[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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