Corrections Program Office's Interpretation of Eligibility Requirements for Truth-in-Sentencing Incentive Grants Under 42 U.S.C. 13704(a)(2)

DEPARTMENT OF JUSTICE

Office of Justice Programs

28 CFR Part 91

[OJP(OJP)-1258]

RIN 1121-ZB92

Corrections Program Office's Interpretation of Eligibility

Requirements for Truth-in-Sentencing Incentive Grants Under 42 U.S.C.

13704(a)(2)

AGENCY: Office of Justice Programs, Corrections Program Office,

Justice.

ACTION: Interpretive rule.

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SUMMARY: The Corrections Program Office, Office of Justice Programs,

U.S. Department of Justice, is publishing an interpretive rule which

reiterates current law to remind States awarded funds under the Truth-

in-Sentencing Incentive Grants program, 42 U.S.C. 13704, of the pre-

existing eligibility requirements for receiving and retaining funds

under subsection (a)(2) of the statute. This interpretive rule also

advises recipient States of OJP's existing enforcement policy for non-

compliance with the statutorily-mandated grant terms.

EFFECTIVE DATE: This interpretive rule is effective on December 20,

1999.

FOR FURTHER INFORMATION CONTACT: Phil Merkle, Special Advisor to the

Director, Corrections Program Office, Office of Justice Programs, 810

Seventh Street, NW, Washington, DC 20531. Telephone: (202) 305-2550;

Fax: (202) 307-2019.

SUPPLEMENTARY INFORMATION:

Background

Purpose

The Corrections Program Office, Office of Justice Programs (OJP) is

issuing this interpretive rule to make explicit its interpretation and

application of the eligibility requirements in section 13704(a)(2) of

the Violent Offender Incarceration and Truth-in-Sentencing Incentive

Grants program (``VOI/TIS''), 42 U.S.C. 13704 et seq. This document is

designed to aid States in assessing their continuing eligibility for

federal Truth-in-Sentencing funding and sets forth situations in which

OJP will exercise its enforcement discretion. This interpretive rule

does not create or destroy any rights, assign any new duties, or impose

any additional obligations, implied or otherwise.

Authority

OJP, as the agency charged with administering and enforcing the

VOI/TIS grant program, has inherent authority to issue interpretive

rules informing the public of the procedures and standards it intends

to apply in exercising its discretion. Moreover, OJP's construction of

the VOI/TIS statute, in this instance, merely amounts to implementing

existing positive law previously legislated by Congress.

Truth-in-Sentencing Incentive Grant Program

As part of the Violent Crime Control and Law Enforcement Act of

1994, Public Law 103-322 (``1994 Crime Bill''), Congress enacted the

Violent Offender Incarceration and Truth-in-Sentencing Incentive Grants

program, 42 U.S.C. 13701 et seq., which offered prison construction

grants and other correctional institution improvement funding to

encourage States to adopt tougher sentencing policies for violent

offenders.

In the FY 1996 Omnibus Appropriations Act, Public Law 104-134,

Congress significantly amended this legislation. Currently, the Truth-

in-Sentencing Incentive Grants program provides funds for eligible

States to build or expand correctional facilities for the purpose of

incarcerating criminals convicted of committing violent crimes. 42

U.S.C. 13704. To qualify for grant funding, States must have in effect

sentencing laws that either provide for violent offenders to serve not

less than 85% of their sentences, or must meet other requirements that

ensure that violent offenders remain incarcerated for substantially

greater percentages of their imposed sentences. 42 U.S.C. 13704(a).

Qualification as an Interpretive Rule

This interpretive rule highlights and discusses the grant

eligibility requirements in section 13704(a)(2) of the Truth-in-

Sentencing Incentive Grants Act to make certain that States awarded

grant funds under this provision fully understand their legal duty to

implement qualifying truth-in-sentencing laws within the three-year

statutory time frame. Because this rule merely explains, rather than

adds to, the substantive law that already exists, it is exempt from

legislative rulemaking procedures.

Specifically, this rule qualifies as an interpretive rule under the

Administrative Procedure Act because it is a rule or statement issued

by an agency to advise the public of the agency's construction of one

of the statutes it administers. See, e.g., Shalala, Secretary of Health

and Human Services v. Guernsey Memorial Hosp., 514 U.S. 87, 99 (1995).

This rule does

[[Page 71023]]

not establish any new standard and in fact, is consistent with the

statute's mandate. As such, it qualifies as an interpretive rule not

subject to the Administrative Procedure Act's notice-and-comment

provisions. 5 U.S.C. 553, 553(b)(3)(A).

Interpretation of 42 U.S.C. 13704(a)(2)

Eligibility Criteria

In this interpretive rule, OJP explains its construction of section

13704(a)(2) of the Truth-in-Sentencing Incentive Grants provision for

determining ``eligibility'' for federal funding assistance where the

State has enacted, but not yet implemented, a truth-in-sentencing law.

42 U.S.C. 13704(a)(2).

It is OJP's position that a State is eligible for truth-in-

sentencing grant funds if it has a truth-in-sentencing law that has

been enacted, but not yet implemented, which requires the State, not

later than three years after submitting its grant application, to

provide that persons convicted of ``Part 1 violent crimes'' serve not

less than 85 percent of the sentence imposed. Additionally, as

expressed in the Truth-in-Sentencing grant application packets, each

State that applies for funding under section 13704(a)(2) must include a

detailed time line which culminates in the actual implementation of a

qualifying Truth-in-Sentencing law within three years of the submission

of the grant application.

While a State does have latitude to modify the exact sequence of

events within this time line, a State cannot ignore the requirement

that a qualifying Truth-in-Sentencing law must actually be implemented

within the three-year period.

Enforcement Policy

If a State receives funding by asserting eligibility under section

13704(a)(2) but then fails to actually implement a qualifying truth-in-

sentencing law within three years of submitting its initial

application, OJP treats this event as a failure to substantially comply

with the statutorily-mandated grant conditions and as a violation of

the terms of the grant agreement.

As the agency charged with administering and enforcing the Violent

Offender Incarceration and Truth-in-Sentencing Incentive Grants Act,

OJP can suspend or terminate a State's truth-in-sentencing funding for

substantial noncompliance with the statute and the grant terms.

Specifically, OJP may, in the exercise of its discretion, initiate

federal enforcement actions, under the part 18 termination procedures,

against those recipient States that fail to adhere to the grant

requirements after receiving grant funds. 28 CFR part 18. Ultimately,

where OJP determines it necessary to terminate a Truth-in-Sentencing

grant, OJP can require the noncomplying State to repay the grant funds

awarded in excess of the amount actually due. 28 CFR 66.52. This excess

amount may include the grant funds awarded during the period in which

the State had promised to implement a truth-in-sentencing law.

In sum, OJP shall continue to administer and enforce section

13704(a)(2) in accordance with this interpretation.

Publication

Because this interpretive rule aims to serve as a reminder to

recipients under the Truth-in-Sentencing Incentive Grants program and

thus, merely reiterates the statutorily-mandated conditions for the

award and retention of grant funding, OJP has chosen not to publish

this interpretive rule in the Code of Federal Regulations (but reserves

the right to do so in the future). However, to ensure that the States

recognize the importance of the Truth-in-Sentencing Grants Program and

are fully aware of their preexisting duties under section 13704(a)(2)

for continued funding, OJP will distribute copies of this interpretive

rule with the Truth-in-Sentencing Incentive Grants Program Application

Packets in early 2000. Additionally, OJP intends to post this

interpretive rule, as published in the Federal Register, on the

Internet at the Corrections Program Office's website at http://

www.ojp.usdoj.gov/cpo.htm.

Regulatory Evaluation Summary

OJP has reviewed this interpretive rule in accordance with

Executive Order 12866 and the Regulatory Flexibility Act of 1980. It is

not a ``significant regulatory action'' as defined in the Executive

Order. Additionally, this interpretive rule does not impose a

significant economic impact on a substantial number of small entities

and will not constitute a barrier to international trade. Because no

further economic evaluation is warranted, this interpretive rule is not

subject to review by the Office of Management and Budget.

In accordance with Executive Order 13132, this interpretive rule

will not have a substantial direct effect on the States, on the

relationship between the national Government and the States, or on the

distribution of power and responsibilities among the various levels of

government. Therefore, it lacks sufficient federalism implications to

warrant the preparation of a federalism assessment.

Because this interpretive rule does not compel the expenditure by

State, local and tribal governments, or by the private sector, in the

aggregate of $100 million or more in any one year, and will not

uniquely affect small governments, OJP is not required to take any

actions under the provisions of the Unfunded Mandates Reform Act of

1995 (2 U.S.C. 1531-1538).

This interpretive rule is not a major rule as defined by section

804 of the Small Business Regulatory Enforcement Fairness Act of 1996

because it will not result in an annual effect on the economy of $100

million or more; or 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 in domestic and export markets.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.

3501 et seq.), OJP has determined that there are no requirements for

information collection associated with this rule.

Finally, this interpretive rule has no direct or indirect effect on

the environment, and no extraordinary circumstances exist which would

require OJP to prepare an environmental assessment or environmental

impact statement.

Dated: December 14, 1999.

Laurie Robinson,

Assistant Attorney General, Office of Justice Programs.

[FR Doc. 99-32807 Filed 12-17-99; 8:45 am]

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