B-171019, MAR 2, 1977

B-171019, MAR 2, 1977

LEAA IS NOT REQUIRED TO SPEND $15 MILLION SPECIALLY AUTHORIZED FOR APPROPRIATION BY PUB. L. NO. 94-503 FOR COMMUNITY PATROL ACTIVITIES AND ENCOURAGEMENT OF NEIGHBORHOOD PARTICIPATION IN CRIME PREVENTION AND PUBLIC SAFETY EFFORTS UNDER SECTION 301(B)(6) OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968, AS AMENDED, SINCE FUNDS WERE NOT EARMARKED FOR SUCH PURPOSES UNDER PUB. L. NO. 94-362, ITS CURRENT APPROPRIATION ACT.

LAW ENFORCEMENT ASSISTANCE ADMINISTRATION GRANT AUTHORITY FOR COMMUNITY ANTI-CRIME PROGRAMS:

THIS DECISION TO THE ATTORNEY GENERAL RESPONDS TO A REQUEST BY THE DEPUTY ADMINISTRATOR FOR ADMINISTRATION OF THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION (LEAA) FOR OUR DECISION WITH RESPECT TO CERTAIN GRANTMAKING AUTHORITY OF THE OFFICE OF COMMUNITY ANTI-CRIME PROGRAMS (CACP) WITHIN LEAA, AND TO THE EXPENDITURE OF FUNDS APPROPRIATED FOR CACP GRANTS.

SPECIFICALLY, THE DEPUTY ADMINISTRATOR ASKS WHETHER, UNDER SECTION 520(A), OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968 (PUB. L. NO. 90-351, 82 STAT. 197, AS AMENDED, 42 U.S.C. 3701 ET SEQ. (1970 & SUPP. V, 1975)), AS MOST RECENTLY AMENDED BY THE CRIME CONTROL ACT OF 1976, PUB. L. NO. 94-503 (OCTOBER 15, 1976), THE $15 MILLION AUTHORIZED TO BE APPROPRIATED FOR FISCAL YEAR 1977, " * * * FOR PURPOSES OF COMMUNITY PATROL ACTIVITIES AND THE ENCOURAGEMENT OF NEIGHBORHOOD PARTICIPATION IN CRIME PREVENTION AND PUBLIC SAFETY EFFORTS UNDER SECTION 301(B)(6) OF THIS TITLE * * * ," MAY BE EXPENDED FOR:

A. TECHNICAL ASSISTANCE GRANTS, UNDER SECTIONS 515(B) AND 515(C) OF THE 1968 ACT, AS AMENDED, 42 U.S.C. 3763 AND 3763(C) (SUPP. V, 1975);

B. PART C GRANTS PURSUANT TO SECTION 306(A)(2) OF THE 1968 ACT, AS AMENDED, 42 U.S.C. 3736(A)(2) (SUPP. V, 1975);

C. COMMUNITY ANTI-CRIME PREVENTION PROGRAMS FUNDABLE UNDER SECTION 301(B) OF THE 1968 ACT, AS AMENDED, 42 U.S.C. 3731(B) (SUPP. V, 1975), AS FURTHER AMENDED BY PUB. L. NO. 94-503, SECTION 109 (1976);

D. GRANTS TO LOCAL COMMUNITY OR CITIZENS GROUPS WHICH ARE PRIVATE NONPROFIT ORGANIZATIONS; AND

E. GRANTS TO LOCAL COMMUNITY OR CITIZENS GROUPS WHICH HAVE NO STATUS AS PRIVATE NONPROFIT ORGANIZATIONS UNDER FEDERAL OR STATE LAW.

SUBSEQUENTLY, WE WERE ASKED IN ADDITION WHETHER THE 85 PERCENT-15 PERCENT APPORTIONMENT BETWEEN BLOCK AND DISCRETIONARY GRANTS REQUIRED BY SECTION 306(A) OF THE 1968 ACT APPLIES TO FUNDS APPROPRIATED PURSUANT TO THE AUTHORIZATION, IN THE SECOND SENTENCE OF SECTION 520(A), AND WHETHER THE NON-FEDERAL SHARE, OR "MATCHING," REQUIREMENT OF SECTION 306(A) APPLIES TO GRANTS MADE FROM FUNDS SO APPROPRIATED.

(HEREAFTER, UNLESS OTHERWISE INDICATED, REFERENCES TO "THE ACT" ARE TO THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968, PUB. L. NO. 90-351, 83 STAT. 197, AS AMENDED BY PUB. L. NO. 91-644, 84 STAT. 3701; PUB. L. NO. 93-83, 87 STAT. 197; PUB. L. NO. 93-415, 88 STAT. 1142; AND PUB. L. NO. 94-503, 90 STAT. 2407 (42 U.S.C.A. 3701 ET SEQ.))

SECTION 520(A) PROVIDES IN PERTINENT PART AS FOLLOWS:

"THERE ARE AUTHORIZED TO BE APPROPRIATED FOR THE PURPOSES OF CARRYING OUT THIS TITLE NOT TO EXCEED $220,000,000 FOR THE PERIOD BEGINNING ON JULY 1, 1976, AND ENDING ON SEPTEMBER 30, 1976, NOT TO EXCEED $880,000,000 FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 1977; $800,000,000 FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 1978; AND $880,000,000 FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 1979. IN ADDITION TO ANY OTHER SUMS AVAILABLE FOR THE PURPOSES OF GRANTS UNDER PART C OF THIS TITLE, THERE IS AUTHORIZED TO BE APPROPRIATED NOT TO EXCEED $15,000,000 FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 1977; AND NOT TO EXCEED $15,000,000 FOR EACH OF THE TWO SUCCEEDING FISCAL YEARS; FOR THE PURPOSES OF GRANTS TO BE ADMINISTERED BY THE OFFICE OF COMMUNITY ANTI-CRIME PROGRAMS FOR COMMUNITY PATROL ACTIVITIES AND THE ENCOURAGEMENT OF NEIGHBORHOOD PARTICIPATION IN CRIME PREVENTION AND PUBLIC SAFETY EFFORTS UNDER SECTION 301(B)(6) OF THIS TITLE. * * * ."

IN RAISING THESE QUESTIONS THE DEPUTY ADMINISTRATOR APPARENTLY MAKES A FUNDAMENTAL ASSUMPTION THAT $15 MILLION HAS BEEN APPROPRIATED, FOR USE IN FISCAL YEAR 1977, BY PUB. L. NO. 94-362 (JULY 14, 1976), FOR THE PURPOSES SPECIFIED IN THE SECOND SENTENCE OF SECTION 520(A) OF PUB. L. NO. 94-503, SUPRA. THE 1977 APPROPRIATION FOR LEAA READS AS FOLLOWS:

"FOR GRANTS, CONTRACTS, LOANS, AND OTHER ASSISTANCE AUTHORIZED BY TITLE I OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968, AS AMENDED, AND TITLE II OF THE JUVENILE JUSTICE AND DELINQUENCY PREVENTION ACT OF 1974, INCLUDING DEPARTMENTAL SALARIES AND OTHER EXPENSES IN CONNECTION THEREWITH, $753,000,000, TO REMAIN AVAILABLE UNTIL EXPENDED."

LEAA'S APPROPRIATION IS A LUMP SUM, TO BE USED FOR PURPOSES OF THE ACT (AND FOR TITLE II OF THE JUVENILE JUSTICE ACT OF 1974), WITHOUT FURTHER LIMITATION AS TO PURPOSE. THERE IS, ACCORDINGLY, NO APPROPRIATION FOR FISCAL YEAR 1977 WHICH IS REQUIRED TO BE EXPENDED ONLY IN ACCORDANCE WITH THE AUTHORIZING LANGUAGE OF SECTION 520(A). ACCORDINGLY, THE QUESTIONS RAISED ARE MOOT TO THE EXTENT THAT THEY ARE BASED ON THE ASSUMPTION THAT A SEPARATE SUM OF $15 MILLION WAS APPROPRIATED FOR FISCAL YEAR 1977 FOR THE PURPOSES STATED IN THE 1976 AMENDMENT TO SECTION 520(A) OF THE ACT.

WE ARE AWARE THAT THE CONFERENCE REPORT ON THE 1977 LEAA APPROPRIATION (H.R. REP. NO. 94-1309, AT 7 (1976)) MENTIONS THAT THE $753 MILLION APPROPRIATION INCLUDES " * * * $15,000,000 FOR ENCOURAGING COMMUNITY PARTICIPATION IN CRIME PREVENTION." CERTAINLY, LEAA, IN KEEPING WITH THE PURPOSE SET FORTH IN THE CONFERENCE REPORT, MAY PROGRAM $15 MILLION OF ITS LUMP SUM APPROPRIATION FOR THAT PURPOSE. ANY SUMS SO PROGRAMMED, HOWEVER, ARE NOT SUBJECT TO THE STRICTURES WHICH MIGHT HAVE BEEN APPLICABLE HAD THE SUMS BEEN APPROPRIATED SPECIFICALLY PURSUANT TO THE COMMUNITY ANTI-CRIME PROGRAM AUTHORIZATION IN SECTION 520(A) OF THE ACT.

IN THIS CONNECTION, THE CONFERENCE REPORT REFERENCE TO THE $15 MILLION FOR ENCOURAGING COMMUNITY PARTICIPATION IN CRIME PREVENTION IS COMPATIBLE WITH THE EXERCISE OF A VARIETY OF AUTHORITIES UNDER THE ACT. THAT IS, TO AVOID THE PROBLEM OF WHETHER GRANTS FOR COMMUNITY ANTI-CRIME PROGRAMS UNDER SECTION 301(B)(6) ARE LIMITED TO COMMUNITY SERVICE OFFICER PROGRAMS, LEAA COULD, FOR EXAMPLE, MAKE COMMUNITY ANTI CRIME GRANTS UNDER THE LESS RESTRICTIVE AUTHORITY OF SECTION 301(B)(14), AS WELL AS UNDER SECTION 515(B)(2). IN ADDITION, GRANTS FOR COMMUNITY ANTI-CRIME PROGRAMS UNDER SECTIONS 301(B)(6) OR 301(B)(14) MAY BE MADE TO LOCAL COMMUNITY OR CITIZENS GROUPS WHICH ARE PRIVATE NONPROFIT ORGANIZATIONS, AS PROVIDED IN SECTION 306(A). THE LOCAL GROUPS WOULD OF COURSE HAVE TO FALL WITHIN THE DEFINITION OF PRIVATE NONPROFIT ORGANIZATIONS ADOPTED BY THE ADMINISTRATOR, AND WOULD HAVE TO MEET THE APPLICABLE REQUIREMENTS OF OMB CIRCULAR A-110, GRANTS AND AGREEMENTS WITH INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND OTHER NONPROFIT ORGANIZATIONS, UNIFORM ADMINISTRATIVE REQUIREMENTS, 41 FED.REG. 32016 (1976).

WE NOTE THAT HAD THERE BEEN A SPECIFIC APPROPRIATION OF THE ADDITIONAL $15 MILLION EXACTLY AS AUTHORIZED BY SECTION 520(A), THERE WOULD HAVE BEEN CONSIDERABLE DOUBT AS TO WHETHER THE FUNDS SO APPROPRIATED COULD HAVE BEEN USED IN THE MANNER PROPOSED BY THE DEPUTY ADMINISTRATOR. WE SUGGEST THAT LEAA MAY WISH TO PROPOSE REMEDIAL LEGISLATION TO REMOVE THIS DOUBT.