PART 91—GRANTS FOR CORRECTIONAL FACILITIES Authority: 42 U.S.C. 13701 through 14223. Source: 59 FR 63019, Dec. 7, 1994, unless otherwise noted. Subpart A—General § 91.1 Purpose. The Attorney General, through the Assistant Attorney General for the Office of Justice Programs, will make grants to states and to states organized as multi-state compacts to construct, develop, expand, operate or improve correctional facilities, including boot camp facilities and other alternative correctional facilities that can free conventional space for the confinement of violent offenders, to: (a) Ensure that prison space is available for the confinement of violent offenders; and (b) Implement truth in sentencing laws for sentencing violent offenders. § 91.2 Definitions. (a) Violent offender. (b) Serious drug offense (c) Part 1 violent crimes (d) Recipient (e) State (f) Comprehensive correctional plan (g) Correctional facilities (h) Boot camp (1) Assignment for participation in the program, in conformity with state law, by prisoners other than prisoners who have been convicted at any time for a violent felony; (2) Adherence by inmates to a highly regimented schedule that involves strict discipline, physical training, and work; (3) Participation by inmates in appropriate education, job training, and substance abuse counseling or treatment; and (4) Post-incarceration aftercare services for participants that are coordinated with the program carried out during the period of imprisonment. (i) Truth in sentencing laws (1) Ensure that violent offenders serve a substantial portion of sentences imposed; (2) Are designed to provide sufficiently severe punishment for violent offenders, including violent juvenile offenders; and (3) The prison time served is appropriately related to the determination that the inmate is a violent offender and for a period of time deemed necessary to protect the public. § 91.3 General eligibility requirements. (a) Recipients must be individual states, or states organized as multi-state compacts. (b) Application requirements. (1) Assurances that the state(s) have implemented, or will implement, correctional policies and programs, including truth in sentencing laws. No specific requirements for complying with this condition are prescribed by this interim rule for fiscal 1995 funding because of the need for further review of the status of truth in sentencing laws and the impact and needs requirements relating to reform in state systems. (2) Assurances that the state(s) have implemented or will implement policies that provide for the recognition of the rights and needs of crime victims. States are not required to adopt any specific set of victims rights measures for compliance, but the adoption by a state of measures which are comparable to or exceed those applied in federal proceedings will be deemed sufficient compliance for eligibility for funding. If the state has not adopted victims rights measures which are comparable to or exceed federal law, the adequacy of compliance will be determined on a case-by-case basis. States will be afforded a reasonable amount of time to achieve compliance. States may comply with this condition by providing recognition of the rights and needs of crime victims in the following areas: (i) Providing notice to victims concerning case and offender status; (ii) Providing an opportunity for victims to be present at public court proceedings in their cases; (iii) Providing victims the opportunity to be heard at sentencing and parole hearings; (iv) Providing for restitution to victims; and (v) Establishing administrative or other mechanisms to effectuate these rights. (3) Assurances that funds received under this section will be used to construct, develop, expand, operate or improve correctional facilities to ensure that secure space is available for the confinement of violent offenders. (4) Assurances that the state(s) has a comprehensive correctional plan in accordance with the definition elements in § 91.2. If the state(s) does not have an adequate comprehensive correctional plan, technical assistance will be available for compliance. States will be afforded a reasonable amount of time to develop their plans. (5) Assurances that the state(s) has involved counties and other units of local government, when appropriate, in the construction, development, expansion, modification, operation or improvement of correctional facilities designed to ensure the incarceration of violent offenders and that the state(s) will share funds received with counties and other units of local government, taking into account the burden placed on these units of government when they are required to confine sentenced prisoners because of overcrowding in state prison facilities. (6) Assurances that funds received under this section will be used to supplement, not supplant, other federal, state, and local funds. (7) Assurances that the state(s) has implemented, or will implement within 18 months after the date of the enactment of the Violent Crime Control and Law Enforcement Act of 1994 (September 13, 1994), policies to determine the veteran status of inmates and to ensure that incarcerated veterans receive the veterans benefits to which they are entitled. (8) Assurances that correctional facilities will be made accessible to persons conducting investigations under the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. 1997. (9) If applicable, documentation of the multi-state compact agreement that specifies the construction, development, expansion, modification, operation, or improvement of correctional facilities. (10) If applicable, a description of the eligibility criteria for participation in any boot camp that is to be funded. (c) States, and states organized as multi-state compacts, which can demonstrate affirmative responses to the assurances outlined above will be eligible to receive funds. (d) Each state application for such funds must be accompanied by a comprehensive correctional plan. The plan shall be developed in consultation with representatives of appropriate state and local units of government, shall include both the adult and juvenile correctional systems, and shall provide an assessment of the state and local correctional needs, and a long-range implementation strategy for addressing those needs. (e) Local units of government, i.e., any city, county, town, township, borough, parish, village or other general purpose subdivision of a state, or Indian tribe which performs law enforcement functions as determined by the secretary of the Interior, are in turn eligible to receive subgrants from a participating state(s). Such subgrants shall be made for the purpose(s) of carrying out the implementation strategy, consistent with state(s) comprehensive correctional plan. (f) In awarding grants, consideration shall be given to the special burden placed on states which incarcerate a substantial number of inmates who are in the United States illegally. States will not be required to submit additional information on numbers of criminal aliens. The Bureau of Justice Assistance (BJA) and the Immigration and Naturalization Service (INS) are currently working together to implement the State Criminal Alien Assistance Program (SCAAP) to assist the states with the costs of incarcerating criminal aliens. The Office of Justice Programs will coordinate with the SCAAP program to obtain the relevant information. (g) The funds provided under this part shall be administered in compliance with the standards set forth in part 38 (Equal Treatment for Faith-based Organizations) of this chapter. [59 FR 63019, Dec. 7, 1994, as amended by Order No. 2703-2004, 69 FR 2841, Jan. 21, 2004] § 91.4 Truth in Sentencing Incentive Grants. (a) Half of the total amount of funds appropriated to carry out subtitle A for each of the fiscal years 1996, 1997, 1998, 1999 and 2000 will be made available for Truth in Sentencing Incentive Grants. (b) Eligibility. (1) Has in effect laws which require that persons convicted of violent crimes serve not less than 85% of the sentence imposed; or (2) Since 1993— (i) Has increased the percentage of convicted violent offenders sentenced to prison; (ii) Has increased the average prison time which will be served in prison by convicted violent offenders sentenced to prison; (iii) Has increased the percentage of sentence which will be served in prison by violent offenders sentenced to prison; and (iv) Has in effect at the time of application laws requiring that a person who is convicted of a violent crime shall serve not less than 85% of the sentence imposed if— (A) The person has been convicted on 1 or more prior occasions in a court of the United States or of a state of a violent crime or a serious drug offense; and (B) Each violent crime or serious drug offense was committed after the defendant's conviction of the preceding violent crime or serious drug offense. (c) Formula allocation. (d) Transfer of unused funds. § 91.5 Violent Offender Incarceration Grants. (a) Half of the total amount of funds appropriated to carry out this subtitle for each of fiscal years 1996, 1997, 1998, 1999 and 2000 will be made available for Violent Offender Incarceration Grants. (b) Eligibility. (c) Allocation of violent offender incarceration funds Formula allocation. (i) 0.25% will be allocated to each eligible state except that the United States Virgin Islands, American Samoa, Guam and the Northern Mariana Islands shall each be allocated 0.05%. (ii) The amount remaining after application of paragraph (c)(1)(i) of this section will be allocated to each eligible state in the ratio that the number of Part 1 violent crimes reported by such state to the Federal Bureau of Investigation for 1993 bears to the number of Part 1 violent crimes reported by all states to the Federal Bureau of Investigation for 1993. (2) Discretionary allocation. (i) The greatest need for such grants, and (ii) The ability to best utilize the funds to meet the objectives of the grant program and ensure that secure cell space is available for the confinement of violent offenders. (d) Transfer of unused funds. § 91.6 Matching requirement. (a) The federal share of a grant received under this subtitle may not exceed 75 percent of the costs of a proposal described in an application approved under this subtitle. The matching requirement can only be met through a hard cash match, and must be satisfied by the end of the project period. A certification to that effect will be required of each recipient of grant funds and must be submitted to the Office of Justice Programs with the application. (b) [Reserved] Subpart B—FY 95 Correctional Boot Camp Initiative § 91.10 General. (a) Scope of boot camp program. (b) Adult and juvenile boot camps, referred to as “correctional boot camps,” are programs that “provide a structured environment for delivering non-traditional corrections programs to criminal offenders.” (c) With respect to this program, the mandates of the Juvenile Justice and Delinquency Prevention Act (42 U.S.C. 5601 et seq. (d) Eligibility. (2) For purposes of the FY '95 boot camp program, a “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or an act of juvenile delinquency that would be punishable by imprisonment for such term if committed by an adult, that: (i) Involves the use or attempted use of a firearm or other dangerous weapon against another person, or (ii) Results in death or serious bodily injury to another person. (3) States must document that the boot camp program does not involve more than six-months confinement (not including confinement prior to assignment to the boot camp) and includes: (i) Assignment for participation in the program, in conformity with state law, by prisoners other than prisoners who have been convicted at any time of a violent felony; (ii) Adherence by inmates to a highly regimented schedule that involves strict discipline, physical training and work; (iii) Participation by inmates in appropriate education, job training, and substance abuse counseling or treatment; and (iv) Post-incarceration aftercare services for participants that are coordinated with the program carried out during the period of imprisonment. (4) States must provide assurances that boot camp construction will free up secure institutional bed space for violent offenders. (e) Evaluation. (2) Jurisdictions are strongly encouraged to engage in systematic planning activities and to develop and evaluate boot camps as part of a comprehensive and integrated correctional plan. (f) Limitation on funds. (g) Matching requirement. (h) Innovative boot camp programs. Subpart C—Correctional Facilities on Tribal Lands Authority: 42 U.S.C. 13701 et seq., Source: 61 FR 49970, Sept. 24, 1996, unless otherwise noted. § 91.21 Purpose. This part sets forth requirements and procedures to award grants to Indian Tribes for purposes of constructing jails on tribal lands for the incarceration of offenders subject to tribal jurisdiction. § 91.22 Definitions. (a) The Act et. seq. (b) Assistant Attorney General (c) Tribal lands (1) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation; (2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State; and (3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of way running through the same. (d) Indian Tribe (e) Construction [61 FR 49970, Sept. 24, 1996, as amended at 69 FR 2299, Jan. 15, 2004] § 91.23 Grant authority. (a) The Assistant Attorney General may make grants to Indian tribes for programs that involve constructing jails on tribal lands for the incarceration of offenders subject to tribal jurisdiction. (b) Applications for grants under this program shall be made at such times and in such form as may be specified by the Assistant Attorney General. Applications will be evaluated according to the statutory requirements of the Act and programmatic goals. (c) Grantees must comply with all statutory and program requirements applicable to grants under this program. (d) The funds provided under this part shall be administered in compliance with the standards set forth in part 38 (Equal Treatment for Faith-based Organizations) of this chapter. [61 FR 49970, Sept. 24, 1996, as amended by Order No. 2703-2004, 69 FR 2841, Jan. 21, 2004] § 91.24 Grant distribution. (a) From the amounts appropriated under section 20108 of the Act to carry out sections 20103 and 20104 of the Act, the Assistant Attorney General shall reserve, to carry out this program— (1) 0.3 percent in each fiscal years 1996 and 1997; and (2) 0.2 percent in each of fiscal years 1998, 1999 and 2000. (b) From the amounts reserved under paragraph (a) of this section, the Assistant Attorney General may exercise discretion to award or supplement grants to such Indian Tribes and in such amounts as would best accomplish the purposes of the Act. Subpart D—Environmental Impact Review Procedures for VOI/TIS Grant Program Authority: 42 U.S.C. 13701 et seq., et seq.; Source: 65 FR 48595, Aug. 8, 2000, unless otherwise noted. In General § 91.50 Purpose. The purpose of this subpart is to inform grant recipients under the Violent Offender Incarceration and Truth-in-Sentencing Incentive (VOI/TIS) Formula Grant Program of OJP's procedures for complying with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et. seq., § 91.51 Policy. (a) NEPA Policy. (1) Implement procedures to make the NEPA process more useful to decision-makers and the public; reduce paperwork and the accumulation of extraneous background data; and emphasize real environmental issues and alternatives. Environmental impact statements shall be concise, clear, and to the point, and shall be supported by evidence that agencies have made the necessary environmental analyses. (2) Integrate the requirements of NEPA with other planning and environmental review procedures required by law and by agency practice so that all such procedures run concurrently rather than consecutively. (3) Encourage and facilitate public involvement in decisions which affect the quality of the human environment. (4) Use the NEPA process to identify and assess reasonable alternatives to proposed actions that will avoid or minimize adverse effects of these actions upon the quality of the human environment. (5) Use all practicable means to restore and enhance the quality of the human environment and avoid or minimize any possible adverse effects of the actions upon the quality of the human environment. (b) OJP's policy to minimize harm to the environment. (c) Mitigation. (1) Avoiding the impact altogether by not taking certain action or part of an action. (2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation. (3) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment. (4) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action. (5) Compensating for the impact by replacing or providing substitute resources or environments. (d) Use of grant funds. § 91.52 Definitions. The definitions supplied by the Council on Environmental Quality in its Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, § 91.53 Other guidance. The Department of Justice has also published NEPA procedures that incorporate the CEQ regulations at 28 CFR part 61. Additionally, the Office of Justice Programs' Corrections Program Office has prepared a handbook for VOI/TIS grantees, Program Guidance on Environmental Protection Requirements. http://www.ojp.usdoj.gov/cpo. Application to VOI/TIS Grant Program § 91.54 Applicability. (a) Major Federal action. (b) VOI/TIS construction grants subject to NEPA. (c) Projects. § 91.55 Categorical exclusions. Activities undertaken by State, local, or tribal entities using VOI/TIS funds that are consistent with any of the following categories are presumed not to have a significant effect on the human environment and thus, are categorically excluded from the preparation of either an EA or an EIS. Although these activities are excluded from environmental reviews under NEPA, they are not excluded from compliance with other applicable local, State, or Federal environmental laws. Additionally, an otherwise excluded activity loses its exclusion and is subject to environmental review if it either would be located within or potentially affect any of the following: a 100-year flood plain, a wetland, important farmland, a proposed or listed endangered or threatened species, a proposed or listed critical habitat, a property that is listed or eligible for listing on the National Register of Historic Places, an area within an approved State Coastal Zone Management Program, a coastal barrier or a portion of a barrier within the Coastal Barrier Resources System, a river or portion of a river included in or designated for potential addition to the Wild and Scenic Rivers System, a designated or proposed Wilderness Area, or a sole source aquifer recharge area designated by the Environmental Protection Agency (EPA). The resulting environmental review for those activities that lose their exclusion status shall focus on the factor or factors that caused the loss of the exclusion. (a) Minor renovations. (b) Limited expansion. (1) Are located in a floodplain; (2) Will affect a wetland; (3) Will affect a facility on the National Register of Historic Places or that is eligible for listing on the register; (4) Will affect a federally proposed or listed endangered or threatened species or its habitat; (5) Is controversial for environmental reasons; or (6) Would not be served by adequate sewage treatment, solid waste disposal, or water facilities. (c) Expansion of support facilities. (d) Security upgrades. (e) Privatization. (f) Drug testing and treatment. § 91.56 Actions that normally require the preparation of an environmental assessment. (a) Renovation or expansion of existing correctional facility. (b) Proposed construction of a new correctional facility. § 91.57 Actions that normally require the preparation of an environmental impact statement. Significant impact. Environmental Review Procedures § 91.58 Timing of the environmental review process. (a) Initial planning and site selection phase. (b) Early consultation with OJP. Program Guidance on Environmental Protection Requirements, (1) The proposed project meets the criteria of a categorical exclusion; (2) An environmental assessment should be initiated; (3) Because of the project size and/or anticipated environmental impacts, an environmental impact statement should be initiated. (c) Design phase. (d) Prohibited pre-analysis activities. (1) Starting construction; (2) Accepting construction bids; (3) Advertising for construction bids; (4) Initiating the development of or approving final plans and specifications; or (5) Purchasing property. (e) Ongoing or completed construction projects. (f) Avoiding duplication of efforts. § 91.59 OJP's responsibilities. (a) In general. (b) Specific duties. (1) Issue guidance on the preparation of environmental documents and the NEPA process. (2) Review all draft documents. (3) Participate in giving notice to state and federal agencies, as well as to the public, and attend public meetings with the grantee, as appropriate. (4) Identify and solicit appropriate state, local, and tribal agencies to be a cooperating or joint lead agency, as appropriate. (5) Prepare a written assessment of any environmental impacts that another state or federal land management or environmental protection agency believes have not been adequately addressed through the NEPA process. (6) Monitor implementation by the states to ensure the completion of any required mitigation measures. (7) Develop a sample Statement of Work for preparing an EIS that States employing their own contractor can use to ensure that the services provided meet the requirements. § 91.60 Grantee's responsibilities. Specific duties. (a) Work closely with OJP on the development and review of the environmental documents, and follow the NEPA process, with the full participation of OJP. (b) Issue the documents for public comment jointly with OJP. (c) Solicit comment from other state and federal agencies, interested organizations, and the public. (d) Refrain from purchasing land, beginning bidding process, or starting construction on any project until all environmental work has been completed. (e) Complete a project Status Report form for all projects under construction or completed prior to the effective date of this subpart. (f) Ensure that appropriate environmental analysis, as determined by OJP, is completed for all projects and that appropriate alternatives are considered and mitigation measures are implemented to reduce the impact of identified environmental impacts, if any. (g) Identify and inform OJP of all applicable state and local environmental impact review requirements. (h) Notify all subgrantees of the requirements of this subpart in the initial planning and site selection phase. § 91.61 Subgrantee's responsibilities. If delegated by the grantee, the subgrantee shall: (a) Prepare (if the required expertise exists) or contract for the preparation of an environmental assessment (EA); and (b) Submit all environmental assessments through the grantee to OJP for review and the issuance of a draft finding of no significant impact (FONSI) or a determination that an environmental impact statement (EIS) is required. If OJP issues a draft FONSI, the grantee agency shall make the draft FONSI and the underlying EA available for public comment. § 91.62 Preparing an Environmental Assessment. (a) In general. (b) Project planning and site selection. (c) Draft environmental assessment. (d) OJP's Review of the Draft EA. (1) Has the need for the proposed action been established? (2) Have the relevant areas of environmental concern been identified? (3) Have other agencies with an interest been consulted? (4) Has the grantee provided opportunities for public involvement? (5) Have reasonable alternatives and mitigation measures been considered and implemented where possible, including the costs and resources to operate the facility? (6) Has a convincing case been made that the project as presently conceived will have only insignificant impacts on each of the identified areas of environmental concern? (7) Has the grantee adequately documented compliance with other related federal environmental laws and regulations as well as similar state and local environmental impact review requirements. (e) Draft Finding of No Significant Impact (FONSI) or determination that EIS is required. (f) Circulate EA and draft FONSI for public comment. (g) Review comments and modify plans, as appropriate. (h) Final action on EA. § 91.63 Preparing an Environmental Impact Statement (a) Initial determination. (1) On the basis of an environmental assessment (EA) prepared for the proposed project or (2) Without the preparation of an EA, but based on the extensive size of the proposed facility and the resulting variety of environmental impacts, the sensitive environmental nature of the proposed site, and/or the existence of highly controversial environmental impacts. (b) CEQ regulations. Environmental Protection Requirements (c) EIS preparation team. (2) If the grantee decides to use an alternate method to contracting out for preparation of the EIS (such as using a team of experts from various state agencies or a university), the grantee must submit a written proposal to OJP demonstrating that the team has the necessary interdisciplinary skills and experience in preparing EISs for similar projects. The proposal must include a completion schedule demonstrating that the alternate method will not result in significant delay. The proposal must also document that all members of the team, other than the grantee's employees, do not have any interest, financial or otherwise, in the outcome of the proposed project or any related projects. (3) The grantee must use an OJP-approved statement of work (SOW) in conducting the EIS. (4) Any consultant or contractor hired by OJP or the grantee to prepare an EIS must execute a disclosure statement specifying that it has no financial or other interest in the outcome of the project or any related projects. (d) Notice of intent. Federal Register Federal Register (e) Scoping. (f) Draft EIS. (g) Public comment. Federal Register. (h) Final EIS. Federal Register. (i) Record of decision. (j) Final action on EIS. § 91.64 Supplemental EA or EIS. (a) OJP's duty to supplement. (b) Grantee's duty to supplement. § 91.65 Responsible OJP officials. (a) Corrections Program Office Director. (b) Assistant Attorney General. § 91.66 Public participation. Environmental impact documents are public documents and the public should be provided an opportunity to review and comment on them. (a) Early project planning stages. (b) Environmental assessment process Newspaper notice. (i) Explain how and where a copy of the assessment can be accessed or obtained for review; (ii) Include a request for comments; and (iii) Provide at least a thirty-day comment period that begins from the date of the last published notice. (2) Post Office notice. (3) Site notice. (4) Distribution of the draft EA. (5) Public information meeting. (c) EIS process Scoping meeting. (i) Of most concern to the affected public and local, state, and federal agencies and (ii) Of least concern to the affected public and agencies. (2) Review and comment process for draft EIS. (i) Publishing a notice of availability of the draft EIS in the newspaper(s) serving the area(s) that would be impacted by the proposed project and the alternatives sites; (ii) Distributing copies of the draft EIS to all interested agencies, organizations, and individuals for their review and comment; (iii) Holding near the site of the proposed project a public information meeting in order to obtain the comments of the attendees; and (iv) Allowing, at a minimum, a forty-five day review and comment period for the draft EIS. Grantees should refer to OJP's Guidance Handbook for further information on how to conduct these public review and comment procedures. (3) Distribution of final EIS. Other State and Federal Law Requirements § 91.67 State Environmental Policy Acts. (a) Coordination. (b) Completed analysis. § 91.68 Compliance with other Federal environmental statutes, regulations and executive orders. (a) Other Federal environmental laws. (1) Archeological and Historical Preservation Act, (2) Coastal Zone Management Act, (3) Coastal Barrier Resources Act, (4) Clean Air Act, (5) Safe Drinking Water Act, (6) Federal Water Pollution Control Act, (7) Endangered Species Act, (8) Wild and Scenic Rivers Act, (9) National Historic Preservation Act, (10) Wilderness Act, (11) Farmland Protection Policy Act, (12) Flood Disaster Protection Act (13) Executive Order on Floodplain Management, (14) Executive Order on Wetland Protection, (15) Executive Order on Environmental Justice, and (16) Executive Order on Protection and Enhancement of the Cultural Environment. (b) Combined requirements.