U.S. Department of Justice, Office of Justice Programs

Recovery.gov logoRecovery Act Guidance Regarding Supplanting

Which OJP Recovery Act programs prohibit supplanting?

The Recovery Act itself does not impose any new or unique non-supplanting requirements on OJP programs. Where, however, a specific statutory prohibition on supplanting applies to an OJP program funded from sources other than the Recovery Act (for example, Byrne Justice Assistance Grant formula awards, awards for construction of correctional facilities on tribal lands, and awards under the Victims of Crime Act compensation and assistance formula programs), the same prohibition applies to the related Recovery Act program. Also, the provisions of the OJP Financial Guide with respect to supplanting generally apply, unless otherwise indicated here or in the program announcement ("solicitation") for the Recovery Act program.

As specifically indicated in the solicitations, the following OJP Recovery Act programs do not prohibit supplanting.

  • OJJDP FY 09 Recovery Act Internet Crimes Against Children Task Force Program Grants
  • OJJDP FY 09 Recovery Act ICAC Task Force Training and Technical Assistance Grants
  • OJJDP FY 09 Recovery Act Internet Crimes Against Children Research Grants
  • OJJDP FY 09 Recovery Act National Internet Crimes Against Children Data System (NIDS)
  • OJJDP FY 09 Recovery Act Local Youth Mentoring Initiative
  • OJJDP FY 09 Recovery Act National Youth Mentoring Programs
  • Recovery Act: Assistance to Rural Law Enforcement to Combat Crime and Drugs
  • Recovery Act: Edward Byrne Memorial Competitive Grant Program Announcement
  • Recovery Act State and Local Law Enforcement Assistance Program: Combating Criminal Narcotics Activity Stemming from the Southern Border of the United States
  • Recovery Act: Evaluation of Internet Child Safety Materials Used by ICAC Task Forces in School and Community Settings
  • Recovery Act: Research and Evaluation of Recovery Act State and Local Law Enforcement Assistance

The following OJP Recovery Act programs do prohibit supplanting.

  • Recovery Act: Edward Byrne Memorial Justice Assistance Grant (JAG) Formula Program: State Solicitation
  • Recovery Act: Edward Byrne Memorial Justice Assistance Grant (JAG) Formula Program: Local Solicitation
  • Recovery Act: Correctional Facilities on Tribal Lands Program
  • Recovery Act: OVC FY09 VOCA Victim Assistance Formula Grant Program
  • Recovery Act: OVC FY09 VOCA Victim Compensation Formula Grant Program
  • Recovery Act: National Field-Generated Training, Technical Assistance, and Demonstration Projects ("VOCA discretionary grants")
  • Recovery Act: Tribal Crime Data Collection, Analysis and Estimation Project

What is Supplanting?

General Definition. For a State or unit of local government to reduce State or local funds for an activity specifically because federal funds are available (or expected to be available) to fund that same activity. When supplanting is not permitted, federal funds must be used to supplement existing State or local funds for program activities and may not replace State or local funds that have been appropriated or allocated for the same purpose. Additionally, federal funding may not replace State or local funding that is required by law. In those instances where a question of supplanting arises, the applicant or grantee will be required to substantiate that the reduction in non-federal resources occurred for reasons other than the receipt or expected receipt of federal funds. (See "Documentation and Record Retention," below.)

Program-specific statutory restrictions on supplanting (with examples)

A. Edward Byrne JAG Formula Program (State and Local)
The Byrne JAG law provides that Federal funds may "not be used to supplant State or local funds, but will be used to increase the amounts of such funds that would, in the absence of Federal funds, be made available for law enforcement activities." 42 U.S.C. § 3752.

Examples - Recovery Act Byrne JAG program

Example 1 For FY 2009, City A appropriates a total of $25 million for law enforcement activities, including salary and benefits for 100 police officers and purchase of 5 police cruisers. In FY 2009, City A is awarded federal Recovery Act JAG formula funds, which it uses to hire 5 police officers, in addition to 10 hired with local funds, and purchases 2 new police cruisers, in addition to 5 purchased with local funds. City A expends all of the $25 million in local funds appropriated for FY 2009 for law enforcement activities.

In this scenario, City A has not used Recovery Act JAG formula funds to supplant State or local funds, but rather has used the funds "to increase the amounts of such funds that would, in the absence of federal funds, be made available for law enforcement activities. "Supplanting has not occurred.
Example 2 For FY 2009, City B appropriates a total of $15 million in local funds for law enforcement activities, of which $75,000 is budgeted for equipment for training of new police recruits. In FY 2009, City B is awarded federal Recovery Act JAG formula funds. It uses the federal funds to purchase the training equipment and hire additional officers, and uses the $75,000 in local funds originally budgeted for equipment to hire a dispatcher. Total expenditures of local funds for law enforcement activities remain constant.

Under these circumstances, supplanting has not occurred. Despite the fact that local funds were shifted from equipment to hiring, the amount of State or local funds that would, in the absence of Federal funds, be made available for law enforcement activities has not changed.
Example 3 For FY 2009, City C appropriated $15 million in local funds for law enforcement activities, including salary and benefits for 80 police officers. Due to anticipated revenue shortfalls in FY 2010, City C intends to lay off 10 police officers at the end of FY 2009 (facts that City C is able to substantiate). In FY 2009, City C is awarded federal Recovery Act JAG formula funds, which it proposed to use for the hiring of 5 police officers. For FY 2010, City C appropriates funds to pay salary and benefits for 70 police officers. At the start of FY 2010, City C lays off five of its 80 police officers and uses federal Recovery Act JAG funds to continue the salary and benefits for 5 other officers.

In this scenario (which assumes that City C can document that the planned layoff of 10 officers was not made in anticipation of the availability of federal funds), City C will use federal Recovery Act JAG formula funds to pay the salary and benefits for 5 police officers who would have been laid off but for the availability of federal funds. Local funding for law enforcement activities has been reduced, but not because of the availability (or anticipated availability) of Recovery Act JAG funds. Therefore, supplanting has not occurred.
Example 4 State X's initial FY 2009 appropriation for law enforcement activities is sharply reduced due to an across-the-board cut in the State budget. This results in a hiring freeze. When the State receives federal Recovery Act JAG formula funding, it uses federal Recovery Act funds to fill 15 correctional officer positions that were included in the initial budget but were vacant due to the hiring freeze.

The total amount of State funds available for law enforcement activities in State X has been reduced, but not because of the availability (or anticipated availability) of Recovery Act JAG formula funds. Therefore, supplanting has not occurred.
Example 5 For FY 2009, State Y budgeted $1 million in State funds to be used for renovation of a particular prison. Later in FY 2009, in response to enactment of the Recovery Act, the State determines that it will use Recovery Act JAG formula funds for the prison renovation, and will use the funds the State had budgeted for the prison renovation instead to provide health services for infants and children. No additional State funds were added to the State budget in any other law enforcement category.

Under these circumstances, supplanting would have occurred, as there would have been a decrease in "the amounts of ... funds that would, in the absence of Federal funds, be made available for law enforcement activities."

B. Victims of Crime Act of 1984 (VOCA)/Victim Compensation Formula Program
The law underlying the VOCA Victim Compensation Formula requires that grants received under the program "not be used to supplant State funds otherwise available to provide crime victim compensation." 42 U.S.C. § 10602(b)(3).

Examples - Recovery Act: VOCA Victim Compensation Formula Grant Program

Example 1 State A provides compensation to victims for crime-related expenses for seven different categories of expenses. In FY 2009, State A initially provided their State Compensation Program with $11 million in State funds for victim compensation payouts and received $6.6 million from its FY 2009 VOCA Victim Compensation Formula award for the Program (based on its compensation payouts from State funds in FY 2007). State A's FY 2009 budget reflected total victim compensation payouts to be $17.6 million (from both federal and State funds). In addition to its annual VOCA Victim Compensation Formula award, State A also received $2 million in Recovery Act funds for its victim compensation program. Later in FY 2009, State A chose to rescind $2 million from its State Compensation Program and redirected the State funds to an education program, thereby providing only $9 million in State funds for victim compensation payouts, rather than the $11 million originally provided, and did not reduce the number of categories of crime-related expenses that the State compensated. State A used all of its $2 million in Recovery Act funds, as well as all of its $6.6 million in VOCA funds, for victim compensation payouts. Total victim compensation payouts from State and federal funds were $17.6 million.

Under these circumstances, supplanting would have occurred. The federal funds did not increase the amount of funds available to crime victims. Rather, State funds that would have been "otherwise available to provide crime victim compensation" were not used for this purpose.

NOTE: State A will also receive $1.2 million less in FY 2011 from its VOCA Victim Compensation Formula award, as it will only be able to certify $9 million in State victim compensation claim payouts from State funds for FY 2009. Assuming that each State receives a full sixty percent of its prior year certified State payouts (as is usually the case), State A will receive only $5.4 million in federal funding in FY 2011 instead of the $6.6 million it would have received had it used the full $11 million in State funds originally appropriated for compensation claim payouts.
Example 2 When adopting the FY 2009 budget in July 2008, State B budgets $15 million in State funds for its victim compensation program. In addition, during FY 2009 State B receives $2.5 million in Recovery Act funds for its State Crime Victim Compensation program. Later that year, State B receives $9 million for its State compensation program from its FY 2009 VOCA Victim Compensation formula award. State B intends first to spend the original $15 million of budgeted State funds for victim compensation payments, and as much of the remaining federal funds (either FY 2009 VOCA or Recovery Act VOCA funds) as may be needed for FY 2009 to pay all legally-payable compensation claims.

However, during FY 2009, State B experiences a revenue shortfall, and due to its Balanced Budget State Constitutional Amendment, State B enacts an emergency 10% across-the-board rescission for all State programs, including the State Crime Victim Compensation program. Thus, State B's Crime Victim Compensation program State funds are reduced from $15 million to $13.5 million. To make up the difference, State B intends to use $1.5 million in Recovery Act funds for its Victim Compensation program this year.

Under this scenario, supplanting would not have occurred. The reduction in State funds for its Crime Victim Compensation program was not a result of its receipt of federal funds, but rather a result of independent circumstances (i.e. an unexpected revenue shortfall). As such, the $1.5 million in State funds were not "otherwise available" in FY 2009 to provide crime victim compensation. Consequently, replacement of those funds (which the State originally planned to use, but which never materialized) with Recovery Act funds would not be considered supplanting.

NOTE: As with the previous VOCA Victim Compensation example, any reduction in the amount of State funds spent on victim compensation awards will result in a reduction in the amount of federal funds State B subsequently will receive for its victim compensation program.

C. VOCA/Victim Assistance Formula Program
The law underlying the VOCA Victim Assistance Formula Program requires that grants received under the program "will not be used to supplant State and local funds otherwise available for crime victim assistance." 42 U.S.C. § 10603(a)(2)(C).

Examples - Recovery Act: VOCA Victim Assistance Formula Grant Program

Example 1 State A has traditionally used State funding to support eight full-time positions to administer its Victim Assistance program, in addition to two full-time positions supported by a portion of the five percent administrative and training allowance from its annual VOCA Victim Assistance Formula award. Due to State-wide funding constraints in FY 2009, State A laid off one of its State-funded Victim Assistance program staff members in January of 2009, and issued notices to another two State-funded staff members from the same office that they were scheduled for layoff in October 2009. In May 2009, State A received a Recovery Act Victim Assistance Formula award, and in September it received its annual VOCA Victim Assistance Formula award. State A used a portion of the five percent training/administration allowance from its federal victim compensation funding to rehire the staff member it had laid off in January, as well as retain the two staff members who were scheduled for a layoff. In addition, State A hired an additional staff member to help administer the additional Recovery Act funding.

Under these circumstances, supplanting would not have occurred as long as the State's actions were not based on the anticipated receipt of federal VOCA victim assistance formula funds. Note that the State must use State funding to support the two positions until the planned layoff date in October - only at that point may the State begin supporting these positions with federal victim assistance funds (to do otherwise would be to supplant the State funds).
Example 2 In FY 2009, State B initially budgeted $15 million for victim assistance programs and it received $7 million in federal funding from its FY 2009 VOCA Victim Assistance Formula award. The State also received $5 million in Recovery Act funds for victim assistance. A total of $27 million in State and federal funds was available for victim assistance programs from FY 2009 funding sources.

State B has traditionally supported an assistance program run by Domestic Violence Shelter B with State Victim Assistance funds. In FY 2009, however, State B decided to use Recovery Act funds (instead of State funds) to support Domestic Violence Shelter B. In FY 2009, State B obligated $15 million of State funds for various victim assistance programs.

Under these circumstances, supplanting would not have occurred. Though State B used federal money to support a particular victim assistance program that it otherwise would have supported with State funds, the State did not reduce the amount of overall State funding to victim assistance programs.

D. Correctional Facilities on Tribal Lands Program Competitive Grant Program
The underlying statute for this Recovery Act program provides that "[f]unds made available [under this program] shall not be used to supplant State funds, but shall be used to increase the amount of funds that would, in the absence of Federal funds, be made available from State sources." 42 U.S.C. § 13708(b)(2).

Example - Recovery Act: Correctional Facilities on Tribal Lands Program Competitive Grant Program

  Tribe X appropriated funds for the construction of a correctional facility on tribal lands. No State funds had been appropriated or set aside for the construction of the correctional facility. Upon receiving an award under the Recovery Act - Correctional Facilities on Tribal Lands grant program to construct the needed correctional facility, the tribe reallocated the appropriated funds for the purpose of correctional facility operations, rather than construction.

The statutory non-supplanting provision has not been violated in this scenario, because the non-supplanting provision encompasses State funds, but not tribal funds.

Documentation and Record Retention
In a case where a question of supplanting may arise, the State or unit of local government that receives Recovery Act funds that are subject to a non-supplanting restriction should retain whatever documentation is produced during the ordinary course of government business that will help substantiate that supplanting has not occurred. Depending on the circumstances, relevant documents might include annual appropriations acts, executive orders directing broad reductions of operating budgets, or city or county council resolutions or meeting minutes concerning budget cuts and layoffs.

All States and units of local government that receive Recovery Act awards are reminded that the record retention and access requirements of 28 C.F.R. ยง 66.42 and chapter 12 of part III of the OJP Financial Guide apply to Recovery Act grants, as well as to other OJP grants.

Monitoring and Audit

For Recovery Act programs that prohibit supplanting, potential supplanting will be the subject of monitoring and audit. OJP monitors compliance with all grant requirements in a variety of ways. For example, a recipient may receive an on-site monitoring visit from the program office or an on-site financial monitoring visit from the OJP Office of the Chief Financial Officer, or it may be audited by the Department of Justice Office of the Inspector General.

For Additional Information

For answers to specific questions regarding supplanting, contact the OJP Office of the Chief Financial Officer's Customer Service Center at 1-800-458-0786 or ask.ocfo@usdoj.gov

Updated: April 27, 2009


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