[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]



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 Rules and Regulations
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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 http://www.regulations.gov using the 
electronic comment form provided on that site. For easy reference, an 
electronic copy of this document is also available at the http://www.regulations.gov website. It is not necessary to submit paper 
comments that duplicate the electronic submission, as all comments 
submitted to http://www.regulations.gov will be posted for public 
review and are part of the official docket record. However, should you 
wish to submit written comments through regular or express mail, they 
should be sent to Marnie Shiels, Office on Violence Against Women, 
United States Department of Justice, 145 N Street NE, 10W.100, 
Washington, DC 20530.

FOR FURTHER INFORMATION CONTACT: Marnie Shiels, Office on Violence 
Against Women, 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\
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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 https://www.govinfo.gov/content/pkg/FR-2022-01-28/pdf/2022-01789.pdf.
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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, 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.
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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 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.
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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).

 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:
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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:
     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.
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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