State Criminal Alien Assistance Program

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

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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

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(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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