and strengthened the federal government's 
commitment to helping communities change the way they respond to 
violence against women. VAWA 2000 reauthorized critical grant programs, 
established new programs, and strengthened federal law. It had an 
emphasis on increasing responses to victims of dating violence and 
expanding options and services for immigrant and other vulnerable 
victims.
    VAWA 2000 made several changes relevant to the STOP Program. First, 
it amended the statutory purposes for which grant funds may be used. 
Second, it clarified the eligibility of courts as subgrantees. Third, 
it modified the requirement under the STOP Program that, to be eligible 
for funding, states must certify that victims not bear the costs for 
certain filing fees related to domestic violence cases. Finally, it 
added a new provision applicable to all OVW grant programs requiring 
grantees to report on the effectiveness of activities carried out with 
program funds.
    On January 5, 2006, Congress enacted the Violence Against Women and 
Department of Justice Reauthorization Act (VAWA 2005), Public Law 109-
162, 119 Stat. 2960. VAWA 2005 strengthened provisions of the previous 
Acts, including revising the STOP Program, and created a number of new 
grant programs. It also created a set of universal definitions and 
grant conditions, including a confidentiality provision, that apply to 
all programs authorized by VAWA and subsequent legislation. VAWA 2005 
had an emphasis on enhancing responses to sexual assault, youth 
victims, and victims in Indian country. Its provisions included new 
sexual-assault-focused programs, the addition of sexual assault to a 
number of OVW grant programs, new youth-focused programs, and the 
creation of a comprehensive violence against women program for tribal 
governments.
    The revisions to the STOP Program made by VAWA 2005 included adding 
new purpose areas to the program and modifying the requirements for the 
development of state implementation plans, the allocation of funds to 
subgrantees, and documentation of consultation with victim service 
programs. VAWA 2005 also required that the regulations governing the 
program ensure that states would recognize and meaningfully respond to 
the needs of underserved populations and distribute funds intended for 
culturally specific services--for which the Act created a new set-
aside--equitably among culturally specific populations. It further 
amended the certification requirement under the program related to 
payment for forensic medical exams for victims of sexual assault and 
added new certifications related to prohibiting the use of polygraph 
examinations in sexual assault cases and to judicial notification to 
domestic violence offenders of laws prohibiting their possession of a 
firearm.
    On March 7, 2013, Congress enacted the Violence Against Women 
Reauthorization Act of 2013 (VAWA 2013), Public Law 113-4, 127 Stat. 
54. VAWA 2013 made further improvements to the OVW grant programs, 
including several new requirements for the STOP Program. It also 
included two new historic provisions, one extending civil rights 
protections based on gender identity and sexual orientation and another 
recognizing the inherent jurisdiction of Indian tribes to prosecute 
non-Indians who commit certain domestic violence offenses in Indian 
country.\2\
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    \2\ These two provisions are not addressed in this rule but were 
addressed in a set of frequently asked questions on the new civil 
rights provision and in two Federal Register notices related to the 
implementation of the new provision on tribal jurisdiction. See U.S. 
Department of Justice, Office of Justice Programs, Office for Civil 
Rights, ``Frequently Asked Questions: Nondiscrimination Grant 
Condition in the Violence Against Women Reauthorization Act of 
2013'' (April 9, 2014), available at: https://www.justice.gov/sites/default/files/ovw/legacy/2014/06/20/faqs-ngc-vawa.pdf; Pilot Project 
for Tribal Jurisdiction Over Crimes of Domestic Violence, 78 FR 
35961 (June 14, 2013); Pilot Project for Tribal Jurisdiction Over 
Crimes of Domestic Violence, 78 FR 71645 (Nov. 29, 2013).
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    VAWA 2013 amended the universal definitions and grant conditions 
established by VAWA 2005 for all OVW grant programs and amended and 
added to the STOP Program purpose areas. It also amended the 
requirements under the STOP Program that states develop and submit with 
their applications and implementation plan--including documentation of 
planning committee members' participation in the development of the 
plan--and consult

[[Page 85879]]

and coordinate with a variety of entities and stakeholders. VAWA 2013 
modified the allocation requirements governing STOP subgrants, creating 
a set-aside for projects addressing sexual assault, and made changes to 
the statute's requirement that states provide matching funds for their 
grant awards. It also made several changes to provisions governing 
payment for forensic medical exams for sexual assault victims and 
certain filing costs related to cases of domestic violence, dating 
violence, sexual assault, and stalking.

B. History Regarding the STOP Program and General Provisions Applicable 
to OVW Grant Programs

    The STOP Program regulations and general provisions were originally 
promulgated in April, 1995. On December 30, 2003, OVW published a 
proposed rule to clarify the match requirement for the STOP Program, 
which was never finalized and subsequently was superseded by changes to 
the statute made by VAWA 2005. On January 21, 2004, section 90.3, 
regarding participation by faith based organizations was added to the 
general provisions. OVW published the Notice of Proposed Rulemaking for 
the current update on May 11, 2016 at 81 Federal Register 29215. In 
developing the proposed rule, OVW held a series of listening sessions 
with relevant constituencies to solicit input on updating the STOP 
Program regulations and general provisions. The specific sessions were 
focused on state STOP Program administrators, state coalitions, 
culturally specific and underserved populations, tribes and tribal 
coalitions, nonprofit organizations, and the justice system. Comments 
on the proposed rule were due by July 11, 2016.

C. Costs and Benefits

    As discussed in more detail under Executive Orders 12866 and 13563 
(in the Regulatory Review discussion below), the rule clarifies the 
statutory requirements, but does not alter the existing program 
structure. Updating the existing regulations to clearly and accurately 
reflect the statutory parameters will facilitate state compliance with 
VAWA, and thus avoid potentially costly non-compliance findings.

III. Discussion of Comments and Changes Made by This Rule

    As discussed above, this rule updates the regulations for the STOP 
Program and the general provisions governing OVW grant programs, 
including definitions and requirements for nondisclosure of 
confidential victim information, to comply with statutory changes and 
reduce repetition of statutory language. The structure and section 
numbering of the proposed rule has not been changed in the final rule, 
but some of the specific provisions have, as described below.

A. Summary of Comments and Changes from the Proposed Rule

    OVW received 12 comments from state STOP grant administrators, 
national organizations focusing on violence against women, one state 
domestic violence coalition, individuals, and one creator of a cloud-
based database for domestic violence and sexual assault service 
providers. Comments generally fell into six categories: (1) Reducing 
administrative burdens on state administering agencies, (2) encouraging 
victim-centered best practices, (3) clarifying requirements about the 
states' STOP implementation planning processes, (4) clarifying other 
STOP Program requirements, particularly those related to underserved 
and culturally specific populations, (5) clarifying the statutory 
confidentiality provision that restricts the release of victim 
identifying information, and (6) enhancing language access. The most 
significant changes in response to the comments are as follows:
    1. Changed the definition of ``prevention'' to clarify the 
difference between primary and secondary prevention (90.2(d)).
    2. Provided additional detail and clarification regarding the 
confidentiality provision (90.4(b)).
    3. Provided additional guidance to states on assessing 
qualifications of applicants for the culturally specific set aside of 
funds and clarified that they are encouraged to exceed the minimum 
statutory set aside of three percent (90.11(c)(3)).
    4. Increased the time period covered by state implementation plans 
from three years to four (90.12(a)).
    5. Clarified the requirement to consult with various entities in 
the process of developing and updating implementation plans and the 
documentation required regarding such consultation (90.12(b) and (c)).
    6. Clarified that, if the Prison Rape Elimination Act (PREA) 
requirements no longer apply to the STOP Program, then states will not 
need to address PREA compliance in their implementation plans and that 
only states that submitted assurances under PREA need to submit 
information on how they will spend the funds toward coming into 
compliance with PREA (90.12(g)(7)).
    7. Clarified when states may reallocate returned STOP funds and 
funds from allocations for which the state did not receive sufficient 
applications (90.25).

B. Overarching Comments

    OVW received one comment expressing overall support for the 
proposed rule. OVW also received an overarching comment stating that 
the commenter would like to see more flexibility in categories within 
the STOP Program to better meet victim needs, such as more flexibility 
in emergency victim assistance. As long as a particular cost is related 
to victim safety and allowable under the cost principles in 2 CFR part 
200, states have flexibility regarding how to use victim service funds. 
For example, states may use STOP funds to support emergency 
transportation, medical expenses, and other necessities where needed 
for victim safety. Because states already have considerable discretion 
to direct funding to emergency victim assistance, no change was made in 
the final rule. The other comments all pertained to specific sections 
of the proposed rule.

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

    VAWA 2005 established universal definitions and grant conditions 
for OVW grant programs, and VAWA 2013 amended these provisions. One of 
these grant conditions protects the confidentiality and privacy of 
persons receiving victim services for the purpose of ensuring victim 
safety. This section discusses the comments received on Subpart A, the 
definitions and grant conditions sections of the proposed rule, 
including provisions dealing with confidentiality, and any changes made 
to this subpart in the final rule.
Sec.  90.1. General
    Section 90.1 provides general information, including specification 
of which statutes are implemented by the rule and an explanation of the 
different subparts of the rule. In the final rule OVW also has added 
language to clarify to which grants and subgrants this updated rule 
will apply. Specifically, it will take effect with grants issued by OVW 
after the effective date of the rule (30 days from publication in the 
Federal Register). For subgrants, it will take effect with subgrants 
issued by states under the STOP and Sexual Assault Services Formula 
Grant Programs after that date, even if such subgrants are

[[Page 85880]]

made with grant funds awarded by OVW prior to that date.
Sec.  90.2. Definitions
    The universal definitions added by VAWA 2005, codified at 42 U.S.C. 
13925(a), superseded previous program-specific definitions originally 
enacted in 1994. The rule revises the definitions section of part 90, 
28 CFR 90.2, by removing definitions from the existing regulations that 
are codified in statute, adding definitions for terms that are used in 
statute but not defined, and clarifying statutory definitions that, 
based on OVW's experience managing its grant programs, require further 
explanation.
    Section 90.2 currently contains definitions for the following 
terms: Domestic violence, forensic medical examination, Indian tribe, 
law enforcement, prosecution, sexual assault, state, unit of local 
government, and victim services. This rule removes the definitions for 
domestic violence, Indian tribe, law enforcement, sexual assault, 
state, and victim services, as they all appear in the statute and do 
not need further clarification.
    The rule revises the definition of ``forensic medical 
examination,'' a term that is used but not defined in a statutory 
provision directing that states, Indian tribal governments, and units 
of local government may not receive STOP Program funds unless they 
incur the full out-of-pocket cost of forensic medical exams for victims 
of sexual assault. See 42 U.S.C. 3796gg-4(a)(1). The rule changes the 
list of minimum elements that the exam should include to bring the 
definition in line with best practices for these exams as they have 
developed since part 90 was implemented in 1995, and, in particular, 
with the Department of Justice's national protocol for sexual assault 
medical forensic examinations (SAFE Protocol), which was updated in 
April 2013.\3\ OVW received several comments on this definition. Three 
commenters recommended adding ``obtaining informed consent'' to the 
definition and two of them also suggested adding an assessment of the 
patient's state of mind. Although these are best practices as discussed 
in the SAFE Protocol, they are not appropriate for inclusion here, 
because this definition applies to the specific context of meeting the 
certification requirement for the STOP Program that states must ensure 
victims do not incur ``out of pocket'' costs for forensic medical 
examinations. The definition is not intended to be a comprehensive 
description of best practices for conducting the examination but rather 
a list of elements for which victims should not incur ``out of pocket'' 
costs.
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    \3\ U.S. Department of Justice, Office on Violence Against 
Women, ``A National Protocol for Sexual Assault Medical Forensic 
Examinations: Adults/Adolescents'' (2d ed. 2013), available at 
https://www.ncjrs.gov/pdffiles1/ovw/241903.pdf.
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    One commenter also suggested adding ``medical care and treatment'' 
to the definition of ``forensic medical examination.'' Again, although 
this does represent best practice as exemplified in the SAFE Protocol, 
it is not appropriate for inclusion in this context because it would 
impose an increased cost to states not mandated by the STOP Program 
statute. The current rule allows states flexibility in determining 
whether to cover medical costs that are not within the definition of 
forensic medical examination, such as testing and treatment for 
sexually transmitted diseases. Many states do cover such expenses, but 
not all do. Payment for such expenses is often available through 
programs funded through the Victims of Crime Act (VOCA). OVW also notes 
that the definition does include ``head-to-toe examination of the 
patient,'' which is for both medical and forensic purposes. This 
examination is used to identify injuries for treatment purposes and 
provide documentation that could potentially be used by the criminal 
justice system. This commenter also suggested changing ``sexual assault 
victim'' to ``victim of sexual assault'' to clarify that the provision 
also applies to domestic violence survivors who are sexually assaulted. 
OVW agrees and has made this change to paragraph 90.2(c).
    The rule's definition of ``prosecution'' contains minor technical 
changes from the definition in the existing regulation. These changes 
implement the VAWA 2005 provision making the definitions applicable to 
all OVW grant programs and conform the definition to the statute. The 
definition retains the existing regulation's clarification of the 
statutory definition, which explains that prosecution support services 
fall within the meaning of the term for funding purposes. This 
clarification continues to be important because allocating prosecution 
grant funds to activities such as training and community coordination 
helps to achieve the statutory goal of improving prosecution response 
to domestic violence, dating violence, sexual assault, and stalking. 
OVW received one comment on this definition, noting that it included 
participation in domestic violence task forces and enforcing domestic 
violence restraining orders, but did not include task forces and 
restraining orders focused on sexual assault, dating violence, or 
stalking. OVW has added dating violence, sexual assault, and stalking 
to paragraph 90.2(e) to correct this oversight.
    In addition, the statutory definition for ``prosecution'' uses, but 
does not define, the term ``public agency,'' which the rule defines 
using the definition for this term in the Omnibus Crime Control and 
Safe Streets Act. See 42 U.S.C. 3791.
    The rule revises the definition of ``unit of local government,'' 
which did not have a statutory definition specific to all OVW grant 
programs until the enactment of VAWA 2013, to make it consistent with 
the statutory language. In addition, it includes in the definition a 
list of entities and organizations that do not qualify as units of 
local government for funding purposes and would need a unit of local 
government to apply on their behalf for those programs where ``unit of 
local government'' is an eligible entity but other types of public or 
private entities are not eligible. The list reflects OVW's long-
standing interpretation of the term ``unit of local government'' and is 
consistent with OVW's practice of excluding these entities and 
organizations from eligibility to apply for OVW funding as units of 
local government. The one comment on this definition was a 
recommendation for OVW to consult with tribes on the impact of the 
change. OVW declines to take this suggestion for two reasons. First, 
the change eliminating tribes from the definition of ``unit of local 
government'' is dictated by the definition in VAWA 2013 and cannot be 
changed by regulation. By excluding tribes from the definition of 
``unit of local government,'' VAWA 2013 excluded tribes from a 
provision in the authorizing statute for the Grants to Encourage Arrest 
Policies and Enforcement of Protection Orders Program that reduces the 
award amount to states and units of local government by five percent if 
the jurisdiction does not have certain laws, regulations, or policies 
regarding HIV testing of sex offenders. Second, even if the regulation 
could alter the statutory definition, OVW notes that this statutory 
change has no impact on tribal eligibility for OVW grants. ``Tribal 
government'' is an eligible entity for every OVW grant program that 
includes ``unit of local government'' as an eligible entity.
    The rule also adds definitions to the regulation for terms that are 
used in OVW grant program statutes but are undefined and that OVW 
believes would be helpful to applicants and grantees. The term 
``community-based organization'' is defined in 42 U.S.C. 13925(a), but 
the term ``community-based program,'' which also appears in

[[Page 85881]]

OVW grant program statutes, is not. To preserve consistency across OVW 
programs and minimize confusion, OVW is proposing to use the statutory 
definition for both terms.
    The rule provides a definition of ``prevention'' that distinguishes 
the term from ``outreach'' both because OVW has observed that some 
grant applicants propose outreach activities to implement prevention 
programming under OVW programs and because funding for ``prevention'' 
is more limited than funding for ``outreach.'' The proposed rule 
defined ``prevention program'' as ``a program that has a goal of 
stopping domestic violence, dating violence, sexual assault, or 
stalking from happening in the first place. Prevention is distinguished 
from `outreach,' which has the goal of informing victims and potential 
victims about available services.'' OVW received three different 
comments on this definition. The first recommends that the definition 
describe the distinction between ``primary'' and ``secondary'' 
prevention so that programs that interrupt and prevent future domestic 
violence, dating violence, sexual assault, and stalking after it has 
taken place can be distinguished from programs that focus on these 
crimes in a context where they have not yet taken place. This commenter 
specifically recommended using language from the Family Violence 
Prevention and Services Office within the Department of Health and 
Human Services. The second commenter recommended changing ``programs'' 
in the definition to ``activities and strategies.'' The third commenter 
recommended deleting ``in the first place'' from the definition. OVW 
agrees with all the comments and the definition in paragraph 90.2(d) 
has been revised to make clear that ''prevention'' includes both 
primary and secondary prevention efforts and to define the terms 
primary and secondary prevention. The final sentence from the proposed 
rule, which distinguishes ``prevention'' from ``outreach'' is retained 
in the final rule.
    Finally, the rule adds a definition for ``victim services division 
or component of an organization, agency, or government'' because the 
rule uses this term in implementing the confidentiality provision 
enacted by VAWA 2005 and amended by VAWA 2013, which is discussed in 
more detail in the next section.
Sec.  90.4. Grant Conditions
    VAWA 2005 added grant conditions for all OVW grant programs, 
including a provision on confidentiality and privacy of victim 
information and these provisions were amended by VAWA 2013. See 42 
U.S.C. 13925(b). Section 90.4(a) provides that the grant conditions in 
42 U.S.C. 13925(b) apply to all grants awarded by OVW and all subgrants 
under such awards. One commenter requested that OVW also specify that 
grantees and subgrantees are required to comply with Title VI of the 
Civil Rights Act of 1964 and section 504 of the Rehabilitation Act. The 
commenter correctly notes that all grantees and subgrantees must comply 
with these laws. The grantmaking process, however, already requires 
grantees and subgrantees to comply with these and other civil rights 
statutes through standard assurances that the grantee signs. These are 
available on the OVW Web site at www.usdoj.gov/OVW. Because compliance 
with all applicable civil rights laws is already addressed through 
these assurances, it is not necessary to include compliance with two of 
these laws in this regulation.
    The statutory confidentiality provision recognizes the critical 
importance to victim safety of protecting victims' personally 
identifying information. It generally requires grantees and subgrantees 
to protect victim confidentiality and privacy to ensure the safety of 
victims and their families and prohibits the disclosure of victims' 
information without their informed, written, and reasonably time-
limited consent. These requirements, implemented in section 90.4(b), 
apply to all OVW grant programs, not just STOP grants. In administering 
this confidentiality provision, OVW has received numerous inquiries 
regarding what kinds of disclosures require written consent, and OVW is 
attempting to answer these questions in this rule.
    In the Notice of Proposed Rulemaking, OVW requested comments about 
the propriety of placing victim information on third-party (or 
``cloud'') servers. Seven commenters responded to this request. 
Commenters were generally concerned about the privacy of information on 
such third-party servers, but also noted the need for flexibility in 
access to client information as service provision models expand from 
just office-based services. Commenters raised specific questions 
related to the use of third-party servers, such as who owns the data, 
who has access to the data, what security measures are in place to 
prevent unauthorized release of information, and what happens if the 
provider receives a subpoena for release of client information. Some 
commenters recommended specifying the answers to the above questions in 
the agreement between the victim service provider and the cloud storage 
provider. Some commenters also recommended the use of encryption to 
protect the client information. Two commenters specifically recommended 
the use of ``zero knowledge'' encryption, where the encryption key is 
stored on the victim service provider's server so the storage provider 
only has access to encrypted (and therefore unreadable) information. 
Two commenters recommended the use of background checks of the 
employees of the storage providers. One commenter noted that, while 
they felt that cloud storage should be acceptable, it should not 
include sharing of client information in regional or statewide 
databases such as Homeless Management Information Systems. Based on 
these comments, OVW added a new paragraph (b)(5) to Sec.  90.4: 
``Inadvertent release. Grantees and subgrantees are responsible for 
taking reasonable efforts to prevent inadvertent releases of personally 
identifying information or individual information that is collected as 
described in paragraph (b)(2).'' The reasonable efforts mentioned here 
apply not just to third-party electronic storage, but also protections 
for paper copies of information or information stored on internet-
connected computers at the victim service provider. As suggested by one 
commenter, the use of third-party storage is not, by itself, a release, 
but can lead to release without sufficient precautions. ``Reasonable 
efforts'' in the case of third-party storage include, but are not 
limited to, ensuring that the contract with the storage provider 
specifies that the service provider owns the information and ensuring 
that there are sufficient security protocols to protect the 
information.
    Section 90.4(b)(2)(iii) provides that the confidentiality provision 
applies to disclosures from victim service divisions or components of 
an organization, agency, or government to other non-victim services 
divisions or components and to the leadership of such organization, 
agency, or government. It also provides that the leadership shall have 
access without releases only in ``extraordinary and rare'' 
circumstances. OVW requested comments on this provision and received 
three comments. Two commenters were concerned that the phrase 
``extraordinary and rare circumstances'' is too vague and asked OVW to 
provide additional guidance. In response, OVW has added a statement 
clarifying that ``Such [extraordinary and rare] circumstances do not 
include routine monitoring and supervision[]'' to the end of paragraph 
(b)(2)(iii). OVW

[[Page 85882]]

decided against including a list of circumstances that justify 
disclosure because such determinations will be fact-based. OVW notes, 
however, that one example of such an extraordinary and rare 
circumstance justifying release to an organization's leadership would 
be where there are allegations of fraud against the victim service 
division or one of its staff members. One commenter was concerned that 
this provision could be read to include victim-witness programs at 
prosecution or law enforcement offices. By statute (42 U.S.C. 
13925(b)(2)(D)(i)(III)), the confidentiality provision does not apply 
to ``law enforcement-generated and prosecution-generated information 
necessary for law enforcement and prosecution purposes.'' In addition, 
Sec.  90.2(h) of this rule defines ``victim services division or 
component of an organization, agency, or government'' as a ``division 
within a larger organization, agency, or government, where the agency 
has as its primary purpose to assist or advocate for victims of 
domestic violence, dating violence, sexual assault, or stalking and has 
a documented history of work concerning such victims.'' Victim-witness 
programs in prosecution or law enforcement offices would generally be 
for law enforcement or prosecution purposes, even if they are also 
assisting victims.
    Section 90.4(b)(3) governs releases of personally identifying 
information or individual information collected in connection with 
services. One commenter requested that OVW add language providing that 
releases must be accessible to all victims, including those with 
limited literacy and/or English language proficiency. OVW declines to 
make this change because it is not necessary. Both the statute and the 
regulation require informed releases; if the victim does not understand 
the release, it cannot be truly ``informed.'' Section 90.4(b)(3)(ii), 
as revised, requires that the grantee or subgrantee engage in a 
conversation with the victim regarding the purpose for and limits on 
the release, and the grantee or subgrantee should record the agreement 
as to the scope of the release. This conversation should ensure that 
the victim understands the release. In addition, with regard to 
language access, there are already civil rights laws and regulations 
requiring that grantees and subgrantees take reasonable steps to 
provide meaningful access to their programs and activities for persons 
with limited English proficiency. Grantees and subgrantees explicitly 
agree to comply with these laws by signing relevant assurances and 
certifications when applying for OVW grants and upon the receipt of OVW 
financial assistance. For more information on language access 
requirements, the Office of Justice Programs, Office for Civil Rights 
(OCR) has information on its Web page at https://ojp.gov/about/ocr/lep.htm.
    Section 90.4(b)(3)(i) addresses the circumstances under which 
identifying information about victims served by OVW grantees and 
subgrantees may be released, one of which is when the release is 
compelled by a court mandate (Sec.  90.4(b)(3)(i)(C)). One commenter 
requested that OVW clarify that ``court mandates'' include case law 
mandates, such as those imposing a ``duty to warn'' when there is a 
specified threat of harm. OVW accepts this comment. It is consistent 
with guidance that OVW has provided to grantees. Section 
90.4(b)(3)(i)(C) has been revised to read ``release is compelled by 
court mandate, which includes a legal mandate created by case law, such 
as a common-law duty to warn.''
    Section 90.4(b)(3)(ii) addresses criteria for victim releases. One 
commenter recommended that, within the context of signing a release of 
information, grantees and subgrantees must reach agreement with the 
victim about what information the victim wants shared and record that 
agreement as part of the release. Another commenter recommended that 
the victim specify to whom and what specific information is to be 
shared. OVW agrees and has rewritten the third sentence of this 
paragraph to specify that grantees and subgrantees must discuss with 
the victim why the information might be shared, who would have access 
to the information, and what information could be shared under the 
release. They must also reach agreement with the victim about what 
information would be shared and with whom and record the agreement 
about the scope of the release.
    Section 90.4(b)(3)(ii)(C) and (D) address releases for minors and 
legally incapacitated persons with court-appointed guardians. With 
regard to minor children, the rule provides that both the minor and the 
parent or guardian sign the release. One commenter noted that the rule 
should account for situations where the child is too young to sign the 
release. OVW agrees and has added language to clarify that, if a minor 
is incapable of knowingly consenting, the parent or guardian of that 
minor may provide consent. The rule also provides that, if a parent or 
guardian consents for a minor, the service provider should attempt to 
notify the minor as appropriate. Another commenter requested that OVW 
include language that consent for release may not be given by the 
abuser of the minor or the abuser of the other parent of the minor. 
Such language already was included in section 90.4(b)(3)(ii)(C) of the 
proposed rule.
    Section 90.4(b)(4) addresses release of information about deceased 
victims for fatality reviews. OVW solicited comments on this provision 
and received four responses. The proposed rule provided that the 
prohibition on sharing information did not apply to information about 
deceased victims being sought for fatality reviews if the review met 
certain criteria. All commenters were concerned about the impact on 
victims if, prior to their deaths, they were aware of the possibility 
of release and recommended not allowing release without consent. Four 
commenters noted that such consent could be provided by a personal 
representative of the victim, if available. OVW is seeking to balance 
these concerns with the important work that is done by fatality 
reviews. In a fatality review, community responders examine homicides 
and suicides resulting from domestic violence to identify gaps in 
services, responses, and prevention efforts. These reviews can lead to 
systemic improvements that can prevent future deaths. The final rule 
requires grantees to make a reasonable effort to gain consent from a 
personal representative, but, if they are not able to do so after such 
efforts, it does not preclude their full participation in the fatality 
review. Also, the final rule permits sharing identifying victim 
information only when the fatality review has an underlying objective 
to prevent future deaths, enhance victim safety, and increase offender 
accountability, and includes both policies and protocols to protect 
against the release of information outside the fatality review team and 
limits release to information that is necessary for the purposes of the 
fatality review. OVW notes that many states or tribes have specific 
confidentiality and privilege laws that apply to victim service 
providers and other OVW grantees and subgrantees. This provision would 
allow release for VAWA purposes but would not override state or tribal 
laws that do not allow for release. Some laws, however, specifically 
authorize victim service providers to release information for fatality 
reviews. The language of the final rule is an attempt to ensure that 
the VAWA confidentiality provision is implemented in a manner that is 
compatible with such state or tribal

[[Page 85883]]

laws, including both where those laws are more protective of victim 
confidentiality and where they authorize release.
    Section 90.4(b)(6) (renumbered from (5) in the proposed rule) 
requires grantees and subgrantees to document their compliance with the 
confidentiality requirement by submitting an acknowledgement form 
indicating that they have notice of the requirement and that they will 
create and maintain documentation of compliance. OVW received one 
comment on this provision. The commenter recommended that OVW also 
require grantees and subgrantees to document their compliance with 
Title VI of the Civil Rights Act of 1964 and section 504 of the 
Rehabilitation Act. The standard assurances (available at https://www.justice.gov/ovw/how-apply) contain a provision that requires STOP 
Program grantees and subgrantees to comply with applicable civil rights 
laws, including the Civil Rights Act, the Rehabilitation Act, and VAWA. 
Title VI requires grantees and subgrantees to provide appropriate 
language-access services to limited English proficient (LEP) 
beneficiaries. See 28 CFR 42.405(d). The U.S. Department of Justice has 
issued guidance for recipients on their responsibility under Title VI 
to provide language-access services. See Department of Justice, 
Guidance to Federal Financial Assistance Recipients Regarding Title VI 
Prohibition Against National Origin Discrimination Affecting Limited 
English Proficient Persons, 67 FR 41,455 (June 18, 2002). OVW, through 
the Office of Justice Programs, Office on Civil Rights (OCR), conducts 
compliance reviews to ensure that recipients are serving LEP 
beneficiaries and LEP service populations. State administering agencies 
that subgrant STOP Program funds to other organizations must have 
``Methods of Administration'' (28 CFR 42.105(d)(2)) that monitor 
whether their subrecipients have a language assistance plan. OCR 
provides technical assistance to recipients about their obligation to 
provide language-access services through an online training program 
(https://ojp.gov/about/ocr/ocr-training-videos/video-ocr-training.htm 
(last visited July 21, 2016)), in-person presentations, and telephone 
consultations. In addition, aggrieved parties (and third parties) may 
file an administrative complaint with the OCR alleging a recipient's 
failure to provide appropriate language-access services in violation of 
Title VI (28 CFR. 42.107(b)) and VAWA (28 CFR 42.205). OCR will 
investigate the complaint, and, if the complaint has merit, OCR will 
seek appropriate remedies. The enforcement scheme that is already in 
place holds recipients accountable for providing appropriate language-
access services to LEP beneficiaries in accordance with Title VI and 
VAWA. Therefore there is no need for additional documentation under 
this rule.
    An additional comment on this paragraph recommended the language, 
which was already included in the proposed rule, that requires grantees 
and subgrantees to document compliance with the confidentiality 
requirement.
    OVW also has added a new section 90.4(c) to specify that victim 
eligibility for direct services is not dependent on the victim's 
immigration status, for consistency with the Office for Victims of 
Crime Victims of Crime Act (VOCA) Assistance Program Final Rule, which 
was issued after the OVW proposed rule. This is also consistent with 
the Attorney General Order on Specification of Community Programs 
Necessary for Protection of Life or Safety under Welfare Reform 
Legislation (Attorney General Order No. 2353-2001, 66 F. R. 3616 (Jan. 
16, 2001)). In addition, on August 5, 2016, Attorney General Loretta E. 
Lynch, Secretary Sylvia Mathews Burwell of the U.S. Department of 
Health and Human Services (HHS) and Secretary Juli[aacute]n Castro of 
the U.S. Department of Housing and Urban Development (HUD) released a 
letter \4\ to recipients of federal funding to provide more information 
on access to services for immigrant victims. The letter explains that 
immigrants cannot be denied access to certain services necessary to 
protect life or safety on the basis of their immigration status.
---------------------------------------------------------------------------

    \4\ https://www.justice.gov/ovw/file/883641/download.
---------------------------------------------------------------------------

D. STOP Formula Grant Program

1. Organization
    OVW proposed significant changes in the proposed rule to the 
organization of Subpart B, the STOP Program regulations, and is 
retaining these changes, without further alteration, in the final rule. 
The following chart shows the changes from the current rule to both the 
proposed and final rules.

 
------------------------------------------------------------------------
                                        Disposition of    Proposed rule/
    Section No.        Current rule     current section     final rule
------------------------------------------------------------------------
90.10..............  Description of    Same............  STOP (Services-
                      STOP (Services-                     Training-
                      Training-                           Officers--Pros
                      Officers--Prose                     ecutors)
                      cutors)                             Violence
                      Violence                            Against Women
                      Against Women                       Formula Grant
                      Formula Grant                       Program--Gener
                      Program.                            al.
90.11..............  Program Criteria  Merged with       State office.
                                        90.10 and 90.12.
90.12..............  Eligible          Merged with       Implementation
                      Purposes.         90.10.            plans.
90.13..............  Eligibility.....  Now in 90.10....  Forensic
                                                          medical
                                                          examination
                                                          payment
                                                          requirement.
90.14..............  Forensic Medical  Now 90.13.......  Judicial
                      Examination                         notification
                      Payment                             requirement.
                      Requirement.
90.15..............  Filing Costs for  Same............  Costs for
                      Criminal                            criminal
                      Charges.                            charges and
                                                          protection
                                                          orders.
90.16..............  Availability and  (a) Is now in     Polygraph
                      Allocation of     90.17, (b) and    testing
                      Funds.            (c) are merged    prohibition.
                                        with 90.12.
90.17..............  Matching          Now 90.18.......  Subgranting of
                      Requirements.                       funds.
90.18..............  Non-              Removed.........  Matching funds.
                      supplantation.
90.19..............  State Office....  Now 90.11.......  Application
                                                          content.
90.20..............  Application       Now 90.19.......
                      Content.
90.21..............  Evaluation......  Same............  Evaluation.
90.22..............  Review of State   Same............  Review of State
                      Applications.                       applications.

[[Page 85884]]

 
90.23..............  State             Now 90.12.......  Annual grantee
                      Implementation                      and subgrantee
                      Plan.                               reporting.
90.24..............  Grantee           Now 90.23.......  Activities that
                      Reporting.                          may compromise
                                                          victim safety
                                                          and recovery.
90.25..............  ................  ................  Reallocation of
                                                          funds.
------------------------------------------------------------------------

2. Removing Duplicative Regulatory Language
    OVW is removing much of the existing regulation to avoid 
duplication with the statute. Specifically, OVW is removing the 
following sections and paragraphs of the current regulation for this 
reason: Sec. Sec.  90.10; 90.11(a); 90.12; 90.16(a); and 90.18. Other 
sections have been streamlined by referencing the statutory provision 
rather than repeating the statutory language.
3. Statutory Changes
    As discussed above, VAWA of 2000, VAWA 2005, and VAWA 2013 have 
amended and enhanced the STOP Program. Specific changes are as follows:

 Expanded purpose areas (incorporated by reference in Sec.  
90.10)
 Changes in allocations: (1) The victim services allocation 
increased from 25 percent to 30 percent; (2) a set aside was added of 
ten percent of the victim services funds (or three percent of the total 
award) for culturally specific community-based organizations; (3) a set 
aside was added of five percent to courts; and (4) a 20-percent set 
aside was added for programs that meaningfully address sexual assault 
in two or more of the specified allocations (Sec.  90.11(c))
 Changes in the implementation planning process, including an 
expanded list of entities with which the state is required to consult 
and additional information that needs to be included in a state's 
implementation plan (Sec.  90.12)
 Changes to the existing certification requirements and 
additions of new certification requirements (Sec.  90.13, forensic 
medical examination payment; Sec.  90.14, judicial notification; Sec.  
90.15, costs for criminal charges and protection orders; and Sec.  
90.16, polygraph testing prohibition)

The rule also removes references to the Assistant Attorney General for 
the Office of Justice Programs to reflect statutory changes made by the 
Violence Against Women Office Act, Title IV of the 21st Century 
Department of Justice Appropriations Authorization Act, Public Law 107-
273 (Nov. 2, 2002).
4. Section-by-Section Summary of the Regulatory Text
    This section describes each provision of the regulatory text, any 
comments received, and any changes made to the final rule.
Sec.  90.10 STOP (Services-Training-Officers-Prosecutors) Violence 
Against Women Formula Grant Program--General
    Section 90.10 lists the eligible applicants for the program and 
specifies that the purposes, criteria, and requirements for the program 
are established by 42 U.S.C. 3796gg et seq. The only comments on this 
section expressed support.
Sec.  90.11 State Office
    Section 90.11 describes the role of the state office, which is to 
be designated by the chief executive of the state. As detailed in Sec.  
90.11(a) and (b), the state office is responsible for submitting the 
application, including certifications, developing the implementation 
plan, and administering the funds. Three commenters felt that paragraph 
(b) was too burdensome in that it required the state administering 
agencies for various programs to coordinate on disbursement of funds 
(rather than implementation planning). The requirement to coordinate on 
disbursement is in the current rule, but, since the issuance of that 
rule, VAWA 2013 added the requirement to coordinate on implementation 
planning. OVW agrees that the existing requirement to coordinate with 
other state administering agencies on disbursement of funds is no 
longer necessary in light of the VAWA 2013 amendment and is removing it 
from the final rule. The requirement to coordinate on implementation 
planning is at Sec.  90.12(b)(6).
    Section 90.11(c) is intended to ensure that statutorily allocated 
funds are meaningfully targeted to the appropriate entities and 
activities. Paragraph (c)(3) discusses the allocation for culturally 
specific services. One commenter recommended changing the second 
sentence to clarify that recipients should have expertise specifically 
on services to address the demonstrated needs of the targeted racial 
and ethnic minority group. OVW agrees and has changed the second 
sentence accordingly. This commenter also requested that the rule make 
clear that the set aside of ten percent (out of the thirty percent for 
victim services) is a minimum and not a cap. OVW agrees and has added 
language to Sec.  90.11(c)(3) to encourage states to provide funding 
above the three percent minimum to address the needs of racial and 
ethnic minority groups.
    Another commenter expressed support for the paragraph's language 
clarifying eligibility for the culturally specific set aside and 
recommended that OVW go further in delineating an assessment approach 
for subgrant applications under this category. OVW accepts this 
recommendation and is adding a new sentence to paragraph (c)(3) that 
provides that states should tailor their subgrant application process 
to meaningfully assess the qualifications of applicants for the 
culturally specific set aside.
    One additional commenter noted that the definition of ``culturally 
specific'' is not the same as the definition of ``underserved'' and 
that therefore some populations of victims (such as Deaf and lesbian, 
gay, bisexual, and transgender (LGBT)) are excluded. OVW cannot alter 
the definition to include additional underserved populations because of 
a statutory change in VAWA 2013. Prior to VAWA 2013, states could use 
the culturally specific set aside to provide culturally specific 
services to any underserved population. VAWA 2013 changed the 
definition of culturally specific so that it now means ``primarily 
directed toward racial and ethnic minority groups.'' 42 U.S.C. 
13925(b)(6). As a result, the STOP Program's set aside for culturally 
specific community-based organizations may only fund subgrantees that 
target racial and ethnic minority groups. 42 U.S.C. 3796gg-1(c)(4)(C). 
States are still required to consider the full range of underserved 
populations in the state and ensure that funds are equitably 
distributed toward the needs of such populations, 42 U.S.C. 3796gg-
1(e)(2)(D).
    Section 90.11(c)(4) provides guidance with regard to the twenty-
percent sexual

[[Page 85885]]

assault set aside. One commenter supported language directing how 
states evaluate whether projects qualify for the sexual assault set 
aside generally, but objected to allowing states to assess the 
percentage of a project that addresses sexual assault and count that 
percentage toward the set aside. The commenter noted that projects that 
primarily address other crimes should not count toward the sexual 
assault set aside. OVW agrees that only projects that truly address 
sexual assault should be counted and has removed the sentence that 
would permit states to aggregate percentages from projects that do not 
primarily address sexual assault. Projects that qualify for the set 
aside may include, but are not limited to, sexual assault victim 
advocacy services, sexual assault forensic examiner programs, Sexual 
Assault Response Teams, law enforcement or prosecution training on or 
specialized units for sexual assault, projects addressing rape kit 
backlogs, and projects that involve implementation of the Prison Rape 
Elimination Act of 2012 (PREA) standards in working with incarcerated 
victims.
    OVW also has added a new paragraph (d) on pass-through 
administration, based on the Office for Victims of Crime's VOCA Victim 
Assistance Program Final Rule, which was issued after the OVW proposed 
rule. Under both the STOP and Victim Assistance Programs, some states 
administer the program by awarding the funds to an organization such as 
a state domestic violence or sexual assault coalition and permitting 
that organization to identify and monitor subgrantees. OVW wishes to be 
consistent with OVC's regulations regarding this practice.
Sec.  90.12 Implementation Plans
    Section 90.12 implements new requirements for the state planning 
process added by VAWA 2013. One commenter had an overarching 
recommendation that this section refer to the statute without any 
additional detail. The commenter opined that such detail is more 
appropriate for guidance and ``frequently asked questions'' issued by 
OVW, rather than regulations. Finally, the commenter maintained that 
the requirements spelled out in this section are too burdensome for 
states and not consistent with existing state processes. OVW disagrees. 
The procedures in this rule are consistent with guidance that OVW 
previously provided to states and therefore state processes should 
already align with the rule's requirements. Although the rule does 
require certain documentation, OVW has determined that this 
documentation is necessary for OVW to ensure compliance with the 
detailed statutory requirements that Congress put in place in VAWA 
2013. The provisions of this section balance the needs of the state 
with the complexity of the statute. As discussed below, however, state 
plans will be due on a four-year cycle instead of a three-year one.
    The proposed rule included language in section 90.12(a) 
incorporating a long-standing OVW practice of allowing states to submit 
a full implementation plan every three years and then submit updates to 
the plan in the other two years. Several commenters requested that the 
plan extend for five years, to cover the period between VAWA 
reauthorizations, rather than three, to reduce the burden on states. 
OVW is partially accepting this recommendation by making the plan due 
every four years, starting with the FY 2017 application. Accordingly, 
the plan submitted in FY 2017 must cover the years 2017-2020. This will 
give the states more time to develop their plans each cycle and reduce 
the burden on states, while ensuring that the plans are updated with 
reasonable frequency. OVW declines to align the plan cycle with VAWA 
reauthorizations because OVW cannot know if or when Congress will 
reauthorize VAWA. Depending on the changes made to the STOP Program 
statute in a reauthorization, however, a new state plan may not be 
required due to a reauthorization. For example, if purpose areas are 
added or changed, the state could develop an update noting whether or 
not it plans to use the new purpose areas. Because of the longer plan 
period, the final rule provides in paragraph (b) that consultation is 
required for updating a plan as well as for developing the full plan. 
If there are no updates, or only minor changes, then the consultation 
may be brief.
    Paragraphs (b) and (c) of section 90.12 are new to the regulation, 
but incorporate provisions from 42 U.S.C. 3796gg-1(c)(2) and (i) 
regarding consultation and coordination. The statute, as amended by 
VAWA 2013, provides a list of entities that states must consult with 
during the implementation planning process and requires documentation 
from members of the planning committee as to their participation in the 
planning process. OVW must ensure that states consult with all the 
required entities and fully document such consultation. The final rule 
strikes a balance between requiring sufficient documentation within the 
implementation plan and minimizing the burdens on state administrators 
inherent in providing such documentation.
    Section 90.12(b) addresses consultation and coordination with the 
entities specified in 42 U.S.C. 3796gg-1(c)(2). Paragraph (b)(2) 
addresses population-specific organizations, representatives from 
underserved populations, and culturally specific organizations. Two 
commenters noted that the proposed rule required the inclusion of 
``significant underserved or culturally specific populations in the 
state'' but did not define ``significant.'' OVW declines to define 
``significant'' because what significant means will be different for 
every state. Instead, OVW has inserted language in paragraph (c) that 
requires states to explain in their implementation plans how they 
determined which underserved and culturally specific populations to 
include. OVW also has amended paragraph (b)(2) to provide that states 
consider, in addition to demographics, barriers to service, including 
historical lack of access to services, for each population. These 
commenters noted a similar concern with paragraph (b)(7), which is 
addressed in the final rule through these change to paragraphs (b)(2) 
and (c).
    Two commenters requested that OVW add language to paragraph (b)(2) 
with specific recommendations on how states should engage in meaningful 
outreach, such as having a mailing list with organizations in specific 
areas, including nonprofit and faith-based organizations, and 
conducting information sessions beyond regular business hours and in 
local communities. Although OVW agrees in principle with these 
suggestions, OVW believes they are too detailed and specific for 
inclusion in the regulations and more appropriate for technical 
assistance.
    Section 90.12(b)(3) requires consultation with all state and 
federally recognized tribes in the planning process. One commenter 
agreed but also noted that there is a need for states to have 
mechanisms for tribes to participate meaningfully and recommended that 
OVW require states to document their attempts to reduce barriers to 
participation by tribes. OVW agrees and has added this to paragraph 
(c)(2)(iii). Examples of ways that states have successfully reached 
tribes include tours of the reservations in the state and regional 
meetings with tribal leaders.
    Section 90.12(b)(4) provides that, if possible, states should 
include survivors of domestic violence, dating violence, sexual 
assault, and stalking in the planning process. One commenter noted the 
value and importance of including survivors in the planning process. 
Another recommended changing the

[[Page 85886]]

provision to reflect that states are ``encouraged'' to include 
survivors, but also noted concerns that states could recruit and 
solicit input from survivors in ways that violate survivor 
confidentiality and autonomy. As a result, OVW has changed the 
provision to remind states that include survivors in their consultation 
process that they should address safety and confidentiality concerns. 
OVW recommends that state STOP administrators work with organizations 
within their states, such as state coalitions, victim service 
providers, and culturally and population specific organizations, that 
may have survivor advisory panels or may be able to assist with 
recruiting survivors who are interested in providing input regarding 
the state plan. Survivors do not need to participate in person and 
their input may be obtained through means such as online or paper 
surveys, conference calls, or web meetings.
    Section 90.12(b)(6) implements the statutory requirement at 42 
U.S.C. 3796gg-1(c)(3) that the state coordinate the plan with the plans 
for the Family Violence Prevention and Services Act (42 U.S.C. 10407), 
the State Victim Assistance Formula Grants under the Victims of Crime 
Act (42 U.S.C. 10603), and the Rape Prevention and Education Program 
(42 U.S.C. 280b-1b). Two commenters noted that this coordination can be 
difficult if the STOP Program administrator does not control the other 
funding streams. They also noted that the VOCA Assistance state 
administrator may be better positioned to lead this coordination, as 
that program disburses substantially more funding. Because each state 
is structured differently, OVW will give states discretion how to 
handle this statutory requirement. Some examples include a single 
meeting with the various state administrators to discuss plan 
priorities, having a shared planning process, having the different 
administrators serve on the STOP planning committee, and sharing a 
draft plan with the other administrators for feedback. If a state 
chooses to have another administrator, such as the VOCA administrator, 
lead the processes, it may do that at its discretion.
    Section 90.12(c) provides information on how states must document 
their consultation with the various required entities. The rule 
requires states to submit to OVW documentation of the extent of each 
partner's participation, a summary of any significant concerns that 
were raised during the planning process, and a description of how those 
concerns were resolved. Paragraph (c) is intended to ensure meaningful 
collaboration with partners, while minimizing the administrative burden 
on states. One commenter noted that the term ``checklist'' can be 
confusing because OVW also uses a checklist of the required plan 
elements. The commenter recommended changing ``checklist'' to 
``documentation of collaboration.'' OVW agrees and has made this 
change.
    OVW received several comments on this section, both expressing 
support and expressing concerns about the burden on STOP 
administrators. Some commenters recommended using a certification of 
compliance with collaboration instead of requiring the documentation. 
One commenter recommended removing some of the specific details 
regarding what to retain and instead provide a general requirement for 
states to document and keep on file a description of the planning 
process. One commenter noted that the requirement to provide a summary 
of major concerns is duplicative. However, another commenter 
specifically supported the level of documentation and the focus on 
documenting major issues and how they are resolved. After consideration 
of these diverging views, OVW has determined that the level of 
documentation required by the rule is necessary for management of the 
program and is consistent with current practices and OVW guidance. OVW, 
however, has rewritten this section to clarify what documentation must 
be retained and what must be submitted as part of the implementation 
plan. OVW may review the retained documentation as part of monitoring, 
such as a site visit or where there is a suspicion of noncompliance 
with the collaboration requirements. Furthermore, by amending section 
90.12(a) to require a new plan every four years instead of every three 
years, OVW has reduced the burden of retaining or submitting this 
documentation. Also, one commenter noted that requiring participants to 
fax or email proof of their attendance on calls and webinars is not 
necessary. OVW agrees and has modified that paragraph accordingly.
    Section 90.12(d) implements 42 U.S.C. 3796gg-1(e)(2), which 
requires states to describe in the implementation plan how they will 
provide for equitable distribution of funds with certain 
considerations, such as geographic diversity and meeting the needs of 
underserved populations. One commenter noted that states must ensure 
that eligible underserved and culturally specific entities are aware of 
the funding opportunity. OVW agrees but recognizes that this kind of 
outreach is needed not just for underserved populations, but for other 
categories in this paragraph such as different types of geographic 
areas. Therefore, OVW has added a new paragraph (d)(5) to require that 
states take steps to ensure that eligible applicants are aware of the 
STOP Program funding opportunity, including applicants serving 
different geographic areas and culturally specific and other 
underserved populations. Another commenter expressed a concern with 
paragraph (d)(4), which specifies that states must recognize and 
meaningfully respond to the needs of underserved populations and ensure 
that monies set aside to fund linguistically and culturally specific 
services and activities for underserved populations are distributed 
equitably among ``those populations.'' This commenter was concerned 
that the term ``those populations'' will be seen as limiting the 
equitable distribution to culturally specific populations under the 
ten-percent set aside. OVW agrees and has amended paragraph (d)(4) to 
clarify that it applies to both culturally specific populations and the 
broader range of underserved populations.
    Section 90.12(e) implements 42 U.S.C. 3796gg-1(i)(2)(E). The 
paragraph allows states the flexibility to identify underserved 
populations, while requiring a description of why the specific 
populations were selected. One commenter noted in response to both this 
paragraph and paragraph (d) that the states must address statewide 
needs and that the ten-percent set aside is a minimum and not a cap. As 
discussed above, OVW has made changes to section 90.12(c)(3) that 
address these concerns. This commenter also requested that OVW include 
a reminder that states must develop language access plans to ensure 
that, in distribution of funding, they provide ``meaningful access'' 
for persons with limited English proficiency. This specific reminder is 
not needed because it is already required and addressed through other 
mechanisms, as discussed above in response to a similar comment 
regarding Sec.  90.4(b)(6). OVW does include language in all its 
solicitations about language access and use of funds for this purpose. 
OVW encourages states to use the same or similar language in their 
solicitations. The 2016 STOP Program solicitation includes the 
following:

Accommodations and Language Access

    Recipients of OVW funds must comply with applicable federal 
civil rights laws, which, among other things, prohibit 
discrimination on the basis of disability and national origin. This 
includes taking reasonable steps to ensure that persons with

[[Page 85887]]

limited English proficiency (LEP) have meaningful access to 
recipients' programs or activities. More information on these 
obligations is available in the OVW FY 2014 Solicitation Companion 
Guide and at www.lep.gov. Applicants are encouraged to allocate 
grant funds to support activities that help to ensure individuals 
with disabilities, Deaf individuals, and persons with limited 
English proficiency have meaningful and full access to their 
programs. For example, grant funds can be used to support American 
Sign Language (ASL) interpreter services, language interpretation 
and translation services, or the purchase of adaptive equipment.
    Applicants proposing to use grant funds to create Web sites, 
videos, and other materials must ensure that the materials are 
accessible to persons with disabilities. Grant funds may be 
allocated for these purposes.

    Section 90.12(f) implements 42 U.S.C. 3796gg-1(i)(2)(G), which 
requires state implementation plans to include goals and objectives for 
reducing domestic violence-related homicide. This paragraph requires 
states to include statistics on domestic violence homicide within the 
state, consult with relevant entities such as law enforcement and 
victim service providers, and establish specific goals and objectives 
to reduce homicide, including addressing challenges specific to the 
state and how the plan can overcome them.
    Section 90.12(g) outlines additional content that implementation 
plans must include. These required elements are designed to help OVW 
ensure that states meet statutory requirements for the program and to 
provide a better understanding of how the state plans to allocate its 
STOP Program funds. One commenter requested that OVW remind states to 
provide outreach to targeted community groups, which should be 
translated or interpreted to other languages and broadcast in ethnic 
media. The need for outreach has been addressed in paragraph (d)(5) as 
discussed above. Also, as discussed above, the specific reminder about 
interpretation is unnecessary because it is covered by other laws, 
regulations, guidance, and resources for grantees.
    Paragraph (g)(7), regarding the Prison Rape Elimination Act (PREA), 
is designed to ensure that states that submit assurances under PREA 
that they will spend five percent of ``covered funds'' towards 
compliance with PREA are including such funds in their planning. One 
commenter noted that there is pending legislation that could separate 
PREA from STOP. To address this possibility, OVW has added the phrase, 
``if applicable'' to paragraph (g)(7). If the legislation passes, it 
will no longer be applicable, and states will not need to address it. 
Another commenter opined that, because the decision whether to submit a 
certification, assurance, or neither under PREA is the responsibility 
of the governor, it should only be included in the implementation plan 
if the grantee is using PREA set-aside funds for victim services and 
has control through direct contracting. OVW agrees in part and 
disagrees in part. Although it is true that the state STOP 
administrator does not have control over PREA certification and 
assurance decisions, the administrator should be aware of the 
governor's decisions and should be able to report on the use of STOP 
funds if the state submitted an assurance that it would use five 
percent of covered funds under STOP towards coming into compliance with 
PREA. Therefore, OVW has changed the paragraph to note that the state 
needs to specify whether it submitted a certification, assurance, or 
neither under PREA, and, if an assurance, how it plans to spend the 
STOP funds set aside for PREA compliance.
    Section 90.12(h) implements a change in VAWA 2013 that makes the 
implementation plans due at the time of application rather than 180 
days after award. One commenter complained that this does not give 
states enough time to complete the plan and requested 90 days after the 
award to complete the plan. OVW disagrees because states do not need to 
wait for the solicitation to write the plan. Since the previous plan 
was due in 2014, OVW has been encouraging states to work on their 2017 
plans. States may use the 2014 solicitation, guidance on the OVW Web 
page, and this rule to help develop their plans. In addition, if a 
state is not able to complete their plan by the application deadline, 
they may submit information on what is needed to complete the plan. If 
they have not completed the plan by the time the award is issued, the 
state will still receive the award, but with a condition withholding 
all the funds until the plan is submitted and approved.
Sec.  90.13 Forensic Medical Examination Payment Requirement
    Section 3796gg-4 of Title 42 requires states to ensure that the 
state or another governmental entity bears the ``full out-of-pocket'' 
costs of sexual assault medical forensic examinations. Section 90.13(b) 
provides a definition of ``full out-of-pocket costs.'' Paragraph (d) 
clarifies that, if states use victims' personal health insurance to pay 
for the exams, they must ensure that any expenses not covered by 
insurance are not billed to the victims, as these would constitute 
``out-of-pocket'' costs. Paragraph (e) implements a new provision from 
VAWA 2013, 42 U.S.C. 3796gg-4(a)(1)(B), which requires states to 
coordinate with health care providers in the region to notify victims 
of the availability of forensic examinations.
    Two commenters expressed that the victim's insurance should never 
be billed. In some cases, insurance billing can present a hardship for 
victims. For example, a victim of spousal rape may not want her husband 
to find out that she sought a forensic exam. If the victim is forced to 
submit the claim to her insurance company and she is covered by her 
husband's insurance, he may receive a statement from the insurance 
indicating that she received the exam. OVW agrees and strongly 
discourages the practice of billing a victim's insurance. The statute, 
however, clearly permits it. See 42 U.S.C. 3796gg-4(c) (specifying that 
states may only use grant funds to pay for forensic examinations if the 
examinations are performed by a trained examiner and victims are not 
required to seek reimbursement from their insurance). OVW, however, has 
added language to section 90.13(d) to discourage the practice. Another 
commenter wrote in response to this section as well as sections 90.15 
(the provision prohibiting polygraph testing) and 90.16 (regarding fees 
and costs for criminal charges and protection orders) to request that 
states be required to provide notice to victims of their rights in 
relevant languages. Section 90.13(e) (implementing 42 U.S.C. 3796gg-
4(1)(B)) already contains a notice requirement regarding rape 
examination payment. Additional reminders with regard to language 
access are not needed in this rule because it is covered by the 
relevant federal civil rights laws and regulations. Finally, although 
OVW encourages states to inform victims about the prohibition on 
polygraph testing and the provisions relating to costs for criminal 
charges and protection orders, OVW declines to impose a notice 
requirement, because Congress included it in the rape examination 
payment certification but did not in the certifications regarding 
polygraph testing and costs for criminal charges and protection orders.
Sec.  90.14 Judicial Notification Requirement
    Section 90.14 implements the requirements of 42 U.S.C. 3796gg-4(e), 
which provides that states and units of local government are not 
entitled to funds unless they certify that their judicial 
administrative policies and practices include notification to domestic 
violence offenders of relevant federal, state, and local firearms 
prohibitions that might affect them. This requirement was added by VAWA 
2005.

[[Page 85888]]

One commenter stated that the judicial notice should be in the language 
of the offender and that funding should be reduced if it is not. OVW 
declines to make this change because, as discussed above, language 
access is addressed by existing civil rights laws and regulations.
Sec.  90.15 Costs for Criminal Charges and Protection Orders
    Section 90.15 implements the requirements of 42 U.S.C. 3796gg-5, 
which provides that states, tribes, and units of local government are 
not entitled to funds unless they certify that victims of domestic 
violence, dating violence, sexual assault, or stalking are not charged 
certain costs associated with criminal prosecution or protection 
orders. These requirements were amended by VAWA 2000 and VAWA 2013. No 
comments were received on this section other than the comment regarding 
notice discussed above under Sec.  90.13.
Sec.  90.16 Polygraph Testing Prohibition
    Section 90.16 implements 42 U.S.C. 3796gg-8, which provides that, 
to be eligible for STOP Program funding, states, tribes, and units of 
local government must certify that their laws, policies, and practices 
ensure that law enforcement officers, prosecutors, and other government 
officials do not ask or require sexual assault victims to submit to a 
polygraph examination or other truth telling device as a condition for 
investigating the offense. These requirements were added by VAWA 2005. 
OVW received two comments on this section, in addition to the comment 
regarding notice discussed above under Sec.  90.13. The first 
recommended language to clarify that state-level police and prosecutors 
must comply with this requirement. OVW has not accepted this 
suggestion, because although it is correct that the state must comply, 
OVW believes the language of the proposed rule is clear. The second 
commenter recommended that polygraphing be prohibited outright. OVW 
lacks the authority to do this because the statute (and therefore the 
regulation) only prohibits polygraphing as a condition of proceeding 
with the investigation of the offense. OVW, however, has changed 
``restricting'' in paragraph (a) to ``prohibiting'' to track the 
language of the statute. OVW also agrees that polygraphing of victims 
should not be done as a routine matter. The Attorney General Guidelines 
for Victim and Witness Assistance (2011 Edition, https://www.justice.gov/sites/default/files/olp/docs/ag_guidelines2012.pdf) 
provides that investigating agents may request victims to take a 
polygraph only in extraordinary circumstances and only with the 
concurrence of the Special Agent in Charge or the Supervisory Assistant 
United States Attorney. The guidelines further provide that all 
reasonable alternative investigatory methods should be exhausted before 
requesting or administering a sexual assault victim polygraph 
examination. OVW recommends that states and local jurisdictions adopt 
similar guidelines to limit the improper use of polygraph tests on 
sexual assault victims.
Sec.  90.17 Subgranting of Funds
    Section 90.17(a) describes the type of entities that may receive 
subgrants from the state (state agencies and offices, courts, local 
governments, public agencies, tribal governments, victim service 
providers, community-based organizations, and legal services programs).
    Section 90.17(b) allows states to use up to ten percent of each 
allocation category (law enforcement, prosecution, victim services, 
courts, and discretionary) to support the state's administrative costs. 
Examples of such costs include the salary and benefits of staff who 
administer the program and costs of conducting peer review. This 
paragraph codifies a long-standing OVW policy regarding state 
administrative costs. OVW added language from the OVC VOCA Assistance 
Program Rule regarding the use of funds for administrative costs. The 
programs often have the same administrators, so it is important that 
the regulations governing the two programs are consistent.
Sec.  90.18 Matching Funds
    Section 90.18 implements the match provisions of 42 U.S.C. 3796gg-
1(f) and 13925(b)(1). VAWA 2005 provided that match could not be 
required for subgrants to tribes, territories, or victim service 
providers. It also authorized a waiver of match for states that have 
``adequately demonstrated [their] financial need.'' 42 U.S.C. 
13925(b)(1). VAWA 2013 further specified that the costs of subgrants 
for victim services or tribes would not count toward the total amount 
of the STOP award in calculating match. 42 U.S.C. 3796gg-1(f).
    Section 90.18(a) states the match requirement in general and 
reflects that the match requirement does not apply to territories.
    Section 90.18(b) allows for in-kind match, consistent with 2 CFR 
200.306, and provides information on calculating the value of in-kind 
match.
    Section 90.18(c) provides that states may not require match for 
subgrants for Indian tribes or victim service providers. This is 
consistent with 42 U.S.C. 13925(b)(1), as added by VAWA 2005.
    Section 90.18(d) implements the waiver provisions of 42 U.S.C. 
13925(b)(1), as added by VAWA 2005. In developing the criteria for 
waiver, OVW balanced the importance of state and local support for the 
efforts funded under the STOP Program with the need for waiver where 
there is demonstrated financial need. The paragraph ensures that the 
financial need identified by the state is specifically tied to funding 
for violence against women programs. For example, if a state has had 
across-the-board budget cuts, it would need to show how those cuts have 
impacted state funding for violence against women programs (and hence, 
its ability to provide matching funds). In most cases, a state would 
receive a partial waiver based on the specific impact of the cuts. For 
example, if the state had a 20 percent reduction in violence against 
women funding, then it would receive a 20 percent waiver. The 20 
percent cut should leave the state with 80 percent of funds that could 
still be used toward match. In most cases, the states pass the match on 
to subgrantees, except for Indian tribes and victim service providers. 
In cases of awards to Indian tribes or awards to victim service 
providers for victim services purposes, as opposed to another purpose, 
such as law enforcement training, the state is exempted from the match 
requirement.
    Section 90.18(e) provides that matching funds must be used for the 
same purposes as the federal funds and must be tracked for 
accountability purposes.
    OVW received one comment on section 90.18. The commenter was 
seeking clarification that subgrants to victim service providers that 
are either awarded from the discretionary allocation or from funds that 
were returned from subgrantees under other allocations are exempt from 
match. OVW agrees and has amended paragraph (a) in the final rule to 
clarify that funds awarded under these two scenarios are excluded from 
the total award amount for purposes of calculating match.
Sec.  90.19 Application Content
    Section 90.19 provides that states must apply for STOP Program 
funding using an annual solicitation issued by OVW. VAWA 2013 
streamlined the application process by including most information and 
documentation in the implementation plan, but also requiring

[[Page 85889]]

the plan to be submitted at the time of application. No comments were 
received on this section.
Sec.  90.21 Evaluation
    Section 90.21 encourages states to have plans for evaluating the 
impact and effectiveness of their projects and requires them to 
cooperate with federally-sponsored evaluations of their projects. No 
comments were received on this section.
Sec.  90.22 Review of State Applications
    Section 90.22 provides the statutory basis for review of state 
applications and implements the Single Point of Contact requirement of 
Executive Order 12372 (Intergovernmental Review of Federal Programs). 
No comments were received on this section.
Sec.  90.23 Annual Grantee and Subgrantee Reporting
    Section 90.23 describes the annual reporting requirement for the 
program. Subgrantees submit annual progress reports to the state, which 
then forwards them to OVW, or as otherwise directed by OVW. States also 
must submit an annual progress report. Information on progress reports, 
along with the forms and instructions, are available at https://muskie.usm.maine.edu/vawamei/stopformulamain.htm. OVW received one 
comment on this section. The commenter was concerned that the current 
annual reports are time consuming, expensive, and intrusive to 
survivors and recommended that OVW consider whether the reporting 
process can be simplified. OVW is considering ways to improve the 
progress reporting process. Under the current process, it is expected 
that grantees and subgrantees will determine in some cases that, under 
the circumstances, it is not appropriate to ask a victim for certain 
information. The grantee or subgrantee only needs to report demographic 
information to the extent that it can be obtained in the course of 
providing victim-centered services, and there is generally an 
``unknown'' category they can use, if needed. The information generated 
from the progress reports is used for a report to Congress, which 
highlights the accomplishments of the program, and also has other 
valuable uses. For example, progress reports are used by both OVW and 
states for monitoring purposes, and data from the progress reports may 
be used at the state and national level for identifying trends, 
promising practices, and areas of need.
Sec.  90.24 Activities That May Compromise Victim Safety and Recovery
    Section 90.24 provides that grant funds may not be used to support 
activities that compromise victim safety and recovery. This section is 
based on the overall purpose of VAWA to enhance victim safety. Specific 
examples of such activities are included in the STOP Program 
solicitation each year and in special conditions attached to each OVW 
grant award. For example, past solicitations explained that such unsafe 
activities include procedures or policies that exclude victims from 
receiving safe shelter, advocacy services, counseling, and other 
assistance based on their actual or perceived age, immigration status, 
race, religion, sexual orientation, gender identity, mental health 
condition, physical health condition, criminal record, work in the sex 
industry, or the age and/or gender of their children. No comments were 
received on this section.
Sec.  90.25 Reallocation of Funds
    Section 90.25 implements a new provision from VAWA 2013, 42 U.S.C. 
3796gg-1(j), which allows states to reallocate funds in the law 
enforcement, prosecution, courts, and victim services (including 
culturally specific services) allocation categories if they did not 
receive ``sufficient eligible applications.'' The section defines an 
``eligible'' application and provides the information that states must 
maintain on file to document a lack of sufficient eligible 
applications. The section ensures that states conduct sufficient 
outreach to the eligible category of subgrantees before reallocating 
the funds. One commenter noted that, while they generally agree with 
the provision, they request more detail on what is needed for a state 
to be allowed to reallocate funds to another category. Another 
commenter specifically stated that, if there have been insufficient 
applications in the culturally specific category, the state should also 
provide documentation as to whether there were applicants that applied 
but failed to qualify and if the state reached out to any applicants 
that failed to apply. OVW agrees with these suggestions but has 
concluded that they apply not just to the culturally specific category, 
but to all of the categories. OVW has added a requirement regarding 
additional documentation on applications that were unfunded for all of 
the categories (i.e., law enforcement, courts, victim services, 
prosecution, and culturally-specific) and reorganized the section for 
better clarity.

IV. Regulatory Certifications

Executive Orders 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation, and in accordance with Executive Order 
13563, ``Improving Regulation and Regulatory Review,'' section 1(b). 
General Principles of Regulation.
    The Department of Justice has determined that this rule is not a 
``significant regulatory action'' under Executive Order 12866, section 
3(f) because it is not likely to: (1) Have an annual effect on the 
economy of $100 million or more; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues.
    (1) The rule's impact is limited to OVW grant funds. It does not 
change the economic impact of the grant funds and will impose very few 
economic costs as discussed below.
    (2) The Department of Health and Human Services (HHS) has a similar 
program under the Family Violence Prevention and Services Act (FVPSA), 
which uses some of the same definitions and a similar confidentiality 
provision. OVW and the HHS FVPSA office coordinate to ensure 
consistency in implementation of programs.
    (3) The requirements in the rule are statutory and apply only to 
OVW grantees. In some cases, OVW has added some additional specificity 
to clarify the statutory requirements. The rule provides details on 
what information the states must provide as ``documentation,'' but does 
not impose new requirements.
    (4) This rule does not raise any novel legal or policy issues.
    Further, both Executive Orders 12866 and 13563 direct agencies to 
assess all costs and benefits of available regulatory alternatives and 
to select regulatory approaches that maximize net benefits. The 
Department has assessed the costs and benefits of this regulation and 
believes that the regulatory approach selected maximizes net benefits. 
In most cases, the rule simply clarifies the statutory requirements, 
such as providing definitions, which would not have any cost or might 
reduce costs by providing administrators with clear guidance.

[[Page 85890]]

    OVW provides the following analysis of the most noteworthy costs, 
benefits, and alternative choices.
    Subpart A. In general, most of this subpart comes from the statute. 
OVW developed all of these provisions to answer questions received 
regularly from grantees and provide greater clarity for grantees and 
save them the time and effort of analyzing the requirements and seeking 
further guidance from OVW staff. Under this final rule, a victim 
service component of a larger organization, agency, or government will 
need a victim release to share identifying victim information with 
other divisions or leadership of the organization, agency or 
government. The use of the release will increase the degree of control 
that the victim has over his/her information, which is widely 
considered a best practice in the violence against women field. The 
cost of the rule is the time and administrative burden in executing and 
tracking the release. This cost cannot be quantified, however, because 
the discussion of release with the victim would take place in the 
context of a larger conversation between the victim and the service 
provider about options for the victim and next steps. OVW considered 
whether to prevent the release of information about deceased victims in 
the context of fatality reviews, out of consideration for surviving 
family members. OVW found a balance that allows for release but also 
requires the fatality review to attempt to get permission from an 
authorized representative and surviving minor children (and/or 
guardians of such) and limits the release to information necessary for 
the fatality review.
    Subpart B. In general, changes to subpart B reflect a balance 
between the burden on the state administrators and the need to ensure 
compliance with the statute. The relevant statute requires state 
implementation plans that must identify how the state will use STOP 
funds and meet certain statutory requirements. OVW opted to require 
full plans only every four years to reduce the burden on states in 
developing these plans. In the other years, states only submit updates 
to their plans.

Executive Order 13132--Federalism

    This regulation will not have substantial direct effects on the 
states, on the relationship between the national government and the 
states, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Regulatory Flexibility Act

    The OVW, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)), has reviewed this regulation and, by approving it, 
certifies that this regulation will not have a significant economic 
impact upon a substantial number of small entities for the following 
reason: Except for the match provisions in Sec.  90.18, the direct 
economic impact is limited to the OVW's appropriated funds. For more 
information on economic impact, please see above.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    This rule will not result in substantial direct increased costs to 
Indian tribal governments. The definitions and confidentiality 
provisions of the rule will impact grantees that are tribes. OVW 
currently has 351 active awards to 226 tribes and tribal organizations, 
for a total of over $182 million. As discussed above, any financial 
costs imposed by the rule are minimal.
    In addition, although a small number of tribes are subgrantees of 
the STOP Program, discussed in subpart B, the requirements of the rule 
are imposed on grantees, not subgrantees. The one provision in subpart 
B that will have a direct effect on tribes is Sec.  90.12(b)(3), which 
implements the statutory requirement that states consult with ``tribal 
governments in those States with State or federally recognized Indian 
tribes.'' 42 U.S.C. 3796gg-1(c)(2)(F). The rule requires states to 
invite all state or federally recognized tribes in the state to 
participate in the planning process. This approach was recommended by 
tribal participants in the tribal listening session and at OVW's annual 
government-to-government tribal consultations in 2013 and 2014.
    As discussed above, OVW included regulatory implementation of 
statutory changes to the STOP Program as a topic at its annual tribal 
consultations in 2013 and 2014. At the 2013 consultation, tribal 
leaders were asked for testimony on terms that should be defined in the 
regulations, additional entities that states should consult with in 
developing their implementation plans, how states should document the 
participation of planning committee members, and how states should 
consult with tribes, among other specific questions. The questions 
presented at the 2014 consultation included how states might better 
consult with tribes during STOP implementation planning, and how states 
should include tribes in the equitable distribution of funds for 
underserved populations and culturally specific services. At both 
consultations, tribal leaders emphasized the importance of states 
engaging in meaningful consultation with all tribes in their state. 
Tribal leaders noted that such consultation should involve a 
cooperative decision-making process designed to reach consensus before 
a decision is made or action is taken, and that effective consultation 
leads to an implementation plan that takes into account the needs of 
tribes. Tribal leaders also pointed out that a state's failure to 
consult with tribes can prevent tribes from accessing STOP funds or 
even being aware that they are available. Finally, testimony at the 
tribal consultations raised concerns about states asking tribal 
shelters to volunteer to provide matching funds in order to receive 
STOP subgrant funding.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not uniquely affect 
small governments. Therefore, no actions were deemed necessary under 
the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in cost or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete in domestic and export markets.

List of Subjects in 28 CFR Part 90

    Grant programs; Judicial administration.

    For the reasons set forth in the preamble, the Office on Violence 
Against Women amends 28 CFR part 90 as follows:

[[Page 85891]]

PART 90--VIOLENCE AGAINST WOMEN

0
1. The authority for part 90 is revised to read as follows:

    Authority: 42 U.S.C. 3796gg et seq.; 42 U.S.C. 3796hh et seq., 
42 U.S.C. 13925

Subpart A--General Provisions

0
2. Section 90.1 is revised to read as follows:


Sec.  90.1   General

    (a) This part implements certain provisions of the Violence Against 
Women Act (VAWA), and subsequent legislation as follows:
    (1) The Violence Against Women Act (VAWA), Title IV of the Violent 
Crime Control and Law Enforcement Act of 1994, Public Law 103-322 
(Sept. 13, 1994);
    (2) The Violence Against Women Act of 2000 (VAWA 2000), Division B 
of the Victims of Trafficking and Violence Protection Act of 2000, 
Public Law 106-386 (Oct. 28, 2000);
    (3) The Violence Against Women Office Act, Title IV of the 21st 
Century Department of Justice Appropriations Authorization Act, Public 
Law 107-273 (Nov. 2, 2002);
    (4) The Violence Against Women and Department of Justice 
Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162 (January 5, 
2006); and,
    (5) The Violence Against Women Reauthorization Act of 2013 (VAWA 
2013), Public Law 113-4 (Mar. 7, 2013).
    (b) Subpart B of this part defines program eligibility criteria and 
sets forth requirements for application for and administration of 
formula grants to States to combat violent crimes against women. This 
program is codified at 42 U.S.C. 3796gg through 3796gg-5 and 3796gg-8.
    (c) Subpart C of this part was removed on September 9, 2013.
    (d) Subpart D of this part defines program eligibility criteria and 
sets forth requirements for the discretionary Grants to Encourage 
Arrest Policies and Enforcement of Protection Orders Program.
    (e) Subpart A of this part applies to all grants made by OVW and 
subgrants made under the STOP Violence Against Women Formula Program 
(STOP Program) and the Sexual Assault Services Formula Grant Program 
after the effective date of this rule. Subpart B of this part applies 
to all STOP Program grants issued by OVW after the effective date of 
the rule and to all subgrants issued by states under the STOP Program 
after the effective date of the rule, even if the underlying grant was 
issued by OVW prior to the effective date of the rule.

0
3. Section 90.2 is revised to read as follows:


Sec.  90.2   Definitions

    (a) In addition to the definitions in this section, the definitions 
in 42 U.S.C. 13925(a) apply to all grants awarded by the Office on 
Violence Against Women and all subgrants made under such awards.
    (b) The term ``community-based program'' has the meaning given the 
term ``community-based organization'' in 42 U.S.C. 13925(a).
    (c) The term ``forensic medical examination'' means an examination 
provided to a victim of sexual assault by medical personnel to gather 
evidence of a sexual assault in a manner suitable for use in a court of 
law.
    (1) The examination should include at a minimum:
    (i) Gathering information from the patient for the forensic medical 
history;
    (ii) Head-to-toe examination of the patient;
    (iii) Documentation of biological and physical findings; and
    (iv) Collection of evidence from the patient.
    (2) Any costs associated with the items listed in paragraph (c)(1) 
of this section, such as equipment or supplies, are considered part of 
the ``forensic medical examination.''
    (3) The inclusion of additional procedures (e.g., testing for 
sexually transmitted diseases) may be determined by the State, Indian 
tribal government, or unit of local government in accordance with its 
current laws, policies, and practices.
    (d) The term ``prevention'' includes both primary and secondary 
prevention efforts. ``Primary prevention'' means strategies, 
programming, and activities to stop both first-time perpetration and 
first-time victimization. Primary prevention is stopping domestic 
violence, dating violence, sexual assault, and stalking before they 
occur. ``Secondary prevention'' is identifying risk factors or problems 
that may lead to future domestic violence, dating violence, sexual 
assault, or stalking and taking the necessary actions to eliminate the 
risk factors and the potential problem. ``Prevention'' is distinguished 
from ``outreach,'' which has the goal of informing victims and 
potential victims about available services.
    (e) The term ``prosecution'' means any public agency charged with 
direct responsibility for prosecuting criminal offenders, including 
such agency's component bureaus (such as governmental victim services 
programs). Public agencies that provide prosecution support services, 
such as overseeing or participating in Statewide or multi-
jurisdictional domestic violence, dating violence, sexual assault, or 
stalking task forces, conducting training for State, tribal, or local 
prosecutors or enforcing victim compensation and domestic violence, 
dating violence, sexual assault, or stalking-related restraining orders 
also fall within the meaning of ``prosecution'' for purposes of this 
definition.
    (f) The term ``public agency'' has the meaning provided in 42 
U.S.C. 3791.
    (g) For the purpose of this part, a ``unit of local government'' is 
any city, county, township, town, borough, parish, village, or other 
general purpose political subdivision of a State. The following are not 
considered units of local government for purposes of this part:
    (1) Police departments;
    (2) Pre-trial service agencies;
    (3) District or city attorneys' offices;
    (4) Sheriffs' departments;
    (5) Probation and parole departments;
    (6) Shelters;
    (7) Nonprofit, nongovernmental victim service agencies including 
faith-based or community-based organizations; and
    (8) Universities.
    (h) The term ``victim services division or component of an 
organization, agency, or government'' refers to a division within a 
larger organization, agency, or government, where the division has as 
its primary purpose to assist or advocate for domestic violence, dating 
violence, sexual assault, or stalking victims and has a documented 
history of work concerning such victims.

0
4. Section 90.4 is added to subpart A to read as follows:


Sec.  90.4   Grant conditions.

    (a) Applicability. In addition to the grant conditions in 
paragraphs (b) and (c) of this section, the grant conditions in 42 
U.S.C. 13925(b) apply to all grants awarded by the Office on Violence 
Against Women and all subgrants made under such awards.
    (b) Nondisclosure of confidential or private information--(1) In 
general. In order to ensure the safety of adult, youth, and child 
victims of domestic violence, dating violence, sexual assault, or 
stalking and their families, grantees and subgrantees under this part 
shall protect the confidentiality and privacy of persons receiving 
services.
    (2) Nondisclosure. (i) Subject to paragraph (b)(3) of this section, 
grantees and subgrantees shall not disclose any

[[Page 85892]]

personally identifying information or individual information collected 
in connection with services requested, utilized, or denied through 
grantees' and subgrantees' programs, regardless of whether the 
information has been encoded, encrypted, hashed, or otherwise 
protected.
    (ii) This paragraph applies whether the information is being 
requested for a Department of Justice grant program or another Federal 
agency, State, tribal, or territorial grant program. This paragraph 
also limits disclosures by subgrantees to grantees, including 
disclosures to Statewide or regional databases.
    (iii) This paragraph also applies to disclosures from the victim 
services divisions or components of an organization, agency, or 
government to other non-victim service divisions within an 
organization, agency, or government. It also applies to disclosures 
from victim services divisions or components of an organization, 
agency, or government to the leadership of the organization, agency, or 
government (e.g., executive director or chief executive). Such 
executives shall have access without releases only in extraordinary and 
rare circumstances. Such circumstances do not include routine 
monitoring and supervision.
    (3) Release. (i) Personally identifying information or individual 
information that is collected as described in paragraph (b)(2) of this 
section may not be released except under the following circumstances:
    (A) The victim signs a release as provided in paragraph (b)(3)(ii) 
of this section;
    (B) Release is compelled by statutory mandate, which includes 
mandatory child abuse reporting laws; or
    (C) Release is compelled by court mandate, which includes a legal 
mandate created by case law, such as a common-law duty to warn.
    (ii) Victim releases must meet the following criteria--
    (A) Releases must be written, informed, and reasonably time-
limited. Grantees and subgrantees may not use a blanket release and 
must specify the scope and limited circumstances of any disclosure. At 
a minimum, grantees and subgrantees must: Discuss with the victim why 
the information might be shared, who would have access to the 
information, and what information could be shared under the release; 
reach agreement with the victim about what information would be shared 
and with whom; and record the agreement about the scope of the release. 
A release must specify the duration for which information may be 
shared. The reasonableness of this time period will depend on the 
specific situation.
    (B) Grantees and subgrantees may not require consent to release of 
information as a condition of service.
    (C) Releases must be signed by the victim unless the victim is a 
minor who lacks the capacity to consent to release or is a legally 
incapacitated person and has a court-appointed guardian. Except as 
provided in paragraph (b)(3)(ii)(D) of this section, in the case of an 
unemancipated minor, the release must be signed by the minor and a 
parent or guardian; in the case of a legally incapacitated person, it 
must be signed by a legally-appointed guardian. Consent may not be 
given by the abuser of the minor or incapacitated person or the abuser 
of the other parent of the minor. If a minor is incapable of knowingly 
consenting, the parent or guardian may provide consent. If a parent or 
guardian consents for a minor, the grantee or subgrantee should attempt 
to notify the minor as appropriate.
    (D) If the minor or person with a legally appointed guardian is 
permitted by law to receive services without the parent's or guardian's 
consent, the minor or person with a guardian may consent to release 
information without additional consent.
    (iii) If the release is compelled by statutory or court mandate, 
grantees and subgrantees must make reasonable efforts to notify victims 
affected by the disclosure and take steps necessary to protect the 
privacy and safety of the affected persons.
    (4) Fatality reviews. Grantees and subgrantees may share personally 
identifying information or individual information that is collected as 
described in paragraph (b)(2) of this section about deceased victims 
being sought for a fatality review to the extent permitted by their 
jurisdiction's law and only if the following conditions are met:
    (i) The underlying objectives of the fatality review are to prevent 
future deaths, enhance victim safety, and increase offender 
accountability;
    (ii) The fatality review includes policies and protocols to protect 
identifying information, including identifying information about the 
victim's children, from further release outside the fatality review 
team;
    (iii) The grantee or subgrantee makes a reasonable effort to get a 
release from the victim's personal representative (if one has been 
appointed) and from any surviving minor children or the guardian of 
such children (but not if the guardian is the abuser of the deceased 
parent), if the children are not capable of knowingly consenting; and
    (iv) The information released is limited to that which is necessary 
for the purposes of the fatality review.
    (5) Inadvertent release. Grantees and subgrantees are responsible 
for taking reasonable efforts to prevent inadvertent releases of 
personally identifying information or individual information that is 
collected as described in paragraph (b)(2) of this section.
    (6) Confidentiality assessment and assurances. Grantees and 
subgrantees are required to document their compliance with the 
requirements of this paragraph. All applicants for Office on Violence 
Against Women funding are required to submit a signed acknowledgement 
form, indicating that they have notice that, if awarded funds, they 
will be required to comply with the provisions of this paragraph, will 
mandate that subgrantees, if any, comply with this provision, and will 
create and maintain documentation of compliance, such as policies and 
procedures for release of victim information, and will mandate that 
subgrantees, if any, will do so as well.
    (c) Victim eligibility for services. Victim eligibility for direct 
services is not dependent on the victim's immigration status.
    (d) Reports. An entity receiving a grant under this part shall 
submit to the Office on Violence Against Women reports detailing the 
activities undertaken with the grant funds. These reports must comply 
with the requirements set forth in 2 CFR 200.328 and provide any 
additional information that the Office on Violence Against Women 
requires.

0
5. Subpart B is revised to read as follows:
Subpart B--The STOP (Services * Training * Officers * Prosecutors) 
Violence Against Women Formula Grant Program
Sec.
90.10 STOP (Services * Training * Officers * Prosecutors) Violence 
Against Women Formula Grant Program--general.
90.11 State office.
90.12 Implementation plans.
90.13 Forensic medical examination payment requirement.
90.14 Judicial notification requirement.
90.15 Costs for criminal charges and protection orders.
90.16 Polygraph testing prohibition.
90.17 Subgranting of funds.
90.18 Matching funds.
90.19 Application content.
90.21 Evaluation.
90.22 Review of State applications.
90.23 Annual grantee and subgrantee reporting.
90.24 Activities that may compromise victim safety and recovery.
90.25 Reallocation of funds.

[[Page 85893]]

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

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


Sec.  90.11   State office.

    (a) Statewide plan and application. The chief executive of each 
participating State shall designate a State office for the purposes of:
    (1) Certifying qualifications for funding under this program;
    (2) Developing a Statewide plan for implementation of the STOP 
Violence Against Women Formula Grants as described in Sec.  90.12; and
    (3) Preparing an application to receive funds under this program.
    (b) Administration and fund disbursement. In addition to the duties 
specified by paragraph (a) of this section, the State office shall 
administer funds received under this program, including receipt, 
review, processing, monitoring, progress and financial report review, 
technical assistance, grant adjustments, accounting, auditing, and fund 
disbursements.
    (c) Allocation requirement. (1) The State office shall allocate 
funds as provided in 42 U.S.C. 3796gg-1(c)(4) to courts and for law 
enforcement, prosecution, and victim services (including funds that 
must be awarded to culturally specific community-based organizations).
    (2) The State office shall ensure that the allocated funds benefit 
law enforcement, prosecution and victim services and are awarded to 
courts and culturally specific community-based organizations. In 
ensuring that funds benefit the appropriate entities, if funds are not 
subgranted directly to law enforcement, prosecution, and victim 
services, the State must require demonstration from the entity to be 
benefitted in the form of a memorandum of understanding signed by the 
chief executives of both the entity and the subgrant recipient, stating 
that the entity supports the proposed project and agrees that it is to 
the entity's benefit.
    (3) Culturally specific allocation: 42 U.S.C. 13925 defines 
``culturally specific'' as primarily directed toward racial and ethnic 
minority groups (as defined in 42 U.S.C. 300u-6(g)). An organization 
will qualify for funding for the culturally specific allocation if its 
primary mission is to address the needs of racial and ethnic minority 
groups or if it has developed a special expertise regarding services to 
address the demonstrated needs of a particular racial and ethnic 
minority group. The organization must do more than merely provide 
services to the targeted group; rather, the organization must provide 
culturally competent services designed to meet the specific needs of 
the target population. This allocation requires States to set aside a 
minimum of ten percent (within the thirty-percent allocation for victim 
services) of STOP Program funds for culturally specific services, but 
States are encouraged to provide higher levels of funding to address 
the needs of racial and ethnic minority groups. States should tailor 
their subgrant application process to assess the qualifications of 
applicants for the culturally specific set aside, such as reviewing the 
mission statement of the applicant, the make-up of the board of 
directors or steering committee of the applicant (with regard to 
knowledge and experience with relevant cultural populations and 
language skills), and the history of the organization.
    (4) Sexual assault set aside: As provided in 42 U.S.C. 3796gg-
1(c)(5), the State must also award at least 20 percent of the total 
State award to projects in two or more allocations in 42 U.S.C. 3796gg-
1(c)(4) that meaningfully address sexual assault. States should 
evaluate whether the interventions are tailored to meet the specific 
needs of sexual assault victims including ensuring that projects funded 
under the set aside have a legitimate focus on sexual assault and that 
personnel funded under such projects have sufficient expertise and 
experience on sexual assault.
    (d) Pass-through administration. The State office has broad 
latitude in structuring its administration of the STOP Violence Against 
Women Formula Grant Program. STOP Program funding may be administered 
by the State office itself or by other means, including the use of 
pass-through entities (such as State domestic violence or sexual 
assault coalitions) to make determinations regarding award distribution 
and to administer funding. States that opt to use a pass-through entity 
shall ensure that the total sum of STOP Program funding for 
administrative and training costs for the State and pass-through entity 
is within the limit established by Sec.  90.17(b), the reporting of 
activities at the subgrantee level is equivalent to what would be 
provided if the State were directly overseeing sub-awards, and an 
effective system of monitoring sub-awards is used. States shall report 
on the work of the pass-through entity in such form and manner as OVW 
may specify from time to time.


Sec.  90.12   Implementation plans.

    (a) In general. Each State must submit a plan describing its 
identified goals under this program and how the funds will be used to 
accomplish those goals. The plan must include all of the elements 
specified in 42 U.S.C. 3796gg-1(i). The plan will cover a four-year 
period. In years two through four of the plan, each State must submit 
information on any updates or changes to the plan, as well as updated 
demographic information.
    (b) Consultation and coordination. In developing and updating this 
plan, a State must consult and coordinate with the entities specified 
in 42 U.S.C. 3796gg-1(c)(2).
    (1) This consultation process must include at least one sexual 
assault victim service provider and one domestic violence victim 
service provider and may include other victim service providers.
    (2) In determining what population specific organizations, 
representatives from underserved populations, and culturally specific 
organizations to include in the consultation process, States should 
consider the demographics of their State as well as barriers to 
service, including historical lack of access to services, for each 
population. The consultation process should involve any significant 
underserved and culturally specific populations in the State, including 
organizations working with lesbian, gay, bisexual, and transgender 
(LGBT) people and organizations that focus on people with limited 
English proficiency. If the State does not have any culturally specific 
or population specific organizations at the State or local level, the 
State may use national organizations to collaborate on the plan.
    (3) States must invite all State or federally recognized tribes to 
participate in the planning process. Tribal coalitions and State or 
regional tribal consortia may help the State reach out to the tribes 
but cannot be used as a substitute for consultation with all tribes.
    (4) States are encouraged to include survivors of domestic 
violence, dating violence, sexual assault, and stalking in the planning 
process. States that include survivors should address safety and 
confidentiality considerations in recruiting and consulting with such 
survivors.

[[Page 85894]]

    (5) States should include probation and parole entities in the 
planning process.
    (6) As provided in 42 U.S.C. 3796gg-1(c)(3), States must coordinate 
the plan with the State plan for the Family Violence Prevention and 
Services Act (42 U.S.C. 10407), the State Victim Assistance Formula 
Grants under the Victims of Crime Act (42 U.S.C. 10603), and the Rape 
Prevention and Education Program (42 U.S.C. 280b-1b). The purposes of 
this coordination process are to provide greater diversity of projects 
funded and leverage efforts across the various funding streams.
    (7) Although all of the entities specified in 42 U.S.C. 3796gg-
1(c)(2) must be consulted, they do not all need to be on the ``planning 
committee.'' The planning committee must include the following, at a 
minimum:
    (i) The State domestic violence and sexual assault coalitions as 
defined by 42 U.S.C. 13925(a)(32) and (33) (or dual coalition)
    (ii) A law enforcement entity or State law enforcement organization
    (iii) A prosecution entity or State prosecution organization
    (iv) A court or the State Administrative Office of the Courts
    (v) Representatives from tribes, tribal organizations, or tribal 
coalitions
    (vi) Population specific organizations representing the most 
significant underserved populations and culturally specific populations 
in the State other than tribes, which are addressed separately.
    (8) The full consultation should include more robust representation 
than the planning committee from each of the required groups as well as 
all State and Federally recognized tribes.
    (c) Documentation of consultation. As part of the implementation 
plan, the State must either submit or retain documentation of 
collaboration with all the entities specified in paragraph (b) of this 
section and in 42 U.S.C. 3796gg-1(c)(2), as provided in this paragraph.
    (1) States must retain all of the following documentation but are 
not required to submit it to OVW as part of the implementation plan:
    (i) For in-person meetings, a sign-in sheet with name, title, 
organization, which of the required entity types (e.g., tribal 
government, population specific organization, prosecution, court, state 
coalition) the person is representing, phone number, email address, and 
signature;
    (ii) For online meetings, the web reports or other documentation of 
who participated in the meeting;
    (iii) For phone meetings, documentation of who was on the call, 
such as a roll call or minutes; and
    (iv) For any method of document review that occurred outside the 
context of a meeting, information such as to whom the draft 
implementation plan was sent, how it was sent (for example, email 
versus mail), and who responded.
    (2) States must submit all of the following documentation to OVW as 
part of the implementation plan:
    (i) A summary of major concerns that were raised during the 
planning process and how they were addressed or why they were not 
addressed, which should be sent to the planning committee along with 
any draft implementation plan and the final plan;
    (ii) Documentation of collaboration for each planning committee 
member that documents, at a minimum:
    (A) Which category the participant represents of the entities 
listed in 42 U.S.C. 3796gg-1(c)(2), such as law enforcement, state 
coalition, or population specific organization;
    (B) Whether they were informed about meetings;
    (C) Whether they attended meetings;
    (D) Whether they were given drafts of the implementation plan to 
review;
    (E) Whether they submitted comments on the draft;
    (F) Whether they received a copy of the final plan and the summary 
of major concerns; and
    (G) Any significant concerns with the final plan;
    (iii) A description of efforts to reach tribes, if applicable;
    (iv) An explanation of how the State determined which underserved 
and culturally specific populations to include.
    (d) Equitable distribution. The implementation plan must describe, 
on an annual or four-year basis, how the State, in disbursing monies, 
will:
    (1) Give priority to areas of varying geographic size with the 
greatest showing of need based on the range and availability of 
existing domestic violence and sexual assault programs in the 
population and geographic area to be served in relation to the 
availability of such programs in other such populations and geographic 
areas, including Indian reservations;
    (2) Determine the amount of subgrants based on the population and 
geographic area to be served;
    (3) Equitably distribute monies on a geographic basis including 
nonurban and rural areas of various geographic sizes;
    (4) Recognize and meaningfully respond to the needs of underserved 
populations and ensure that monies set aside to fund linguistically and 
culturally specific services and funds for underserved populations are 
distributed equitably among culturally specific and other underserved 
populations; and
    (5) Take steps to ensure that eligible applicants are aware of the 
STOP Program funding opportunity, including applicants serving 
different geographic areas and culturally specific and other 
underserved populations.
    (e) Underserved populations. Each State may determine the methods 
it uses for identifying underserved populations within the State, which 
may include public hearings, needs assessments, task forces, and United 
States Census Bureau data. The implementation plan must include details 
regarding the methods used and the results of those methods. It must 
also include information on how the State plans to meet the needs of 
identified underserved populations, including, but not limited to, 
culturally specific populations, victims who are underserved because of 
sexual orientation or gender identity, and victims with limited English 
proficiency.
    (f) Goals and objectives for reducing domestic violence homicide. 
As required by 42 U.S.C. 3796gg-1(i)(2)(G), State plans must include 
goals and objectives for reducing domestic violence homicide.
    (1) The plan must include available statistics on the rates of 
domestic violence homicide within the State.
    (2) As part of the State's consultation with law enforcement, 
prosecution, and victim service providers, the State and these entities 
should discuss and document the perceived accuracy of these statistics 
and the best ways to address domestic violence homicide.
    (3) The plan must identify specific goals and objectives for 
reducing domestic violence homicide, based on these discussions, which 
include challenges specific to the State and how the plan can overcome 
them.
    (g) Additional contents. State plans must also include the 
following:
    (1) Demographic information regarding the population of the State 
derived from the most recent available United States Census Bureau data 
including population data on race, ethnicity, age, disability, and 
limited English proficiency.
    (2) A description of how the State will reach out to community-
based organizations that provide linguistically and culturally specific 
services.
    (3) A description of how the State will address the needs of sexual 
assault victims, domestic violence victims, dating violence victims, 
and stalking

[[Page 85895]]

victims, as well as how the State will hold offenders who commit each 
of these crimes accountable.
    (4) A description of how the State will ensure that eligible 
entities are aware of funding opportunities, including projects serving 
underserved populations as defined by 42 U.S.C. 13925(a).
    (5) Information on specific projects the State plans to fund.
    (6) An explanation of how the State coordinated the plan as 
described in paragraph (b)(6) and the impact of that coordination on 
the contents of the plan.
    (7) If applicable, information about whether the State has 
submitted an assurance, a certification, or neither under the Prison 
Rape Elimination Act (PREA) standards (28 CFR part 115) and, if an 
assurance, how the State plans to spend STOP funds set aside for PREA 
compliance.
    (8) A description of how the State will identify and select 
applicants for subgrant funding, including whether a competitive 
process will be used.
    (h) Deadline. State plans will be due at application. If the Office 
on Violence Against Women determines the submitted plan is incomplete, 
the State will receive the award, but will not be able to access 
funding until the plan is completed and approved. The State will have 
60 days from the award date to complete the plan. If the State does not 
complete it in that time, then the funds may be deobligated and the 
award closed.


Sec.  90.13  Forensic medical examination payment requirement.

    (a) To be eligible for funding under this program, a State must 
meet the requirements at 42 U.S.C. 3796gg-4(a)(1) with regard to 
incurring the full out-of-pocket costs of forensic medical examinations 
for victims of sexual assault.
    (b) ``Full out-of-pocket costs'' means any expense that may be 
charged to a victim in connection with a forensic medical examination 
for the purpose of gathering evidence of a sexual assault (e.g., the 
full cost of the examination, an insurance deductible, or a fee 
established by the facility conducting the examination). For 
individuals covered by insurance, full out-of-pocket costs means any 
costs that the insurer does not pay.
    (c) Coverage of the cost of additional procedures (e.g., testing 
for sexually transmitted diseases) may be determined by the State or 
governmental entity responsible for paying the costs.
    (d) States are strongly discouraged from billing a victim's private 
insurance and may only do so as a source of payment for the exams if 
they are not using STOP Program funds to pay for the cost of the exams. 
In addition, any expenses not covered by the insurer must be covered by 
the State or other governmental entity and cannot be billed to the 
victim. This includes any deductibles or denial of claims by the 
insurer.
    (e) The State or other governmental entity responsible for paying 
the costs of forensic medical exams must coordinate with health care 
providers in the region to notify victims of sexual assault of the 
availability of rape exams at no cost to the victims. States can meet 
this obligation by partnering with associations that are likely to have 
the broadest reach to the relevant health care providers, such as 
forensic nursing or hospital associations. States with significant 
tribal populations should also consider reaching out to local Indian 
Health Service facilities.


Sec.  90.14  Judicial notification requirement.

    (a) To be eligible for funding under this program, a State must 
meet the requirements of 42 U.S.C. 3796gg-4(e) with regard to judicial 
notification to domestic violence offenders of Federal prohibitions on 
their possession of a firearm or ammunition in 18 U.S.C. 922(g)(8) and 
(9) and any applicable related Federal, State, or local laws..
    (b) A unit of local government shall not be eligible for subgrants 
from the State unless it complies with the requirements of 42 U.S.C. 
3796gg-4(e) with respect to its judicial administrative policies and 
practices.


Sec.  90.15  Costs for criminal charges and protection orders.

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


Sec.  90.16  Polygraph testing prohibition.

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


Sec.  90.17  Subgranting of funds.

    (a) In general. Funds granted to qualified States are to be further 
subgranted by the State to agencies, offices, and programs including, 
but not limited to, State agencies and offices; State and local courts; 
units of local government; public agencies; Indian tribal governments; 
victim service providers; community-based organizations; and legal 
services programs to carry out programs and projects to develop and 
strengthen effective law enforcement and prosecution strategies to 
combat violent crimes against women, and to develop and strengthen 
victim services in cases involving violent crimes against women, and 
specifically for the purposes listed in 42 U.S.C. 3796gg(b) and 
according to the allocations specified in 42 U.S.C. 3796gg-1(c)(4) for 
law enforcement, prosecution, victim services, and courts.
    (b) Administrative costs. States are allowed to use up to ten 
percent of the award amount for each allocation category under 42 
U.S.C. 3796gg-1(c)(4) (law enforcement, prosecution, courts, victim 
services, and discretionary) to support the State's administrative 
costs. Amounts not used for administrative costs should be used to 
support subgrants.
    (1) Funds for administration may be used only for costs directly 
associated with administering the STOP Program. Where allowable 
administrative costs are allocable to both the STOP Program and another 
State program, the STOP Program grant may be charged no more than its 
proportionate share of such costs.
    (2) Costs directly associated with administering the STOP Program 
generally include the following:
    (i) Salaries and benefits of State office staff and consultants to 
administer and manage the program;
    (ii) Training of State office staff, including, but not limited to, 
travel, registration fees, and other expenses associated with State 
office staff attendance at technical assistance meetings and 
conferences relevant to the program;

[[Page 85896]]

    (iii) Monitoring compliance of STOP Program subgrantees with 
Federal and State requirements, provision of technical assistance, and 
evaluation and assessment of program activities, including, but not 
limited to, travel, mileage, and other associated expenses;
    (iv) Reporting and related activities necessary to meet Federal and 
State requirements;
    (v) Program evaluation, including, but not limited to, surveys or 
studies that measure the effect or outcome of victim services;
    (vi) Program audit costs and related activities necessary to meet 
Federal audit requirements for the STOP Program grant;
    (vii) Technology-related costs, generally including for grant 
management systems, electronic communications systems and platforms 
(e.g., Web pages and social media), geographic information systems, 
related equipment (e.g., computers, software, facsimile and copying 
machines, and TTY/TDDs) and related technology support services 
necessary for administration of the program;
    (viii) Memberships in organizations that support the management and 
administration of violence against women programs, except if such 
organizations engage in lobbying, and publications and materials such 
as curricula, literature, and protocols relevant to the management and 
administration of the program;
    (ix) Strategic planning, including, but not limited to, the 
development of strategic plans, both service and financial, including 
conducting surveys and needs assessments;
    (x) Coordination and collaboration efforts among relevant Federal, 
State, and local agencies and organizations to improve victim services;
    (xi) Publications, including, but not limited to, developing, 
purchasing, printing, distributing training materials, victim services 
directories, brochures, and other relevant publications; and
    (xii) General program improvements--enhancing overall State office 
operations relating to the program and improving the delivery and 
quality of STOP Program funded services throughout the State.


Sec.  90.18  Matching funds.

    (a) In general. Subject to certain exclusions, States are required 
to provide a 25-percent non-Federal match. This does not apply to 
territories. This 25-percent match may be cash or in-kind services. 
States are expected to submit written documentation that identifies the 
source of the match. Funds awarded to victim service providers for 
victim services or to tribes are excluded from the total award amount 
for purposes of calculating match. This includes funds that are awarded 
under the ``discretionary'' allocation for victim services purposes and 
funds that are reallocated from other categories to victim services.
    (b) In-kind match. In-kind match may include donations of 
expendable equipment; office supplies; workshop or education and 
training materials; work space; or the monetary value of time 
contributed by professional and technical personnel and other skilled 
and unskilled labor, if the services provided are an integral and 
necessary part of a funded project. Value for in-kind match is guided 
by 2 CFR 200.306. The value placed on loaned equipment may not exceed 
its fair rental value. The value placed on donated services must be 
consistent with the rate of compensation paid for similar work in the 
organization or the labor market. Fringe benefits may be included in 
the valuation. Volunteer services must be documented and, to the extent 
feasible, supported by the same valuation methods used by the recipient 
organization for its own employees. The value of donated space may not 
exceed the fair rental value of comparable space, as established by an 
independent appraisal of comparable space and facilities in a privately 
owned building in the same locality. The value for donated supplies 
shall be reasonable and not exceed the fair market value at the time of 
the donation. The basis for determining the value of personal services, 
materials, equipment, and space must be documented.
    (c) Tribes and victim services providers. States may not require 
match to be provided in subgrants for Indian tribes or victim services 
providers.
    (d) Waiver. States may petition the Office on Violence Against 
Women for a waiver of match if they are able to adequately demonstrate 
financial need.
    (1) State match waiver. States may apply for full or partial 
waivers of match by submitting specific documentation of financial 
need. Documentation must include the following:
    (i) The sources of non-Federal funds available to the State for 
match and the amount available from each source, including in-kind 
match and match provided by subgrantees or other entities;
    (ii) Efforts made by the State to obtain the matching funds, 
including, if applicable, letters from other State agencies stating 
that the funds available from such agencies may not be used for match;
    (iii) The specific dollar amount or percentage waiver that is 
requested;
    (iv) Cause and extent of the constraints on projected ability to 
raise violence against women program matching funds and changed 
circumstances that make past sources of match unavailable; and
    (v) If applicable, specific evidence of economic distress, such as 
documentation of double-digit unemployment rates or designation as a 
Federal Emergency Management Agency-designated disaster area.
    (vi) In a request for a partial waiver of match for a particular 
allocation, the State could provide letters from the entities under 
that allocation attesting to their financial hardship.
    (2) Demonstration of ability to provide violence against women 
matching funds. The State must demonstrate how the submitted 
documentation affects the State's ability to provide violence against 
women matching funds. For example, if a State shows that across the 
board budget cuts have directly reduced violence against women funding 
by 20 percent, that State would be considered for a 20 percent waiver, 
not a full waiver. Reductions in Federal funds are not relevant to 
State match unless the State can show that the reduced Federal funding 
directly reduced available State violence against women funds.
    (e) Accountability. All funds designated as match are restricted to 
the same uses as the program funds as set forth in 42 U.S.C. 3796gg(b) 
and must be expended within the grant period. The State must ensure 
that match is identified in a manner that guarantees its accountability 
during an audit.


Sec.  90.19  Application content.

    (a) Format. Applications from the States for the STOP Program must 
be submitted as described in the annual solicitation. The Office on 
Violence Against Women will notify each State office as designated 
pursuant to Sec.  90.11 when the annual solicitation is available. The 
solicitation will include guidance on how to prepare and submit an 
application for grants under this subpart.
    (b) Requirements. The application shall include all information 
required under 42 U.S.C. 3796gg-1(d).


Sec.  90.21  Evaluation.

    (a) Recipients of funds under this subpart must agree to cooperate 
with Federally-sponsored evaluations of their projects.
    (b) Recipients of STOP Program funds are strongly encouraged to 
develop a local evaluation strategy to assess the impact and 
effectiveness of the program

[[Page 85897]]

funded under the STOP Program. Funds may not be used for conducting 
research or evaluations. Applicants should consider entering into 
partnerships with research organizations that are submitting 
simultaneous grant applications to the National Institute of Justice 
for this purpose.


Sec.  90.22  Review of State applications.

    (a) General. The provisions of Part T of the Omnibus Crime Control 
and Safe Streets Act of 1968, 42 U.S.C. 3796gg et seq., and of this 
subpart provide the basis for review and approval or disapproval of 
State applications and amendments.
    (b) Intergovernmental review. This program is covered by Executive 
Order 12372 (Intergovernmental Review of Federal Programs) and 
implementing regulations at 28 CFR part 30. A copy of the application 
submitted to the Office on Violence Against Women should also be 
submitted at the same time to the State's Single Point of Contact, if 
there is a Single Point of Contact.


Sec.  90.23  Annual grantee and subgrantee reporting.

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


Sec.  90.24  Activities that may compromise victim safety and recovery.

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


Sec.  90.25  Reallocation of funds.

    This section implements 42 U.S.C. 3796gg-1(j), regarding 
reallocation of funds.
    (a) Returned funds. A State may reallocate funds returned to the 
State, within a reasonable amount of time before the award end date.
    (b) Insufficient eligible applications. A State may also reallocate 
funds if the State does not receive sufficient eligible applications to 
award the full funding under the allocations in 42 U.S.C. 3796gg-
1(c)(4). An ``eligible'' application is one that is from an eligible 
entity that has the capacity to perform the proposed services, proposes 
activities within the scope of the program, and does not propose 
significant activities that compromise victim safety. States should 
have the following information on file to document the lack of 
sufficient eligible applications:
    (1) A copy of their solicitation;
    (2) Documentation on how the solicitation was distributed, 
including all outreach efforts to entities from the allocation in 
question, which entities the State reached out to that did not apply, 
and, if known, why those entities did not apply;
    (3) An explanation of their selection process;
    (4) A list of who participated in the selection process (name, 
title, and employer);
    (5) Number of applications that were received for the specific 
allocation category;
    (6) Information about the applications received, such as what 
agency or organization they were from, how much money they were 
requesting, and any reasons the applications were not funded;
    (7) If applicable, letters from any relevant State-wide body 
explaining the lack of applications, such as from the State Court 
Administrator if the State is seeking to reallocate money from courts; 
and
    (8) For the culturally specific allocation, in addition to the 
items in paragraphs (b)(1) through (7) of this section, demographic 
statistics of the relevant racial and ethnic minority groups within the 
State and documentation that the State has reached out to relevant 
organizations within the State or national organizations.

    Dated: November 17, 2016.
Bea Hanson,
Principal Deputy Director.
[FR Doc. 2016-28437 Filed 11-28-16; 8:45 am]
BILLING CODE 4410-FX-P