[Federal Register Volume 89, Number 24 (Monday, February 5, 2024)]
[Proposed Rules]
[Pages 7639-7652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02230]
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DEPARTMENT OF JUSTICE
Office of Justice Programs
28 CFR Part 94
[Docket No.: OJP (OVC) 1808]
RIN 1121-AA89
Subject: Victims of Crime Act (VOCA) Victim Compensation Grant
Program
AGENCY: Office for Victims of Crime, Office of Justice Programs,
Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Office of Justice Programs (``OJP''), a bureau of the
Department of Justice, Office for Victims of Crime (``OVC'') proposes
adding a subpart to its regulations to replace the existing Victims of
Crime Act (``VOCA'') Victim Compensation Program Guidelines
(``Guidelines''), and update and codify program requirements for the
VOCA Victim Compensation Formula Grant Program (``Victim Compensation
Program'').
DATES: Comments must be received by no later than 11:59 p.m., E.T., on
April 5, 2024.
ADDRESSES:
Electronic comments: OVC encourages commenters to submit all
comments electronically through the
[[Page 7640]]
Federal eRulemaking Portal, which provides the ability to type comments
directly into the comment field on the web page or attach a file.
Please go to https://www.regulations.gov and follow the on-line
instructions at that site for submitting comments. Upon completion of
your submission, you will receive a Comment Tracking Number. Submitted
comments are not instantaneously available for public view on
regulations.gov. If you have received a Comment Tracking Number, you
have submitted your comment successfully and there is no need to
resubmit the same comment. Commenters should be aware that the system
will not accept comments after 11:59 p.m. Eastern Time on the last day
of the comment period.
Paper comments: OVC prefers to receive comments via
www.regulations.gov where possible. Paper comments that duplicate
electronic submissions are not necessary and are discouraged. Should
you wish to mail a paper comment in lieu of an electronic comment, it
should be sent via regular or express mail to: VOCA Compensation Rule
Comments, Office for Victims of Crime, Office of Justice Programs, U.S.
Department of Justice, 810 7th Street NW, Washington, DC 20531.
To ensure proper handling of comments, please reference ``RIN 1121-
AA89'' on all electronic and written correspondence, including any
attachments.
FOR FURTHER INFORMATION CONTACT: Kathrina Peterson, Division Director,
Office for Victims of Crime, Office of Justice Programs, U.S.
Department of Justice, 810 Seventh Street NW, Washington, DC 20531;
(202) 616-3579 (please note that this is not a toll-free number).
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
www.regulations.gov. Such information includes personal identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter. The Freedom of Information Act applies to all comments
received.
If you wish to submit personal identifying information (such as
your name, address, etc.) as part of your comment, but do not wish for
it to be posted online, you must include the phrase ``PERSONAL
IDENTIFYING INFORMATION'' in the first paragraph of your comment. You
must also place all of the personal identifying information that you do
not want posted online in the first paragraph of your comment and
identify with specificity what information you want the agency to
redact.
If you wish to submit confidential business information as part of
your comment, but do not wish 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 all 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 all or part of
that comment.
Personal identifying information identified and located as set
forth above will be placed in the agency's public docket file, but not
posted online. Confidential business information identified and located
as set forth above will not be placed in the public docket file. If you
wish to inspect the agency's public docket file in person by
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.
II. Executive Summary
OJP's Office for Victims of Crime (``OVC'') administers the VOCA
Victim Compensation Grant Program (``Victim Compensation Program'').
The Victims of Crime Act of 1984 (``VOCA''), Public Law 98-473, sec.
1403, 34 U.S.C. 20102, authorizes the Victim Compensation Program,
through which OVC provides an annual grant to State \1\ victim
compensation programs in amounts determined by statutory formula based
on prior year expenditures of those programs, provided that the
programs meet the VOCA criteria. State compensation programs make
payments to reimburse victims of crime (or, in some cases, third-party
providers on behalf of victims) for certain expenses incurred as a
result of crime.
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\1\ For purposes of this notice, the term ``State'' includes the
District of Columbia, the Commonwealth of Puerto Rico, the United
States Virgin Islands, and any other possession or territory of the
United States. 34 U.S.C. 20102(d)(4) (defining ``State'' for VOCA
Compensation).
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The proposed rule proposes to replace the existing Victim
Compensation Program Guidelines (``Guidelines''), published in the
Federal Register on May 16, 2001, at 66 FR 95, and update and codify
program requirements. The proposed rule retains most of the substance
of the current Guidelines, with various modest technical and
substantive updates, primarily to account for statutory or procedural
changes since 2001, and to clarify or streamline existing provisions.
Of note, the proposed rule would clarify and streamline the policies
and definitions regarding who may be considered a survivor of a victim;
medical and dental expenses; property damage expenses; sexual assault
forensic exam expenses; the requirement that States promote victim
cooperation with the reasonable requests of law enforcement;
consideration of a victim's or survivor's immigration status, criminal
history, or alleged contributory conduct in claim determinations; and
crowdfunded resources. It would make it easier for States to seek
reimbursement for costs associated with recovery efforts (recovering
payment amounts via restitution and subrogation). It would address
extensions of grant performance periods and better describe OVC's
discretion in remedying erroneous State certification of payments.
The benefits of this proposed rule outweigh the potential costs. A
full analysis of costs and benefits is provided below in the regulatory
certifications section.
III. Background
A. Overview of the VOCA Compensation Program
OVC's Victim Compensation Program provides an annual grant to
eligible State-operated crime victim compensation programs, which
reimburse victims of crime (or, in some cases, third-party providers on
behalf of victims) for certain expenses incurred as a result of crime.
The Victim Compensation Program is funded from the Crime Victims
Fund. The Fund receives Federal criminal fines, penalties, and
assessments, as well as certain gifts and bequests, but does not
receive any general tax revenue. The Crime Victims Fund is administered
by OVC, and amounts that may be obligated therefrom are allocated each
year according to the VOCA formula at 34 U.S.C. 20101. The amount
annually available for obligation through the VOCA formula allocations
typically (since Federal fiscal year 2000) has been set by statute,
through limits specified in the annual Commerce, Justice, and Science
appropriations act, at less than the total amount available in the
Fund. The VOCA formula specifies that (in most years) the first $20M
available in the Fund for that year is to go toward child abuse
prevention and treatment programs (via grants made by the Department of
Health and Human Services), with a certain amount to be set-aside for
OVC grants to address
[[Page 7641]]
child abuse in Indian Country. After that, such sums as may be
necessary are available to the Federal Bureau of Investigation and the
U.S. Attorney's Offices to improve services to victims of Federal
crime, and to operate a victim notification system. The remaining
balance is allocated as follows: 47.5% for OVC's Victim Compensation
Program, 47.5% for OVC's Victim Assistance Program, and 5% for the OVC
Director to distribute in competitive-discretionary awards in certain
statutorily defined categories. Generally, under the distribution rules
for the Victim Compensation Program, if a portion of the 47.5%
available for Compensation is not needed for that purpose (i.e., it is
greater than the sum of the statutorily allocated grant amounts for the
eligible State victim compensation programs for that year), it is (per
the statutory formula) made available to augment the Victim Assistance
Program. The Victim Assistance Program distributes funds to States as
mandated by VOCA, at 34 U.S.C. 20103(a) and (b).
Under 34 U.S.C. 20102, the Director of OVC is required to make an
annual grant to eligible crime victim compensation programs that is
equal to 75 percent of the amount awarded by the State program to
victims of crime from State funds during the fiscal year preceding the
year of deposits in the Fund (two fiscal years prior to the grant
year). If the amount in the Fund is insufficient to award each State
its percentage of the prior year's compensation payout from State
revenues, all States will be awarded the same reduced percentage of
their prior year's payout from the available Federal funds. (The
allocation percentage was changed, by statute, from 60 to 75 percent in
2021.)
To determine the amount of the grant, each State must annually
submit to OVC a certification of the amount expended by the State
compensation program in a prior Federal fiscal year. State crime victim
compensation programs may use state or VOCA compensation grant funds to
pay for eligible expenses allowed by State compensation statute, rule,
or other established policy. The VOCA compensation formula matches
state-certified payments at the statutorily defined rate after certain
deductions, which include payments made with VOCA compensation funding
and most property damage and loss payments, among other things. OVC
does not require States to submit budgets with their formula award
applications, as the allocation and use of funds under this formula
program are prescribed by VOCA. OVC does require basic information
about State use of the administrative and training allowance.
Each VOCA Compensation grant is available for the entire fiscal
year in which the award is made (typically, OVC makes awards toward the
end of the Federal fiscal year, in August and September), and the
following three fiscal years. 34 U.S.C. 20101(e). Pursuant to the
implementation of the VOCA Fix to Sustain the Crime Victims Fund Act
(``VOCA Fix''), Public Law 117-27 (July 22, 2021), OJP has authority to
grant extensions of VOCA awards, including those under the VOCA
Compensation Program.
State compensation programs must comply with applicable reporting
requirements, are monitored by OVC for compliance with VOCA and other
applicable requirements and are subject to audit.
B. Legal Changes Affecting the VOCA Compensation Program
Since the Guidelines were promulgated in 2001, there have been
changes to VOCA, section 1403, which governs the VOCA Victim
Compensation Program, to other parts of VOCA, and to various
government-wide and OJP-specific rules and processes relevant to the
program. These changes are discussed below, along with the relevant
corresponding proposed changes to the program rules; but some of the
more significant changes are highlighted below for context:
On October 26, 2001, a few months after issuance of the May 2001
Guidelines, the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (the USA PATRIOT Act), Public Law 107-56, title VI, sec. 622(a)-
(e)(1), raised the percentage used for calculating a State's VOCA grant
from 40 percent of prior year certified payouts to 60 percent starting
in Federal fiscal year 2003. (This was further increased by Pub L. 117-
27, sec. 2(b)(1)(A) (July 22, 2021), to the current level of 75 percent
starting in Federal fiscal year 2021.) The same 2001 law also removed
the eligibility requirement that State compensation programs compensate
victim of terrorism occurring outside of the United States. (It should
be noted that the law did not, and does not, prevent States from
compensating victims of such crimes, should they choose to do so.) The
October 2001 amendment also changed the means-testing- and collateral-
source exceptions applicable to State victim compensation payments: It
added an exception that allowed the 9/11 Victim Compensation Fund to
count State victim compensation payments for purposes of means testing
and collateral-source review. It expanded the concept of means testing
to include not only income eligibility but also resource or asset
eligibility. It also expanded the exclusion to prevent most programs
from counting payments from State victim compensation programs as a
collateral source until the victim is fully compensated from the losses
suffered as a result of the crime. It removed the role of the Director
of OVC in determining that assistance or payment provided became
necessary in full or part because of the commission of a crime, and
instead simply exempted payments of ``any amount of crime victim
compensation the applicant receives through a crime victim compensation
program under this section [presumably meaning a State compensation
program that receives a VOCA grant]''. It added the U.S. Virgin Islands
to the list of U.S. territories treated as ``States'' for purposes of
program eligibility. It clarified, with regard to the payor-of-last
resort provision, that the 9/11 Victim Compensation Fund (as other
Federal or federally financed programs) was to pay before the State
victim compensation programs.
In 2006, Public Law 109-162, sec (a)(3), amended the VOCA provision
allowing an administrative cost allowance of up to five percent of the
annual VOCA Compensation grant, to allow grant funds also to be used
for ``training purposes.''
On December 19, 2014, the White House Office of Management and
Budget issued a major revision and consolidation of government-wide
grant rules, for codification as 2 CFR part 200. These rules
promulgated as a result provide the primary legal structure for most
Federal grant activity, including VOCA Victim Compensation Program
grants. The Department of Justice adopted these rules (with very minor
exceptions) on September 9, 2016, in its rule at 28 CFR part 2800.
On September 1, 2017, the Office of the Law Revision Counsel of the
U.S. House of Representatives reclassified the U.S. Code provisions
where VOCA had been codified to a different title of the Code--moving
them from 42 U.S.C. 10601, et seq., to 34 U.S.C. 20101, et seq. (42
U.S.C. 10602 in the Guidelines was reclassified to 34 U.S.C. 20102.)
In 2021, the VOCA Fix increased the statutory formula percentage
used for calculating a State's annual VOCA grant from 60 percent to 75
percent. It added exceptions (centered around victim wellbeing) to the
existing eligibility provision that requires State compensation
programs to promote
[[Page 7642]]
victim cooperation with the reasonable requests of law enforcement. It
expressly prohibited OVC from deducting (from a State's compensation
payments reported in the Victim Compensation Certification form)
recovery costs or collections from restitution or from subrogation for
payment under a civil lawsuit. The VOCA Fix also (in 34 U.S.C.
20101(e)) gave authority to the U.S. Attorney General (who has
delegated this authority to the Assistant Attorney General for the
Office of Justice Programs) to allow extensions of the VOCA-award time
limit, which ordinarily makes victim compensation grants available for
expenditure only in the Federal fiscal year (FY) of the award plus the
next three fiscal years.
In 2022, Public Law 117-103, div. W, title XIII, sec. 1311,
1316(b), March 15, 2022, added a provision (that is to be implemented
no later than March 2025) requiring State victim compensation programs
to waive the application deadline for certain victims whose delay in
filing ``was a result of a delay in the testing of, or a delay in the
DNA profile matching from, a sexual assault forensic examination kit or
biological material collected as evidence related to a sexual
offense[.]''
C. Discussion of Proposed Changes to Program Requirements
1. Summary of Primary Substantive Changes to the Current Guidelines
The primary substantive changes that OVC proposes to make to the
current Guidelines are highlighted as follows (with full discussion
below):
1. OVC proposes to allow States to adopt policies that victim
expenses for dental services and devices under a State-defined
threshold are presumed to be attributable to a physical injury
resulting from a compensable crime. This would allow States to
facilitate processing of claims for these expenses in a more efficient
and victim-centered manner, at a lower administrative burden to the
State.
2. OVC proposes to clarify the definition of ``medical expenses''
and ``mental health counseling and care'' to emphasize that a limited
definition applies for purposes of costs that a State must cover (to be
an eligible program), but that States may apply a broader understanding
of such expenses, in the exercise of their discretion. This would
clarify that States have flexibility to address victim expenses more
comprehensively where reasonable and appropriate; for example, in
connection with services accessed in another jurisdiction, areas with
limited access to licensed providers, or Native American healing
practices.
3. OVC proposes to lower the threshold for States to seek
reimbursement for the costs of their personnel who work on recovery
efforts (e.g., recovering restitution, subrogation for civil lawsuit
recovery). The Guidelines currently require personnel to dedicate at
least 75 percent of their time to such efforts, to be included in the
State certification of payments that forms the basis for a subsequent
VOCA Compensation grant. OVC proposes to lower this threshold to 50
percent.
4. OVC proposes a new definition of ``survivor of a victim'' to
make patent OVC's longstanding view that States have discretion to
consider a broad variety of relationships to the victim in determining
who is eligible for compensation.
5. OVC proposes to add language reflecting the statutory change in
2021 that now allows OJP (via delegation from the United States
Attorney General) to extend the performance period for VOCA
Compensation grants under certain circumstances.
6. OVC proposes various clarifications of previously ambiguous or
incorrect descriptions of statutory requirements, and removal of text
that unnecessarily paraphrases or repeats the VOCA statute.
7. OVC proposes to clarify State discretion to pay for, and
certify, expenses of damaged property reasonably necessary for victim
safety and how this interacts with the prohibition on certifying
property damage expenses. This proposal would allow State compensation
programs to address victim safety needs better, and in a timely manner.
8. OVC proposes to omit in the Compensation rule some language in
the current Guidelines (and make a conforming change to the VOCA Victim
Assistance Program rule) that creates some confusion regarding which
program (Victim Compensation or other programs, such as Victim
Assistance) may pay for sexual assault forensic exams. This proposal
would allow States to structure their coverage of the costs for these
exams more flexibly, to enable them better to meet the requirement in
Federal law that such exams be covered without charge to a victim. OVC
also proposes to allow States to certify payments by the State
compensation program for sexual assault forensic exams regardless of
whether those funds derive from general state funding or are
specifically appropriated for sexual assault forensic exam expenses.
This would allow treatment of sexual assault forensic exam payments to
be like that of other victim compensation expenses (for which the state
funding source is largely irrelevant) and would encourage States to
designate funding for sexual assault forensic exams by including those
payments from designated state funding sources in the calculation for
the Federal VOCA compensation award.
9. OVC proposes to clarify the VOCA eligibility requirement that
States promote victim cooperation with the reasonable requests of law
enforcement, to emphasize that the requirement applies--by statute--to
States, not victims. Although States have discretion in addressing the
requirement, the proposal would clarify that they are not required to
impose an evidentiary burden on victims to do so and expressly
encourages States to avoid doing so.
10. OVC proposes to make patent that nothing in the rule shall be
understood to require or authorize a State to consider a victim's or
survivor's Federal immigration status in determining eligibility for
crime victim compensation.
11. OVC proposes to add a provision prohibiting States from denying
claims based on criminal history. Certain populations may be more
likely to have criminal history due to unjustified disparate treatment
in the criminal justice system or due to criminal conduct induced
through force, fraud, or coercion, such as unlawful acts that
traffickers compelled their victims to commit, and this can result in
unjustifiably disproportionate denial of claims for those populations.
12. OVC proposes to add a provision generally prohibiting States
from considering a victim's alleged contributory conduct in determining
compensation claims, except in specific exceptional claims and where a
State has a publicly available written policy regarding consideration
of this factor. This change is intended to increase objectiveness and
consistency in contributory conduct reviews and to address inconsistent
attribution of ``contributory conduct'' to victims, which attribution
may later preclude these victims from receiving compensation.
13. OVC proposes to prohibit (with exceptions) States from
requiring notarized signatures on claim applications. This is intended
to lower the administrative barriers for victims seeking compensation.
14. OVC proposes a provision to clarify that crowdfunded resources
are not considered a collateral source and to clarify that the VOCA
payor-of-last-resort provision does not apply to
[[Page 7643]]
private insurance or crowdfunded resources.
15. OVC proposes minor changes to the provisions regarding
incorrect State certification of compensation payments, to make patent
OVC's discretion in remedying over- and under-payments resulting from
erroneous certifications.
2. Section-by-Section Discussion of Changes to Current Guidelines
What follows is a section-by-section discussion of proposed changes
to the Guidelines. It is organized below in the section order of the
current Guidelines, with new proposed rule sections with no
corresponding Guideline provision marked ``NEW.''.
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Guideline Proposed rule
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N/A.................................. NEW: 94.201 to 94.205. Sets forth
administrative provisions
describing the purpose of the
rule and program, the scope of
the rule, and OVC's authority
regarding issuing guidance on
the application of the rule;
providing a savings clause; and
describing when and to which
grants the rule applies.
Preamble............................. Preamble. Consolidates and
updates the information from the
Guideline's two preamble
sections.
Sec. I Definitions................... 94.206 Definitions. Retains some
definitions from the Guidelines
and adds (as denoted by
asterisk) some definitions. The
proposed rule defines--
* Administrative costs
(defines the statutory term by
providing examples consistent
with those in the Guidelines);
* Certified compensation
payment and Certify payment
(defines these terms for clarity
because they are used frequently
in the Guidelines and proposed
rule, and relate to
determination of the annual
award amount);
* Certifiable property
damage expenses (defines certain
property damage expenses for
victim safety and physical
necessities);
* Collateral source
(defines this term in a general
way for clarity, because it is a
key concept applied by States in
determining compensation
payments);
* Crime victim or victim
of crime (defines this generally
as context for other eligibility
concepts, such as victim of a
``compensable crime''; without
the core broad definition of
victim, the other definitions
may be more difficult to
understand);
* Crowdfunding (defines
this generally as context for
the proposed rules regarding
consideration of collateral
sources);
* Dental services or
devices (defines the statutory
term to make patent OVC's
longstanding understanding that
the term encompasses a range of
compensable expenses);
* Director (defined for
context);
Driving while
intoxicated (retains the
Guideline's longstanding
definition, which reconciles the
statutory term with a similar
statutory term ``drunk driving''
by treating the offense of drunk
driving to be a subset of
driving while intoxicated, and
provides some clarifying
examples of how such offenses
may be described in a State's
law);
Federal crime (retains
but condenses the definition);
* Federal fiscal year
(defines the time period to
reflect that used in the
Guidelines and most Federal
programs);
* Funeral expenses
(defines the statutory term to
make patent that the term
encompasses a range of expenses
attributable to a death from
compensable crime, but that
States may impose reasonable
cost and scope limitations);
Mandatorily compensable
crime (defines in one place the
crimes for which a State must,
by statute, offer compensation);
Medical expenses (refers
to statutory definition, which
is quoted for ease of
reference);
Mental health counseling
and care (retains but updates
definition to clarify that the
term includes a variety of
treatment methods, and refers to
the professional treatment
standards in the jurisdiction in
which care is administered to
address situations where care
occurs outside of the State);
Method of healing
recognized by the law of the
State (clarifies that the
applicable professional
standards are those of the
jurisdiction where the medical
healing practice is provided,
and that a State may recognize
other healing practices);
Optionally compensable
crime (defines crimes for which
a State may provide
compensation; examples are
consistent with those in the
Guidelines);
Optionally compensable
expenses (provides examples,
consistent with Guidelines, of
expenses for which a State may
provide compensation);
* Personnel directly
involved in recovery efforts
(defines the statutory phrase
added to VOCA by the VOCA Fix
Act relating to reimbursement of
personnel and other costs
associated with recovering
compensation payments via
restitution, subrogation, or
other means; see discussion of
Recovery Costs in proposed
section 94.234 for additional
information);
* Preceding fiscal year
(defines the ambiguous statutory
phrase to refer to the year
preceding the year of deposits
into the Crime Victims Fund,
which is presumed to occur in
the fiscal year before the
grants are awarded; this is in
accordance with OVC's
longstanding practice of using
reporting from two years prior
to the Federal fiscal year of
the grant award to calculate the
grant amounts and also has the
prudential advantage of allowing
States to complete their
accounting for the relevant time
period);
Property damage (retains
Guideline definition of
``Property Damage and Loss'' but
uses the statutory term;
definition continues to include
both tangible and intangible
property, but adds clarification
regarding exclusions for
otherwise compensable medical
expenses or items excluded by
the statutory definition of
property damage);
* Recovery costs
(references statutory
definition, which is quoted for
ease of reference);
* Services rendered in
accordance with a method of
healing (defines the statutory
phrase used in the definition of
``medical expenses'' to include
examples of medical services);
State (refers to the
statutory definition, which is
quoted for ease of reference);
* Supplant (defines the
statutory term in a way
consistent with the Guidelines
and the DOJ Grants Financial
Guide);
[[Page 7644]]
* Survivor of a victim
(defines the statutory phrase to
encompass a variety of
relationship to clarify that
States may consider not just
traditional family relationships
in determining survivor
eligibility for compensation).
Training costs (provides
examples of training costs,
which are limited by an
amendment to VOCA that occurred
after the Guidelines were
promulgated).
* New
OVC omits the definitions of--
Federal Program, or a
federally financed State or
local program (the term is self-
explanatory, and examples of
such programs are likely to be
outdated quickly);
Mass violence (it is
unnecessary to define the term
in the rule--other crimes are
not specifically defined--though
victims of mass violence would
be victims of violent crime, and
thus States must compensate
victims of such crimes);
Terrorism occurring
within the United States (it is
unnecessary to define the term
in the rule--other crimes are
not specifically defined--though
victims of terrorism occurring
within the United States would
be victims of violent crime, and
thus States must compensate
victims of such crimes);
Terrorism occurring
outside the United States (it is
unnecessary to define the term
in the rule because the
statutory requirement that
States compensate victims of
such crimes was removed by
Public Law 107-56, tit. VI,
subtit. B, Sec. 624I, 115
Stat. 272, 373, thus, States
may, but are not required to,
compensate victims of such
crimes; these victims may apply
for compensation under OVC's
International Terrorism Victim
Expense Reimbursement Program).
Sec. II. Background.................. Preamble. General updates.
Sec. III.A. Funding Allocations...... Preamble. General updates.
Sec. III.B. Grant Period............. 94.241 Grant Award Period of
Performance. Updates to reflect
the VOCA Fix (allows
extensions).
Sec. III.C. VOCA Victim Compensation Omitted because it merely repeats
Grant Formula. statutory language.
Sec. IV. A. Grantee.................. 94.211 Eligibility of the
Compensation Program. Updated to
condense, but no substantive
changes.
Sec. IV.B. Program Requirements...... Program Requirements heading.
94.211-94.215.
Sec. IV.B.1. Compensable Crimes...... Definitions of mandatorily
compensable crime and optionally
compensable crime. Updates to
omit statutory repetition.
Sec. IV.B.1.(a) VOCA Mandated Crime.. Definition of mandatorily
compensable crime. Updates to
omit statutory repetition;
removes reference to coverage of
terrorism to conform to current
law.
Sec. IV.B.1.(b) Coverage of Other Definition of optionally
Crimes. compensable crime. Updates to
omit statutory repetition and to
clarify.
Sec. IV.B.2. Compensable Expenses.... Definitions of mandatorily
compensable expenses and
optionally compensable expenses;
94.212 Payments and
Certification of Payments.
Updates to omit statutory
repetition and to clarify and
streamline; moves definitions to
definition section.
Sec. IV.B.2.(a) VOCA Mandated Definition of mandatorily
Expenses. compensable expenses. Updates to
omit statutory repetition and to
clarify and streamline; moves
definitions to definition
section.
Sec. IV.B.2.(b) Other Allowable Definition of optionally
Expenses. compensable expenses; 94.212
Payments and Certification of
Payments. Clarifies ambiguity in
Guideline between use of VOCA
Compensation funds for
compensation payments and
certification to OVC of State-
funded payments. Also moves list
of optionally compensable
expenses to the definition, and
clarifies that the list items
are examples, not restrictions.
Regarding specific items:
Clarifies in a more
conceptual way the exceptions
for compensation of property
necessary for victim safety in a
new definition, certifiable
property damage expenses.
Clarifies that
compensation for building
modifications and equipment may
address any disability, not just
physical.
Removes limitations on
certifying forensic sexual
assault examination expenses, so
that these are treated like any
other expense and to allow
States flexibility to meet
victim needs (and adds a
conforming change to 94.119(g)).
Adds language, in
section 94.212(c), addressing
considerations for dental
services and devices. This
language allows States to use
streamlined process--via a
presumption of causation--for
payment of these expenses. A
presumption is justified because
dental injuries often are not
covered by collateral sources,
such as health insurance, delays
in service may exacerbate injury
and increase costs, and treating
dentists typically are not
asked, and may not be trained,
to opine on causation of
specific dental injuries when
providing services.
Adds definition of
method of healing recognized by
the law of the State to clarify
that States may compensate for
expenses meeting the
professional standards of the
jurisdiction in which care is
provided, and that they also
have discretion to compensate
for other healing practices.
Sec. IV.B.3. Victim Cooperation With 94.213 Promotion of Victim
Law Enforcement. Cooperation with Reasonable
Requests of Law Enforcement. OVC
corrects the Guideline's
misdescription of a statutory
requirement: VOCA requires that
States promote reasonable
cooperation with the reasonable
requests of law enforcement, not
that States ensure or document
such cooperation. It also
updates the requirements to
reflect the statutory exceptions
to such promotion added by the
VOCA Fix, gives examples of
promotion, and requires that
States have a policy regarding
exceptions if the State requires
the victim to bear an
evidentiary burden to show
cooperation.
Sec. IV.B.4. Nonsupplantation........ 94.214 Nonsupplantation of State
Funds. Updates to omit statutory
repetition, clarify that broad
(in addition to ``across the
board'', the phrase in the
Guidelines) budget restrictions
at the State level typically are
not supplanting and that a
return to a prior baseline level
of funding after a temporary
increase is not supplanting,
either; it also would eliminate
requirement to notify OVC of
funding decreases.
N/A.................................. NEW: 94.113 Engagement with
American Indian and Alaskan
Native tribes. Requires certain
States to have a tribal
engagement policy.
[[Page 7645]]
N/A.................................. NEW: Victim Eligibility
Considerations heading. This
groups all requirements for
State criteria for victim
eligibility.
Sec. IV.B.5. Compensation for 94.221 Residency and Place of
Residents Victimized Outside Their Crime. Updates to omit statutory
Own State. repetition, and remove
provisions no longer supported
by law.
Sec. IV.B.6. Compensation for 94.221. Updates to omit statutory
Nonresidents of a State. repetition.
N/A.................................. NEW: 94.221(c). Makes patent that
nothing in the rule shall be
understood to require or
authorize a State to consider
the victim's or survivor's
Federal immigration status in
determining eligibility for
crime victim compensation.
Sec. IV.B.7. Victims of Federal Crime Definition of Mandatorily
compensable crime. Moves the
requirement to the definition
and updates it to omit statutory
repetition.
N/A.................................. NEW: 94.222 Criminal History and
Delinquent Payments. Prohibits
claim denials based on criminal
history, with certain
exceptions. Makes patent in the
rule (where the Guidelines did
not address the matter) that
there is a longstanding
statutory stay of the effective
date of the VOCA eligibility
requirement regarding the
prohibition of payments to
persons delinquent in paying
Federal criminal fines,
penalties, or restitution.
N/A.................................. NEW: 94.223 Contributory Conduct.
Adds a requirement that States
may not consider a victim's
alleged contributory conduct,
except in specific exceptional
cases and only where the State
has a written policy regarding
consideration of this factor
that is publicly available.
Sec. IV.B.8. Unjust Enrichment....... 94.224. Familial Relationship or
Shared Residence with Offender
(Unjust Enrichment). Updates to
omit statutory repetition,
eliminates vague examples, and
limits denial of claims for de
minimis benefit to the offender
and expressly allows exceptions
for victim well-being.
N/A.................................. NEW: 94.225 Victim Application
Provisions. Addresses the VOCA
statutory requirement added by
the VOCA Fix that requires
(starting on March 15, 2025)
that States waive the claim
filing deadline for claims
related to sexual assault where
forensic evidence testing, or
matching, is delayed. Also
prohibits States from requiring
a notarized signature for an
initial application, because
this is an unnecessary barrier
to accessing the compensation
program.
Sec. IV.B.9. Discrimination 94.249 Discrimination Prohibited.
Prohibited. Updates to omit statutory
repetition, and to refer to
applicable DOJ regulation and
OJP Office for Civil Rights
mandates, and to emphasize
language access requirements.
Sec. IV.B.10. Additional Information Omitted because it simply repeats
Requested by the OVC Director. statutory language.
N/A.................................. NEW: Relationship to Collateral
Sources of Payment heading.
Groups together provisions
addressing collateral sources.
Sec. IV.C. VOCA Funds and Collateral 94.231 Coordination. Updated, but
Federal Programs. retains language regarding State
coordination with other programs
to facilitate victim access to
resources.
Sec. IV.C.1. Means Testing........... 94.232 Means Testing. Omits
repetition of statutory language
and deletes a provision
regarding the OVC Director's
authority that has been
incorrect since an October 2001
statutory change. Clarifies that
the restriction on using victim
compensation payments for means
testing or payment offset in
other programs applies to both
State and federally funded
payments.
Sec. IV.C.2. Payor of Last Resort.... 94.233 Payor of Last Resort.
Omits repetition of statutory
language but retains Guideline
exceptions. Addresses an
ambiguity in the Guidelines by
clarifying that OVC interprets
the statutory provision to apply
to victim compensation payments
from State or VOCA Compensation
grant funds, not merely the
latter.
N/A.................................. NEW: 94.234 Private Donations and
Crowdfunding. Adds a provision
generally prohibiting the
consideration of private
donations and crowdfunding as
collateral sources. VOCA does
not require means testing of
victims as a condition of
compensation.
N/A.................................. NEW: Program Administration
heading. Groups technical
administrative requirements.
Sec. V. State Certification.......... 94.243 Process for State
Certification of Compensation
Payments. Updates the provision:
Refers to Victim Compensation
Certification form, which has
detailed reporting instructions,
instead of setting forth those
instructions in the rule. Adds a
requirement that States have a
written policy regarding
submission of the VCC form, to
address a frequent
recommendation in Office of the
Inspector General audits.
Sec. V.A. Program Revenue............ Omits the requirement that States
report revenue, as this
information is not used.
Sec. V.B. Program Expenditures....... Omits this provision in favor of
relying on the VCC form
instructions, which reflect the
Guideline provision.
Sec. V.C. Amounts to be Excluded..... Omits this provision in favor of
relying on the VCC form
instructions, which reflect the
Guideline provision.
Sec. V.D. Deductions................. Omits this provision in favor of
relying on the VCC form
instructions, which have been
updated to reflect the VOCA Fix,
which prohibits OVC from
deducting recovery costs or
collections from restitution or
subrogation.
Sec. V.E. [Omitted erroneously in N/A.
Guidelines].
Sec. V.F. Recovery Costs............. 94.244 Recoupment of Compensation
Payments and Recovery Costs, and
definition of Personnel directly
involved in recovery efforts.
Updates the provision to reflect
the VOCA Fix, which essentially
codifies OVC's longstanding
practice of subsidizing State
costs (including personnel
costs) of recovering--typically
via seeking restitution from the
offender or subrogation from
civil lawsuit recoveries--victim
compensation payments. Decreases
time threshold at which
personnel are considered
``personnel directly involved in
recovery efforts'' from 75% to
50% of the staff member's work
time.
Sec. V.G. Sources of Payments to 94.246 Sources of Payments to
Crime Victims. Crime Victims. Retains the
Guideline provision, which
facilitates State program
administration by not requiring
accounting at the payment level.
(States are allowed to, and some
do, use more detailed
accounting.) Clarifies that
aggregate payment amounts must
be allocated in the accounting
to Federal or State funding for
reporting purposes.
[[Page 7646]]
Sec. V.H. Incorrect Certifications... 94.245 Incorrect Certifications.
Retains the Guidelines provision
regarding default remedies for
incorrect certifications (e.g.,
recovery of excess funds for
over-certifications, no
supplemental funding for under-
certifications) but makes patent
OVC's discretion to use
alternative remedies (e.g.,
offset of over-certifications
against under-certifications) as
appropriate.
Sec. VI. Application Process and 94.241 Application, 94.247
Performance Reporting. Reporting. Retains the substance
of Guideline provision with some
updates.
Sec. VI.A. Application for Federal 94.241 Application. Retains the
Assistance. provision with minor updates.
Sec. VI.B. Annual Performance Report. 94.247 Reporting. Omits this
language about annual
performance report in favor of a
more general requirement that
States comply with OVC reporting
requirements and deadlines (set
forth in the solicitation and
award document).
Sec. VII. Administrative Costs....... Administrative and Training Costs
heading (94.251 and 94.252).
Sec. VII.A. Administrative Costs 94.251 Administrative and
Allowance. Training Cost Allowance. Updates
to omit repetition of statute;
to reflect a 2006 amendment to
VOCA that added an express
allowance of training costs to
the administrative-cost-
allowance provision, which now
caps both administrative and
training costs (in the
aggregate) at 5 percent of the
annual grant; and to use
terminology from government-wide
grant guidance. Moves non-
supplantation language to
94.214.
Sec. VII.B. Allowable Costs.......... 94.252 Allowable Administrative
and Training Costs. Updates to
reflect VOCA amendment allowing
training, in addition to
administrative, costs; to use
terminology from government-wide
grant guidance; and to condense.
In response to confusion in
various audits, adds
clarification that the State
crime victim compensation
program, for purposes of
allocating VOCA Compensation
administrative and training
funds, encompasses both State
and federally funded payments
and activities of the
compensation program.
Sec. VII.C. Requirements to Notify 94.251(a). Retains the provision
OVC of Use of Administrative Funds. with minor updates.
Sec. VII.D. Confidentiality of Omits this provision because VOCA
Research Information. Compensation grants generally do
not fund research or statistical
collections, and because the
provision repeats and
mischaracterizes the statutory
provision at 34 U.S.C. 20110(d).
The provision's interpretation
of 20110(d), as not superseding
mandatory reporting laws, is
outside the scope of the rule
and thus also is omitted.
N/A.................................. NEW: 94.250 Non-disclosure of
Confidential or Private
Information. Incorporates VOCA
Assistance confidentiality
requirements by reference,
mutatis mutandis (i.e., as
adjusted for the VOCA
Compensation context). Added in
response to various States'
requests for confidentiality
protections.
Sec. VIII. Financial Requirements.... 94.202 Scope. Retained in
substance, makes minor updates
to refer to current document
names (e.g., Circulars are now 2
CFR part 200).
Sec. IX. Monitoring.................. 94.248 Access to Records.
Condenses and folds this
provision into 94.248, which
addresses access to records. OJP
has monitoring policies that are
updated from time-to-time, and
details regarding monitoring
typically are communicated with
award documents or in other
communications, thus the (now
inaccurate) description of
monitoring procedures is
omitted.
Sec. X. Suspension and Termination of Omitted because remedies are
Funding. addressed in VOCA at 34 U.S.C.
20110, DOJ regulations in 28
C.F.R. part 18, and in 2 C.F.R.
part 200, as well as in annual
award documents.
------------------------------------------------------------------------
VI. Regulatory Certifications
A. Regulatory Flexibility Act of 1995
The Regulatory Flexibility Act (``RFA'', 5 U.S.C. 601-612) applies
to rules that are subject to notice and comment under section 553(b) of
the Administrative Procedure Act (``APA''). As noted in the discussion,
below, however, regarding the applicability of the APA, this proposed
rule is exempt from the 553(b) notice and comment requirements.
Consequently, the RFA does not apply.
Nevertheless, consistent with the analysis typically required by
the RFA (5 U.S.C. 605(b)), OVC has reviewed this proposed regulation
and, by approving it, certifies that it will not have a significant
economic impact on a substantial number of small entities. The Victim
Compensation Program provides grant funding to States to supplement
their crime victim compensation programs, thus this proposed rule will
have no direct effect on any particular local governments or entities,
nor will it have any cost to State, local, or tribal governments, or to
the private sector. The program is funded by fines, fees, penalty
assessments, and bond forfeitures paid by Federal offenders, as well as
gifts from private individuals, that are deposited into the Crime
Victims Fund of the U.S. Treasury. Therefore, an analysis of the impact
of this proposed rule on such entities is not required under the RFA.
B. Executive Orders 12866, 13563, and 14094--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review''; Executive
Order 13563 ``Improving Regulation and Regulatory Review''; and
Executive Order 14094, ``Modernizing Regulatory Review''. The
Department has determined that this rule is not a ``significant
regulatory action'' under section 3(f) of Executive Order 12866,
Regulatory Planning and Review. Accordingly, this rule has not been
reviewed by the Office of Management and Budget.
Consistent with the principles of Executive Order 14094, OVC
engaged in substantial outreach and knowledge gathering related to this
effort. This NPRM was informed by input from a wide variety of
interested and affected communities, including formal stakeholder
discussion sessions that included State compensation and assistance
administrators, tribal organizations, victims of crime, and
organizations that represent and serve victims of crime.
This proposed rule would impose no cost on State, local, or tribal
governments, or on the private sector. The Crime Victim Compensation
Grant Program is funded by fines, fees, penalty assessments, and
forfeitures paid by Federal offenders, as well as gifts from private
individuals, that are deposited into the Crime Victims Fund of the U.S.
Treasury. The cost to the Federal Government is largely administrative
and is clearly outweighed by the government's interest in seeing that
crime victims are compensated for the expenses associated with their
[[Page 7647]]
victimization. Annual grant amounts are determined by statutory
formula. Consequently, none of the changes in this rule is expected to
alter the overall budgetary impact of this program or annual grant
amounts materially.
OVC estimates that the proposed changes highlighted in the
Executive Summary may marginally increase the amount of victim
compensation payments by reducing barriers for victims and allowing
States some additional flexibility. OVC does not anticipate that such
changes would materially alter the outlays for victim compensation at
the State level because the changes primarily would afford States
additional flexibility to address marginal situations arising in the
context of compensation that they already generally provide (e.g.,
flexibility to cover unique but justifiable costs incurred by a victim
for mental health needs, prohibiting denials based on criminal
history). The benefits of these changes for individual victims,
however, would be likely to be significant, as would be the benefit of
advancing equity in claim determinations and reducing unnecessary
barriers to compensation. OVC anticipates that the proposal to lower
the threshold at which States may seek reimbursement for personnel
involved in recovery efforts would result in a marginal, but non-
material, increase in the amount of recovery costs that States are
eligible to recover via the annual grant. In FY 2022, States recovered
approximately $5.9 million in recovery costs. If the proposed provision
increases eligible State recovery costs by 25 percent, the overall
effect on the program outlays would be approximately $1.5 million
annually, or less than 1 percent of the annual grant amounts (which
totaled $177,813,000 in FY 2022). This de minimis cost increase in the
Federal outlays are outweighed by the benefit to victims and State
programs of incentivizing States to fund recovery efforts that result
in money (including money for expenses not compensated) returning to
victims and to the State programs. OVC does not expect that the
revision to the provision regarding sexual assault forensic exam
payments necessarily would cause changes to State payment regimes
immediately and expects that most States would continue to cover sexual
assault forensic exam costs from the State victim compensation program.
OVC is not able to estimate the costs of State changes that would take
advantage of additional flexibility regarding covering such exams from
either program, because such changes would in large part depend on
future State legislative action. OVC does expect, however, that State-
level changes taking advantage of additional flexibility would inure to
the end benefit to victims. The proposed prohibition on notarized
signature requirements for applications would not impose a cost (nearly
all States have eliminated this already without additional costs) but
would reduce this cost- and time barrier for victims seeking
compensation in the few (approx. 2) States that retain notary
requirements. The proposed rule regarding crowdfunded resources may
marginally increase State payments where such resources may have
previously been counted as a collateral source. The provision, however,
is also expected to reduce State administrative burdens regarding
inquiring into the nature of crowdsourced resources, which, in many
cases, would not be information readily available to State
administrators. The provision regarding OVC's discretion to remedy
over- and under certifications would not impose any new costs, because
it merely would codify OVC's current approach, which considers a range
of remedies (typically aimed at maximizing recovery of overpayments
while minimizing the burden on State compensation resources).
C. Administrative Procedure Act
This proposed rule concerns matters relating to ``grants, benefits,
or contracts,'' 5 U.S.C. 553(a)(2), and is therefore exempt from the
requirement of notice and comment and a 30-day delay in the effective
date. Nevertheless, in its discretion, OVC has decided to solicit
comments on this proposed rule.
D. Executive Order 13132--Federalism
The VOCA Compensation Program does not impose any mandates on
States; nor does it interfere with States' sovereignty, authorities, or
rights. States, rather, participate in the Program voluntarily and, as
a condition of receipt of funding, agree to comply with the Program's
requirements, which are predicated on the authorizing statute. Thus,
this proposed rule would not have substantial direct effects on the
States, on the relationship between the Federal Government and the
States, or on distribution of power and responsibilities among the
various levels of government. The proposed rule would not impose
substantial direct compliance costs on State and local governments or
preempt any State laws. Therefore, in accordance with Executive Order
No. 13132, it is determined that this proposed rule would not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
E. Executive Order 12988--Civil Justice Reform (Plain Language)
This proposed rule meets the applicable standards set forth in
section 3(a) and (b)(2) of Executive Order No. 12988 to specify
provisions in clear language. Pursuant to section 3(b)(1)(I) of the
Executive order, nothing in this proposed or any previous rule (or in
any administrative policy, directive, ruling, notice, guideline,
guidance, or writing) directly relating to the Program that is the
subject of this proposed rule is intended to create any legal or
procedural rights enforceable against the United States.
F. Unfunded Mandates Reform Act of 1995
This proposed rule, when finalized, would not result in the
expenditure by State, local and Tribal Governments, in the aggregate,
or by the private sector, of $100,000,000 or more in any one year, and
it would not significantly or uniquely affect small governments. The
Victim Compensation Program provides funds to States to supplement
their victim compensation programs. As a condition of funding, States
agree to comply with the Program requirements. Therefore, no actions
are necessary under the provisions of the Unfunded Mandates Reform Act
of 1995.
G. Congressional Review Act
This proposed rule is not a major rule as defined by 5 U.S.C. 804.
This proposed rule would not result in an annual effect on the economy
of $100,000,000 or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
H. Paperwork Reduction Act
This proposed rule would not propose any new, or changes to
existing, ``collection[s] of information'' as defined by the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501, et seq.) and its implementing
regulations at 5 CFR part 1320.
List of Subjects in 28 CFR Part 94
Crime Victims, Formula Grants, Victim Compensation.
Accordingly, for the reasons set forth in the preamble, the Office
of Justice Programs proposes to amend Title 28, Part 94, of the Code of
Federal Regulations as follows:
[[Page 7648]]
PART 94--CRIME VICTIM SERVICES
0
1. The authority citation for part 94 is revised to read as follows:
Authority: 34 U.S.C. 20102, 20103, 20106, 20110(a), 20111.
Subpart B--VOCA Victim Assistance Program
Sec. 94.119 [Amended]
0
2. Amend Sec. 94.119, in paragraph (g), by removing ``to the extent
that other funding sources such as State appropriations are
insufficient''.
0
3. Add a new subpart C to read as follows:
Subpart C--Victim Compensation Grant Program
Sec.
General Provisions
94.201 Purpose.
94.202 Scope.
94.203 Construction and severability.
94.204 Compliance date.
94.205 Definitions.
94.206 [RESERVED]
94.207 [RESERVED]
94.208 [RESERVED]
94.209 [RESERVED]
94.210 [RESERVED]
Program Requirements
94.211 Eligibility of the Compensation Program.
94.212 Payments and Certification of Payments.
94.213 Promotion of Victim Cooperation With Reasonable Requests of
Law Enforcement.
94.214 Nonsupplantation of State Funds.
94.215 Engagement With American Indian and Alaskan Native Tribes.
94.216 [RESERVED]
94.217 [RESERVED]
94.218 [RESERVED]
94.219 [RESERVED]
94.220 [RESERVED]
Victim Eligibility Considerations
94.221 Residency and Place of Crime.
94.222 Criminal History and Delinquent Payments.
94.223 Contributory Conduct.
94.224 Familial Relationship or Shared Residence With Offender
(Unjust Enrichment).
94.225 Victim Application Provisions.
94.226 [RESERVED]
94.227 [RESERVED]
94.228 [RESERVED]
94.229 [RESERVED]
94.230 [RESERVED]
Relationship to Collateral Sources of Payment
94.231 Coordination.
94.232 Means Testing.
94.233 Payor of Last Resort.
94.234 Private Donations and Crowdfunding.
94.235 [RESERVED]
94.236 [RESERVED]
94.237 [RESERVED]
94.238 [RESERVED]
94.239 [RESERVED]
94.240 [RESERVED]
Program Administration
94.241 Grant Award Period of Performance.
94.242 Application for Annual Grant.
94.243 Process for State Certification of Compensation Payments.
94.244 Recoupment of Compensation Payment Recovery Costs.
94.245 Incorrect Certifications.
94.246 Sources of Payments to Crime Victims.
94.247 Reporting.
94.248 Access to Records.
94.249 Discrimination Prohibited.
94.250 Non-disclosure of Confidential or Private Information.
Administrative and Training Costs
94.251 Administrative and Training Cost Allowance.
94.252 Allowable Administrative and Training Costs.
Authority: 34 U.S.C. 20102.
General Provisions
Sec. 94.201 Purpose.
This subpart implements the provisions of the Victims of Crime Act
of 1984 ``VOCA'', at 34 U.S.C. 20102, which, as of [INSERT DATE OF
PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER], authorize the
Director to make an annual grant award, of an amount determined by
statutory formula, to each eligible crime victim compensation program,
to be used by such program for awards of compensation and, in
statutorily limited amounts, for training purposes and the
administration of the crime victim compensation program.
Sec. 94.202 Scope.
This subpart applies to both VOCA Victim Compensation Program
formula grant award applicants and recipients. VOCA sets out the
statutory requirements governing these grant awards, and this subpart
should be read in conjunction with it. Grant awards under this program
also are subject to various government-wide grant rules, including
those in 2 CFR part 200, as implemented by the Department of Justice at
2 CFR part 2800, and the DOJ Grants Financial Guide.
Sec. 94.203 Construction and severability.
(a) Any provision of this subpart held to be invalid or
unenforceable by its terms, or as applied to any person or
circumstance, shall be construed so as to give it the maximum effect
permitted by law, unless such holding shall be one of utter invalidity
or unenforceability, in which event such provision shall be deemed
severable from this subpart and shall not affect the remainder thereof
or the application of such provision to other persons not similarly
situated or to other, dissimilar circumstances.
(b) Unless otherwise expressly indicated, references herein--
(1) to statutory provisions are to be understood as references to
such provisions as in effect on [INSERT DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL REGISTER];
(2) to provisions of 2 CFR part 200 are to be understood as
references to such provisions as implemented by the Department of
Justice at 2 CFR part 2800, all as in effect at the time of the
pertinent grant award; and
(3) to provisions of the DOJ Grants Financial Guide are to be
understood as references to such provisions as in effect at the time of
the pertinent grant award.
Sec. 94.204 Compliance date.
This subpart applies to all Federal grant awards under this program
made after the effective date of this rule.
Sec. 94.205 Definitions.
As used in this subpart--
Administrative costs include, but are not limited to, personnel
costs (salaries, fringe benefits, consultants, contractors), travel
costs, equipment and supplies, facilities, audits (see 2 CFR 200.425),
indirect costs, coordination efforts, informational resources,
memberships in crime victim organizations (see 2 CFR 200.454),
strategic planning, surveys, needs assessments, policy and procedure
development.
Certified compensation payment means a compensation payment that
the appropriate State official has certified.
Certifiable property-damage expenses means optionally compensable
expenses arising from property damage that are incurred for--
(1) purchase or acquisition of property reasonably necessary for
victim safety (such as cell phones; security items such as doorbell
cameras, movement lights, and locks; and window and door repair or
replacement); or
(2) replacement of clothing or bedding or other physical property
held as evidence.
Certify payment means to certify (via the Victim Compensation
Certification form) that a payment meets the criteria in VOCA (as
implemented by this rule) to be counted for the statutory partial-
matching formula (see 34 U.S.C. 20102(a)) that determines the amount of
the State's VOCA Compensation grant award, unless context should
indicate otherwise.
Collateral source means a source of funding outside of the crime
victim compensation program to pay for an
[[Page 7649]]
expense covered by the compensation program.
Contributory conduct means conduct (e.g., engaging in the
commission of a crime) that a State has determined to have contributed
to a person's own victimization.
Crime victim or victim of crime means a person who has suffered
physical, sexual, financial, or emotional harm as a result of the
commission of a crime, or as otherwise defined under pertinent State
law.
Crowdfunding means a method of raising funds by soliciting
contributions widely, often through internet platforms.
Dental services and devices include those reasonably necessary for
dental care, including, but not limited to, assessment, diagnosis, and
treatment of underlying conditions affecting the treatment of the
victimization injury, medication, prosthetics, and orthodontic
appliances.
Director means the Director of the Office for Victims of Crime.
Driving while intoxicated means drunk driving and driving under the
influence of alcohol or other drugs, as defined by the law or policy of
the pertinent jurisdiction (e.g., driving-under-the-influence-
(``DUI'') or driving-while-impaired (``DWI'') offenses, such as DUI/DWI
hit and run, DUI/DWI motor-vehicle crash, DUI/DWI resulting in death).
Federal crime means any criminal violation of the United States
Criminal Code or the Code of Military Justice.
Federal fiscal year means (as used in this rule) the period
beginning on October 1st and ending on September 30th.
Funeral expenses mean expenses of a funeral, burial, cremation, or
other chosen method of interment or disposal of remains, and associated
ceremonies, and other related expenses, all subject to reasonable State
cost and scope limitations.
Mandatorily compensable crime means the following crimes for which
a State must offer compensation--
(1) any crime indicated at 34 U.S.C. 20102(d)(2) (``crimes, whose
victims suffer death or personal injury, that are described in section
247 of title 18 [damage to religious property and obstruction of
persons in the free exercise of religious beliefs], driving while
intoxicated, and domestic violence'');
(2) any crime indicated at 34 U.S.C. 20102(b)(1) (criminal
violence, drunk driving, domestic violence); and
(3) any Federal crime indicated at 34 U.S.C. 20102(b)(5) (same
basis for compensation of Federal crimes occurring within the State as
for State crimes occurring there).
Mandatorily compensable expenses means expenses indicated at 34
U.S.C. 20102(b)(1) (medical expenses, lost wages, or funeral expenses
attributable to a physical injury or death resulting from a mandatorily
compensable crime).
Medical expenses has the meaning set forth in 34 U.S.C. 20102(d)(2)
(``includes, to the extent provided under the eligible crime victim
compensation program, expenses for eyeglasses or other corrective
lenses, for dental services and devices and prosthetic devices, and for
services rendered in accordance with a method of healing recognized by
the law of the State.'')
Mental health counseling and care means the assessment, diagnosis,
and treatment of an individual's mental and emotional functioning, and
includes in-patient- and out-patient treatment, psychiatric care,
counseling, therapy, and medication management. Mental health
counseling and care must be provided by a person who meets professional
standards to provide them in the jurisdiction in which they are
provided.
Method of healing recognized by the law of the State means any
medical healing practice that meets professional standards to provide
it in the jurisdiction in which it is provided; such methods also may,
in the discretion of the State, include other healing practices.
Optionally compensable crime means a crime (other than a
mandatorily compensable crime) the victims of which may, in the
discretion of the State, be eligible to receive compensation for under
its eligible crime victim compensation program (e.g., non-violent
crimes, fraud, neglect, threats, economic crime, privacy crime).
Optionally compensable expenses means any expenses (other than
mandatorily compensable expenses) for which a State, in its discretion,
may offer compensation when attributable to compensable crime; such
expenses, in the discretion of the State, may include, but are not
limited to, those arising from--
(1) property damage (certifiable or non-certifiable);
(2) travel and transportation;
(3) temporary lodging and relocation;
(4) building modification and equipment reasonably necessary to
accommodate disabilities;
(5) crime scene cleanup;
(6) attorneys' fees;
(7) sexual assault forensic medical examinations;
(8) dependent care;
(9) financial counseling; and
(10) pain and suffering.
Personnel directly involved in the recovery efforts means personnel
who allocate (under applicable allocation principles) at least half of
their time and effort (during the Federal fiscal year for which
recovery costs are certified) to recovery efforts or to other similar
collection or reimbursement efforts.
Preceding fiscal year means, for purposes of 34 U.S.C. 20102(a),
the federal fiscal year two years prior to the Federal fiscal year in
which the grant award is made.
Property damage means property loss and damage to material goods,
which includes destruction of material goods or loss of money, stocks,
bonds, etc., but, pursuant to 34 U.S.C. 20102(d)(1) (which expressly
provides that property damage ``does not include damage to prosthetic
devices, eyeglasses, other corrective lenses, or dental devices''),
does not include any loss or destruction of personal property whose
acquisition or purchase would qualify as a ``medical expense'' under
this subpart.
Recovery costs has the meaning set forth in 34 U.S.C. 20102(d)(5),
which defines such costs as ``expenses for personnel directly involved
in the recovery efforts to obtain collections from restitution or from
subrogation for payment under a civil lawsuit.''
Services rendered in accordance with a method of healing include,
but are not limited to, assessment, diagnosis, comprehensive treatment,
long-term care, treatment of underlying conditions that affect the
treatment of the victimization injury, medication (prescription, non-
prescription, prophylactic), and forensic sexual assault examinations
and related expenses.
State has the meaning set forth in 34 U.S.C. 20102(d), which
``includes the District of Columbia, the Commonwealth of Puerto Rico,
the United States Virgin Islands, and any other possession or territory
of the United States [e.g., Guam].'' References to ``States'' generally
should be understood to refer to States' crime victim compensation
program administering agencies (commonly referred to as ``State
administering agencies''), unless the context should indicate
otherwise.
Supplant means to reduce State funds deliberately, because of the
existence of Federal funds. See section 94.213 of this subpart for
considerations specific to this program.
Survivor of a victim means a person with a sufficiently close
relationship (as determined by the State compensation program) to a
victim to be considered
[[Page 7650]]
for compensation in circumstances where the victim has died.
Training costs include, but are not limited to, training of program
personnel on functions necessary for the crime victim compensation
program; and training of persons and entities outside of the victim
compensation program (e.g., victim services providers, criminal justice
personnel, and health, mental health, and social services providers)
about the crime victim compensation program.
Sec. 94.206 [RESERVED]
Sec. 94.207 [RESERVED]
Sec. 94.208 [RESERVED]
Sec. 94.209 [RESERVED]
Sec. 94.210 [RESERVED]
Program Requirements
Sec. 94.211 Eligibility of the Compensation Program.
The Federal grant-award recipient must meet the eligibility
criteria in 34 U.S.C. 20102(b), as implemented by this subpart. A
compensation program is entitled to a grant award under this subpart
only after it has awarded benefits that can be matched under VOCA. VOCA
funding may not be used as start-up funds for a new State compensation
program. If a State chooses to administer its compensation program in a
decentralized fashion, the State remains accountable to the Federal
awarding agency for expenditure of these funds.
Sec. 94.212 Payments and Certification of Payments.
(a) Use of award funds for payments. A State may use VOCA
compensation grant funds to make compensation payments for mandatorily
compensable expenses and optionally compensable expenses.
(b) Certifiable payments. A State may certify compensation payments
for--
(1) mandatorily compensable expenses; and
(2) optionally compensable expenses, except that property damage
expenses may be certified only if they are certifiable property damage
expenses.
(c) Certification of payment for dental services and devices. A
State may, pursuant to State policy, establish a presumption that the
expenses of dental services and devices under a State-defined threshold
are attributable to a physical injury resulting from a compensable
crime, and make payments from VOCA funds (and certify payments) for
such expenses, pursuant to such presumption.
Sec. 94.213 Promotion of Victim Cooperation with Reasonable Requests
of Law Enforcement.
(a) In general. As of the effective date of this rule, 34 U.S.C.
20102(b)(2)) requires crime victim compensation programs to ``promote[
] victim cooperation with the reasonable requests of law enforcement
authorities, except if a program determines that such cooperation may
be impacted due to a victim's age, physical condition, psychological
State, cultural or linguistic barriers, or any other health or safety
concern that jeopardizes the victim's wellbeing.''
(b) Policy on exceptions required if victim bears evidentiary
burden. For purposes of meeting the statutory eligibility threshold for
promoting victim cooperation with the reasonable requests of law
enforcement--
(1) A State is not required to document, or require a victim to
submit documentation of, a crime report, evidence of a medical
evidentiary examination, or any other similar information.
(2) A State may not require a victim to demonstrate cooperation
with law enforcement unless it has a written policy in effect that
addresses its application of the exceptions to promotion of victim
cooperation that are set out in 34 U.S.C. 20102(b) (e.g., specifying
when it will provide alternative methods for victims to demonstrate
cooperation or will dispense with the requirement).
(c) Demonstrating compliance. A State may show that it promotes
cooperation with the reasonable requests of law enforcement authorities
by using any reasonable means the State may determine to be appropriate
to promote such cooperation, including any of the following:
(1) Having a policy of encouraging victims to report the crime to
law enforcement or other appropriate entity (e.g., protective services,
university security), subject to the victim-wellbeing exceptions set
forth in paragraph (a) of this section;
(2) Providing victims with information or services (or referring
such victims to the same) to assist them in reporting to law
enforcement or other appropriate entity;
(3) Accepting a victim's description of efforts to notify or
cooperate with law enforcement or other appropriate entity (where
evidence of victim's cooperation with law enforcement is a State
program requirement); or
(4) Accepting a crime report to law enforcement or other
appropriate entity, or documentation of an evidentiary or non-
evidentiary medical examination indicating the occurrence of a crime
(where evidence of victim cooperation with law enforcement is a State
program requirement).
Sec. 94.214 Nonsupplantation of State Funds.
(a) In general. States must make the certifications under 34 U.S.C.
20102(b)(3) (regarding not supplanting State funds for compensation)
and 20110(h) (regarding not supplanting State administrative funds for
compensation), as a condition of accepting a VOCA Compensation grant.
(b) Supplanting considerations. Expenditure of VOCA funds received
based on State certified compensation payments from previous years does
not constitute supplantation. A decrease in State commitment to the
compensation program (e.g., a decrease in the number of State-supported
staff positions) is not supplanting, where the decrease is part of
broad or across-the-board budget restrictions at the State level or is
a return to a prior baseline level after temporary increase. States
must maintain documentation on the overall administrative commitment of
the State prior to their use of VOCA administrative grant funds.
Sec. 94.215 Engagement with American Indian and Alaskan Native
Tribes.
A State with one federally recognized American Indian and Alaskan
Native tribe (or more) within its geographical boundaries must have a
written policy in effect regarding how the State will engage with the
same for purposes of compensation under this subpart. Such policy must
(at a minimum) set forth a plan for conducting outreach efforts to
inform tribal communities about the compensation program and for
providing compensation for culturally appropriate expenses and
services.
Sec. 94.216 [RESERVED]
Sec. 94.217 [RESERVED]
Sec. 94.218 [RESERVED]
Sec. 94.219 [RESERVED]
Sec. 94.220 [RESERVED]
Victim Eligibility Considerations
Sec. 94.221 Residency and Place of Crime.
(a) Nonresidents. A State must provide compensation to nonresidents
of the State, as provided in 34 U.S.C. 20102(b)(4).
(b) Residents victimized outside of the State. A State must provide
compensation to its residents who are victims of crimes occurring
outside of the State, as provided in 34 U.S.C. 20102(b)(6). A State
may, but is not required to, compensate its residents
[[Page 7651]]
who are victims of international terrorism occurring outside of the
United States (see 18 U.S.C. 2331(1)).
(c) Federal immigration status. Nothing in this subpart shall be
understood to require or authorize a State to consider the Federal
immigration status of a victim (or of a survivor of a victim) in
determining eligibility for crime victim compensation.
Sec. 94.222 Criminal History and Delinquent Payments.
(a) Criminal History. A State may not deny compensation because of
a victim's or survivor's incarceration, probation, or parole status,
prior criminal history, or sentence.
(b) Delinquent Fines, Penalties, or Restitution. A State may deny
compensation to the extent that a victim is delinquent in paying a
criminal fine, penalty, or restitution.
(c) Federal Delinquent Fines, Penalties, or Restitution. As of the
effective date of this rule, States are not required to check whether a
compensation recipient is delinquent in paying a Federal criminal fine,
-penalty, or -restitution before making a compensation payment. See
Public Law 104-132, title II, sec. 234(a)(2), April 24, 1996, 110 Stat.
1245 (delaying implementation of the requirement in 34 U.S.C.
20102(b)(8)).
Sec. 94.223 Contributory Conduct.
(a) In general. A State may not deny or reduce claims on the basis
of a victim's alleged contributory conduct, except pursuant to
paragraph (b).
(b) Exceptional cases. In exceptional and specific cases, a State
may deny or reduce claims on the basis of a victim's alleged
contributory conduct, provided that--
(1) The victim's alleged contributory conduct was not the result of
criminal force, fraud, or coercion (e.g., human trafficking); and
(2) The State has a publicly available written policy in effect
that (at a minimum) sets forth the standard of review, the review
process, and an appeal process for any such denials or reductions.
Sec. 94.224 Familial Relationship or Shared Residence with Offender
(Unjust Enrichment).
(a) In general. States must comply with the limitation on the
denial of compensation based on family relationship or sharing of a
residence with the offender, set forth in 34 U.S.C. 20102(b)(7)
(limiting such denials except pursuant to State rules to prevent unjust
enrichment of the offender).
(b) Unjust enrichment. A State may not deny compensation based on a
victim's familial relationship or shared residence with an offender
unless it has, in effect, a law, rule, or written policy that addresses
unjust enrichment. Such law, rule, or written policy may not prohibit
compensation where there is only de minimis benefit to the offender,
and it may provide exceptions for the wellbeing of the victim (e.g., by
allowing compensation when collateral sources of payment from an
offender are not reasonably available, or where the State has the
option of seeking subrogation from the offender).
Sec. 94.225 Victim Application Provisions.
(a) Waiver of filing deadline for delayed testing of, or DNA
profile matching from, certain sexual offense evidence. States must
provide a waiver for application filing deadlines, pursuant to the
requirements of 34 U.S.C. 20102(a)(9).
(b) Notary requirements prohibited. No State may require applicants
to provide a notarized signature to complete the State's initial
application for compensation. States are not prohibited from requiring
notarized signatures for specific application documents, where
appropriate.
Sec. 94.226 [RESERVED]
Sec. 94.227 [RESERVED]
Sec. 94.228 [RESERVED]
Sec. 94.229 [RESERVED]
Sec. 94.230 [RESERVED]
Relationship to Collateral Sources of Payment
Sec. 94.231 Coordination.
In order to promote mutual understanding of eligibility
requirements, application processing, timelines, and other program
specific requirements, States must coordinate with, and provide
appropriate referrals to, other programs that provide financial
assistance and services to crime victims, whether funded by Federal,
State or local Governments, to facilitate victim access to resources.
Examples of such programs include workers' compensation, vocational
rehabilitation, and VOCA victim assistance subgrantee programs.
Sec. 94.232 Means Testing.
OVC understands the provision at 34 U.S.C. 20102(c) (generally
prohibiting other programs from counting victim compensation payments
for purposes of means testing, except for the 9/11 Victim Compensation
Fund), in its reference to ``any amount of crime victim compensation
that the applicant receives through a crime victim compensation program
under this section'' to refer to both State and federally funded victim
compensation payments.
Sec. 94.233 Payor of Last Resort.
(a) Exceptions. A State may make exceptions to the payor of last
resort requirement in 34 U.S.C. 20102(e) (which requires the State
compensation program (whether using VOCA funds or State funds for
payments) to be the payor of last resort with regard to most Federal or
federally financed programs) for victim needs that would not adequately
be met by collateral sources that normally are required to pay first
(e.g., collateral source not reasonably available due to delay,
coverage, or other reasons).
(b) No requirement for victims to apply for or use collateral
sources. States are not required to have victims apply for, or use,
other Federal or federally funded programs, or private insurance,
private donations, or crowdfunding, prior to making a compensation
payment.
Sec. 94.234 Private Donations and Crowdfunding.
States may not consider private donations (e.g., crowdfunding) as
collateral sources for mandatorily or optionally compensable expenses,
except under extenuating circumstances (e.g., large incidents, mass
violence, high-profile incidents), as determined by the State.
Sec. 94.235 [RESERVED]
Sec. 94.236 [RESERVED]
Sec. 94.237 [RESERVED]
Sec. 94.238 [RESERVED]
Sec. 94.239 [RESERVED]
Sec. 94.240 [RESERVED]
Program Administration
Sec. 94.241 Grant Award Period of Performance.
Victim compensation grants are awarded annually and are available
during the timeframe set forth in 34 U.S.C. 20101(e) (the Federal
fiscal year of award plus three fiscal years). A States may use grant
award funds to pay compensation claims paid during the grant award
period of performance (including reimbursement for claims paid during
that period but prior to award), unless otherwise restricted by the
terms of the award. OVC will consider period of performance extension
requests on a case-by-case
[[Page 7652]]
basis (approval of a request is subject to the discretion of the
Assistant Attorney General for OJP), pursuant to request procedures set
forth in the DOJ Grants Financial Guide, or procedures otherwise
specified by OVC from time-to-time.
Sec. 94.242 Application for Annual Grant.
OVC issues an annual notice of funding opportunity (solicitation of
application) to States that describes how to apply for the grant. The
application must be submitted in the form and manner, and by the
deadlines, prescribed by OVC. OVC may deny a non-compliant application.
Sec. 94.243 Process for State Certification of Compensation Payments.
(a) Manner of certification. A State shall provide to OVC the
information required by OVC and shall do so in such form and manner as
OVC may specify from time-to-time, to run the allocation formula in 34
U.S.C. 20102(a). OVC, as of the effective date of this rule, requires
this information to be reported annually on a Federal fiscal year basis
via its Victim Compensation Certification form.
(b) State policy for certification. A State must have a written
policy regarding completion and submission of the Victim Compensation
Certification form. Such policy must (at a minimum) set forth the steps
to complete the form, the data sources the State uses to populate the
form, and the review process for approval of the form.
Sec. 94.244 Recoupment of Compensation Payment Recovery Costs.
States may report certain recovery costs to OVC, as provided in the
Victim Compensation Certification form, to be treated as (and added to)
the amount of certified compensation payments for purposes of
calculating the State's VOCA Victim Compensation grant.
Sec. 94.245 Incorrect Certifications.
(a) Over-certification. If a State over-certifies compensations
payments to crime victims (resulting in a grant amount that is more
than the statutory allocation), the necessary steps will be taken by
OVC to recover funds that were awarded in error. OVC (in its
discretion) may offset the excess amount against prior or subsequent
year under-certifications, or against future awards, or implement other
remedies as appropriate.
(b) Under-certification. If a State under-certifies compensation
payments to crime victims (resulting in a grant amount that is less
than the statutory allocation), OVC ordinarily will not award
supplemental funds to the State to correct the State's error, as this
typically would require recalculating allocations to every State VOCA
compensation and assistance program and would be administratively
burdensome. OVC (in its discretion) may offset the lower amount against
prior or subsequent year over-certifications, add it to future awards,
or implement other remedies as appropriate.
Sec. 94.246 Sources of Payments to Crime Victims.
A State is not required to identify the source of individual
payments to crime victims as either Federal or State funds, or to track
restitution recoveries or other refunds to Federal or State funds paid
out to the victim. States are required (at a minimum) to allocate
aggregate payment amounts to Federal or State funding for annual
reporting.
Sec. 94.247 Reporting.
A State shall submit such reports for grants awarded under this
program as OVC may require from time-to-time.
Sec. 94.248 Access to Records.
A State shall, upon request, and consistent with 2 CFR 200.337
(protecting true names of victims), provide OJP (and other Federal
agencies responsible for grant monitoring, audit, or investigation)
with access to all records related to the use of grant awards under
this subpart.
Sec. 94.249 Discrimination Prohibited.
(a) DOJ rules apply. The VOCA non-discrimination provisions set out
at 34 U.S.C. 20110(e) are implemented for grant awards under this
subpart in accordance with 28 CFR part 42.
(b) OCR guidance. In complying with VOCA, at 34 U.S.C. 20110(e), as
implemented by 28 CFR part 42, and other applicable civil rights
requirements, SAAs shall comply with such guidance as may be issued
from time-to-time by the OJP Office for Civil Rights.
(c) Language access. In connection with grants awarded under this
subpart, States shall comply with pertinent Federal civil-rights
requirements to provide language access for limited English proficient
persons.
Sec. 94.250 Non-disclosure of Confidential or Private Information.
A State shall comply with the requirements of section 94.115 of
subpart B of this Part, applied mutatis mutandis to grants awarded
under this subpart.
Administrative and Training Costs
Sec. 94.251 Administrative and Training Cost Allowance.
(a) Notification. Within the limit provided in 34 U.S.C.
20102(a)(4), a State may use VOCA Compensation grant funds for training
purposes or administration of the State crime victim compensation
program but must notify OVC of its decision to do so, either at the
time of application for the VOCA grant or within thirty days of such
decision. If VOCA funding will be used for administration, the State
shall follow the rules in sec. 94.213 of this subpart, and submit the
certification required by 34 U.S.C. 20110(h), regarding supplantation.
(b) Records. States shall maintain sufficient records to
substantiate expenditure of VOCA funds for training or administration
and are required (in performance reporting) to describe the use and
effect of these funds on the State victim compensation program.
Sec. 94.252 Allowable Administrative and Training Costs.
States may use the VOCA Compensation administrative and training
cost allocation for a broad variety of costs reasonably necessary and
allocable to administrative and training needs of the State crime
victim compensation program. The State crime victim compensation
program encompasses both State-funded and federally funded compensation
payments and activities under that program. All charges to the VOCA
grant for administrative and training costs must be reasonably
allocable to the period of performance under the grant award to which
they are charged and in proportion to their benefit to the State victim
compensation program under the generally applicable government-wide
allocation rules in 2 CFR part 200. VOCA funds used for training may be
used only for training activities that occur within the award period of
performance for the grant award to which they are charged, and all
funds for training charged to that grant award must be obligated prior
to the end of that period of performance.
Dated: January 31, 2024.
Amy Solomon,
Assistant Attorney General, Office of Justice Programs.
[FR Doc. 2024-02230 Filed 2-2-24; 8:45 am]
BILLING CODE 4410-18-P