Special Tribal Criminal Jurisdiction Reimbursement, 21459-21468 [2023-07519]
Download as PDF
<![CDATA[
21459
Rules and Regulations
Federal Register
Vol. 88, No. 69
Tuesday, April 11, 2023
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
DEPARTMENT OF JUSTICE
28 CFR Part 90
[OVW Docket No. 2023–01]
RIN 1105–AB69
Special Tribal Criminal Jurisdiction
Reimbursement
Office on Violence Against
Women, Department of Justice.
ACTION: Interim final rule.
AGENCY:
The Violence Against Women
Act Reauthorization Act of 2022 (VAWA
2022) authorized a new program to
reimburse Tribal governments (or
authorized designees of Tribal
governments) for expenses incurred in
exercising ‘‘special Tribal criminal
jurisdiction’’ (STCJ) over non-Indians
who commit certain covered crimes in
Indian country. This rule will
implement this new Tribal
Reimbursement Program within the
Department of Justice’s Office on
Violence Against Women (OVW) by
providing details on how it will be
administered, including eligibility,
frequency of reimbursement, costs that
can be reimbursed, the annual
maximum allowable reimbursement per
Tribe, and conditions for waiver of the
annual maximum.
DATES:
Effective date: This rule is effective
April 11, 2023.
Comment date: Written comments
must be postmarked and electronic
comments must be submitted on or
before June 12, 2023. Comments
received by mail will be considered
timely if they are postmarked on or
before that date. The electronic Federal
Docket Management System (FDMS)
will accept comments until 11:59 p.m.
Eastern Time at the end of that day.
ADDRESSES: To ensure proper handling
of comments, please reference ‘‘RIN
1105–AB69’’ or ‘‘Docket No. OVW
2023–01’’ on all electronic and written
correspondence. The Department
lotter on DSK11XQN23PROD with RULES1
SUMMARY:
VerDate Sep<11>2014
16:10 Apr 10, 2023
Jkt 259001
encourages the electronic submission of
all comments through https://
www.regulations.gov using the
electronic comment form provided on
that site. For easy reference, an
electronic copy of this document is also
available at the https://
www.regulations.gov website. It is not
necessary to submit paper comments
that duplicate the electronic
submission, as all comments submitted
to https://www.regulations.gov will be
posted for public review and are part of
the official docket record. However,
should you wish to submit written
comments through regular or express
mail, they should be sent to Marnie
Shiels, Office on Violence Against
Women, United States Department of
Justice, 145 N Street NE, 10W.100,
Washington, DC 20530.
FOR FURTHER INFORMATION CONTACT:
Marnie Shiels, Office on Violence
Against Women, telephone (202) 307–
6026 or email at marnie.shiels@
usdoj.gov.
SUPPLEMENTARY INFORMATION:
I. Posting of Public Comments
Please note that all comments
received are considered part of the
public record and made available for
public inspection online at https://
www.regulations.gov. Information made
available for public inspection includes
personal identifying information (such
as your name, address, etc.) voluntarily
submitted by the commenter.
You are not required to submit
personal identifying information in
order to comment on this rule.
Nevertheless, if you want to submit
personal identifying information (such
as your name, address, etc.) as part of
your comment, but do not want it to be
posted online, you must include the
phrase ‘‘PERSONAL IDENTIFYING
INFORMATION’’ in the first paragraph
of your comment. You must also locate
all the personal identifying information
that you do not want posted online in
the first paragraph of your comment and
identify what information you want the
agency to redact. Personal identifying
information identified and located as set
forth above will be placed in the
agency’s public docket file, but not
posted online.
If you want to submit confidential
business information as part of your
comment but do not want it to be posted
online, you must include the phrase
PO 00000
Frm 00001
Fmt 4700
Sfmt 4700
‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You must also
prominently identify the confidential
business information to be redacted
within the comment. If a comment has
so much confidential business
information that it cannot be effectively
redacted, the agency may choose not to
post that comment (or to post that
comment only partially) on https://
www.regulations.gov. Confidential
business information identified and
located as set forth above will not be
placed in the public docket file, nor will
it be posted online.
If you want to inspect the agency’s
public docket file in person by
appointment, please see the information
under the FOR FURTHER INFORMATION
CONTACT heading.
II. General Purpose of This Rule
The Violence Against Women
Reauthorization Act of 2013 (VAWA
2013) recognized the authority of
participating Tribes to exercise ‘‘special
domestic violence criminal jurisdiction’’
(SDVCJ) over certain defendants,
regardless of their Indian or non-Indian
status, who commit crimes of domestic
violence or dating violence or who
violate certain protection orders in
Indian country.1 The Violence Against
Women Act Reauthorization Act of 2022
(VAWA 2022) expanded this
recognition, effective October 1, 2022, to
cover additional crimes, among other
changes to the jurisdiction, and
renamed it ‘‘special Tribal criminal
jurisdiction.’’ 2
VAWA 2022 also authorized a new
program to reimburse Tribal
governments (or authorized designees of
Tribal governments) for expenses
incurred in exercising special Tribal
criminal jurisdiction (hereinafter
referred to as the ‘‘Tribal
1 Sec. 904, Public Law 113–4, 127 Stat. 54, 120–
123 (codified at 25 U.S.C. 1304).
2 Public Law 117–103, div. W, title VIII, section
804, 136 Stat, 49, 898–904 (amending 25 U.S.C.
1304). The VAWA 2013 definition of ‘‘participating
tribe,’’ codified at 25 U.S.C. 1304(a)(4) (2021), was
revised by VAWA 2022 to take into account the
changes to the jurisdiction and moved to section
1304(a)(10). VAWA 2022 also established a
different definition of ‘‘participating Tribe’’ for most
Alaska Tribes. See Public Law 117–103, div. W,
title VIII, section 812(3), 136 Stat. 49, 905. More
information on these definitions is provided in the
Background section of this document.
E:\FR\FM\11APR1.SGM
11APR1
21460
Federal Register / Vol. 88, No. 69 / Tuesday, April 11, 2023 / Rules and Regulations
Reimbursement Program’’).3 This rule
will implement the Tribal
Reimbursement Program by setting forth
eligibility requirements, frequency of
reimbursement, costs that may be
reimbursed, an annual maximum
allowable reimbursement per Tribe, and
conditions for waiver of the annual
maximum allowable reimbursement.
III. Background
lotter on DSK11XQN23PROD with RULES1
A. VAWA 2013
Following the Supreme Court’s 1978
decision in Oliphant v. Suquamish
Tribe,4 Tribes lacked criminal
jurisdiction to prosecute non-Indians for
crimes committed in Indian country. If
the victim was Indian and the
perpetrator was non-Indian, the crime
could be prosecuted only by the United
States or, in some circumstances, by the
state in which the Tribe’s Indian
country is located.5
Native American women have
suffered some of the highest rates of
violence at the hands of intimate
partners in the United States. A
National Institute of Justice (NIJ)
analysis of 2010 survey data funded by
the Centers for Disease Control and
Prevention and NIJ found that more
than half (55.5 percent) of American
Indian and Alaska Native women have
experienced physical violence by an
intimate partner in their lifetimes. Over
their lifetimes, American Indian and
Alaska Native women are about five
times as likely as non-Hispanic Whiteonly females to have experienced
physical violence at the hands of an
intimate partner who is of a different
race at least once in their life.6
3 This program is codified as section 204(h)(1) of
the Indian Civil Rights Act (ICRA). See 25 U.S.C.
1304(h)(1). A Tribal government is the government
of an ‘‘Indian tribe,’’ which is defined in ICRA as
‘‘any tribe, band, or other group of Indians subject
to the jurisdiction of the United States and
recognized as possessing powers of selfgovernment.’’ Id. at 1301(1). The most recent list of
574 federally recognized Tribes published by the
Department of the Interior’s Bureau of Indian
Affairs is available at https://www.govinfo.gov/
content/pkg/FR-2022-01-28/pdf/2022-01789.pdf.
4 435 U.S. 191 (1978).
5 Prior to the Supreme Court’s decision in
Oklahoma v. Castro-Huerta, 142 S.Ct. 2486 (2022),
the presumption was that states possessed no
criminal jurisdiction over crimes committed by or
against Indians in Indian country unless Congress
conferred such authority upon a state. In CastroHuerta, the Supreme Court changed that analysis
with respect to crimes committed by non-Indians
against Indians.
6 Andre B. Rosay, U.S. Dept. of Justice, Nat’l Inst.
of Justice, Violence Against American Indian and
Alaska Native Women and Men: 2010 Findings
from the National Intimate Partner and Sexual
Violence Survey (May 2016) 21, 26, https://
www.ncjrs.gov/pdffiles1/nij/249736.pdf. The same
analysis likewise found high rates of sexual
violence against Native American women,
concluding that more than one in two American
VerDate Sep<11>2014
16:10 Apr 10, 2023
Jkt 259001
Realizing the challenges created by
Tribes’ lack of jurisdiction to prosecute
non-Indian domestic violence offenders,
Congress included in VAWA 2013 a
historic provision recognizing the
inherent authority of participating
Tribes to exercise ‘‘special domestic
violence criminal jurisdiction’’ (SDVCJ)
over certain defendants, regardless of
their Indian or non-Indian status, who
commit crimes of domestic violence or
dating violence against Indian victims
or violate certain protection orders in
Indian country.7 Since VAWA 2013’s
passage, 31 Tribes have reported that
they have implemented SDVCJ.
In VAWA 2013, Congress ensured that
the protections for a defendant’s federal
rights and civil liberties would be the
same in Tribal court as they would be
if the defendant were prosecuted in a
state court. Specifically, if the case
includes the possibility that a term of
imprisonment of any length may be
imposed, the defendant must be
afforded all applicable rights under the
Indian Civil Rights Act of 1968 (ICRA),8
all rights applicable to defendants
charged with felony offenses under the
Tribal Law and Order Act of 2010
(TLOA),9 and also the right to trial by
an impartial jury chosen from a jury
pool that is drawn from sources that
reflect a fair cross-section of the
community and do not systemically
exclude any distinctive group in the
community, including non-Indians.10
The TLOA rights include providing
each indigent defendant, at no cost to
the defendant, the right to the assistance
of a licensed defense attorney.11
To assist Tribes in implementing the
provisions of VAWA 2013, in June 2013,
DOJ established the Intertribal
Technical-Assistance Working Group on
Special Domestic Violence Criminal
Indian and Alaska Native women (56.1 percent)
have experienced sexual violence in their lifetime.
American Indian and Alaska Native women are
three times as likely as white women to have
experienced sexual violence by a perpetrator who
is of a different race. Id. at 13, 18.
7 See 25 U.S.C. 1304 (2021). VAWA 2013 defined
‘‘participating Tribe’’ as ‘‘an Indian tribe that elects
to exercise special domestic violence criminal
jurisdiction over the Indian country of that Indian
tribe.’’ Id. at 1304(a)(4) (2021).
8 The Indian Civil Rights Act of 1968 (ICRA)
(codified as amended at 25 U.S.C. 1301–1304)
limited the amount of jail time a Tribe can impose
and the maximum fine to one-year imprisonment
and $5,000.
9 The Tribal Law and Order Act (TLOA, title II of
Pub. L. 111–211) allowed Tribes to impose
increased sentences (up to 3 years or $15,000),
predicated on the provision of additional rights for
defendants. 25 U.S.C. 1302(a)(7), (b), and (c).
10 25 U.S.C. 1304(d).
11 The additional rights that a tribe must provide
under TLOA when it imposes a total term of
imprisonment of more than one year are listed at
25 U.S.C. 1302(c).
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
Jurisdiction (ITWG) so that Tribes could
exchange views, information, and
advice about how they could best
implement and exercise SDVCJ, combat
domestic violence, recognize victim’s
rights and safety needs, and fully
protect defendants’ rights. Since then,
over 50 Tribes have participated in the
ITWG where Tribes regularly share their
experiences preparing to implement or
implementing SDVCJ, attend in-person
or online meetings, and participate in
numerous webinars on subjects such as
jury pools and juror selection,
defendants’ rights, victims’ rights, and
prosecution skills. Through the ITWG,
Tribes have not only discussed
challenges and successes with other
Tribes but also shared best practices,
including their revised Tribal codes,
court rules, court forms, jury
instructions, and other tools they have
developed to implement SDVCJ. DOJ
continues to support the ITWG
including by providing training and
technical assistance.
VAWA 2013 also authorized a grant
program to assist Tribes in preparing to
exercise and exercising SDVCJ.12 This
program, known as the Tribal
Jurisdiction Program, first received an
appropriation of $2.5 million in fiscal
year (FY) 2016. Funds may be used to
support a broad range of activities
including efforts to strengthen Tribal
criminal justice systems, provide
indigent criminal defense, conduct jury
trials, and provide services and rights to
crime victims. Under the grant program,
Tribes submit an estimated budget with
their application and, if selected for
funding, draw down funds as they incur
the expenses based on actual costs. The
grant program has flexibility to allow
Tribes to use grant funds both for
planning to exercise jurisdiction and the
expenses of exercising the jurisdiction.
Tribes that receive grants may continue
to apply for additional grant funding at
the end of each grant cycle. The annual
appropriation for the program increased
to $4 million in FY 2017 and again to
$5.5 million in FY 2022.13
Over the course of several annual
consultations with Tribes under VAWA,
Tribal leaders recommended that OVW
simplify the grant application process
and that Congress authorize
reimbursement of exercising Tribes for
their expenses in holding non-Indians
accountable; some also identified
insufficient funding as an obstacle to
12 25
U.S.C. 1304.
total FY 2023 appropriation for the grant
program and the reimbursement program that is the
subject of this rule is $11 million (pursuant to 25
U.S.C. 1304(j)(2), up to 40 percent of this amount
may be used for reimbursements).
13 The
E:\FR\FM\11APR1.SGM
11APR1
Federal Register / Vol. 88, No. 69 / Tuesday, April 11, 2023 / Rules and Regulations
implementing the VAWA 2013
jurisdiction.
OVW implemented several changes to
the grant program in response to Tribal
leader recommendations, including
simplifying the application process,
informing Tribes about the broad
purposes and flexible uses of the grants,
and making non-competitive awards
available to exercising Tribes to defray
costs resulting from a Tribe’s exercise of
the jurisdiction. In particular, on
October 19, 2021, OVW issued a noncompetitive Support for Tribes
Exercising Special Domestic Violence
Criminal Jurisdiction Initiative
Invitation to Apply. Unlike the annual
competitive solicitations under the
Tribal Jurisdiction Program, this
solicitation invited tribes that already
had implemented SDVCJ to apply for
12-month funding to cover discrete
costs associated with prosecuting SDVCJ
cases rather than 36-month awards to
cover a broad range of project expenses,
including code development, victim
services, and development of a
coordinated community response. OVW
made eleven awards totaling $2,142,651
under this Invitation to Apply.
Although these measures increased
Tribal interest in the grant funding,
Tribal leaders continued to recommend
that Tribes be reimbursed for the
expenses incurred in exercising the
jurisdiction, and Congress responded to
this recommendation in VAWA 2022 by
authorizing the new Tribal
Reimbursement Program.
lotter on DSK11XQN23PROD with RULES1
B. VAWA 2022
A March 2018 report published by the
National Congress of American Indians
(NCAI), VAWA 2013’s Special Domestic
Violence Criminal Jurisdiction (SDVCJ)
Five-Year Report, documented the
successes and gaps in SDVCJ
implementation.14 Successes included
convictions of defendants with
documented histories of violent
behavior, along with acquittals and only
one habeas petition—testaments to
Tribes’ ability to safeguard the rights of
defendants. Gaps—discussed in the
NCAI report and in Tribal leader
testimony at annual Tribal consultations
pursuant to VAWA—included the
omission of other common forms of
violence against women and children
(e.g., stalking, sexual assault, sex
trafficking, and child abuse) and
assaults on responding officers,
courtroom personnel, and prison staff,
14 The report is available at https://www.ncai.org/
resources/ncai-publications/SDVCJ_5_Year_
Report.pdf.
VerDate Sep<11>2014
16:10 Apr 10, 2023
Jkt 259001
as well as the exclusion of Tribes in
Maine and Alaska.15
To address these gaps, VAWA 2022
expanded VAWA 2013’s recognition of
participating Tribes’ inherent authority
by including prosecution of any
‘‘covered crime’’ that occurs in the
Indian country of the participating
Tribe, specifically referring to
participating Tribes as including those
in the state of Maine, renaming the
jurisdiction ‘‘special Tribal criminal
jurisdiction’’ (STCJ), and establishing a
pilot program under which the Attorney
General is to designate up to five Alaska
Tribes per calendar year as participating
Tribes to exercise STCJ over all persons
present in the Tribe’s Village.16 As of
October 1, 2022, participating Tribes
may exercise jurisdiction over the
following ‘‘covered crimes’’: 17
• Assault of Tribal justice personnel
• Child violence
• Dating violence
• Domestic violence
• Obstruction of justice
• Sexual violence
• Sex trafficking
• Stalking
• Violation of a protection order.
C. Tribal Reimbursement Program
VAWA 2022 also created the Tribal
Reimbursement Program, which will
reimburse Tribes for expenses incurred
in exercising STCJ.18 Under the Tribal
Reimbursement Program, eligible
expenses for reimbursement include
15 For more information on these successes and
gaps, see Statement of Allison L. Randall, Principal
Deputy Director, Office on Violence Against
Women, U.S. Department of Justice, before the
Senate Committee on Indian Affairs (Dec. 8, 2021),
available at https://www.indian.senate.gov/sites/
default/files/DOJ%20Statement%20for%20
SCIA%20VAWA%20Hearing%2012.8.21.pdf.
16 Public Law 117–103, div. W, title VIII, sections
804, 812 & 813, 136 Stat, 49, 898–910. VAWA 2022
revised VAWA 2013’s definition of ‘‘participating
Tribe’’ to read ‘‘an Indian tribe that elects to
exercise special Tribal criminal jurisdiction over
the Indian country of that Indian tribe.’’ 25 U.S.C.
1304(a)(10) (2022). VAWA 2022 also created a
separate definition of ‘‘participating Tribe’’ for
Alaska Tribes that do not have any ‘‘Indian
country,’’ as that term is defined in 18 U.S.C. 2511,
in their jurisdiction and are interested in
participating in the Alaska STCJ pilot program
established by section 813(d)(1) of VAWA 2022
(codified at 25 U.S.C. 1305). This definition defines
the term as an Indian tribe that is designated by the
Attorney General to exercise STCJ under the Alaska
pilot statute, i.e., the exercise of STCJ with respect
to covered crimes (as defined in the main STCJ
statute) over all persons present in the village of the
Tribe. See VAWA 2022, Public Law 117–103, div.
W, title VIII, § 812(1) and (3),136 Stat. 840, 905; 25
U.S.C. 1305(d)(1) & (6).
17 25 U.S.C. 1304(a)(5).
18 Note that while costs associated with planning
to exercise STCJ can be covered by the existing
grant program, the reimbursement program can only
cover costs incurred in, relating to, or associated
with exercise of STCJ.
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
21461
expenses and costs incurred in, relating
to, or associated with the following:
(i) investigating, making arrests
relating to, making apprehensions for, or
prosecuting covered crimes (including
costs involving the purchasing,
collecting, and processing of sexual
assault forensic materials);
(ii) detaining, providing supervision
of, or providing services for persons
charged with covered crimes (including
costs associated with providing health
care);
(iii) providing indigent defense
services for one or more persons
charged with one or more covered
crimes; and
(iv) incarcerating, supervising, or
providing treatment, rehabilitation, or
reentry services for one or more persons
charged with one or more covered
crimes.
Along with the new Tribal
Reimbursement Program, OVW will
continue to administer grants under the
Tribal Jurisdiction Program. As of
October 1, 2022, Tribes are able to use
funds under the Tribal Jurisdiction
Program to address the full range of
STCJ. OVW will also continue to
provide technical assistance (TA) for
planning and implementing changes in
Tribal criminal justice systems
necessary to exercise STCJ. VAWA 2022
increased the authorizations of
appropriations for FY 2023 through FY
2027; the statute, however, provided a
combined authorization for both grants
and reimbursement and specified that
no more than 40 percent may be used
for reimbursements under the Tribal
Reimbursement Program.19 The FY 2023
combined appropriation for both
programs is $11 million, making the
maximum amount available for
reimbursements $4.4. million. Tribes
will be eligible for both grants and
reimbursement but will not be allowed
to use grant and reimbursement funds to
cover the same costs.
VAWA 2022 requires that the
Attorney General issue regulations
governing the Tribal Reimbursement
Program by March 15, 2023, thus
establishing rules for reimbursements of
Tribal governments (or authorized
designees) for expenses incurred in
exercising STCJ. The statute also directs
that these rules set a maximum annual
reimbursement amount per Tribe and
establish a process and conditions for
waivers of the maximum amount; in
addition, to the maximum extent
practicable, reimbursement or
notification of the reason for not
reimbursing is to be made within 90
days after the Attorney General receives
19 See
E:\FR\FM\11APR1.SGM
25 U.S.C. 1304(j).
11APR1
21462
Federal Register / Vol. 88, No. 69 / Tuesday, April 11, 2023 / Rules and Regulations
lotter on DSK11XQN23PROD with RULES1
a qualifying request. Not later than 30
days after a Tribe (or designee) reaches
the annual maximum amount, the
Attorney General is directed to provide
notice of this fact to the Tribe (or
designee).
IV. Input From Tribes
On July 27 and 28, 2022, OVW held
online consultations with Tribal leaders
regarding implementation of the new
Tribal Reimbursement Program. There
were 72 non-Federal attendees, and
eleven Tribal leaders and designated
representatives of Tribal leaders
provided testimony. In addition, OVW
held a roundtable with a selected group
of implementing Tribes to discuss their
experiences with implementation,
including information on costs, on
August 24, 2022, and a listening session
on August 31, 2022, at an ITWG meeting
that was open to all attendees at the
ITWG. Participants in each of the
sessions noted similar concerns. OVW
also received comments with the same
themes during its Annual Violence
Against Women Tribal Consultation,
which was held September 21–23, 2022
in Anchorage, AK. Some common
themes from across these sessions were:
• Tribes want a simple process to
apply for funds. This includes making
sure that any technology used is
accessible and that there are alternative
approaches for Tribes without internet
access. This also includes keeping any
required documentation as simple as
possible.
• Tribes are concerned about the
limited amount of available funds and
want a way to allocate the funds that is
fair and does not require Tribes to
compete against each other for money.
• Tribes across the country
emphasized that Alaska tribes have
particular needs, including a lack of
resources to develop the criminal justice
system and court infrastructure to be
able to exercise STCJ.
• Tribes express significant concern
about how and where to detain and
incarcerate STCJ offenders, noting that
this is one of the significant costs that
reimbursement should cover, especially
unanticipated associated costs such as
unforeseen medical or dental expenses.
• Tribes would like the maximum
possible flexibility to determine which
costs they can seek reimbursement for
through the program.
• Tribes highlighted that many Tribes
are under-resourced and lack the ability
to pay the costs of exercising STCJ up
front while awaiting federal
reimbursement.
VAWA 2022 also established a pilot
program for the Attorney General to
designate Alaska Tribes to exercise
VerDate Sep<11>2014
16:10 Apr 10, 2023
Jkt 259001
STCJ. On July 19 and 20, and August 3,
2022, the Office of Tribal Justice held
consultations about this pilot.
Commenters expressed concerns about
the lack of Tribal criminal justice
system infrastructure in Alaska and the
need for consistent, noncompetitive
funding to address these needs, as well
as the need for Alaska-specific technical
assistance regarding STCJ
implementation.
V. Potential Tribal Reimbursement
Program Issues
In developing this rule, OVW
identified several issues that would
need to be addressed. First, OVW’s
financial ability to reimburse Tribes for
expenses associated with exercising
STCJ will necessarily be limited each
year by the overall appropriation by
which both the Tribal Reimbursement
Program and the Tribal Grants Program
are funded. This makes the maximum
allowable reimbursement per Tribe and
waiver process by which Tribes may
seek to exceed that maximum critically
important, to ensure fairness in the
amount of reimbursement for each Tribe
that applies. For example, in FY 2023,
OVW has available, at most, $4.4
million to meet all reimbursement
requests. If the rule set the maximum
allowable reimbursement at $400,000,
then the first eleven Tribes to apply for
reimbursement might receive all money
before any remaining exercising Tribe
has the opportunity to request
reimbursement.
Second, Tribes will need to maintain
adequate records to verify for both
monitoring and auditing purposes that
the expenses for which they request
reimbursement are eligible for
reimbursement under the statute. At a
minimum, such records must
demonstrate that the case for which
expenses are sought is an exercise of
STCJ (i.e., that the offense is one of the
listed crimes and the defendant is a
non-Indian) and must substantiate the
costs for which a Tribe is seeking
reimbursement.
Third, Tribes will need to ensure that
the costs for which they are seeking
reimbursement are not charged to other
funding either within DOJ or any other
federal, state, or local agency.20 This
includes programs such as OVW’s
Tribal Jurisdiction Program, other DOJ
programs included in the Coordinated
Tribal Assistance Solicitation (CTAS),
or Department of Interior funding.
Fourth, because this is a
reimbursement program, the amounts
provided to Tribes must be based on
20 25
PO 00000
U.S.C. 1304(i).
Frm 00004
Fmt 4700
Sfmt 4700
actual expenses incurred in the exercise
of STCJ.
VI. Explanation of Rationale for
Provisions of This Regulation
In selecting a structure for this
program, OVW considered how to
address Tribal leaders’ testimony
regarding the Tribes’ need for a
reimbursement process that ensures (1)
a predictable, stable source of funding,
(2) each Tribe receives a fair share of
available funds, particularly when
available funding is likely to be
insufficient to cover all reimbursement
requests, and (3) Tribes that lack
adequate resources to front the expenses
of exercising STCJ can access some
reimbursement funds in a timely
fashion. OVW also considered Tribal
testimony that Tribes should not be
required to compete against each other
for funding.
In response to these concerns, as well
as the requirements outlined at 25
U.S.C. 1304(h)(1), the interim final rule
provides that each Tribe that requests
reimbursement will receive the same
dollar amount for the maximum
allowable reimbursement (except that
the amount may not exceed the amount
the Tribe expended the previous year in
exercising STCJ). The maximum
allowable reimbursement will thus
function as a form of ‘‘base funding,’’
where each Tribe will have access to
this maximum allowable reimbursement
early in the calendar year and can draw
it down as needed. At the end of the
calendar year, Tribes may submit a
waiver request seeking the actual
amounts spent on exercise of STCJ, if
their actual eligible STCJ expenses
exceeded the maximum allowable
reimbursement. Each Tribe will receive
the same percentage of their total actual
expenses in excess of the maximum
allowable reimbursement. The chart and
explanation below provide an example
of how this might work for five sample
Tribes. Please note that, for ease of
understanding, this example uses a
smaller amount of funding than is likely
to be available and fewer total tribes
than are likely to seek reimbursement.
Example:
Assume $1,000,000 is available for the
Tribal Reimbursement Program in a
given calendar year. OVW, as provided
in the interim final rule, sets aside
$250,000 (25 percent) for maximum
allowable reimbursements. Five Tribes
request to participate in the program.
Each Tribe, except Tribe C, submits a
list of prior year STCJ expenses
exceeding $50,000; Tribe C submits a
list showing $25,000 in prior year
expenses. As a result, each Tribe
receives access to a maximum allowable
E:\FR\FM\11APR1.SGM
11APR1
Federal Register / Vol. 88, No. 69 / Tuesday, April 11, 2023 / Rules and Regulations
reimbursement of $50,000 (1/5th of
$250,000) except Tribe C, whose
maximum allowable reimbursement is
capped at $25,000 (the amount or prior
year expenses for STCJ). This leaves
$775,000 available for waivers of the
maximum allowable reimbursement. At
the end of the calendar year, four of the
five Tribes submit requests for waiver
funds in excess of the maximum
allowable reimbursement totaling
$1,145,000, which reflects their total
actual expenditures for exercising STCJ
less the maximum allowable
reimbursements already received. The
percentage each of the four Tribes
Prior year
expenses
actual or
estimate
lotter on DSK11XQN23PROD with RULES1
Tribe
Tribe
Tribe
Tribe
Tribe
A
B
C
D
E
Maximum
allowable
reimbursement
Current
year actual
expenses
21463
receives for waiver amounts is
calculated by dividing the $775,000 by
$1,145,000 (the amount requested for
waivers), which is .6768559, or
67.68559%. Each tribe would therefore
receive 67.68559% of the amount they
requested for a waiver.
Request for
waiver funds
in excess of
maximum
allowable
reimbursement
Waiver
amount
Total
reimbursement
.....................................................
.....................................................
.....................................................
.....................................................
.....................................................
$100,000
700,000
25,000
60,000
300,000
$50,000
50,000
25,000
50,000
50,000
$120,000
750,000
100,000
50,000
350,000
$70,000
700,000
75,000
0
300,000
$47,380
473,799
50,764
0
203,057
$97,380
523,799
75,764
50,000
253,057
Total ..................................................
1,185,000
225,000
1,370,000
1,145,000
775,000
1,000,000
Although Tribes will need to wait
until the end of the calendar year to
request and then receive their full
reimbursement, the process set forth in
the interim final rule ensures that Tribes
with expenses later in the year are still
able to receive the same percentage of
their expenses met overall (as opposed
to a ‘‘first come, first served’’ model
where Tribes seeking reimbursement
early in the year receive full
reimbursement whereas Tribes that
incur expenses later in the year may
receive little or no reimbursement). The
process also permits Tribes that have
unexpected costs, over and above their
maximum allowable reimbursement,
such as a large medical bill, to be able
to request reimbursement at the end of
the year.
In developing the rule for this
program, OVW made every effort to
honor the concerns expressed by Tribes,
while also addressing statutory
requirements and ensuring the
appropriate use of Federal funds. For
example, the interim final rule includes
documentation requirements that are as
simple as possible while mandating that
Tribes maintain auditable records. The
rule lists reimbursable expenses, as
outlined by the statute, but adds a broad
category for ‘‘other costs incurred in,
relating to, or associated with exercising
STCJ’’ to permit Tribes to seek
reimbursement for costs not anticipated
by the rule. However, because the
statute directs the Attorney General to
reimburse Tribal governments ‘‘for
expenses incurred in exercising’’ of
STCJ (see 25 U.S.C. 1304(h)(1)(A))
(emphasis added), OVW lacks the
discretion to include planning costs
such as Tribal code development. To
ensure reimbursement funds are used to
VerDate Sep<11>2014
16:10 Apr 10, 2023
Jkt 259001
supplement, not supplant, local, state,
and federal funding, the rule directs
Tribes to expend funds from other
sources before seeking funds from this
program.
OVW notes that many Tribal leaders
and experts (both from Alaska and other
states) expressed concern about the
particularly significant needs of Alaska
Tribes, such as the need for
development of criminal justice systems
and severe lack of resources. The Tribal
Reimbursement Program, however, is
not well suited to address these needs
of Alaska Tribes that have not yet been
designated by the Attorney General to
exercise STCJ through the pilot program
because, as discussed above, it is
designed to reimburse the costs incurred
by Tribes that already are exercising
STCJ. OVW recognizes the need to
provide additional support and funding
to Alaska Tribes that wish to pursue
Attorney General designation through
the pilot program. To this end, on
December 20, 2022, OVW issued the
Emerging Issues and Training and
Technical Assistance Call for Concept
Papers, which requests proposals to
provide technical assistance to Alaska
Tribes on STCJ implementation,
including through the creation of an
Alaska-specific ITWG. In addition, on
February 9, 2023, OVW released the FY
2023 Special Tribal Criminal
Jurisdiction: Targeted Support for
Alaska Natives Special Initiative
Solicitation. This solicitation requests
proposals only from Alaska Tribal
governments and consortia of such
governments whose Native Villages are
within an Alaska Native Village
Statistical Area (and therefore are
potentially eligible to seek Attorney
General designation to exercise STCJ).
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
VII. Section-by-Section Summary of the
Proposed Regulatory Text
§ 90.30
Definitions
Section 90.30 provides that the
definitions in 25 U.S.C. 1304(a) apply to
the Tribal Reimbursement Program.
§ 90.31
Eligibility
Section 90.31 describes the eligibility
for the Tribal Reimbursement Program.
Tribes are eligible if they are Federally
recognized and are exercising STCJ over
any covered crime.
§ 90.32
Reimbursement Request
Section 90.32 describes the
reimbursement request process for the
Tribal Reimbursement Program. The
request process for each participating
Tribe will include a certification that
the participating Tribe meets the
eligibility requirements of section 90.31
and a list of the participating Tribe’s
expenses from the prior year incurred in
exercising STCJ. OVW will issue an
annual Notice of Reimbursement
Opportunity, which will include sample
forms for use in the certification and list
of expenses. OVW will also provide
training for Tribes on the
reimbursement request process.
§ 90.33 Division of Funds: Maximum
Allowable Reimbursement and Waivers
Section 90.33 provides that the funds
available for the Tribal Reimbursement
Program each year will be divided into
two parts: one part that will guarantee
the availability of funds for each
participating Tribe that requests
reimbursement up to the maximum
allowable reimbursement, and one part
that will fund waivers of the maximum.
E:\FR\FM\11APR1.SGM
11APR1
21464
Federal Register / Vol. 88, No. 69 / Tuesday, April 11, 2023 / Rules and Regulations
§ 90.34 Annual Maximum Allowable
Reimbursement per Participating Tribe
Section 90.34 provides that each
participating Tribe that requests the
annual maximum allowable
reimbursement may receive access to an
equal amount of the funds set aside for
maximum allowable reimbursements
under section 90.33. Tribes will receive
the funds through the Automated
Standard Application for Payments
(ASAP) system, an electronic system
that federal agencies use to quickly and
securely transfer money to recipient
organizations. Tribes will be able to see
in ASAP the amount of funds remaining
of the annual maximum allowable
reimbursement and when the Tribe has
spent all the funds.
§ 90.35 Waivers of Annual Maximum
Allowable Reimbursement
Section 90.35 provides the process for
participating Tribes to request a waiver
of the annual maximum allowable
reimbursement if they incur costs in
excess of that amount. If there are not
sufficient funds available to reimburse
the total eligible expenses requested by
all participating Tribes, each Tribe will
get the same percentage of their
remaining costs met. Requests for
waiver must include a summary of
eligible expenses that shows how the
Tribe’s maximum allowable
reimbursement was spent and identifies
the specific expenses that are requested
for reimbursement in excess of the
maximum allowable reimbursement,
including how such expenses were
calculated. Participating Tribes are not
required to provide documentation at
the end of the year when they submit
their waiver request but must keep
documentation on file to support each
claimed expense. OVW will provide a
sample form for the summary of eligible
expenses.
§ 90.36 Categories of Expenses Eligible
for Reimbursement
Section 90.36 provides examples of
expenses associated with the exercise of
STCJ for which participating Tribes may
request reimbursement and information
on how to calculate the costs for such
expenses.
lotter on DSK11XQN23PROD with RULES1
§ 90.37 Ineligible Expenses
Section 90.37 lists expenses that
cannot be reimbursed through the Tribal
Reimbursement Program.
§ 90.38 Collection of Expenses From
Offenders
Section 90.38 addresses the situation
where a participating Tribe recoups
expenses related to exercise of STCJ
from convicted offenders.
VerDate Sep<11>2014
16:10 Apr 10, 2023
Jkt 259001
§ 90.39
Expenses Documentation
Section 90.39 describes
documentation of expenses that must be
retained on file by participating Tribes.
Such records must be retained for a
period of three years from the end of the
calendar year and are subject to review
by DOJ.
§ 90.40
Other Sources of Funding
Section 90.40 provides that, if there
are other sources of Federal funding
available to pay for a particular cost
associated with the exercise of STCJ,
participating Tribes must expend funds
from those sources before seeking
reimbursement from this program.
§ 90.41 Denial of Specific Expenses for
Reimbursement
Section 90.41 provides the process for
participating Tribes to request a review
of the denial of any specific expenses
for which the participating Tribe has
requested reimbursement.
§ 90.42
Monitoring and Audit
Section 90.42 provides that Tribes
receiving reimbursement of expenses
from the Tribal Reimbursement Program
will be subject to regular monitoring
and audits to ensure that expenses are
properly documented and are allocable
to the exercise of STCJ.
§ 90.43
Corrective Action
Section 90.43 provides for a corrective
action plan and/or recovery/recoupment
for expenses that are later found to be
ineligible for reimbursement. In
addition, participating Tribes that fail to
submit the required summary of eligible
expenses, respond to requests for
information during monitoring or
auditing, or follow a corrective action
plan or return funds expended on
ineligible expenses will be deemed
ineligible for additional Tribal
Reimbursement Program funds, in the
same or another calendar year, until
such deficiencies are remedied.
VIII. Effective Date
This interim final rule takes effect
April 11, 2023.
IX. Statutory and Regulatory
Certifications
Administrative Procedure Act
The Administrative Procedure Act
(APA), codified at 5 U.S.C. 553,
generally requires that agencies publish
substantive rules in the Federal Register
for notice and comment. However,
pursuant to section 553(b)(B) of the
APA, general notice and the opportunity
for public comment are not required
with respect to a rulemaking when an
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
‘‘agency for good cause finds (and
incorporates the finding and a brief
statement of reasons therefor in the
rules issued) that notice and public
procedure thereon are impracticable,
unnecessary, or contrary to the public
interest.’’ Furthermore, the APA
requires publication or service of a
substantive rule not less than 30 days
before its effective date except ‘‘as
otherwise provided by the agency for
good cause found and published in the
rule.’’ 5 U.S.C. 553(d)(3).
In accordance with 5 U.S.C. 553(b)(B)
and (d)(3), the Acting Director of the
Office on Violence Against Women
finds that there is good cause to publish
this rule without prior notice and an
opportunity for public comment and
good cause to publish this rule with an
immediate effective date. Publishing
this rule with prior notice and comment
is impracticable, unnecessary, and
contrary to the public interest, as
explained in more detail below. These
same reasons constitute good cause for
an immediate effective date. Moreover,
there is no need to afford affected
parties a 30-day period to adjust their
behavior prior to the rule’s effective
date; therefore, an immediate effective
date does not contravene any principles
of fairness.
First, providing prior notice and an
opportunity to comment is
impracticable due to the timeline
established by the authorizing statute
and the need to have in place a viable
process for reimbursing Tribes that
exercise STCJ. The Indian Civil Rights
Act (ICRA) of 1968, as amended by
VAWA 2022, recognizes that, effective
October 1, 2022, participating tribes
may exercise tribal criminal jurisdiction
over non-Indian offenders who commit
an expanded set of covered crimes in
Indian country. See 25 U.S.C. 1304(b)
(recognizing STCJ) and VAWA 2022,
Sec. 3, Public Law 117–103 (effective
date). In turn, ICRA, as amended by
VAWA 2022, authorizes the Department
of Justice to reimburse Tribal
governments for expenses incurred in
exercising STCJ and requires the
Attorney General to promulgate rules
governing these reimbursements by
March 15, 2023 (one year after
enactment of VAWA 2022). 25 U.S.C.
1304(h)(1). Moreover, administration of
the new reimbursement program hinges
on the availability of an appropriation to
support the program, authorized by 25
U.S.C. 1304(j). Assuming that such
funding is available, the statute directs
that, to the maximum extent practicable,
not later than 90 days after the date on
which the Attorney General receives a
qualifying reimbursement request from
a Tribal government (or authorized
E:\FR\FM\11APR1.SGM
11APR1
lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 88, No. 69 / Tuesday, April 11, 2023 / Rules and Regulations
designee), the Attorney General must
provide reimbursement or notification
why no reimbursement can be issued.
Id. at 1304(h)(1)(C)(iii).
Given that the Consolidated
Appropriations Act, 2023, Public Law
117–328, provides an appropriation of
up to $4.4 million for the Tribal
Reimbursement Program in FY 2023,
OVW must be ready to issue
reimbursements if it receives a
qualifying request from a Tribal
government. However, OVW also must
have a rule in place governing the Tribal
Reimbursement Program prior to issuing
any reimbursements. This is particularly
important because OVW anticipates that
the amount of funds requested in
reimbursements will exceed the amount
of funds appropriated by Congress.
Based on an analysis of grant award
budgets approved under OVW’s Tribal
Jurisdiction Program during the past
eight years, as well as input received
from Tribes during consultation and
listening sessions, Tribal requests for
reimbursement likely will far exceed
available funds. The analysis of Tribal
Jurisdiction Program grant budgets
showed that corrections costs alone add
up to nearly $1,000,000 total across 17
Tribes. This rule provides direction on
prioritizing among requests and
establishing an annual maximum
allowable reimbursement per Tribe. In
the absence of a rule to address how to
prioritize requests and to set the
maximum allowable reimbursement
amount, OVW might expend all
available funds on reimbursements well
before all reimbursement requests are
received. As a result, Tribes submitting
requests early in this calendar year
might receive all the funding, while
Tribes submitting later might receive
none.
Second, providing prior notice and an
opportunity to comment is unnecessary
because a robust course of consultation
and discussion with Tribal leaders,
criminal justice personnel, and
advocates has preceded issuance of this
rule. As described above, pursuant to
EO 13175 and the Department’s policy
governing Tribal consultation, as part of
developing this rule OVW held two
consultation sessions with Tribal
leaders inviting oral and written
testimony, a listening session with
members of the Intertribal TechnicalAssistance Working Group on STCJ (an
intertribal working group that counts
more than 80% of SDVCJ implementing
tribes among its membership), and a
roundtable discussion with a group of
implementing tribes regarding SDVCJ
expenses and their recommendations
regarding administration of the Tribal
Reimbursement Program. As a result of
VerDate Sep<11>2014
16:10 Apr 10, 2023
Jkt 259001
these sessions, OVW has considered
comments from the Tribes most
interested in and affected by the rule
and has incorporated those views, to the
degree practicable, into this interim
final rule.
Third, it would be contrary to the
public interest to delay issuance of this
rule. As noted in the Background
section above, Congress has recognized
expanded tribal criminal jurisdiction
over non-Indians who commit certain
covered crimes in Indian country to
address epidemic rates of violence
against American Indian and Alaska
Native women and the jurisdictional
gaps in Indian country that may impede
holding offenders accountable.
Moreover, in the consultations and
discussions that OVW held with Tribal
leaders and advocates, participants
reiterated the challenges that Tribes face
in shouldering the immediate costs of
exercising STCJ. If OVW does not have
in place an interim final rule to facilitate
reimbursement payments to Tribal
governments, these governments may
delay implementing STCJ and certain
non-Indian offenders may continue to
commit crimes with impunity.
Finally, there is no need to delay the
rule’s effective date for 30 days because
no affected entity will need to adjust its
behavior prior to the rule’s effective
date. Tribal governments do not need to
take any steps to come into compliance
with the new rule. Rather, each Tribe
will decide whether it wishes to request
reimbursement funds, regardless of the
effective date. In addition, if a Tribe
needs more time to put in place systems
that will enable it to seek
reimbursement, an immediate effective
date will not prevent it from doing so.
Therefore, an immediate effective date
does not contravene any principles of
fairness as the affected parties may
choose to take no actions or defer those
actions regardless of when the rule takes
effect.
As part of this interim final rule,
OVW will accept comments and
consider revising the rule. Issuance of
the rule on an interim final basis,
however, will enable OVW to
implement the Tribal Reimbursement
Program during its first year of funding
in an equitable and orderly fashion. The
interim final rule is necessary for OVW
to begin implementing the program,
including making reimbursement
payments to Tribes, during FY 2023.
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
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
21465
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
funds appropriated for the OVW Tribal
Reimbursement Program, which are
unlikely to ever exceed $10 million per
year. As explained above, the FY 2023
appropriation for this program is a
maximum of $4.4 million. The
authorization of appropriations for the
program, at 25 U.S.C. 1304(j), is a
maximum of $10 million. Therefore,
this rule cannot have an annual effect of
$100 million or more.
(2) The rule does not create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency because OVW is the
only agency that administers funds
appropriated by Congress expressly to
support Tribes in administering STCJ.
OVW administers a grant program for
Tribes implementing and exercising
STCJ and can ensure that the grant
program and the reimbursement
program operate in tandem.
Furthermore, by mandating that
recipients cannot seek reimbursement
for expenses that are already paid for by
another federal agency, the rule obviates
the likelihood of creating inconsistency
or otherwise interfering with another
agency’s actions.
(3) The rule does not materially alter
the budgetary impact of entitlements,
grants, user fees, or loan programs or the
rights and obligations of recipients. The
rule does not change the economic
impact of funds appropriated for the
Tribal Reimbursement Program; instead,
the rule provides, as directed by statute,
that appropriated funds are used to
reimburse costs incurred by Tribes in
exercising STCJ. Further, as discussed
above, the annual appropriation is not at
a level that would have a significant
budgetary impact on the Federal
government or federally recognized
tribes. Finally, the rule will impose very
few economic costs on participating
Tribes, as discussed below.
E:\FR\FM\11APR1.SGM
11APR1
lotter on DSK11XQN23PROD with RULES1
21466
Federal Register / Vol. 88, No. 69 / Tuesday, April 11, 2023 / Rules and Regulations
(4) This rule does not raise any novel
legal or policy issues. Although STCJ
may present novel legal questions in
individual prosecutions, the issuance of
reimbursements to assist Tribes with
specified types of expenses is not novel
as other Federal government agencies
operate programs that provide
reimbursement to Tribes.
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.
OVW provides the following analysis
of the most noteworthy costs, benefits,
and alternative choices. Overall, the
Tribal Reimbursement Program, as
implemented by this interim final rule,
has very few costs, outside of the
appropriated funds for the program. The
only additional costs are those that
Tribes may face in documenting that the
expenses for which they request
reimbursement were incurred in
relation to covered crimes and in
documenting and justifying the dollar
amounts for such requests. In drafting
this rule, OVW balanced the need to
make this process as simple and flexible
as possible for Tribes, with the need to
have auditable records and ensure that
funds are expended appropriately. We
considered requiring Tribes to submit
more detailed documentation at the
time of requesting reimbursement, in
order to ensure that all requested
expenses are eligible for reimbursement.
We rejected this as imposing too great
a burden on participating Tribes and
instead identified an approach that
reduces the reimbursement request
requirements but will ensure that
participating Tribes maintain adequate
records for monitoring and audit
purposes and puts them on notice that
they may need to return reimbursement
funds that are later found to be
ineligible.
Regulatory Flexibility Act
Executive Order 13132—Federalism
Small Business Regulatory Enforcement
Fairness Act of 1996
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.
VerDate Sep<11>2014
16:10 Apr 10, 2023
Jkt 259001
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: The direct economic
impact is limited to 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; rather, the Tribal
Reimbursement Program (as carried out
through the rule) will confer a benefit
on participating Tribes. The rule creates
a process for Tribes to access certain
funds appropriated for their benefit. As
discussed above, any financial costs
imposed by the rule are minimal. OVW
held Tribal consultations on July 27 and
28, 2022, a roundtable on August 24,
2022, and an additional listening
session on August 30, 2022, all focused
solely on this program. In addition,
during OVW’s statutorily required
annual consultation held most recently
on September 21–23, 2022, the Tribes
also commented on this program.
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 (as adjusted for
inflation), 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.
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
PO 00000
Frm 00008
Fmt 4700
Sfmt 4700
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:
PART 90—VIOLENCE AGAINST
WOMEN
1. The authority for part 90 is revised
to read as follows:
■
Authority: 42 U.S.C. 3711 et seq.; 42
U.S.C. 13925; 25 U.S.C. 1304(h).
■
2. Add subpart C to read as follows:
Subpart C—Reimbursement to Tribal
Governments for Expenses Incurred
Exercising Special Tribal Criminal
Jurisdiction
Sec.
90.30 Definitions.
90.31 Eligibility.
90.32 Reimbursement request.
90.33 Division of funds: maximum
allowable reimbursement and waivers.
90.34 Annual maximum allowable
reimbursement per participating Tribe.
90.35 Conditions for waiver of annual
maximum.
90.36 Categories of expenses eligible for
reimbursement.
90.37 Ineligible expenses.
90.38 Collection of expenses from
offenders.
90.39 Expenses documentation.
90.40 Other sources of funding.
90.41 Denial of specific expenses for
reimbursement.
90.42 Monitoring and audit.
90.43 Corrective action.
Subpart C—Reimbursement to Tribal
Governments for Expenses Incurred
Exercising Special Tribal Criminal
Jurisdiction
§ 90.30
Definitions.
The definitions in 25 U.S.C. 1304(a)
apply to the Reimbursement to Tribal
Governments for Expenses Incurred in
Exercising Special Tribal Criminal
Jurisdiction (hereinafter referred to as
‘‘the Tribal Reimbursement Program’’ or
‘‘this program’’).
§ 90.31
Eligibility.
(a) Tribal governments eligible to seek
reimbursement under this program are
the governments of Tribal entities
recognized by and eligible for funding
and services from the Bureau of Indian
Affairs by virtue of their status as Indian
Tribes, that exercise Special Tribal
Criminal Jurisdiction (STCJ), as defined
by 25 U.S.C. 1304(a)(14) or section
812(5) of Public Law 117–103
(‘‘participating Tribes’’).
E:\FR\FM\11APR1.SGM
11APR1
Federal Register / Vol. 88, No. 69 / Tuesday, April 11, 2023 / Rules and Regulations
(b) Tribes that are in the planning
phases prior to implementing STCJ are
not eligible for reimbursement of
planning costs from this program.
(c) Participating Tribes that are
currently exercising jurisdiction over
non-Indian offenders who commit any
covered crime, as defined by 25 U.S.C.
1304(a)(5), and are in the planning
phase to exercise jurisdiction over
additional covered crimes are eligible
for reimbursement with regard to the
cases for which they already are
exercising jurisdiction but not for
planning costs.
§ 90.32
Reimbursement request.
Each year for which funds are
available for the Tribal Reimbursement
Program, the Office on Violence Against
Women (OVW) will issue a Notice of
Reimbursement Opportunity with
instructions on how to apply for the
maximum allowable reimbursement.
The reimbursement request for each
participating Tribe will include a
certification that the participating Tribe
meets the eligibility requirements of
§ 90.31. It will also include a list of
expenses that the participating Tribe
incurred in exercising STCJ in the
previous year, in categories such as law
enforcement, prosecution, indigent
defense, pre-trial services, corrections,
and probation. If a participating Tribe
has newly implemented tribal criminal
jurisdiction over non-Indians and
therefore cannot submit 12 months’
worth of expenses for the prior year, the
participating Tribe may use estimated
amounts for each category of expenses.
lotter on DSK11XQN23PROD with RULES1
§ 90.33 Division of funds: maximum
allowable reimbursement and waivers.
OVW will set aside for this program
up to 40 percent of funds appropriated
pursuant to 25 U.S.C. 1304(j), unless
otherwise provided by law. The funds
set aside for the Tribal Reimbursement
Program will be divided into two parts:
one part that will guarantee the
availability of funds for each
participating Tribe that requests
reimbursement up to the maximum
allowable reimbursement, and one part
that will fund waivers of the maximum.
In the first year that OVW administers
appropriated funds for this program,
OVW will allot 25 percent of Tribal
Reimbursement Program funds for
maximum allowable reimbursements. In
subsequent years, OVW may adjust this
percentage, based on the appropriations
available, the number of participating
Tribes, the extent to which participating
Tribes expend the maximum allowable
reimbursement in the prior year, and the
total dollar amount of waivers requested
during the prior year. OVW also may
VerDate Sep<11>2014
16:10 Apr 10, 2023
Jkt 259001
consider whether demand for grant
funds under the Tribal Jurisdiction
Program warrants adjusting this
percentage.
§ 90.34 Annual maximum allowable
reimbursement per participating Tribe.
Each participating Tribe will receive
access to an equal portion of the funds
set aside for maximum allowable
reimbursements under § 90.33 (e.g., 25
percent of the total funds available for
the Tribal Reimbursement Program),
unless their prior year expenses were
less than the maximum amount, in
which case they will be limited to the
actual amount of their prior year
expenses. Over the course of a calendar
year, participating Tribes may draw
down funds from the maximum
allowable reimbursement as needed for
eligible expenses as described in
§ 90.36. Participating Tribes are not
required to provide documentation at
the time they draw down from the
maximum allowable reimbursement.
Participating Tribes must provide a
summary of eligible expenses at the end
of the calendar year, which must
identify actual expenditures eligible for
reimbursement, including dollar
amounts for each expenditure and how
they were calculated, and must keep
documentation on file to support each
claimed expense. Such documentation
must be sufficient to meet the standards
that 2 CFR part 200 provides for grants.
§ 90.35 Conditions for waiver of annual
maximum.
(a) If participating Tribes incur
eligible expenses in excess of their
annual maximum allowable
reimbursement, they may request a
waiver of the annual maximum at the
end of the calendar year. Requests for a
waiver must include the summary of
eligible expenses required by section
90.34 that shows how the maximum
allowable reimbursement funds were
spent and an additional summary of
eligible expenses that identifies actual
expenditures eligible for reimbursement
in excess of the maximum, including
dollar amounts for each expenditure
and how they were calculated.
Participating Tribes are not required to
provide documentation at the end of the
calendar year when they submit their
waiver request but must keep
documentation on file to support each
claimed expense. Such documentation
must be sufficient to meet the standards
that 2 CFR part 200 provides for grants.
(b) Waivers will be calculated at the
end of the calendar year based on
available funds. If there are not
sufficient funds available to reimburse
the total eligible expenses requested by
PO 00000
Frm 00009
Fmt 4700
Sfmt 4700
21467
all participating Tribes, each Tribe will
get the same percentage of their
additional costs met. This percentage
will be calculated by comparing the
funds available and the total amount
requested for waivers.
§ 90.36 Categories of expenses eligible for
reimbursement.
Participating Tribes may apply for the
maximum allowable reimbursement and
waiver funds for the following expenses
associated with the exercise of STCJ for
each calendar year. For an expense to be
eligible, the cost must be incurred in
response to a report of a covered crime
committed by a non-Indian, but there
does not need to be an arrest or a
prosecution for the offense. The
summary of eligible expenses submitted
each year must demonstrate how costs
were calculated. Following are
examples of types of eligible costs that
participating Tribes may include and
basis for calculations.
(a) Law enforcement expenses such as
officer time (including response,
interviews, follow-up, report writing,
and court time); sexual assault kits or
other evidentiary supplies; and testing,
analysis, and storage of evidence.
Requests for reimbursement must be
based on actual costs attributed to SCTJ
cases.
(b) Incarceration expenses such as
prison and jail costs and prisoner
transportation costs, whether through
contract or Tribally owned facilities.
Requests for reimbursement must be
based on actual costs attributed to STCJ
cases and may be based on per diem
costs for housing non-Indian offenders.
(c) Offender medical and dental
expenses not otherwise covered by
insurance policies or federal sources
such as Medicaid, including costs for
insurance for offenders. Requests for
reimbursement must be based on actual
costs attributed to STCJ cases.
(d) Prosecution expenses such as staff
time (including meetings, interviews,
filings, research, preparation, court, and
other time that can be demonstrated as
allocable to prosecuting a covered
crime); expert witness fees; exhibits;
witness costs; and copying costs.
Requests for reimbursement must be
based on actual costs attributed to STCJ
cases.
(e) Defense counsel expenses such as
staff time (including meetings,
interviews, filings, research,
preparation, court, and other time that
can be demonstrated as allocable to
defending one or more non-Indian
offenders charged with one or more
covered crimes); competency
evaluations; expert witness fees;
exhibits; witness costs; and copying
E:\FR\FM\11APR1.SGM
11APR1
21468
Federal Register / Vol. 88, No. 69 / Tuesday, April 11, 2023 / Rules and Regulations
costs. Requests for reimbursement must
be based on actual cost. If the defense
counsel is provided by contract, then
the reimbursement amount can be based
on the invoiced cost to the participating
Tribe.
(f) Court expenses such as judge and
court staff time; postage for summoning
jurors; jury fees; witness costs; and
competency evaluation or other mental
health evaluations ordered by the court.
Requests for reimbursement must be
based on actual costs attributed to STCJ
cases.
(g) Community supervision/re-entry
expenses such as probation, parole, or
other staff time; electronic or other
monitoring fees; chemical dependency
testing; batterer or sex offender
evaluation and treatment; and presentence investigation costs. Requests
for reimbursement must be based on
actual costs attributed to STCJ cases.
(h) Indirect costs based on a current
federally approved indirect cost rate
agreement.
(i) Other costs incurred in, relating to,
or associated with exercising STCJ.
Participating Tribes requesting
reimbursement for costs in this category
must demonstrate that the cost is
incurred in, relating to, or associated
with exercise of STCJ.
§ 90.37
Ineligible expenses.
Participating Tribes are not permitted
to request reimbursement for the
following:
(a) Planning: Expenses associated
with planning to exercise STCJ, such as
code drafting.
(b) Training, including costs for
training criminal justice personnel,
court personnel, or others.
(c) Any expenses not incurred in,
relating to, or associated with exercising
STCJ.
lotter on DSK11XQN23PROD with RULES1
§ 90.38 Collection of expenses from
offenders.
If a participating Tribe recoups
expenses related to exercise of STCJ
from the convicted offenders prior to
receiving reimbursement for such
expenses, then the recouped funds shall
be used prior to seeking reimbursement
through the Tribal Reimbursement
Program. If a participating Tribe recoups
expenses related to exercise of STCJ
from the convicted offenders subsequent
to receiving reimbursement for such
expenses, such funds must be used
toward exercise of STCJ.
§ 90.39
Expenses documentation.
Documentation of expenses retained
on file by participating Tribes pursuant
to sections 90.34 and 90.35 must be
adequate for an audit. At a minimum,
VerDate Sep<11>2014
16:10 Apr 10, 2023
Jkt 259001
participating Tribes must retain the
general accounting ledger and all
supporting documents, including
invoices, sales receipts, or other proof of
expenses incurred for those expenses
reimbursed by the Tribal
Reimbursement Program. Such records
must be retained for a period of three
years from the end of the calendar year
during which the participating Tribe
sought reimbursement. All financial
records pertinent to the Tribal
Reimbursement Program, including the
general accounting ledger and all
supporting documents, are subject to
agency review during the calendar year
in which reimbursement is sought,
during any audit, and for the three-year
retention period.
§ 90.40
Other sources of funding.
If there are other sources of federal
funding available to pay for a particular
cost associated with the exercise of
STCJ, participating Tribes must expend
funds from those sources before seeking
reimbursement from this program.
Examples include existing Department
of Justice grant funds, Medicare/
Medicaid, and Bureau of Indian Affairs
funding.
§ 90.41 Denial of specific expenses for
reimbursement.
If reimbursement of specific expenses
is denied, the participating Tribe may
request review of the denial via a letter
to the OVW Director stating the reason
why the denied expense was eligible for
reimbursement. OVW must receive the
letter within 30 calendar days of the
denial. The OVW Director will review
the letter and notify the participating
Tribe of a final decision within 30 days
of receipt of the letter.
§ 90.42
Corrective action.
Reimbursement requests later found
not to meet statutory, regulatory, or
other program requirements may result
in a corrective action plan and/or
recovery/recoupment. Participating
Tribes that fail to submit the required
summary of eligible expenses under
§§ 90.34 and 90.35, respond to requests
for information during monitoring or
auditing, or follow a corrective action
plan or return funds expended on
ineligible expenses will be deemed
ineligible for additional Tribal
Reimbursement Program funds, in the
PO 00000
Frm 00010
Fmt 4700
Sfmt 4700
Dated: March 31, 2023.
Allison Randall,
Acting Director.
[FR Doc. 2023–07519 Filed 4–10–23; 8:45 am]
BILLING CODE 4410–FX–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 147
[Docket Number USCG–2021–0474]
RIN 1625–AA87
Safety Zone; Lucius Spar Outer
Continental Shelf Facility, Keathley
Canyon Block 875, Gulf of Mexico
Coast Guard, DHS.
Final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a safety zone around the
Lucius Spar, located in Keathley
Canyon Block 875 on the Outer
Continental Shelf (OCS) in the Gulf of
Mexico. The purpose of this rule is to
protect the facility from all vessel traffic
operating outside the normal shipping
channels and fairways that are not
providing service to or working with the
facility. Establishing a safety zone
around the facility will significantly
reduce the threat of allisions, collisions,
security breaches, oil spills, releases of
natural gas, and thereby protect the
safety of life, property, and the
environment.
SUMMARY:
DATES:
This rule is effective April 11,
2023.
Monitoring and audit.
Tribes receiving reimbursement of
expenses under the Tribal
Reimbursement Program will be subject
to regular monitoring and audits to
ensure that expenses are properly
documented and are allocable to the
exercise of STCJ.
§ 90.43
same or another calendar year, until
such deficiencies are remedied.
To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2021–
0474 in the search box and click
‘‘Search.’’ Next, in the Document Type
column, select ‘‘Supporting & Related
Material.’’
ADDRESSES:
If
you have questions on this rule, call or
email LCDR David Newcomb, District
Eight OCS, U.S. Coast Guard; telephone
504–671–2106, David.T.Newcomb@
uscg.mil.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
OCS Outer Continental Shelf
E:\FR\FM\11APR1.SGM
11APR1
]]>Agencies
[Federal Register Volume 88, Number 69 (Tuesday, April 11, 2023)]
[Rules and Regulations]
[Pages 21459-21468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07519]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 88, No. 69 / Tuesday, April 11, 2023 / Rules
and Regulations
[[Page 21459]]
DEPARTMENT OF JUSTICE
28 CFR Part 90
[OVW Docket No. 2023-01]
RIN 1105-AB69
Special Tribal Criminal Jurisdiction Reimbursement
AGENCY: Office on Violence Against Women, Department of Justice.
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: The Violence Against Women Act Reauthorization Act of 2022
(VAWA 2022) authorized a new program to reimburse Tribal governments
(or authorized designees of Tribal governments) for expenses incurred
in exercising ``special Tribal criminal jurisdiction'' (STCJ) over non-
Indians who commit certain covered crimes in Indian country. This rule
will implement this new Tribal Reimbursement Program within the
Department of Justice's Office on Violence Against Women (OVW) by
providing details on how it will be administered, including
eligibility, frequency of reimbursement, costs that can be reimbursed,
the annual maximum allowable reimbursement per Tribe, and conditions
for waiver of the annual maximum.
DATES:
Effective date: This rule is effective April 11, 2023.
Comment date: Written comments must be postmarked and electronic
comments must be submitted on or before June 12, 2023. Comments
received by mail will be considered timely if they are postmarked on or
before that date. The electronic Federal Docket Management System
(FDMS) will accept comments until 11:59 p.m. Eastern Time at the end of
that day.
ADDRESSES: To ensure proper handling of comments, please reference
``RIN 1105-AB69'' or ``Docket No. OVW 2023-01'' on all electronic and
written correspondence. The Department encourages the electronic
submission of all comments through https://www.regulations.gov using the
electronic comment form provided on that site. For easy reference, an
electronic copy of this document is also available at the https://www.regulations.gov website. It is not necessary to submit paper
comments that duplicate the electronic submission, as all comments
submitted to https://www.regulations.gov will be posted for public
review and are part of the official docket record. However, should you
wish to submit written comments through regular or express mail, they
should be sent to Marnie Shiels, Office on Violence Against Women,
United States Department of Justice, 145 N Street NE, 10W.100,
Washington, DC 20530.
FOR FURTHER INFORMATION CONTACT: Marnie Shiels, Office on Violence
Against Women, telephone (202) 307-6026 or email at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at
https://www.regulations.gov. Information made available for public
inspection includes personal identifying information (such as your
name, address, etc.) voluntarily submitted by the commenter.
You are not required to submit personal identifying information in
order to comment on this rule. Nevertheless, if you want to submit
personal identifying information (such as your name, address, etc.) as
part of your comment, but do not want it to be posted online, you must
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first
paragraph of your comment. You must also locate all the personal
identifying information that you do not want posted online in the first
paragraph of your comment and identify what information you want the
agency to redact. Personal identifying information identified and
located as set forth above will be placed in the agency's public docket
file, but not posted online.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify the confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, the agency may choose not to post that comment
(or to post that comment only partially) on https://www.regulations.gov. Confidential business information identified and
located as set forth above will not be placed in the public docket
file, nor will it be posted online.
If you want to inspect the agency's public docket file in person by
appointment, please see the information under the FOR FURTHER
INFORMATION CONTACT heading.
II. General Purpose of This Rule
The Violence Against Women Reauthorization Act of 2013 (VAWA 2013)
recognized the authority of participating Tribes to exercise ``special
domestic violence criminal jurisdiction'' (SDVCJ) over certain
defendants, regardless of their Indian or non-Indian status, who commit
crimes of domestic violence or dating violence or who violate certain
protection orders in Indian country.\1\ The Violence Against Women Act
Reauthorization Act of 2022 (VAWA 2022) expanded this recognition,
effective October 1, 2022, to cover additional crimes, among other
changes to the jurisdiction, and renamed it ``special Tribal criminal
jurisdiction.'' \2\
---------------------------------------------------------------------------
\1\ Sec. 904, Public Law 113-4, 127 Stat. 54, 120-123 (codified
at 25 U.S.C. 1304).
\2\ Public Law 117-103, div. W, title VIII, section 804, 136
Stat, 49, 898-904 (amending 25 U.S.C. 1304). The VAWA 2013
definition of ``participating tribe,'' codified at 25 U.S.C.
1304(a)(4) (2021), was revised by VAWA 2022 to take into account the
changes to the jurisdiction and moved to section 1304(a)(10). VAWA
2022 also established a different definition of ``participating
Tribe'' for most Alaska Tribes. See Public Law 117-103, div. W,
title VIII, section 812(3), 136 Stat. 49, 905. More information on
these definitions is provided in the Background section of this
document.
---------------------------------------------------------------------------
VAWA 2022 also authorized a new program to reimburse Tribal
governments (or authorized designees of Tribal governments) for
expenses incurred in exercising special Tribal criminal jurisdiction
(hereinafter referred to as the ``Tribal
[[Page 21460]]
Reimbursement Program'').\3\ This rule will implement the Tribal
Reimbursement Program by setting forth eligibility requirements,
frequency of reimbursement, costs that may be reimbursed, an annual
maximum allowable reimbursement per Tribe, and conditions for waiver of
the annual maximum allowable reimbursement.
---------------------------------------------------------------------------
\3\ This program is codified as section 204(h)(1) of the Indian
Civil Rights Act (ICRA). See 25 U.S.C. 1304(h)(1). A Tribal
government is the government of an ``Indian tribe,'' which is
defined in ICRA as ``any tribe, band, or other group of Indians
subject to the jurisdiction of the United States and recognized as
possessing powers of self-government.'' Id. at 1301(1). The most
recent list of 574 federally recognized Tribes published by the
Department of the Interior's Bureau of Indian Affairs is available
at https://www.govinfo.gov/content/pkg/FR-2022-01-28/pdf/2022-01789.pdf.
---------------------------------------------------------------------------
III. Background
A. VAWA 2013
Following the Supreme Court's 1978 decision in Oliphant v.
Suquamish Tribe,\4\ Tribes lacked criminal jurisdiction to prosecute
non-Indians for crimes committed in Indian country. If the victim was
Indian and the perpetrator was non-Indian, the crime could be
prosecuted only by the United States or, in some circumstances, by the
state in which the Tribe's Indian country is located.\5\
---------------------------------------------------------------------------
\4\ 435 U.S. 191 (1978).
\5\ Prior to the Supreme Court's decision in Oklahoma v. Castro-
Huerta, 142 S.Ct. 2486 (2022), the presumption was that states
possessed no criminal jurisdiction over crimes committed by or
against Indians in Indian country unless Congress conferred such
authority upon a state. In Castro-Huerta, the Supreme Court changed
that analysis with respect to crimes committed by non-Indians
against Indians.
---------------------------------------------------------------------------
Native American women have suffered some of the highest rates of
violence at the hands of intimate partners in the United States. A
National Institute of Justice (NIJ) analysis of 2010 survey data funded
by the Centers for Disease Control and Prevention and NIJ found that
more than half (55.5 percent) of American Indian and Alaska Native
women have experienced physical violence by an intimate partner in
their lifetimes. Over their lifetimes, American Indian and Alaska
Native women are about five times as likely as non-Hispanic White-only
females to have experienced physical violence at the hands of an
intimate partner who is of a different race at least once in their
life.\6\
---------------------------------------------------------------------------
\6\ Andre B. Rosay, U.S. Dept. of Justice, Nat'l Inst. of
Justice, Violence Against American Indian and Alaska Native Women
and Men: 2010 Findings from the National Intimate Partner and Sexual
Violence Survey (May 2016) 21, 26, https://www.ncjrs.gov/pdffiles1/nij/249736.pdf. The same analysis likewise found high rates of
sexual violence against Native American women, concluding that more
than one in two American Indian and Alaska Native women (56.1
percent) have experienced sexual violence in their lifetime.
American Indian and Alaska Native women are three times as likely as
white women to have experienced sexual violence by a perpetrator who
is of a different race. Id. at 13, 18.
---------------------------------------------------------------------------
Realizing the challenges created by Tribes' lack of jurisdiction to
prosecute non-Indian domestic violence offenders, Congress included in
VAWA 2013 a historic provision recognizing the inherent authority of
participating Tribes to exercise ``special domestic violence criminal
jurisdiction'' (SDVCJ) over certain defendants, regardless of their
Indian or non-Indian status, who commit crimes of domestic violence or
dating violence against Indian victims or violate certain protection
orders in Indian country.\7\ Since VAWA 2013's passage, 31 Tribes have
reported that they have implemented SDVCJ.
---------------------------------------------------------------------------
\7\ See 25 U.S.C. 1304 (2021). VAWA 2013 defined ``participating
Tribe'' as ``an Indian tribe that elects to exercise special
domestic violence criminal jurisdiction over the Indian country of
that Indian tribe.'' Id. at 1304(a)(4) (2021).
---------------------------------------------------------------------------
In VAWA 2013, Congress ensured that the protections for a
defendant's federal rights and civil liberties would be the same in
Tribal court as they would be if the defendant were prosecuted in a
state court. Specifically, if the case includes the possibility that a
term of imprisonment of any length may be imposed, the defendant must
be afforded all applicable rights under the Indian Civil Rights Act of
1968 (ICRA),\8\ all rights applicable to defendants charged with felony
offenses under the Tribal Law and Order Act of 2010 (TLOA),\9\ and also
the right to trial by an impartial jury chosen from a jury pool that is
drawn from sources that reflect a fair cross-section of the community
and do not systemically exclude any distinctive group in the community,
including non-Indians.\10\ The TLOA rights include providing each
indigent defendant, at no cost to the defendant, the right to the
assistance of a licensed defense attorney.\11\
---------------------------------------------------------------------------
\8\ The Indian Civil Rights Act of 1968 (ICRA) (codified as
amended at 25 U.S.C. 1301-1304) limited the amount of jail time a
Tribe can impose and the maximum fine to one-year imprisonment and
$5,000.
\9\ The Tribal Law and Order Act (TLOA, title II of Pub. L. 111-
211) allowed Tribes to impose increased sentences (up to 3 years or
$15,000), predicated on the provision of additional rights for
defendants. 25 U.S.C. 1302(a)(7), (b), and (c).
\10\ 25 U.S.C. 1304(d).
\11\ The additional rights that a tribe must provide under TLOA
when it imposes a total term of imprisonment of more than one year
are listed at 25 U.S.C. 1302(c).
---------------------------------------------------------------------------
To assist Tribes in implementing the provisions of VAWA 2013, in
June 2013, DOJ established the Intertribal Technical-Assistance Working
Group on Special Domestic Violence Criminal Jurisdiction (ITWG) so that
Tribes could exchange views, information, and advice about how they
could best implement and exercise SDVCJ, combat domestic violence,
recognize victim's rights and safety needs, and fully protect
defendants' rights. Since then, over 50 Tribes have participated in the
ITWG where Tribes regularly share their experiences preparing to
implement or implementing SDVCJ, attend in-person or online meetings,
and participate in numerous webinars on subjects such as jury pools and
juror selection, defendants' rights, victims' rights, and prosecution
skills. Through the ITWG, Tribes have not only discussed challenges and
successes with other Tribes but also shared best practices, including
their revised Tribal codes, court rules, court forms, jury
instructions, and other tools they have developed to implement SDVCJ.
DOJ continues to support the ITWG including by providing training and
technical assistance.
VAWA 2013 also authorized a grant program to assist Tribes in
preparing to exercise and exercising SDVCJ.\12\ This program, known as
the Tribal Jurisdiction Program, first received an appropriation of
$2.5 million in fiscal year (FY) 2016. Funds may be used to support a
broad range of activities including efforts to strengthen Tribal
criminal justice systems, provide indigent criminal defense, conduct
jury trials, and provide services and rights to crime victims. Under
the grant program, Tribes submit an estimated budget with their
application and, if selected for funding, draw down funds as they incur
the expenses based on actual costs. The grant program has flexibility
to allow Tribes to use grant funds both for planning to exercise
jurisdiction and the expenses of exercising the jurisdiction. Tribes
that receive grants may continue to apply for additional grant funding
at the end of each grant cycle. The annual appropriation for the
program increased to $4 million in FY 2017 and again to $5.5 million in
FY 2022.\13\
---------------------------------------------------------------------------
\12\ 25 U.S.C. 1304.
\13\ The total FY 2023 appropriation for the grant program and
the reimbursement program that is the subject of this rule is $11
million (pursuant to 25 U.S.C. 1304(j)(2), up to 40 percent of this
amount may be used for reimbursements).
---------------------------------------------------------------------------
Over the course of several annual consultations with Tribes under
VAWA, Tribal leaders recommended that OVW simplify the grant
application process and that Congress authorize reimbursement of
exercising Tribes for their expenses in holding non-Indians
accountable; some also identified insufficient funding as an obstacle
to
[[Page 21461]]
implementing the VAWA 2013 jurisdiction.
OVW implemented several changes to the grant program in response to
Tribal leader recommendations, including simplifying the application
process, informing Tribes about the broad purposes and flexible uses of
the grants, and making non-competitive awards available to exercising
Tribes to defray costs resulting from a Tribe's exercise of the
jurisdiction. In particular, on October 19, 2021, OVW issued a non-
competitive Support for Tribes Exercising Special Domestic Violence
Criminal Jurisdiction Initiative Invitation to Apply. Unlike the annual
competitive solicitations under the Tribal Jurisdiction Program, this
solicitation invited tribes that already had implemented SDVCJ to apply
for 12-month funding to cover discrete costs associated with
prosecuting SDVCJ cases rather than 36-month awards to cover a broad
range of project expenses, including code development, victim services,
and development of a coordinated community response. OVW made eleven
awards totaling $2,142,651 under this Invitation to Apply. Although
these measures increased Tribal interest in the grant funding, Tribal
leaders continued to recommend that Tribes be reimbursed for the
expenses incurred in exercising the jurisdiction, and Congress
responded to this recommendation in VAWA 2022 by authorizing the new
Tribal Reimbursement Program.
B. VAWA 2022
A March 2018 report published by the National Congress of American
Indians (NCAI), VAWA 2013's Special Domestic Violence Criminal
Jurisdiction (SDVCJ) Five-Year Report, documented the successes and
gaps in SDVCJ implementation.\14\ Successes included convictions of
defendants with documented histories of violent behavior, along with
acquittals and only one habeas petition--testaments to Tribes' ability
to safeguard the rights of defendants. Gaps--discussed in the NCAI
report and in Tribal leader testimony at annual Tribal consultations
pursuant to VAWA--included the omission of other common forms of
violence against women and children (e.g., stalking, sexual assault,
sex trafficking, and child abuse) and assaults on responding officers,
courtroom personnel, and prison staff, as well as the exclusion of
Tribes in Maine and Alaska.\15\
---------------------------------------------------------------------------
\14\ The report is available at https://www.ncai.org/resources/ncai-publications/SDVCJ_5_Year_Report.pdf.
\15\ For more information on these successes and gaps, see
Statement of Allison L. Randall, Principal Deputy Director, Office
on Violence Against Women, U.S. Department of Justice, before the
Senate Committee on Indian Affairs (Dec. 8, 2021), available at
https://www.indian.senate.gov/sites/default/files/DOJ%20Statement%20for%20SCIA%20VAWA%20Hearing%2012.8.21.pdf.
---------------------------------------------------------------------------
To address these gaps, VAWA 2022 expanded VAWA 2013's recognition
of participating Tribes' inherent authority by including prosecution of
any ``covered crime'' that occurs in the Indian country of the
participating Tribe, specifically referring to participating Tribes as
including those in the state of Maine, renaming the jurisdiction
``special Tribal criminal jurisdiction'' (STCJ), and establishing a
pilot program under which the Attorney General is to designate up to
five Alaska Tribes per calendar year as participating Tribes to
exercise STCJ over all persons present in the Tribe's Village.\16\ As
of October 1, 2022, participating Tribes may exercise jurisdiction over
the following ``covered crimes'': \17\
---------------------------------------------------------------------------
\16\ Public Law 117-103, div. W, title VIII, sections 804, 812 &
813, 136 Stat, 49, 898-910. VAWA 2022 revised VAWA 2013's definition
of ``participating Tribe'' to read ``an Indian tribe that elects to
exercise special Tribal criminal jurisdiction over the Indian
country of that Indian tribe.'' 25 U.S.C. 1304(a)(10) (2022). VAWA
2022 also created a separate definition of ``participating Tribe''
for Alaska Tribes that do not have any ``Indian country,'' as that
term is defined in 18 U.S.C. 2511, in their jurisdiction and are
interested in participating in the Alaska STCJ pilot program
established by section 813(d)(1) of VAWA 2022 (codified at 25 U.S.C.
1305). This definition defines the term as an Indian tribe that is
designated by the Attorney General to exercise STCJ under the Alaska
pilot statute, i.e., the exercise of STCJ with respect to covered
crimes (as defined in the main STCJ statute) over all persons
present in the village of the Tribe. See VAWA 2022, Public Law 117-
103, div. W, title VIII, Sec. 812(1) and (3),136 Stat. 840, 905; 25
U.S.C. 1305(d)(1) & (6).
\17\ 25 U.S.C. 1304(a)(5).
Assault of Tribal justice personnel
Child violence
Dating violence
Domestic violence
Obstruction of justice
Sexual violence
Sex trafficking
Stalking
Violation of a protection order.
C. Tribal Reimbursement Program
VAWA 2022 also created the Tribal Reimbursement Program, which will
reimburse Tribes for expenses incurred in exercising STCJ.\18\ Under
the Tribal Reimbursement Program, eligible expenses for reimbursement
include expenses and costs incurred in, relating to, or associated with
the following:
---------------------------------------------------------------------------
\18\ Note that while costs associated with planning to exercise
STCJ can be covered by the existing grant program, the reimbursement
program can only cover costs incurred in, relating to, or associated
with exercise of STCJ.
---------------------------------------------------------------------------
(i) investigating, making arrests relating to, making apprehensions
for, or prosecuting covered crimes (including costs involving the
purchasing, collecting, and processing of sexual assault forensic
materials);
(ii) detaining, providing supervision of, or providing services for
persons charged with covered crimes (including costs associated with
providing health care);
(iii) providing indigent defense services for one or more persons
charged with one or more covered crimes; and
(iv) incarcerating, supervising, or providing treatment,
rehabilitation, or reentry services for one or more persons charged
with one or more covered crimes.
Along with the new Tribal Reimbursement Program, OVW will continue
to administer grants under the Tribal Jurisdiction Program. As of
October 1, 2022, Tribes are able to use funds under the Tribal
Jurisdiction Program to address the full range of STCJ. OVW will also
continue to provide technical assistance (TA) for planning and
implementing changes in Tribal criminal justice systems necessary to
exercise STCJ. VAWA 2022 increased the authorizations of appropriations
for FY 2023 through FY 2027; the statute, however, provided a combined
authorization for both grants and reimbursement and specified that no
more than 40 percent may be used for reimbursements under the Tribal
Reimbursement Program.\19\ The FY 2023 combined appropriation for both
programs is $11 million, making the maximum amount available for
reimbursements $4.4. million. Tribes will be eligible for both grants
and reimbursement but will not be allowed to use grant and
reimbursement funds to cover the same costs.
---------------------------------------------------------------------------
\19\ See 25 U.S.C. 1304(j).
---------------------------------------------------------------------------
VAWA 2022 requires that the Attorney General issue regulations
governing the Tribal Reimbursement Program by March 15, 2023, thus
establishing rules for reimbursements of Tribal governments (or
authorized designees) for expenses incurred in exercising STCJ. The
statute also directs that these rules set a maximum annual
reimbursement amount per Tribe and establish a process and conditions
for waivers of the maximum amount; in addition, to the maximum extent
practicable, reimbursement or notification of the reason for not
reimbursing is to be made within 90 days after the Attorney General
receives
[[Page 21462]]
a qualifying request. Not later than 30 days after a Tribe (or
designee) reaches the annual maximum amount, the Attorney General is
directed to provide notice of this fact to the Tribe (or designee).
IV. Input From Tribes
On July 27 and 28, 2022, OVW held online consultations with Tribal
leaders regarding implementation of the new Tribal Reimbursement
Program. There were 72 non-Federal attendees, and eleven Tribal leaders
and designated representatives of Tribal leaders provided testimony. In
addition, OVW held a roundtable with a selected group of implementing
Tribes to discuss their experiences with implementation, including
information on costs, on August 24, 2022, and a listening session on
August 31, 2022, at an ITWG meeting that was open to all attendees at
the ITWG. Participants in each of the sessions noted similar concerns.
OVW also received comments with the same themes during its Annual
Violence Against Women Tribal Consultation, which was held September
21-23, 2022 in Anchorage, AK. Some common themes from across these
sessions were:
Tribes want a simple process to apply for funds. This
includes making sure that any technology used is accessible and that
there are alternative approaches for Tribes without internet access.
This also includes keeping any required documentation as simple as
possible.
Tribes are concerned about the limited amount of available
funds and want a way to allocate the funds that is fair and does not
require Tribes to compete against each other for money.
Tribes across the country emphasized that Alaska tribes
have particular needs, including a lack of resources to develop the
criminal justice system and court infrastructure to be able to exercise
STCJ.
Tribes express significant concern about how and where to
detain and incarcerate STCJ offenders, noting that this is one of the
significant costs that reimbursement should cover, especially
unanticipated associated costs such as unforeseen medical or dental
expenses.
Tribes would like the maximum possible flexibility to
determine which costs they can seek reimbursement for through the
program.
Tribes highlighted that many Tribes are under-resourced
and lack the ability to pay the costs of exercising STCJ up front while
awaiting federal reimbursement.
VAWA 2022 also established a pilot program for the Attorney General
to designate Alaska Tribes to exercise STCJ. On July 19 and 20, and
August 3, 2022, the Office of Tribal Justice held consultations about
this pilot. Commenters expressed concerns about the lack of Tribal
criminal justice system infrastructure in Alaska and the need for
consistent, noncompetitive funding to address these needs, as well as
the need for Alaska-specific technical assistance regarding STCJ
implementation.
V. Potential Tribal Reimbursement Program Issues
In developing this rule, OVW identified several issues that would
need to be addressed. First, OVW's financial ability to reimburse
Tribes for expenses associated with exercising STCJ will necessarily be
limited each year by the overall appropriation by which both the Tribal
Reimbursement Program and the Tribal Grants Program are funded. This
makes the maximum allowable reimbursement per Tribe and waiver process
by which Tribes may seek to exceed that maximum critically important,
to ensure fairness in the amount of reimbursement for each Tribe that
applies. For example, in FY 2023, OVW has available, at most, $4.4
million to meet all reimbursement requests. If the rule set the maximum
allowable reimbursement at $400,000, then the first eleven Tribes to
apply for reimbursement might receive all money before any remaining
exercising Tribe has the opportunity to request reimbursement.
Second, Tribes will need to maintain adequate records to verify for
both monitoring and auditing purposes that the expenses for which they
request reimbursement are eligible for reimbursement under the statute.
At a minimum, such records must demonstrate that the case for which
expenses are sought is an exercise of STCJ (i.e., that the offense is
one of the listed crimes and the defendant is a non-Indian) and must
substantiate the costs for which a Tribe is seeking reimbursement.
Third, Tribes will need to ensure that the costs for which they are
seeking reimbursement are not charged to other funding either within
DOJ or any other federal, state, or local agency.\20\ This includes
programs such as OVW's Tribal Jurisdiction Program, other DOJ programs
included in the Coordinated Tribal Assistance Solicitation (CTAS), or
Department of Interior funding.
---------------------------------------------------------------------------
\20\ 25 U.S.C. 1304(i).
---------------------------------------------------------------------------
Fourth, because this is a reimbursement program, the amounts
provided to Tribes must be based on actual expenses incurred in the
exercise of STCJ.
VI. Explanation of Rationale for Provisions of This Regulation
In selecting a structure for this program, OVW considered how to
address Tribal leaders' testimony regarding the Tribes' need for a
reimbursement process that ensures (1) a predictable, stable source of
funding, (2) each Tribe receives a fair share of available funds,
particularly when available funding is likely to be insufficient to
cover all reimbursement requests, and (3) Tribes that lack adequate
resources to front the expenses of exercising STCJ can access some
reimbursement funds in a timely fashion. OVW also considered Tribal
testimony that Tribes should not be required to compete against each
other for funding.
In response to these concerns, as well as the requirements outlined
at 25 U.S.C. 1304(h)(1), the interim final rule provides that each
Tribe that requests reimbursement will receive the same dollar amount
for the maximum allowable reimbursement (except that the amount may not
exceed the amount the Tribe expended the previous year in exercising
STCJ). The maximum allowable reimbursement will thus function as a form
of ``base funding,'' where each Tribe will have access to this maximum
allowable reimbursement early in the calendar year and can draw it down
as needed. At the end of the calendar year, Tribes may submit a waiver
request seeking the actual amounts spent on exercise of STCJ, if their
actual eligible STCJ expenses exceeded the maximum allowable
reimbursement. Each Tribe will receive the same percentage of their
total actual expenses in excess of the maximum allowable reimbursement.
The chart and explanation below provide an example of how this might
work for five sample Tribes. Please note that, for ease of
understanding, this example uses a smaller amount of funding than is
likely to be available and fewer total tribes than are likely to seek
reimbursement.
Example:
Assume $1,000,000 is available for the Tribal Reimbursement Program
in a given calendar year. OVW, as provided in the interim final rule,
sets aside $250,000 (25 percent) for maximum allowable reimbursements.
Five Tribes request to participate in the program. Each Tribe, except
Tribe C, submits a list of prior year STCJ expenses exceeding $50,000;
Tribe C submits a list showing $25,000 in prior year expenses. As a
result, each Tribe receives access to a maximum allowable
[[Page 21463]]
reimbursement of $50,000 (1/5th of $250,000) except Tribe C, whose
maximum allowable reimbursement is capped at $25,000 (the amount or
prior year expenses for STCJ). This leaves $775,000 available for
waivers of the maximum allowable reimbursement. At the end of the
calendar year, four of the five Tribes submit requests for waiver funds
in excess of the maximum allowable reimbursement totaling $1,145,000,
which reflects their total actual expenditures for exercising STCJ less
the maximum allowable reimbursements already received. The percentage
each of the four Tribes receives for waiver amounts is calculated by
dividing the $775,000 by $1,145,000 (the amount requested for waivers),
which is .6768559, or 67.68559%. Each tribe would therefore receive
67.68559% of the amount they requested for a waiver.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Request for
Prior year waiver funds
expenses Maximum Current year in excess of Total
actual or allowable actual maximum Waiver amount reimbursement
estimate reimbursement expenses allowable
reimbursement
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tribe A................................................. $100,000 $50,000 $120,000 $70,000 $47,380 $97,380
Tribe B................................................. 700,000 50,000 750,000 700,000 473,799 523,799
Tribe C................................................. 25,000 25,000 100,000 75,000 50,764 75,764
Tribe D................................................. 60,000 50,000 50,000 0 0 50,000
Tribe E................................................. 300,000 50,000 350,000 300,000 203,057 253,057
-----------------------------------------------------------------------------------------------
Total............................................... 1,185,000 225,000 1,370,000 1,145,000 775,000 1,000,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Although Tribes will need to wait until the end of the calendar
year to request and then receive their full reimbursement, the process
set forth in the interim final rule ensures that Tribes with expenses
later in the year are still able to receive the same percentage of
their expenses met overall (as opposed to a ``first come, first
served'' model where Tribes seeking reimbursement early in the year
receive full reimbursement whereas Tribes that incur expenses later in
the year may receive little or no reimbursement). The process also
permits Tribes that have unexpected costs, over and above their maximum
allowable reimbursement, such as a large medical bill, to be able to
request reimbursement at the end of the year.
In developing the rule for this program, OVW made every effort to
honor the concerns expressed by Tribes, while also addressing statutory
requirements and ensuring the appropriate use of Federal funds. For
example, the interim final rule includes documentation requirements
that are as simple as possible while mandating that Tribes maintain
auditable records. The rule lists reimbursable expenses, as outlined by
the statute, but adds a broad category for ``other costs incurred in,
relating to, or associated with exercising STCJ'' to permit Tribes to
seek reimbursement for costs not anticipated by the rule. However,
because the statute directs the Attorney General to reimburse Tribal
governments ``for expenses incurred in exercising'' of STCJ (see 25
U.S.C. 1304(h)(1)(A)) (emphasis added), OVW lacks the discretion to
include planning costs such as Tribal code development. To ensure
reimbursement funds are used to supplement, not supplant, local, state,
and federal funding, the rule directs Tribes to expend funds from other
sources before seeking funds from this program.
OVW notes that many Tribal leaders and experts (both from Alaska
and other states) expressed concern about the particularly significant
needs of Alaska Tribes, such as the need for development of criminal
justice systems and severe lack of resources. The Tribal Reimbursement
Program, however, is not well suited to address these needs of Alaska
Tribes that have not yet been designated by the Attorney General to
exercise STCJ through the pilot program because, as discussed above, it
is designed to reimburse the costs incurred by Tribes that already are
exercising STCJ. OVW recognizes the need to provide additional support
and funding to Alaska Tribes that wish to pursue Attorney General
designation through the pilot program. To this end, on December 20,
2022, OVW issued the Emerging Issues and Training and Technical
Assistance Call for Concept Papers, which requests proposals to provide
technical assistance to Alaska Tribes on STCJ implementation, including
through the creation of an Alaska-specific ITWG. In addition, on
February 9, 2023, OVW released the FY 2023 Special Tribal Criminal
Jurisdiction: Targeted Support for Alaska Natives Special Initiative
Solicitation. This solicitation requests proposals only from Alaska
Tribal governments and consortia of such governments whose Native
Villages are within an Alaska Native Village Statistical Area (and
therefore are potentially eligible to seek Attorney General designation
to exercise STCJ).
VII. Section-by-Section Summary of the Proposed Regulatory Text
Sec. 90.30 Definitions
Section 90.30 provides that the definitions in 25 U.S.C. 1304(a)
apply to the Tribal Reimbursement Program.
Sec. 90.31 Eligibility
Section 90.31 describes the eligibility for the Tribal
Reimbursement Program. Tribes are eligible if they are Federally
recognized and are exercising STCJ over any covered crime.
Sec. 90.32 Reimbursement Request
Section 90.32 describes the reimbursement request process for the
Tribal Reimbursement Program. The request process for each
participating Tribe will include a certification that the participating
Tribe meets the eligibility requirements of section 90.31 and a list of
the participating Tribe's expenses from the prior year incurred in
exercising STCJ. OVW will issue an annual Notice of Reimbursement
Opportunity, which will include sample forms for use in the
certification and list of expenses. OVW will also provide training for
Tribes on the reimbursement request process.
Sec. 90.33 Division of Funds: Maximum Allowable Reimbursement and
Waivers
Section 90.33 provides that the funds available for the Tribal
Reimbursement Program each year will be divided into two parts: one
part that will guarantee the availability of funds for each
participating Tribe that requests reimbursement up to the maximum
allowable reimbursement, and one part that will fund waivers of the
maximum.
[[Page 21464]]
Sec. 90.34 Annual Maximum Allowable Reimbursement per Participating
Tribe
Section 90.34 provides that each participating Tribe that requests
the annual maximum allowable reimbursement may receive access to an
equal amount of the funds set aside for maximum allowable
reimbursements under section 90.33. Tribes will receive the funds
through the Automated Standard Application for Payments (ASAP) system,
an electronic system that federal agencies use to quickly and securely
transfer money to recipient organizations. Tribes will be able to see
in ASAP the amount of funds remaining of the annual maximum allowable
reimbursement and when the Tribe has spent all the funds.
Sec. 90.35 Waivers of Annual Maximum Allowable Reimbursement
Section 90.35 provides the process for participating Tribes to
request a waiver of the annual maximum allowable reimbursement if they
incur costs in excess of that amount. If there are not sufficient funds
available to reimburse the total eligible expenses requested by all
participating Tribes, each Tribe will get the same percentage of their
remaining costs met. Requests for waiver must include a summary of
eligible expenses that shows how the Tribe's maximum allowable
reimbursement was spent and identifies the specific expenses that are
requested for reimbursement in excess of the maximum allowable
reimbursement, including how such expenses were calculated.
Participating Tribes are not required to provide documentation at the
end of the year when they submit their waiver request but must keep
documentation on file to support each claimed expense. OVW will provide
a sample form for the summary of eligible expenses.
Sec. 90.36 Categories of Expenses Eligible for Reimbursement
Section 90.36 provides examples of expenses associated with the
exercise of STCJ for which participating Tribes may request
reimbursement and information on how to calculate the costs for such
expenses.
Sec. 90.37 Ineligible Expenses
Section 90.37 lists expenses that cannot be reimbursed through the
Tribal Reimbursement Program.
Sec. 90.38 Collection of Expenses From Offenders
Section 90.38 addresses the situation where a participating Tribe
recoups expenses related to exercise of STCJ from convicted offenders.
Sec. 90.39 Expenses Documentation
Section 90.39 describes documentation of expenses that must be
retained on file by participating Tribes. Such records must be retained
for a period of three years from the end of the calendar year and are
subject to review by DOJ.
Sec. 90.40 Other Sources of Funding
Section 90.40 provides that, if there are other sources of Federal
funding available to pay for a particular cost associated with the
exercise of STCJ, participating Tribes must expend funds from those
sources before seeking reimbursement from this program.
Sec. 90.41 Denial of Specific Expenses for Reimbursement
Section 90.41 provides the process for participating Tribes to
request a review of the denial of any specific expenses for which the
participating Tribe has requested reimbursement.
Sec. 90.42 Monitoring and Audit
Section 90.42 provides that Tribes receiving reimbursement of
expenses from the Tribal Reimbursement Program will be subject to
regular monitoring and audits to ensure that expenses are properly
documented and are allocable to the exercise of STCJ.
Sec. 90.43 Corrective Action
Section 90.43 provides for a corrective action plan and/or
recovery/recoupment for expenses that are later found to be ineligible
for reimbursement. In addition, participating Tribes that fail to
submit the required summary of eligible expenses, respond to requests
for information during monitoring or auditing, or follow a corrective
action plan or return funds expended on ineligible expenses will be
deemed ineligible for additional Tribal Reimbursement Program funds, in
the same or another calendar year, until such deficiencies are
remedied.
VIII. Effective Date
This interim final rule takes effect April 11, 2023.
IX. Statutory and Regulatory Certifications
Administrative Procedure Act
The Administrative Procedure Act (APA), codified at 5 U.S.C. 553,
generally requires that agencies publish substantive rules in the
Federal Register for notice and comment. However, pursuant to section
553(b)(B) of the APA, general notice and the opportunity for public
comment are not required with respect to a rulemaking when an ``agency
for good cause finds (and incorporates the finding and a brief
statement of reasons therefor in the rules issued) that notice and
public procedure thereon are impracticable, unnecessary, or contrary to
the public interest.'' Furthermore, the APA requires publication or
service of a substantive rule not less than 30 days before its
effective date except ``as otherwise provided by the agency for good
cause found and published in the rule.'' 5 U.S.C. 553(d)(3).
In accordance with 5 U.S.C. 553(b)(B) and (d)(3), the Acting
Director of the Office on Violence Against Women finds that there is
good cause to publish this rule without prior notice and an opportunity
for public comment and good cause to publish this rule with an
immediate effective date. Publishing this rule with prior notice and
comment is impracticable, unnecessary, and contrary to the public
interest, as explained in more detail below. These same reasons
constitute good cause for an immediate effective date. Moreover, there
is no need to afford affected parties a 30-day period to adjust their
behavior prior to the rule's effective date; therefore, an immediate
effective date does not contravene any principles of fairness.
First, providing prior notice and an opportunity to comment is
impracticable due to the timeline established by the authorizing
statute and the need to have in place a viable process for reimbursing
Tribes that exercise STCJ. The Indian Civil Rights Act (ICRA) of 1968,
as amended by VAWA 2022, recognizes that, effective October 1, 2022,
participating tribes may exercise tribal criminal jurisdiction over
non-Indian offenders who commit an expanded set of covered crimes in
Indian country. See 25 U.S.C. 1304(b) (recognizing STCJ) and VAWA 2022,
Sec. 3, Public Law 117-103 (effective date). In turn, ICRA, as amended
by VAWA 2022, authorizes the Department of Justice to reimburse Tribal
governments for expenses incurred in exercising STCJ and requires the
Attorney General to promulgate rules governing these reimbursements by
March 15, 2023 (one year after enactment of VAWA 2022). 25 U.S.C.
1304(h)(1). Moreover, administration of the new reimbursement program
hinges on the availability of an appropriation to support the program,
authorized by 25 U.S.C. 1304(j). Assuming that such funding is
available, the statute directs that, to the maximum extent practicable,
not later than 90 days after the date on which the Attorney General
receives a qualifying reimbursement request from a Tribal government
(or authorized
[[Page 21465]]
designee), the Attorney General must provide reimbursement or
notification why no reimbursement can be issued. Id. at
1304(h)(1)(C)(iii).
Given that the Consolidated Appropriations Act, 2023, Public Law
117-328, provides an appropriation of up to $4.4 million for the Tribal
Reimbursement Program in FY 2023, OVW must be ready to issue
reimbursements if it receives a qualifying request from a Tribal
government. However, OVW also must have a rule in place governing the
Tribal Reimbursement Program prior to issuing any reimbursements. This
is particularly important because OVW anticipates that the amount of
funds requested in reimbursements will exceed the amount of funds
appropriated by Congress. Based on an analysis of grant award budgets
approved under OVW's Tribal Jurisdiction Program during the past eight
years, as well as input received from Tribes during consultation and
listening sessions, Tribal requests for reimbursement likely will far
exceed available funds. The analysis of Tribal Jurisdiction Program
grant budgets showed that corrections costs alone add up to nearly
$1,000,000 total across 17 Tribes. This rule provides direction on
prioritizing among requests and establishing an annual maximum
allowable reimbursement per Tribe. In the absence of a rule to address
how to prioritize requests and to set the maximum allowable
reimbursement amount, OVW might expend all available funds on
reimbursements well before all reimbursement requests are received. As
a result, Tribes submitting requests early in this calendar year might
receive all the funding, while Tribes submitting later might receive
none.
Second, providing prior notice and an opportunity to comment is
unnecessary because a robust course of consultation and discussion with
Tribal leaders, criminal justice personnel, and advocates has preceded
issuance of this rule. As described above, pursuant to EO 13175 and the
Department's policy governing Tribal consultation, as part of
developing this rule OVW held two consultation sessions with Tribal
leaders inviting oral and written testimony, a listening session with
members of the Intertribal Technical-Assistance Working Group on STCJ
(an intertribal working group that counts more than 80% of SDVCJ
implementing tribes among its membership), and a roundtable discussion
with a group of implementing tribes regarding SDVCJ expenses and their
recommendations regarding administration of the Tribal Reimbursement
Program. As a result of these sessions, OVW has considered comments
from the Tribes most interested in and affected by the rule and has
incorporated those views, to the degree practicable, into this interim
final rule.
Third, it would be contrary to the public interest to delay
issuance of this rule. As noted in the Background section above,
Congress has recognized expanded tribal criminal jurisdiction over non-
Indians who commit certain covered crimes in Indian country to address
epidemic rates of violence against American Indian and Alaska Native
women and the jurisdictional gaps in Indian country that may impede
holding offenders accountable. Moreover, in the consultations and
discussions that OVW held with Tribal leaders and advocates,
participants reiterated the challenges that Tribes face in shouldering
the immediate costs of exercising STCJ. If OVW does not have in place
an interim final rule to facilitate reimbursement payments to Tribal
governments, these governments may delay implementing STCJ and certain
non-Indian offenders may continue to commit crimes with impunity.
Finally, there is no need to delay the rule's effective date for 30
days because no affected entity will need to adjust its behavior prior
to the rule's effective date. Tribal governments do not need to take
any steps to come into compliance with the new rule. Rather, each Tribe
will decide whether it wishes to request reimbursement funds,
regardless of the effective date. In addition, if a Tribe needs more
time to put in place systems that will enable it to seek reimbursement,
an immediate effective date will not prevent it from doing so.
Therefore, an immediate effective date does not contravene any
principles of fairness as the affected parties may choose to take no
actions or defer those actions regardless of when the rule takes
effect.
As part of this interim final rule, OVW will accept comments and
consider revising the rule. Issuance of the rule on an interim final
basis, however, will enable OVW to implement the Tribal Reimbursement
Program during its first year of funding in an equitable and orderly
fashion. The interim final rule is necessary for OVW to begin
implementing the program, including making reimbursement payments to
Tribes, during FY 2023.
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 funds appropriated for the OVW
Tribal Reimbursement Program, which are unlikely to ever exceed $10
million per year. As explained above, the FY 2023 appropriation for
this program is a maximum of $4.4 million. The authorization of
appropriations for the program, at 25 U.S.C. 1304(j), is a maximum of
$10 million. Therefore, this rule cannot have an annual effect of $100
million or more.
(2) The rule does not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency because OVW
is the only agency that administers funds appropriated by Congress
expressly to support Tribes in administering STCJ. OVW administers a
grant program for Tribes implementing and exercising STCJ and can
ensure that the grant program and the reimbursement program operate in
tandem. Furthermore, by mandating that recipients cannot seek
reimbursement for expenses that are already paid for by another federal
agency, the rule obviates the likelihood of creating inconsistency or
otherwise interfering with another agency's actions.
(3) The rule does not materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients. The rule does not change the economic impact
of funds appropriated for the Tribal Reimbursement Program; instead,
the rule provides, as directed by statute, that appropriated funds are
used to reimburse costs incurred by Tribes in exercising STCJ. Further,
as discussed above, the annual appropriation is not at a level that
would have a significant budgetary impact on the Federal government or
federally recognized tribes. Finally, the rule will impose very few
economic costs on participating Tribes, as discussed below.
[[Page 21466]]
(4) This rule does not raise any novel legal or policy issues.
Although STCJ may present novel legal questions in individual
prosecutions, the issuance of reimbursements to assist Tribes with
specified types of expenses is not novel as other Federal government
agencies operate programs that provide reimbursement to Tribes.
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.
OVW provides the following analysis of the most noteworthy costs,
benefits, and alternative choices. Overall, the Tribal Reimbursement
Program, as implemented by this interim final rule, has very few costs,
outside of the appropriated funds for the program. The only additional
costs are those that Tribes may face in documenting that the expenses
for which they request reimbursement were incurred in relation to
covered crimes and in documenting and justifying the dollar amounts for
such requests. In drafting this rule, OVW balanced the need to make
this process as simple and flexible as possible for Tribes, with the
need to have auditable records and ensure that funds are expended
appropriately. We considered requiring Tribes to submit more detailed
documentation at the time of requesting reimbursement, in order to
ensure that all requested expenses are eligible for reimbursement. We
rejected this as imposing too great a burden on participating Tribes
and instead identified an approach that reduces the reimbursement
request requirements but will ensure that participating Tribes maintain
adequate records for monitoring and audit purposes and puts them on
notice that they may need to return reimbursement funds that are later
found to be ineligible.
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
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: The
direct economic impact is limited to 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; rather, the Tribal Reimbursement Program (as
carried out through the rule) will confer a benefit on participating
Tribes. The rule creates a process for Tribes to access certain funds
appropriated for their benefit. As discussed above, any financial costs
imposed by the rule are minimal. OVW held Tribal consultations on July
27 and 28, 2022, a roundtable on August 24, 2022, and an additional
listening session on August 30, 2022, all focused solely on this
program. In addition, during OVW's statutorily required annual
consultation held most recently on September 21-23, 2022, the Tribes
also commented on this program.
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 (as adjusted for inflation), 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:
PART 90--VIOLENCE AGAINST WOMEN
0
1. The authority for part 90 is revised to read as follows:
Authority: 42 U.S.C. 3711 et seq.; 42 U.S.C. 13925; 25 U.S.C.
1304(h).
0
2. Add subpart C to read as follows:
Subpart C--Reimbursement to Tribal Governments for Expenses Incurred
Exercising Special Tribal Criminal Jurisdiction
Sec.
90.30 Definitions.
90.31 Eligibility.
90.32 Reimbursement request.
90.33 Division of funds: maximum allowable reimbursement and
waivers.
90.34 Annual maximum allowable reimbursement per participating
Tribe.
90.35 Conditions for waiver of annual maximum.
90.36 Categories of expenses eligible for reimbursement.
90.37 Ineligible expenses.
90.38 Collection of expenses from offenders.
90.39 Expenses documentation.
90.40 Other sources of funding.
90.41 Denial of specific expenses for reimbursement.
90.42 Monitoring and audit.
90.43 Corrective action.
Subpart C--Reimbursement to Tribal Governments for Expenses
Incurred Exercising Special Tribal Criminal Jurisdiction
Sec. 90.30 Definitions.
The definitions in 25 U.S.C. 1304(a) apply to the Reimbursement to
Tribal Governments for Expenses Incurred in Exercising Special Tribal
Criminal Jurisdiction (hereinafter referred to as ``the Tribal
Reimbursement Program'' or ``this program'').
Sec. 90.31 Eligibility.
(a) Tribal governments eligible to seek reimbursement under this
program are the governments of Tribal entities recognized by and
eligible for funding and services from the Bureau of Indian Affairs by
virtue of their status as Indian Tribes, that exercise Special Tribal
Criminal Jurisdiction (STCJ), as defined by 25 U.S.C. 1304(a)(14) or
section 812(5) of Public Law 117-103 (``participating Tribes'').
[[Page 21467]]
(b) Tribes that are in the planning phases prior to implementing
STCJ are not eligible for reimbursement of planning costs from this
program.
(c) Participating Tribes that are currently exercising jurisdiction
over non-Indian offenders who commit any covered crime, as defined by
25 U.S.C. 1304(a)(5), and are in the planning phase to exercise
jurisdiction over additional covered crimes are eligible for
reimbursement with regard to the cases for which they already are
exercising jurisdiction but not for planning costs.
Sec. 90.32 Reimbursement request.
Each year for which funds are available for the Tribal
Reimbursement Program, the Office on Violence Against Women (OVW) will
issue a Notice of Reimbursement Opportunity with instructions on how to
apply for the maximum allowable reimbursement. The reimbursement
request for each participating Tribe will include a certification that
the participating Tribe meets the eligibility requirements of Sec.
90.31. It will also include a list of expenses that the participating
Tribe incurred in exercising STCJ in the previous year, in categories
such as law enforcement, prosecution, indigent defense, pre-trial
services, corrections, and probation. If a participating Tribe has
newly implemented tribal criminal jurisdiction over non-Indians and
therefore cannot submit 12 months' worth of expenses for the prior
year, the participating Tribe may use estimated amounts for each
category of expenses.
Sec. 90.33 Division of funds: maximum allowable reimbursement and
waivers.
OVW will set aside for this program up to 40 percent of funds
appropriated pursuant to 25 U.S.C. 1304(j), unless otherwise provided
by law. The funds set aside for the Tribal Reimbursement Program will
be divided into two parts: one part that will guarantee the
availability of funds for each participating Tribe that requests
reimbursement up to the maximum allowable reimbursement, and one part
that will fund waivers of the maximum. In the first year that OVW
administers appropriated funds for this program, OVW will allot 25
percent of Tribal Reimbursement Program funds for maximum allowable
reimbursements. In subsequent years, OVW may adjust this percentage,
based on the appropriations available, the number of participating
Tribes, the extent to which participating Tribes expend the maximum
allowable reimbursement in the prior year, and the total dollar amount
of waivers requested during the prior year. OVW also may consider
whether demand for grant funds under the Tribal Jurisdiction Program
warrants adjusting this percentage.
Sec. 90.34 Annual maximum allowable reimbursement per participating
Tribe.
Each participating Tribe will receive access to an equal portion of
the funds set aside for maximum allowable reimbursements under Sec.
90.33 (e.g., 25 percent of the total funds available for the Tribal
Reimbursement Program), unless their prior year expenses were less than
the maximum amount, in which case they will be limited to the actual
amount of their prior year expenses. Over the course of a calendar
year, participating Tribes may draw down funds from the maximum
allowable reimbursement as needed for eligible expenses as described in
Sec. 90.36. Participating Tribes are not required to provide
documentation at the time they draw down from the maximum allowable
reimbursement. Participating Tribes must provide a summary of eligible
expenses at the end of the calendar year, which must identify actual
expenditures eligible for reimbursement, including dollar amounts for
each expenditure and how they were calculated, and must keep
documentation on file to support each claimed expense. Such
documentation must be sufficient to meet the standards that 2 CFR part
200 provides for grants.
Sec. 90.35 Conditions for waiver of annual maximum.
(a) If participating Tribes incur eligible expenses in excess of
their annual maximum allowable reimbursement, they may request a waiver
of the annual maximum at the end of the calendar year. Requests for a
waiver must include the summary of eligible expenses required by
section 90.34 that shows how the maximum allowable reimbursement funds
were spent and an additional summary of eligible expenses that
identifies actual expenditures eligible for reimbursement in excess of
the maximum, including dollar amounts for each expenditure and how they
were calculated. Participating Tribes are not required to provide
documentation at the end of the calendar year when they submit their
waiver request but must keep documentation on file to support each
claimed expense. Such documentation must be sufficient to meet the
standards that 2 CFR part 200 provides for grants.
(b) Waivers will be calculated at the end of the calendar year
based on available funds. If there are not sufficient funds available
to reimburse the total eligible expenses requested by all participating
Tribes, each Tribe will get the same percentage of their additional
costs met. This percentage will be calculated by comparing the funds
available and the total amount requested for waivers.
Sec. 90.36 Categories of expenses eligible for reimbursement.
Participating Tribes may apply for the maximum allowable
reimbursement and waiver funds for the following expenses associated
with the exercise of STCJ for each calendar year. For an expense to be
eligible, the cost must be incurred in response to a report of a
covered crime committed by a non-Indian, but there does not need to be
an arrest or a prosecution for the offense. The summary of eligible
expenses submitted each year must demonstrate how costs were
calculated. Following are examples of types of eligible costs that
participating Tribes may include and basis for calculations.
(a) Law enforcement expenses such as officer time (including
response, interviews, follow-up, report writing, and court time);
sexual assault kits or other evidentiary supplies; and testing,
analysis, and storage of evidence. Requests for reimbursement must be
based on actual costs attributed to SCTJ cases.
(b) Incarceration expenses such as prison and jail costs and
prisoner transportation costs, whether through contract or Tribally
owned facilities. Requests for reimbursement must be based on actual
costs attributed to STCJ cases and may be based on per diem costs for
housing non-Indian offenders.
(c) Offender medical and dental expenses not otherwise covered by
insurance policies or federal sources such as Medicaid, including costs
for insurance for offenders. Requests for reimbursement must be based
on actual costs attributed to STCJ cases.
(d) Prosecution expenses such as staff time (including meetings,
interviews, filings, research, preparation, court, and other time that
can be demonstrated as allocable to prosecuting a covered crime);
expert witness fees; exhibits; witness costs; and copying costs.
Requests for reimbursement must be based on actual costs attributed to
STCJ cases.
(e) Defense counsel expenses such as staff time (including
meetings, interviews, filings, research, preparation, court, and other
time that can be demonstrated as allocable to defending one or more
non-Indian offenders charged with one or more covered crimes);
competency evaluations; expert witness fees; exhibits; witness costs;
and copying
[[Page 21468]]
costs. Requests for reimbursement must be based on actual cost. If the
defense counsel is provided by contract, then the reimbursement amount
can be based on the invoiced cost to the participating Tribe.
(f) Court expenses such as judge and court staff time; postage for
summoning jurors; jury fees; witness costs; and competency evaluation
or other mental health evaluations ordered by the court. Requests for
reimbursement must be based on actual costs attributed to STCJ cases.
(g) Community supervision/re-entry expenses such as probation,
parole, or other staff time; electronic or other monitoring fees;
chemical dependency testing; batterer or sex offender evaluation and
treatment; and pre-sentence investigation costs. Requests for
reimbursement must be based on actual costs attributed to STCJ cases.
(h) Indirect costs based on a current federally approved indirect
cost rate agreement.
(i) Other costs incurred in, relating to, or associated with
exercising STCJ. Participating Tribes requesting reimbursement for
costs in this category must demonstrate that the cost is incurred in,
relating to, or associated with exercise of STCJ.
Sec. 90.37 Ineligible expenses.
Participating Tribes are not permitted to request reimbursement for
the following:
(a) Planning: Expenses associated with planning to exercise STCJ,
such as code drafting.
(b) Training, including costs for training criminal justice
personnel, court personnel, or others.
(c) Any expenses not incurred in, relating to, or associated with
exercising STCJ.
Sec. 90.38 Collection of expenses from offenders.
If a participating Tribe recoups expenses related to exercise of
STCJ from the convicted offenders prior to receiving reimbursement for
such expenses, then the recouped funds shall be used prior to seeking
reimbursement through the Tribal Reimbursement Program. If a
participating Tribe recoups expenses related to exercise of STCJ from
the convicted offenders subsequent to receiving reimbursement for such
expenses, such funds must be used toward exercise of STCJ.
Sec. 90.39 Expenses documentation.
Documentation of expenses retained on file by participating Tribes
pursuant to sections 90.34 and 90.35 must be adequate for an audit. At
a minimum, participating Tribes must retain the general accounting
ledger and all supporting documents, including invoices, sales
receipts, or other proof of expenses incurred for those expenses
reimbursed by the Tribal Reimbursement Program. Such records must be
retained for a period of three years from the end of the calendar year
during which the participating Tribe sought reimbursement. All
financial records pertinent to the Tribal Reimbursement Program,
including the general accounting ledger and all supporting documents,
are subject to agency review during the calendar year in which
reimbursement is sought, during any audit, and for the three-year
retention period.
Sec. 90.40 Other sources of funding.
If there are other sources of federal funding available to pay for
a particular cost associated with the exercise of STCJ, participating
Tribes must expend funds from those sources before seeking
reimbursement from this program. Examples include existing Department
of Justice grant funds, Medicare/Medicaid, and Bureau of Indian Affairs
funding.
Sec. 90.41 Denial of specific expenses for reimbursement.
If reimbursement of specific expenses is denied, the participating
Tribe may request review of the denial via a letter to the OVW Director
stating the reason why the denied expense was eligible for
reimbursement. OVW must receive the letter within 30 calendar days of
the denial. The OVW Director will review the letter and notify the
participating Tribe of a final decision within 30 days of receipt of
the letter.
Sec. 90.42 Monitoring and audit.
Tribes receiving reimbursement of expenses under the Tribal
Reimbursement Program will be subject to regular monitoring and audits
to ensure that expenses are properly documented and are allocable to
the exercise of STCJ.
Sec. 90.43 Corrective action.
Reimbursement requests later found not to meet statutory,
regulatory, or other program requirements may result in a corrective
action plan and/or recovery/recoupment. Participating Tribes that fail
to submit the required summary of eligible expenses under Sec. Sec.
90.34 and 90.35, respond to requests for information during monitoring
or auditing, or follow a corrective action plan or return funds
expended on ineligible expenses will be deemed ineligible for
additional Tribal Reimbursement Program funds, in the same or another
calendar year, until such deficiencies are remedied.
Dated: March 31, 2023.
Allison Randall,
Acting Director.
[FR Doc. 2023-07519 Filed 4-10-23; 8:45 am]
BILLING CODE 4410-FX-P
