[Federal Register Volume 64, Number 243 (Monday, December 20, 1999)]
[Rules and Regulations]
[Pages 71022-71023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32807]


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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]
BILLING CODE 4410-18-P