Emergency Federal Law Enforcement Assistance: Immigration Emergency Fund

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]

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