[Federal Register Volume 59, Number 193 (Thursday, October 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24674]
[[Page Unknown]]
[Federal Register: October 6, 1994]
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DEPARTMENT OF JUSTICE
Bureau of Justice Assistance
28 CFR Part 82 [New]
State Criminal Alien Assistance Program
AGENCY: Department of Justice, Office of Justice Programs, Bureau of
Justice Assistance (BJA).
ACTION: Interim rule.
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SUMMARY: The Department of Justice Appropriations Act, 1995, Title VIII
of Public Law 103-317, allocates $130 million for the State Criminal
Alien Assistance Program which provides federal assistance to the
States for costs incurred for the imprisonment of any illegal alien who
is convicted of a felony by the State. The Act also prescribes that
regulations governing this program should be promulgated. This interim
final rule provides information regarding State eligibility and
guidelines for the program.
DATES: This Interim Rule is effective on October 6, 1994; comments on
this rule must be received on or before December 5, 1994.
The initial application from those States eligible for a
preliminary award must be submitted by November 30, 1994. Final
applications from all States must be submitted by September 30, 1995.
ADDRESSES: Comments may be mailed to: The Office of Justice Programs,
Office of the General Counsel, 633 Indiana Avenue NW., Rm. 1245,
Washington, DC 20531. Applications and all accompanying data should be
sent to the Bureau of Justice Assistance Control Desk, 633 Indiana
Avenue, NW., Washington, DC 20531. All data must be transmitted either
electronically or in hard copy.
FOR FURTHER INFORMATION CONTACT: Curtis H. Straub, Bureau of Justice
Assistance, State and Local Assistance Division, Office of Justice
Programs, 633 Indiana Avenue NW., 10th Floor, Washington, DC 20531,
(202) 514-6638.
SUPPLEMENTARY INFORMATION: The following supplementary information is
provided:
Statutory Authority
This interim rule provides regulatory guidance in accordance with
the Department of Justice Appropriations Act, 1995, Title VIII of Pub.
L. 103-317, 108 Stat. 1724, 1778 (``Appropriation Act''), which
provides $130 million for the State Criminal Alien Assistance Program
for Fiscal Year 1995. Section 501 of the Immigration Reform and Control
Act of 1986 (IRCA), as amended (8 U.S.C. 1365), authorizes the Attorney
General to reimburse the States for costs associated with the
incarceration of illegal criminal aliens.
Title II, subtitle C, section 20301, of the Violent Crime Control
and Law Enforcement Act, Pub. L. 103-322, which amends section 242 of
the Immigration and Nationality Act (8 U.S.C. 1252), also authorizes
reimbursement to State and local governments for the costs associated
with incarceration of undocumented criminal aliens, and authorizes, as
well, the option of federal incarceration of such criminals.
The program authorized by the Crime Bill, though similar to section
501 of IRCA, differs in certain respects. One issue raised by the
differences among the two statutes is whether local governments can
apply for reimbursement. The Crime Bill language authorizes
reimbursement to State and local governments. However, the
Appropriations Act only provides reimbursement to States. The
Appropriations Act provided funding for FY 1995 only for State
reimbursement pursuant to section 501 of IRCA. No funding has yet been
provided for the program authorized by the Crime Bill. Accordingly, the
interim rule only implements the Appropriations Act and section 501 of
IRCA. When funding is made available in the future to implement the
Crime Bill Program, this rule will be amended to effectuate it.
The Appropriations Act provides that one-third of the funds must be
distributed within 120 days of the start of the fiscal year and that
final applications be received from all States by September 30, 1995.
In addition, regulations prescribing the distribution of these sums
must be promulgated to govern the process. These regulations must:
(a) Prescribe requirements for program participation eligibility
for States;
(b) Require verification by States of the eligible incarcerated
population with the Immigration and Naturalization Service (INS);
(c) Prescribe a formula for distributing assistance to eligible
States; and,
(d) Award assistance to eligible States.
Background
The presence of illegal criminal aliens in this country has
presented a formidable challenge to State law enforcement officials and
policy makers. Some States with disproportionate numbers of
undocumented aliens have been particularly challenged by this
population in light of crowded State prison facilities, which have made
it exceedingly difficult to keep up with the burdens of incarcerating
these individuals.
BJA commissioned a study, conducted by the Urban Institute,
entitled ``Fiscal Impacts of Undocumented Aliens: Selected Estimates
for Seven States'' (1994), which focused on the seven States in which
the largest majority of aliens are concentrated (Arizona, California,
Florida, Illinois, New Jersey, New York, Texas) and that are most
affected by illegal immigration. The study estimates that incarcerated
illegal aliens number 21,215 in these States. California alone,
according to this study, had 71% of all these incarcerated aliens. The
Urban Institute study also estimates the numbers and costs per State of
incarcerating illegal criminal aliens. The Study will be used to make
preliminary distribution of funds as is explained below.
Aliens covered by the program are defined within the authorizing
legislation and this regulation in some detail. Essentially the term
refers to foreign-born persons who entered the United States without
inspection or who entered the United States legally as non-immigrants,
but whose period of authorized stay expired before commission of the
crime for which they are incarcerated. Only those illegal aliens
convicted of a felony are included.
In keeping with the mandate that one-third of the funds be
distributed within the first 120 days, BJA will make an initial award
to the seven States covered in the Urban Institute Study based on the
estimates contained in the study. The rationale for this initial
procedure, described in more detail hereafter, is that use of an
independent estimate of number of aliens and cost of incarceration will
allow an equitable but quick calculation of partial award amounts for
these States, without need to await the type of substantial
documentation necessary for final awards, as described herein. The
known burden upon their correctional systems due to criminal aliens
justifies immediate assistance to these seven States.
No reliable estimates are available for other potential applicants,
but the overall administration plan described herein will result in an
equitable distribution of FY 1995 funds to all eligible applicants on a
reimbursement basis.
Final awards will be made to all States after the close of FY 1995
based on verified numbers of illegal criminal aliens and costs. All
States, the District of Columbia, Guam, the Commonwealth of Puerto
Rico, and the Virgin Islands (hereafter included in the term ``State'')
would be eligible for these final awards. All awards will be calculated
against the total amount of $130 million (as a proportion of actual
cost) with any amounts initially awarded being subtracted from final
awards to the same applicants.
In following years, when appropriations are made, one award cycle
after the close of the fiscal year will be based on each State's
documentation of that year's number of illegal criminal aliens and
costs of incarceration.
Each State is asked to designate an administrative agency, which
would presumably be their Department of Corrections, but can be any
other State agency. All States must submit applications within the
prescribed time periods to receive awards pursuant to this program. The
application must conform with the requirements set out below. Each
State will receive a proportion of total costs expended each year on
the incarceration of an illegal alien. The formula will be based on the
number of States that wish to participate in this program and the
figures submitted in their applications.
BJA, in cooperation with INS, will work together to ensure that all
information submitted is verified and supports the final awards made.
Comment is particularly solicited on the issue of whether or not
the definition of custody in Sec. 82.3 should be expanded to include
local/county facilities which are housing criminal alien felons as
defined herein. Should the coverage of this program be so expanded, the
State would remain the primary Grantee and would be responsible for
administering or sub-granting funds to local entities for program
purposes. Also, comments on the verification provisions in Section 82.8
are especially welcomed.
Administrative Requirements
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. This
rule is a ``significant regulatory action'' under Executive Order
12866, section 3(f), Regulatory Planning and Review, and accordingly
this rule has been reviewed by the Office of Management and Budget.
The Director, BJA, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities.
The information collection requirement contained in this rule has
been cleared by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3504(h). The OMB
control number for this collection is 1121-0183.
This regulation is being published as an interim final rule,
without prior publication of notice and comment, and is made effective
immediately, for good cause as explained below. Under 5 U.S.C.
553(a)(2), matters relating to grants are exempted from notice and
comment requirements. Moreover, in this case, advance notice and
comment would be impractical, unnecessary, and contrary to the public
interest in the prompt implementation of this grant program. The
Appropriations Act requires that the first one-third of the available
funds must be distributed by January 1995. In order to comply with that
requirement, these regulations must be effective immediately so that
eligible states can apply for the preliminary grants. Publishing a
notice of proposed rulemaking and awaiting receipt of comments would
delay significantly the implementation of this grant program. Such
delay would be contrary to the public interest and would contradict the
Congressional intent to provide immediate grant assistance to the
states most impacted by the cost of incarcerating illegal aliens.
However, BJA is very interested in receiving public comment on all
aspects of this program and will consider all such comments fully in
preparing a final rule.
List of Subjects in 28 CFR Part 82
Grant programs--aliens, Prisons.
For the reasons set out in the preamble, Title 28, Chapter I, of
the Code of Federal Regulations is amended by adding a new part 82 as
set forth below.
PART 82--STATE CRIMINAL ALIEN ASSISTANCE PROGRAM REGULATIONS
Sec.
82.1 Purpose.
82.2 Reimbursement of States.
82.3 Definitions.
82.4 Allocation and use of funds.
82.5 Method for calculating distribution of funds.
82.6 Preliminary awards.
82.7 Full application and final award process.
82.8 Verification of applicant information and monitoring.
Authority: 8 U.S.C. 1365, Public Law 103-317.
Sec. 82.1 Purpose.
The purpose of this part is to set out regulations and procedures
governing the distribution of funds appropriated by Congress pursuant
to the standards of Public Law 103-317 and to section 501 of the
Immigration Reform and Control Act of 1986 (IRCA), (8 U.S.C. 1365), to
provide assistance to the States for the cost of incarceration of
illegal criminal aliens.
Sec. 82.2 Reimbursement of States.
Under section 501 of IRCA, the Attorney General shall reimburse any
State which applies for a grant for the costs incurred by the State for
the incarceration of any illegal criminal alien who is convicted of a
felony by such State, to the extent an appropriation is made for such a
purpose for any fiscal year. This program will be administered by the
Bureau of Justice Assistance (BJA).
Sec. 82.3 Definitions.
(a) Illegal criminal alien means an alien who has been convicted of
a felony and is in the custody of a State; and who:
(1) Entered into the United States without inspection or at any
time or any place other than as designated by the Attorney General; or
(2) Was admitted as a nonimmigrant and before the date of the
commission of the crime had failed to maintain the nonimmigrant status
in which the alien was admitted or to which it was changed under
section 248 of Immigration and Nationality Act (8 U.S.C. 1258), or to
comply with the conditions of any such status; or
(3) Is a Mariel Cuban as defined in Section 501 of IRCA.
(b) State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands
of the United States.
(c) Compensation means the pro-rata average cost of incarcerating
the alien in the relevant State as documented by the State.
(d) Cost means routine operating expenses, as generally defined and
used by the Bureau of the Census and the Bureau of Justice Statistics
(BJS) for reporting purposes. See, e.g., ``Census of State and Federal
Correctional Facilities, 1990.'' Capital expenses, expenses reimbursed
by other Federal funds, and other non-routine costs should be
eliminated from the baseline for per bed estimates.
(e) Custody means any State correctional facility for the
confinement or rehabilitation of individuals convicted of criminal
offenses within the State.
(f) Reimbursement period means the federal fiscal year, October 1
through September 30, for which an appropriation is made.
Sec. 82.4 Allocation and use of funds.
(a) The program will reimburse the States for partial expenses
incurred by them for criminal aliens incarcerated in facilities within
the State during the reimbursement period. The State shall designate an
administrative agency to administer the program. A budget or
expenditure plan is not required, as the award will be used solely for
reimbursement purposes. Matching funds are not required.
(b) Awards will be based on the average number of aliens
incarcerated by each applicant during the reimbursement period
multiplied by the average inmate cost per year, divided into the
appropriation for that reimbursement period. Each State will receive
the same percentage of actual cost. In FY 1995, Congress has
appropriated a total of $130 million for the purpose of making grants
to States.
(c) Reimbursement will be based on an average of four one-day
counts of individual aliens housed by the State during the
reimbursement period (i.e., one year). These four counts must fall
within the period from October 1 through September 30 of the
reimbursement year and be evenly spaced. For example, for this fiscal
year 1995, counts could be November 15, 1994 and February 15, May 15
and August 15, 1995 or December 23, 1994, and March 24, June 23, and
September 22, 1995.
(d) Applicants are expected to provide some narrative explanation
of the method used for these counts and the type of records underlying
the counts. BJA will consult with the Immigration and Naturalization
Service (INS) in determining the validity of the applicant's average
alien count.
(e) Each State's application narrative must also provide an average
cost per bed space, per year, supported by descriptive information
indicating how these actual costs of incarceration, incurred during the
period for which they are seeking reimbursement, were derived. This
method takes into account the widely varying costs of incarceration in
the different States. BJA will consult with BJS in determining the
validity of applicant's average inmate costs per year.
(f) If a State uses a fiscal year different than the Federal fiscal
year (October 1 to September 30), the State may use cost of
incarceration calculations based upon its own fiscal year calculations.
The reimbursement period, however, will still be based on the Federal
fiscal year, and the four one-day counts of individual aliens pursuant
to paragraph (c) of this action should fall within the reimbursement
period.
(g) In addition each State will be asked to provide specific
information on each individual alien included in any one of the four
one-day counts. An unduplicated listing containing this information
must be provided in hard copy and should also be provided in an
automated data entry format, if possible. The following information
should be provided:
(1) Name (last name first).
(2) AKA (also known as) and full surnames.
(3) Alien Identification number (e.g., A24 456 789) if any.
(4) Social Security number, if any.
(5) Inmate Number.
(6) Date of Birth.
(7) Place of Birth.
(8) Primary Conviction Offense and Longest Sentence Imposed.
(9) Probable Earliest Release Date.
(10) Incarcerating Facility.
(11) INS Detainer Number, if any.
Sec. 82.5 Method for calculating distribution of funds.
(a) Assistance amounts will be calculated on a pro rata or
proportional share of actual costs of incarceration as borne by the
State. That is, there will not be a national average payment per alien
or bed space, but rather a percentage, applied across the board, to
each State's actual costs for each bed space filled. This percentage
will depend on the total amount of the appropriation by Congress for
the fiscal year and the total amount of actual costs incurred by all
applying States during the reimbursement period.
(b) The ``formula'' thus becomes: State A's average number of
aliens incarcerated that year times its average cost for a bed space
filled by any prisoner during that year plus State B's average number
of aliens incarcerated that year times its average cost for a bed
spaces filled by any prisoner during that year plus State C's * * *,
etc., for all applicant States. This provides a total dollar amount of
all assistance requested. The actual appropriation provided for the
fiscal year divided by that total dollar amount provides a ratio or
percentage, e.g., 15% or 25%, which is then applied to each State's
total request to calculate their actual award amount. It is not
anticipated that the FY 1995 appropriation will allow 100%
reimbursement of actual costs. However, each State will receive the
same percentage of actual costs as all others.
Sec. 82.6 Preliminary awards.
(a) During FY 1995, this first year of the program, in keeping with
the Congressional directive to make one-third of the funds available as
soon as possible, a preliminary award will be made to some States. A
preliminary award amounting to approximately one-third of the funds
available will be made to applicants from the States named below, if
their applications are received by BJA by November 30, 1994.
Application should be made on the Federal Standard Form 424, and
include all assurances and certifications required by law. BJA will
provide applicants with these forms as necessary. An original and three
copies of the application are required.
(b) While the amount of these preliminary awards will not be based
on actual information provided by the seven States, applicants are
requested to provide in their application brief descriptive information
on: Their overall alien problem as it burdens their correctional
system; their method of determining which inmates are undocumented
aliens within the meaning of this regulation; currently available
estimates of the incarcerated criminal aliens population, in terms of
bed spaces, if possible; currently available cost per bed figures; and,
the methods to be used to provide inmate specific information, as
described in these regulations, to the granting agency. In particular,
the applicant should address its ability to provide the types of data
elements for individual aliens that are specified in the regulation,
and its ability to provide this information in electronic form.
(c) These types of information will enable BJA to plan with greater
certainty for the final award process and to work with INS and these
applicant States during the period of time between preliminary and
final award to establish verification mechanisms which will ensure a
proper final distribution of funds.
(d) The amounts of these preliminary awards have been calculated
solely on estimates of eligible aliens and costs provided in the
recently released Urban Institute report, ``Fiscal Impact of
Undocumented Aliens: Selected Estimates for Seven States,'' (1994),
which was commissioned by BJA. This report contains reliable estimates
for the numbers and costs of incarcerating illegal criminal aliens in
the seven States with the highest percentage of illegal aliens.
Reliance on this report enables BJA to award the one-third of the $130
million, as is statutorily required to be distributed within 120 days
from the start of the fiscal year, in a timely and reasonable fashion.
However, the final awards for these, and any other applicant, States
will be based on actual counts and other information provided by the
applicant States themselves, as verified by BJA and INS.
(e) Preliminary awards, in the following amounts, calculated from
estimates in the Urban Institute Study using the method described
previously in this regulation, will be made to the following States no
later than January 27, 1995:
------------------------------------------------------------------------
Aliens in
State Award amount custody
------------------------------------------------------------------------
Arizona...................................... $991,900 950
California................................... 33,460,700 15,109
Florida...................................... 1,073,800 758
Illinois..................................... 564,200 348
New Jersey................................... 600,600 285
New York..................................... 4,085,900 2,158
Texas........................................ 2,120,300 1,607
------------------------------------------------------------------------
(f) These awards total $42,897,400, or one-third of the available
appropriation. The Urban Institute estimates of costs incurred by the
seven States is $471.4 million, which when divided into one-third of
the available appropriation gives a distribution percentage of 27.3%.
The preliminary awards are based solely on the Urban Institute
estimates for the seven States and do not take into account the
possible distributions to other States, which may together constitute
10-15% of all incarcerated criminal aliens eventually identified for
which reimbursement will be made. Accordingly, this preliminary
calculation is not predictive of the percentage of total costs which
will be reflected in final award for these States.
(g) At the end of the reimbursement period, recipients of the
initial round of awards will be expected to file all information
described within this regulation, based on actual full year counts and
averaged costs. The final award amount for these seven States will be
adjusted to subtract their preliminary award amounts from remaining
funds.
Sec. 82.7 Full application and final award process.
(a) A final application cut-off date of September 30, 1995, will be
used for applications seeking full year reimbursement for FY 1995
funds. All interested States, including the seven receiving the
preliminary distribution, must make application by this date to receive
an award. An original and three copies of the application are required.
However, only one hard copy report of the inmate identification
measures described herein need be submitted. If possible, the inmate
identification data should also be submitted in machine readable form,
with necessary documentation to assist BJA and INS in using this
electronic data.
(b) States not eligible for a preliminary award that do want to
participate in this assistance program should provide BJA with a Notice
of Intent to Apply, by letter or preliminary application, no later than
April 30, 1995. Preliminary estimates of numbers of bed slots and costs
and brief descriptive information such as described for the initial
applications from the seven named States would be appreciated, as this
will allow BJA to better plan for the final award process.
(c) As soon as possible after all final applications are received,
BJA will determine award amounts for each applying State, based upon
the available funds and the costs incurred by the States, pursuant to
Sec. 82.5. For FY 1995, the final percentage will be applied to the
full appropriation of $130,000,000 (less one percent administrative
costs) made available for the fiscal year, and the amount of the
preliminary awards to the States pursuant to Sec. 82.6 will be
subtracted from the final award to those States. Awards will be made as
expeditiously as possible, dependant on the verification process as
described herein.
(d) All State applicants must submit Standard Form 424 (Application
for Federal Assistance), including all necessary assurances and
certifications and a certified listing of incarcerated illegal criminal
alien prisoners. Participants in this program will be required to
provide: information on average number of aliens incarcerated, actual
identifiers for these aliens, and average cost per bed space for the
period for which assistance is being sought.
(e) Each application must contain all the information discussed in
this regulation. A certification form, available from BJA, will be used
to provide the total numbers and average per bed costs upon which the
final application for reimbursement is based. This certification does
not relieve the applicant from providing sufficient narrative detail
about its recordkeeping and cost calculation processes to support and
justify the amount of assistance sought. The certification will be sent
to all potential applicants who file a Notice of Intent to Apply with
BJA as well as to the initial seven applicants.
(f) In addition to certification of some information and
description of the methods for calculations made, the applicant is
expected to provide both hard copy and, if possible, electronically
readable information on all aliens included in the one detailed listing
pursuant to Sec. 82.4(g) reimbursement counts. This unduplicated
listing of all aliens identified must be certified by the head of the
designated State agency or one of his or her authorized
representatives.
(g) All applicants should be aware that the percentage used in
making the preliminary awards to the seven States will not be the same
as that determined after all States' applications are received, total
requests based on final inmate counts and bed space calculations are
made, and the BJA/INS verification process is concluded. At that point,
the percentage upon which final distribution is made is expected to be
significantly lower than 27%.
Sec. 82.8 Verification of applicant information and monitoring.
(a) In reviewing the applications from the States, numbers and cost
figures given, as documented by the State's procedures used to obtain
that information, will be subject to verification and possible
adjustment by BJA. BJA will consult with INS on cost calculations and
on both overall counts of the average number of aliens and on adequacy
of individual inmate identifiers. BJA will share both application
information and inmate information with INS to allow INS to work
directly with the applicant agencies to assure proper identification of
criminal aliens and to begin deportation procedures, as appropriate.
Award acceptance will be conditioned on the applicant's agreement to
cooperate fully with INS in matters related to this assistance program.
(b) It is anticipated that INS field staff, with or independently
of BJA staff, will undertake on-site reviews with selected applicant
agencies, to assist in properly identifying aliens as defined in the
regulations and statutes. Applicants will be expected to provide
documentation on inmates counted whose status is questioned.
(c) It is unlikely that INS verification will be fully developed
prior to the distribution of the preliminary awards pursuant to
Sec. 82.6. Rather, this will be an ongoing process in which developing
better systems of alien identification and making individual
verifications will be a major goal.
(d) The application should contain an official designation from the
chief executive officer of the State naming the applicant as the State
agency to receive the award.
Jack A. Nadol,
Acting Director, Bureau of Justice Assistance.
[FR Doc. 94-24674 Filed 10-5-94; 8:45 am]
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