[Federal Register Volume 59, Number 113 (Tuesday, June 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14440]


[[Page Unknown]]

[Federal Register: June 14, 1994]


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DEPARTMENT OF JUSTICE
Office of the Attorney General

28 CFR Part 65

[INS No. 1449-92; AG Order No. 1892-94]
RIN 1115-AD40

 

Emergency Federal Law Enforcement Assistance: Immigration 
Emergency Fund

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: This final rule implements provisions in the Immigration and 
Nationality Act that establish an ``Immigration Emergency Fund'' and 
that provide for assistance to States and local governments for 
services provided, at the request of the Attorney General, to meet an 
immigration emergency declared by the President, to aid in the 
administration of the immigration laws of the United States, or to meet 
urgent demands arising from the presence of aliens in a State or local 
jurisdiction. This rule sets forth procedures governing: Requests for a 
Presidential declaration of an immigration emergency; requests from the 
Attorney General for state or local government assistance when the 
President has declared an immigration emergency and in certain other 
circumstances; and applications from States and local governments for 
assistance from the Immigration Emergency Fund.

EFFECTIVE DATE: June 14, 1994.

FOR FURTHER INFORMATION CONTACT:
Michael J. Coster, Associate General Counsel, Immigration and 
Naturalization Service, 425 I Street, NW., room 6100, Washington, DC 
20536, telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION: The Department of Justice (``Department'') 
promulgated a proposed rule on January 14, 1992, 57 FR 1439, which set 
forth procedures and requirements for reimbursement from the 
Immigration Emergency Fund to States and localities for assistance 
provided in the absence of a Presidential determination that an 
immigration emergency exists under paragraph (b)(2) of section 404 of 
the Immigration and Nationality Act (``INA''), 8 U.S.C. 1101, note 
(b)(2). After receiving several comments, the rule was expanded and 
amended significantly, and the Department promulgated another proposed 
rule on November 5, 1993, 58 FR 58994. The proposed rule set forth 
procedures and requirements for reimbursement from the Immigration 
Emergency Fund to States and local governments under all the provisions 
of section 404(b) of the INA as required by section 610 of the 
Departments of Commerce, Justice, and State, the Judiciary, and Related 
Agencies Appropriations Act, 1992, Public Law 102-140, 105 Stat. 782, 
832. The Supplementary Information section of the publication at 58 FR 
58994 contains an exhaustive history of the legislation.
    The second proposed rule originally required written comments to be 
submitted by December 6, 1993. On January 5, 1994, at 59 FR 558, the 
Department extended the comment period to January 26, 1994, and three 
sets of comments were received. Two were from government entities while 
the third was from a public policy group. The Department received and 
evaluated the comments as follows:
    Comment: The definition of ``assistance'' for which the fund could 
be used to reimburse State and local governments should be expanded to 
include direct and indirect costs, such as overhead and administrative 
costs, associated with providing services and resources to aliens, 
including those illegal aliens incarcerated in jails and prisons for 
violation of State criminal laws. Additionally, assistance should also 
include providing for basic medical, cash, and social service needs in 
the short run, and housing, education, and human service needs in the 
longer rule. This type of social service assistance should not be tied 
to the establishment of large shelter facilities.
    Response: These changes have not been adopted. The Immigration 
Emergency Fund provides only limited resources which must be allocated 
in a judicious fashion. The Department believes that the use of the 
funds should be limited to assistance provided to the Attorney General 
in the enforcement and administration of the immigration laws of the 
United States. This view is supported by the statutory language, which 
provides for reimbursement for ``assistance as required by the Attorney 
General * * *.'' 8 U.S.C. 1101, note (b)(2)(A) (emphasis added). The 
Attorney General's mission does not include providing social services 
or providing costs of incarcerating persons for violating State 
criminal laws. Thus, only in limited circumstances do these types of 
services assist the Attorney General.
    Comment: It should be made clear that any denial of funds is 
without prejudice, and that there may be an opportunity for the States 
or local governments to renew their request.
    Response: This change is unnecessary and has not been adopted. The 
regulation contains no language which would limit the ability of a 
State or local government to renew an application.
    Comment: For the purpose of determining the increase in the number 
of asylum applications in an Immigration and Naturalization Service 
(``INS'') district for a given quarter, the number of Cuban nationals 
who remain in the INS district after the expiration of their visitors 
visas should be included as de facto asylum applicants, whether or not 
the Cuban nationals have formally applied for asylum.
    Response: This change has not been adopted. The suggested method 
for calculating the number of asylum applications filed in a certain 
quarter is inconsistent with the plain language of the statute and 
other portions of the INA. However, the Attorney General may consider 
the concerns raised by the comment regarding Cubans who remain without 
filing asylum applications as ``other circumstances'' justifying access 
to the fund.
    Comment: The definition of ``other circumstances'' is weak, thus 
making it difficult to understand what this may cover. This definition 
should be reconsidered and elaborated upon by the Department before 
final regulations are published.
    Response: This change has not been adopted. The statutory language 
indicates that Congress intended to give the Attorney General broad 
discretion in determining which ``other circumstances'' would justify 
access to the fund. The regulation should not unnecessarily limit that 
discretion.
    Comment: The regulation concerning application requirements should 
be more specific. The application process should be triggered by a 
phone call by the chief executive of the impacted jurisdiction to the 
Attorney General declaring his or her intention to apply to access the 
fund. This call would immediately be followed by a facsimile 
correspondence reiterating the chief executive's intent to apply. 
Within twenty-four hours of the call and facsimile, the Attorney 
General and the chief executive or their designees would meet to 
facilitate the negotiation of the application. The written application 
would need to be submitted within five calendar days of this meeting 
and would include: (a) A cover letter from the chief executive; (b) a 
written narrative of the emergency conditions and listing the state 
point of contact; (c) a listing of the broad service categories 
required by the aliens; (d) a description of the services; (e) the 
number or estimated number of aliens to be served; (f) the cost or 
estimated cost to be incurred; and (g) time parameters for service 
provision with a proviso that access to the funds could be extended 
without formal reapplication in the case of exigent circumstances.
    Response: The specific procedures recommended would be a sound and 
welcome way for a State or local government to present its request for 
funding, but the regulation has not been amended to require adherence 
to those specific procedures. The flexible application process 
prescribed in the regulation is sufficiently specific without being 
unduly burdensome in the information requirements or overly confining 
in the formal requirements of the application. The rule has been 
amended to allow the Attorney General to use the grant or cooperative 
agreement process to provide funding, in addition to negotiating a 
separate reimbursement agreement. Accordingly, State and local 
governments may also use standard grant applications. The informal 
communication recommended by the commentator is already included in the 
regulation at Sec. 65.85(b), and is strongly encouraged.
    Comment: The regulation is currently promulgated under 28 CFR part 
65, which is entitled ``Emergency Federal Law Enforcement Assistance.'' 
The regulation should be retitled to reflect the overall intent of the 
statute and the contents of the regulation more accurately.
    Response: This change has not been adopted. The regulation remains 
codified under 28 CFR part 65. However, subpart I is entitled 
``Immigration Emergency Fund,'' and the Department will consider 
redesignating the regulation in the future.

Procedural Matters

    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule does not have a significant adverse economic impact on a 
substantial number of small entities. This rule is promulgated in 
accordance with the principles set forth in Executive Order 12866, and 
the Department considers the rule a ``significant regulatory action'' 
within the meaning of section 3(f) of E.O. 12866. Accordingly, the rule 
has been reviewed by the Office of Management and Budget (``OMB'').
    The regulation adopted herein will not have substantial direct 
effects 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, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.
    The information collection requirements contained in this rule have 
been cleared by OMB under the provisions of the Paperwork Reduction 
Act. The OMB clearance number is 1115-0184.

List of Subjects in 28 CFR Part 65

    Grant programs--law, Law enforcement, Reporting and recordkeeping 
requirements.

    Accordingly, part 65 of chapter I of title 28 of the Code of 
Federal Regulations is amended as follows:

PART 65--[AMENDED]

    1. The authority citation for part 65 is revised to read as 
follows:

    Authority: The Comprehensive Crime Control Act of 1984, Title 
II, Chap. VI, Div. I, Subdiv. B, Emergency Federal Law Enforcement 
Assistance, Pub. L. 98-473, 98 Stat. 1837, Oct. 12, 1984 (42 U.S.C. 
10501 et seq.); 8 U.S.C. 1101 note; Sec. 610, Pub. L. 102-140, 105 
Stat. 832.

    2. Part 65 is amended by adding a new subpart I to read as follows:

Subpart I--Immigration Emergency Fund

65.80  General.
65.81  General definitions.
65.82  Procedure for requesting a Presidential determination of an 
immigration emergency.
65.83  Assistance required by the Attorney General.
65.84  Procedures for the Attorney General seeking State or local 
assistance.
65.85  Procedures for State or local governments applying for 
reimbursement.

Subpart I--Immigration Emergency Fund


Sec. 65.80  General.

    The regulations of this subpart set forth procedures for 
implementing section 404(b) of the Immigration and Nationality Act 
(``INA''), 8 U.S.C. 1101 note, by providing for Presidential 
determinations of the existence of an immigration emergency, and for 
payments from the Immigration Emergency Fund to State and local 
governments for assistance provided in meeting an immigration 
emergency. The regulations of this subpart also establish procedures by 
which the Attorney General may draw upon the Immigration Emergency 
Fund, without a Presidential determination that an immigration 
emergency exists, to provide funding to State and local governments for 
assistance provided as required by the Attorney General in certain 
specified circumstances.


Sec. 65.81  General definitions.

    As used in this part:
    Assistance means any actions taken by a State or local government 
directly relating to aiding the Attorney General in the administration 
of the immigration laws of the United States and in meeting urgent 
demands arising from the presence of aliens in the State or local 
government's jurisdiction, when such actions are taken to assist in 
meeting an immigration emergency or under any of the circumstances 
specified in section 404(b)(2)(A) of the INA. Assistance may include, 
but need not be limited to, the provision of large shelter facilities 
for the housing and screening of aliens, and, in connection with these 
activities, the provision of such basic necessities as food, water 
clothing, and health care.
    Immigration emergency means an actual or imminent influx of aliens 
which either is of such magnitude or exhibits such other 
characteristics that effective administration of the immigration laws 
of the United States is beyond the existing capabilities of the 
Immigration and Naturalization Service (``INS'') in the affected area 
or areas. Characteristics of an influx of aliens, other than magnitude, 
which may be considered in determining whether an immigration emergency 
exists include: the likelihood of continued growth in the magnitude of 
the influx; an apparent connection between the influx and increases in 
criminal activity; the actual or imminent imposition of unusual and 
overwhelming demands on law enforcement agencies; and other similar 
characteristics.
    Other circumstances means a situation that, as determined by the 
Attorney General, requires the resources of a State or local government 
to ensure the proper administration of the immigration laws of the 
United States or to meet urgent demands arising from the presence of 
aliens in a State or local government's jurisdiction.


Sec. 65.82  Procedure for requesting a Presidential determination of an 
immigration emergency.

    (a) The President may make a determination concerning the existence 
of an immigration emergency after review of a request from either the 
Attorney General of the United States or the chief executive of a State 
or local government. Such a request shall include a description of the 
facts believed to constitute an immigration emergency and the types of 
assistance needed to meet that emergency. Except when a request is made 
by the Attorney General, the requestor shall file the original 
application with the Office of the President and shall file copies of 
the application with the Attorney General and with the Commissioner of 
INS.
    (b) If the President determines that an immigration emergency 
exists, the President shall certify that fact to the Judiciary 
Committees of the House of Representatives and of the Senate.


Sec. 65.83  Assistance required by the Attorney General.

    The Attorney General may request assistance from a State or local 
government in the administration of the immigration laws of the United 
States, or in meeting urgent demands where the need for assistance 
arises because of the presence of aliens in that State or local 
jurisdiction, and may provide funding to a State or local government 
relating to such assistance from the Immigration Emergency Fund, 
without a Presidential determination of an immigration emergency, in 
any of the following circumstances:
    (a) An INS district director certifies to the Commissioner of INS, 
who shall, in turn, certify to the Attorney General, that the number of 
asylum applications filed in that INS district during the relevant 
calendar quarter exceeds by at least 1,000 the number of such 
applications filed in that district during the preceding calendar 
quarter. For purposes of this paragraph, providing parole at a point of 
entry in a district shall be deemed to constitute an application for 
asylum in the district.
    (b) The Attorney General determines that there exist circumstances 
involving the administration of the immigration laws of the United 
States that endanger the lives, property, safety, or welfare of the 
residents of a State or locality.
    (c) The Attorney General determines that there exist any other 
circumstances, as defined in Sec. 65.81 of this subpart, such that it 
is appropriate to seek assistance from a State or local government in 
administering the immigration laws of the United States or in meeting 
urgent demands arising from the presence of aliens in a State or local 
jurisdiction.


Sec. 65.84  Procedures for the Attorney General seeking State or local 
assistance.

    (a) When the Attorney General determines to seek assistance from a 
State or local government under Sec. 65.83 of this subpart or when the 
President has determined that an immigration emergency exists, the 
Attorney General shall negotiate the terms and conditions of that 
assistance with the State or local government, and shall set forth 
those terms and conditions. Funding related to such assistance can be 
provided by a reimbursement agreement, grant, or cooperative agreement.
    (b) A reimbursement agreement shall contain the procedures under 
which the State or local government is to obtain reimbursement for its 
assistance. A reimbursement agreement shall include the title of the 
official to whom claims are to be submitted, the intervals at which 
claims are to be submitted, a description of the supporting 
documentation to be submitted, and any limitations on the total amount 
of reimbursement that will be provided. Grants and cooperative 
agreements shall be made and administered in accordance with the 
uniform procedures in Part 66 of this title.
    (c) In exigent circumstances, the Attorney General may agree to 
provide funding to a State or local government without a written 
agreement. A reimbursement agreement, grant, or cooperative agreement 
conforming to the specifications in this section shall be reduced to 
writing as soon as practicable.


Sec. 65.85  Procedures for State or local governments applying for 
funding.

    (a) In the event that the chief executive of a State or local 
government determines that any of the circumstances set forth in 
Sec. 65.83 of this subpart exists, he or she may pursue the procedures 
in this section to submit to the Attorney General an application for a 
reimbursement agreement, grant, or cooperative agreement as described 
in Sec. 65.84 of this subpart.
    (b) The Department strongly encourages chief executives of States 
and local governments, if possible, to consult informally with the 
Attorney General and the Commissioner of INS prior to submitting a 
formal application. This informal consultation is intended to 
facilitate discussion of the nature of the assistance to be provided by 
the State or local government, the requirements of the Attorney 
General, if any, for such assistance, the costs associated with such 
assistance, and the Department's preliminary views on the 
appropriateness of the proposed funding.
    (c) The chief executive of a State or local government shall submit 
an application in writing to the Attorney General, and shall file a 
copy with the Commissioner of INS. The application shall set forth in 
detail the following information:
    (1) The name of the jurisdiction requesting reimbursement;
    (2) All facts supporting the application;
    (3) The nature of the assistance which the State or local 
government has provided or will provide, as required by the Attorney 
General, for which funding is requested;
    (4) The dollar amount of the funding sought;
    (5) A justification for the amount of funding being sought;
    (6) The expected duration of the conditions requiring State or 
local assistance;
    (7) Information about whether funding is sought for past costs or 
for future costs;
    (8) The name, address, and telephone number of a contact person 
from the requesting jurisdiction.
    (d) If the Attorney General determines that the assistance for 
which funding is sought under paragraph (c) of this section is 
appropriate under the standards of this subpart, the Attorney General 
may enter into a reimbursement or cooperative agreement or may make a 
grant in the same manner as if the assistance had been requested by the 
Attorney General as described under Sec. 65.84 of this subpart.
    (e) The Attorney General will consider all applications from State 
or local governments until the Attorney General has expended the 
maximum amount authorized in section 404(b)(2)(B) of the INA. The 
Attorney General will make a decision with respect to any application 
submitted under this section, and containing the information described 
in paragraph (c) of this section, within 15 calendar days of receipt of 
such application.
    (f) In exigent circumstances, the Attorney General may waive the 
requirements of this section concerning the form, contents, and order 
of consideration of applications, including the requirement in 
paragraph (c) of this section that applications be submitted in 
writing.

    Dated: June 8, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-14440 Filed 6-13-94; 8:45 am]
BILLING CODE 4410-01-M