Rule2023-07519
Special Tribal Criminal Jurisdiction Reimbursement
Primary source
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Published
April 11, 2023
Effective
April 11, 2023
Issuing agencies
Justice Department
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 69 (Tuesday, April 11, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-07519]
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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.
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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.
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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 <a href="http://www.regulations.gov">http://www.regulations.gov</a> using the
electronic comment form provided on that site. For easy reference, an
electronic copy of this document is also available at the <a href="http://www.regulations.gov">http://www.regulations.gov</a> website. It is not necessary to submit paper
comments that duplicate the electronic submission, as all comments
submitted to <a href="http://www.regulations.gov">http://www.regulations.gov</a> 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
<a href="/cdn-cgi/l/email-protection#80ede1f2eee9e5aef3e8e9e5ecf3c0f5f3e4efeaaee7eff6"><span class="__cf_email__" data-cfemail="731e12011d1a165d001b1a161f00330600171c195d141c05">[email protected]</span></a>.
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
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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\
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\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.
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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.
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\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 <a href="https://www.govinfo.gov/content/pkg/FR-2022-01-28/pdf/2022-01789.pdf">https://www.govinfo.gov/content/pkg/FR-2022-01-28/pdf/2022-01789.pdf</a>.
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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\
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\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.
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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\
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\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, <a href="https://www.ncjrs.gov/pdffiles1/nij/249736.pdf">https://www.ncjrs.gov/pdffiles1/nij/249736.pdf</a>. 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.
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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.
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\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).
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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\
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\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).
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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\
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\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).
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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\
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\14\ The report is available at <a href="https://www.ncai.org/resources/ncai-publications/SDVCJ_5_Year_Report.pdf">https://www.ncai.org/resources/ncai-publications/SDVCJ_5_Year_Report.pdf</a>.
\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
<a href="https://www.indian.senate.gov/sites/default/files/DOJ%20Statement%20for%20SCIA%20VAWA%20Hearing%2012.8.21.pdf">https://www.indian.senate.gov/sites/default/files/DOJ%20Statement%20for%20SCIA%20VAWA%20Hearing%2012.8.21.pdf</a>.
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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\
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\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).
<bullet> Assault of Tribal justice personnel
<bullet> Child violence
<bullet> Dating violence
<bullet> Domestic violence
<bullet> Obstruction of justice
<bullet> Sexual violence
<bullet> Sex trafficking
<bullet> Stalking
<bullet> 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:
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\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.
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(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.
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\19\ See 25 U.S.C. 1304(j).
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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:
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> Tribes would like the maximum possible flexibility to
determine which costs they can seek reimbursement for through the
program.
<bullet> 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.
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\20\ 25 U.S.C. 1304(i).
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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
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</html>Indexed from Federal Register on April 11, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.