State Criminal Alien Assistance Program

DEPARTMENT OF JUSTICE

Office of Justice Programs

[OJP(BJA)-1116]

RIN 1121-ZA62

State Criminal Alien Assistance Program

AGENCY: Office of Justice Programs, Bureau of Justice Assistance,

Justice.

ACTION: Notice of final guidance and application information.

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SUMMARY: This notice is to announce funding availability and final

guidance on the application process for States and political

subdivisions to obtain reimbursement for the incarceration of

undocumented criminal aliens under the State Criminal Alien Assistance

Program.

DATES: Application forms and supporting information will be mailed

directly to eligible applicants on or before June 30, 1997;

applications must be postmarked no later than August 30, 1997.

ADDRESSES: Applications should be submitted to the Bureau of Justice

Assistance Control Desk, Office of Justice Programs, 633 Indiana

Avenue, NW., Washington, DC 20531.

FOR FURTHER INFORMATION CONTACT: Linda James McKay, SCAAP Coordinator,

State and Local Assistance Division, Bureau of Justice Assistance, or

the Department of Justice Response Center, 1-800-421-6770 or 202-307-

1480.

SUPPLEMENTARY INFORMATION: The following supplementary information is

provided:

I. Background

A. Proposed Guidance

The State Criminal Alien Assistance Program (SCAAP) provides

reimbursement to States and localities for costs incurred in

incarcerating undocumented criminal aliens. The program is administered

by the Bureau of Justice Assistance (BJA), a part of the Office of

Justice Programs (OJP) in the Department of Justice, in conjunction

with the Immigration and Naturalization Service (INS), which is

responsible for verifying the undocumented criminal alien status of all

individuals for whom records are submitted.

A notice of proposed guidance on the application process and

eligibility criteria for States and political subdivisions to obtain

reimbursement under SCAAP was published in the Federal Register on

March 18, 1997 (62 FR 12848). In that notice, BJA solicited comments on

the application procedures outlined therein. In this notice BJA

responds to public comments and provides the final guidance on

application procedures. However, actual application forms, including

preprogrammed diskettes for filing information electronically, will be

mailed directly to correctional agencies in eligible States and

political subdivisions by June 30, 1997.

B. Statutory Authority and Agency Administration

SCAAP is authorized by section 241 of the Immigration and

Nationality Act of 1990, as amended, 8 U.S.C. 1251(i). The Fiscal Year

(FY) 1997 Omnibus Appropriations Act, Pub. L. 104-208, 110 Stat. 3009

(September 30, 1996) amended the authorization for SCAAP in FY 1996,

redesignating section 242 of the INA as section 241 (codified at 8

U.S.C. 1251(i); 8 U.S.C.A. 1231(i)) and making changes to the

characterization of ``undocumented criminal alien.'' These changes are

discussed below and incorporated into this final guidance.

Section 241 gives the Attorney General the discretion, in the event

of an appropriation, to either reimburse States and localities for

costs incurred in incarcerating qualifying criminal aliens or to take

such aliens into Federal custody. For FY 1997, the Attorney General has

exercised her discretion to reimburse by delegating the authority

[[Page 35225]]

(through the Assistant Attorney General for the Office of Justice

Programs) to the Bureau of Justice Assistance (BJA) to implement the

program. BJA is a criminal justice grant making and administrative

agency within the Department of Justice. It is only authorized to award

and administer criminal justice grants and, thus, has no ability to

take custody of undocumented criminal aliens being held at the State

and local levels. Therefore, SCAAP is being administered as a

reimbursement program. For FY 1997, $500,000,000, less administrative

costs, is available for reimbursement payments under SCAAP.

C. Importance of Collecting Data on Aliens

As stated in the notice of proposed guidance, BJA has a

responsibility to gather sufficient information to verify alien status

and otherwise ensure that the data underlying its awards are complete

and accurate. BJA has attempted throughout its administration of SCAAP

to balance the burden on applicants to provide information relevant to

and supportive of their claims for awards with the need to ensure that

funds are being distributed in accordance with statutory criteria. To

that end, in its first two years of operation, BJA has allowed

applicants to provide, in good faith and on certification, limited data

to support the eventual distribution of award funds.

As the program matures and appropriation levels for SCAAP increase,

the focus of the program must move, as Congress intended, to

reimbursing and verifying on an individual basis rather than continued

reliance upon obtaining only partial or estimated information that may

be easier for the applicants to provide. Thus, while BJA has been

guided by the comments received to its proposed application

requirements to ask only for what is essential for applicants to

provide this year, we must adhere to requirements that further the

longer term goal of an application process which collects information

on individual incarcerated aliens using standardized coding schemes in

easily retrievable electronic form.

Therefore this year, because of a change in the law which greatly

expands the numbers and categories of incarcerated aliens who may be

counted, the applicant must provide information demonstrating the

requisite conviction level and type of offense for all aliens claimed

for reimbursement.

Further, a change in the manner in which applicants are reimbursed

for aliens for whom there is no positive match to INS records relieves

applicants of attempting to determine which inmates might be

reimbursable. This allows them to submit records for all suspected

alien inmates. INS will take the responsibility for ensuring that

aliens are properly identified and their status verified.

Most importantly, the continued reliance on a one-day count, which

provides only an estimate of bed spaces occupied by inmates who might

be qualifying aliens, as an equivalent option to a methodology that

leads to the actual identification of qualifying aliens, is no longer

acceptable. Therefore, BJA is asking all applicants to provide data on

as many aliens as they can determine were incarcerated in their

facilities during the one-year reporting period for this year's

reimbursement cycle; eligible applicants who cannot comply with this

requirement may use a one-day count taken at any point during the

application period. However, this method is likely to result in a much

lower level of reimbursement than would the use of the primary method.

Since aggregating the numbers of aliens housed throughout the year

will continue to be the method used for SCAAP, BJA strongly suggests

that all jurisdictions begin now to keep track of all foreign born

inmates entering and leaving their facilities, so that they may benefit

from SCAAP more completely in FY 1998.

D. Achieving Parity Between State and Local Applicants

A second goal for SCAAP this year, as suggested in the proposed

guidance, is to impose the same requirements on both the States and the

local subdivisions which apply. In the first year of SCAAP funding,

only State departments of corrections were eligible. However, when the

program was expanded last year to include local jails, some

distinctions were made between State applicants and local applicants.

This was based on the assumption of longer lengths of stay in State as

opposed to local institutions.

Although this distinction is reasonable as a rule of thumb, and

because there was some limited national data on lengths of stay for

sentenced felons housed in jails, BJA factored this distinction into

its formula in FY 1996 through the use of standardized lengths of stay

for inmates counted by those applicants choosing the one-day count

method. However, the lack of current, reliable data on lengths of stay

of all types of inmates in all types of correctional facilities cannot

support continued distinction among State and local agencies and BJA

cannot arbitrarily assign some standardized length of stay which is not

adequately supported by data and thus may be unduly favorable to one

type of applicant over another.

Therefore, beginning this year, both State and local applicants

will be expected to comply with the same requirements for SCAAP

application.

II. Comments Received and BJA Response

Responses were received from 10 State departments of corrections

and two county jail agencies. These responses addressed a number of

topics and led to some changes in the approach that BJA will take

during this year's distribution of SCAAP funds. In particular,

respondents were concerned that requirements had been added or prior

options restricted at the same time as the application period had been

shortened. While, BJA is bound by changes in the governing legislation

to add some restrictions and the proposed application period was not

significantly shorter than in the prior two cycles, BJA is acutely

aware of the increased amount of information required for the

application and has made modifications to accommodate applicants while

continuing to treat all eligible applicants fairly.

In particular, the need to ensure that applicants have a sufficient

amount of time to provide the necessary information (as set forth in

this announcement), has led BJA to extend the application period to 60

days and allow applicants to use their own offense coding system if use

of the FBI's NCIC codes is not feasible. However, as indicated in the

background section, BJA must ensure that the funds distribution model

described herein furthers the intent and goals of the legislation

governing this program.

The specific comments and BJA's response to them are as follows:

Foreign Country of Birth Information. Several comments concerned

the mandatory requirement to provide a foreign place of birth. In

particular, the comments were that it is the responsibility of INS to

determine alien status and place of birth is not necessary to this

determination; that place of birth information may be unreliable

because it is self-reported or because aliens will lie to avoid

possible deportation; that alien status may be suspected but the exact

foreign country is not known; and that inmates for whom no foreign

country of birth is given will be dropped completely from the numbers

claimed unless a positive match with INS records is made.

[[Page 35226]]

Response. BJA's clear responsibility under SCAAP is to reimburse

only for qualifying aliens. We do agree that only INS should determine

which inmates are aliens and which ones qualify for reimbursement under

the alien status categories listed in SCAAP law. Therefore, BJA asks

only that applicants demonstrate some reasonable basis that the inmates

they count and submit are potentially eligible by providing a foreign

country of birth. We have facilitated submission of this information by

allowing applicants to use their current data entry codes or

terminology and submit a data dictionary if place names are coded

rather than spelled out.

Further, BJA allows submission of records of inmates without

country of birth specified or even with U.S. birthplaces, if the

applicant has some reasonable basis for suspecting alien status,

although such submission are not encouraged and with the understanding

that, if there is no positive match, these records will be dropped.

Such inmates cannot be treated as ``unmatched aliens'' eligible for

reimbursement because we would be likely be reimbursing for inmates not

covered by the law. No change from the proposed requirements can be

made with regard to this requirement.

Qualifying Conviction Information. A number of comments were

received concerning the requirement for provision of information on the

conviction or convictions that qualify the alien inmate to be included

in the count. Specifically, some of those comments indicated that type

of qualifying conviction was not required for the purposes of alien

identification while others argued that since State institutions house

only felons, there was no need for additional proof of their

eligibility under this criteria (at least from State applicants). One

respondent indicated that this provision would require his institution

to obtain information on prior records which is not readily available

or is costly to obtain, and is frequently inaccurate. Another

questioned our definition of a felony. Eight respondents commented on

the proposed requirement to use the FBI's NCIC codes for identifying

offenses. The comments on NCIC coding primarily concerned lack of

sufficient time to do the reprogramming necessary to make the

conversion from the respondents' current offense coding schemes to NCIC

codes, rather than an inability to make the conversion.

Response. A change in the governing legislation, applicable to FY

1997 and future applications, dropped the requirement that all aliens

for which reimbursement was made be sentenced felons and instead allows

applicants to submit records for those inmates convicted of one felony

or two misdemeanors, regardless of whether sentences have been imposed.

Due to this major expansion in potential qualification of inmates for

reimbursement, and consistent with our overall goal of obtaining more

accurate and specific data on inmates for whom reimbursement is being

made, BJA strongly feels it must ask for the level and type of offense

that qualifies the inmate to be counted. The information requested has

been reduced from that first proposed, however, to ask only if the

qualifying conviction is a felony or two misdemeanors and what the

offense code is, for the most serious conviction about which the

applicant has information.

Further, for this award year, applicants will be allowed to use the

offense coding scheme they currently have in place, as long as they

submit a data dictionary (preferably in electronic form) which

indicates the actual offenses and their corresponding codes. Applicants

who can do so are strongly urged to use either the 2-digit or 4-digit

NCIC code, and all eligible applicants are notified that BJA intends to

move toward mandatory use of NCIC coding, perhaps as early as FY 1998.

Thus, jurisdictions should be taking this type of conversion into

account in their planning and systems programming.

With regard to which conviction offense should be coded, BJA will

not specify any hierarchy among offenses (other than to choose the most

serious if more than one qualifying conviction is known) nor set any

time limit within which such offense must have occurred. Any qualifying

conviction (one felony or the second misdemeanor) about which the

applicant has information can be used. Thus, applicants who have

limited information may rely on the ``controlling'' offense that

resulted in the incarceration (if conviction has already occurred), on

any known prior qualifying conviction, or on a qualifying conviction

occurring during the reporting period. If a qualifying conviction

exists, all of the time the inmate has been held in the applicant's

custody can be counted, regardless of when the conviction occurred or

whether or not a sentence of ``time served'' is subsequently imposed.

Although it is true that most State facilities house only felons,

some States and all local facilities house misdemeanants. Indeed, some

States run local facilities and others contribute to the costs of

running such facilities. Thus, there are many variants from the strict

State/local hierarchy suggested by some comments received. BJA feels

strongly the need to standardize the requirements placed on both

categories of applicants rather than to continue to make assumptions

more favorable and/or less burdensome to States than to local

applicants.

One applicant argued that the definition of ``felony'' should be

those offenses for which the possible sentence could be ``one year or

more'' rather than ``more than one year.'' The definition currently

used is consistent with normal Federal usage and is correct. It should

be noted, however, that this definition only applies if the applicant's

State law does not have any established definition of felony and is

applicable only to a few applicants.

Other inmate record requirements. One or more respondents had

comments (some negative and some positive) about several other proposed

inmate record requirements. One objected to the need for earliest

possible release date. Others commented on the option to provide

multiple records, generally indicating that they had no problem with

this option.

Response. The request for earliest possible release date has been

dropped. The option to submit multiple records for the same inmate is

retained because this option allows applicants great flexibility to

furnish additional identifying information on suspected criminal

aliens, which increases their chances of having positive matches to INS

records. Applicants may choose to submit only one record per inmate,

but they are encouraged to submit as many records for inmates with

legitimate indicators of alien status who have multiple names or dates

of birth as they can in a cost effective manner. Applicants are

reminded that multiple records must be traceable to a single inmate

through use of an unique inmate number, which is a required data

element.

Scope of alien coverage under the law. One respondent commented

that the criterion for reimbursement should be ``deportability'' and

another complained of the failure to automatically include ``Mariel

Cubans.''

Response. BJA's criteria for inmate qualification and alien

reimbursability come from a plain reading of the governing legislation.

Therefore, while this program addresses criminal aliens, it does not

provide reimbursement for every type of deportable alien, only for

those who are clearly designated within the categories listed in the

law itself. In particular, the inclusion or exclusion of ``Mariel

Cubans'' under SCAAP is of concern to some applicants. A clear

[[Page 35227]]

reading of the statute does not recognize ``Mariel Cubans'' as a

distinct category; thus, those aliens who might fit under that label

are treated as are all other inmates whose names are submitted.

Treatment of unmatched aliens. Two of those commenting noted the

proposed change in the way in which BJA and INS will determine the

percentage of unmatched inmates for which applicants will receive

reimbursement. Both indicated that they felt that the information given

in the announcement was insufficient to allow comment and that an

additional opportunity for comment should be allowed once the final

methodology for this distribution is determined.

Response. Last year, alien inmates who could not be positively

matched were allocated between reimbursable and nonreimbursable

categories in the same ratio as those positively identified. In its

earlier announcement of proposed guidance, BJA indicated that

allocation of unmatched alien inmates would be based on a study which

would determine how likely it was that the INS databases did not have

information on alien inmates who were nonreimbursable. This study was

to be based on the results of interviews of inmates that were conducted

by INS field agents and the study had not been concluded at the time

the initial announcement for comment was made.

The study indicated that approximately 95 percent of those

interviewed who had no previous record in any INS database were

determined to be undocumented aliens. Thus, this year applicants will

be given credit for 95 percent of the unmatched inmates with valid

foreign countries of birth. Since this percentage is higher than any

ratio applied to any applicant's unmatched inmates in either prior

year, BJA believes that no applicant will be prejudiced by its decision

not to provide an additional comment period on this one issue.

Inmate counting methodology. A frequent comment made about

provision of inmate records concerned the counting methodology to be

used. BJA proposed to essentially eliminate the ``one-day count'' that

had been used in the first two funding years in favor of an aggregate

count of all alien inmates in the applicant's custody during the year-

long reporting period (July 1, 1996 through June 30, 1997).

State agencies commenting indicated that providing a total or

aggregate count of inmates, especially with provision of individual

lengths of stay, would require extensive reprogramming that would take

time and require, in some cases, searching several data bases, not all

of which are under the direct control of the respondent. Almost

unanimously, the 10 State comments asked that the one-day count be

retained as a equal option to aggregate counting, with continued credit

for a full year's slot (bed space) for each alien counted.

One State and one local respondent suggested that an alternative

technique of sampling over some time period would be preferable to

counting every inmate for the full year or suffering a significant

reduction in total reimbursement due to use of a one-day count. One of

the two local respondents indicated that it was unlikely that they

could provide aggregate counts because they were not automated and thus

expected to be seriously prejudiced in terms of reimbursement.

However, as in the case of utilizing NCIC codes, most respondents

indicated that make the move to aggregate counting would require

reprogramming that would be time-consuming, rather than indicating that

it would be impossible to comply with the requirement.

Response. When working only with State agencies in the FY 1995

funding year, BJA had allowed a one-day count and gave applicants

credit for having the number of inmates counted every day during the

reporting year. That is, each reimbursable alien inmate verified by INS

was treated as a full-time equivalent on the theory that most State

correctional beds were always filled and that sentenced felons were

likely to be incarcerated for at least a year.

Those same assumptions could not be made for local jails, which

became eligible under the program in FY 1996. However, due to a

foreshortened application period and the lack of definitive information

on numbers, types, and lengths of stay of aliens in local jails, the

one-day option was again allowed in FY 1996. Local jails were allowed

to claim only 152 days for each alien inmate determined to be

reimbursable, however, which was the average length of stay determined

in an unrelated national survey results for sentenced felons housed in

local jails. State agencies continued to receive a full year's credit.

The aggregate count option (counting all aliens incarcerated during

the reporting year) was also allowed in FY 1996, and approximately one-

fourth of the State correctional agencies and two-thirds of the local

applicants chose that option. While the total numbers of applicants was

small, the high use of aggregate counts in FY 1996 was encouraging and

the evidence on actual lengths of stay was illuminating. For both State

and local agencies, the actual, average lengths were much shorter than

the standardized figures allowed.

More importantly, in proposing to move to aggregate counts as the

preferred option in FY 1997, BJA was motivated by concerns about

perpetuating a distinction between State and local agencies in counting

methodology and overall reimbursement formula which might not be fair.

Further, the use of standard lengths of stay emphasized ``bed spaces''

rather than individual incarcerated aliens.

In balancing the desire for better information against the limited

time that it can allow applicants to provide the information required,

BJA has decided to allow applicants a longer time period for

application, and retain the admittedly less favorable one-day count

option, for both State and local applicants to use only if they are

unable to reconstruct data about inmates released from their facilities

prior to the end of the official reporting period. Applicants selecting

this option may choose any day during the application response period

for the count, up to the day the application is submitted, but will

receive credit only for days the counted inmates were incarcerated

during the reporting period.

An intermediate option is also being allowed. This is to provide

less than full year data on those inmates, housed by the applicant

during the one-year reporting period, for which the applicant still has

sufficient information to supply mandatory data items. This option may

help some local jails that keep inmate data for limited periods. Note

that these less than full year counts will not be used to credit

applicants with estimated counts for the full year, but should

certainly increase the number of inmates for whom these applicants may

receive reimbursement.

However, in all cases, applicants will be expected to provide full

data on every inmate counted, including dates of entry and (if

applicable) release from custody. All applicants are notified that BJA

intends to move toward aggregate counting methodology and eliminate the

one-day count entirely in FY 1998.

Calculating lengths of stay for inmates counted. Related to the

count methodology issue was the difficulty of calculating lengths of

stay falling with the year-long reporting period. Several respondents

suggested it would be easier for them if they could give admission and

release dates and have BJA or INS do these calculations.

Response. BJA and INS will accede to this request. As part of its

review of inmate records, INS will do all calculations of the lengths

of stay for all inmates submitted, regardless of

[[Page 35228]]

whether applicants use the aggregate or the one-day count method. These

calculations will result in a final number of inmate equivalents for

reimbursement purposes. For each inmate counted, the applicant will

need to provide only the date he or she entered custody and the date he

or she was released from custody (if the inmate has been released),

regardless of whether these dates fall within the reporting year (July

1, 1996, through June 30, 1997).

Having the actual date upon which the inmate entered custody will

also allow INS to properly search for aliens qualifying under the

``subject of proceedings'' provision in the SCAAP law. Applicants

should note that the release date requested is not a projected date but

an actual date, and only applies if the applicant no longer has custody

of the inmate. If the inmate is still in custody on June 30, 1997, or

for those doing a one-day count, on the date of the count, this data

field should be left blank.

Length of the application period. A number of comments were

received indicating that the proposed applicant response time of at

least 30 working days would not be sufficient to meet the various

requirements proposed. Time periods from 60-120 days were mentioned as

being necessary for reprogramming required to do aggregate counting

and/or code qualifying offenses using NCIC codes.

Response. Despite the modifications BJA is adopting as a result of

the comments received, BJA understands that an application period

longer than 30 days may be necessary. Therefore, the due date has been

moved to August 30, 1997. This should also accommodate those

respondents who indicated that they would be pressed to finish by mid-

July an aggregate count ending on June 30, 1997. Any additional delay

in the deadline for application must be balanced against the desires of

applicants to receive reimbursement as soon as possible. It is hoped

that this extension of time will still allow final awards to be made in

December 1997.

To facilitate this process, application kits will again be sent

directly to correctional agencies that will have the necessary

information. However, BJA wishes to emphasize that an agency's parent

governmental entity (e.g, State, county or city) is the official

eligible applicant and the correctional agency may only apply by

delegation from that entity. An official delegation will be required in

order to complete the application.

Cost per inmate data requirements. Four comments addressed aspects

of the cost data required. Of these, three commentators indicated they

had no problems with the cost data calculation. The fourth respondent

criticized the method for making this calculation, the prohibition

against inclusion of capital expenses, and the timing of the cost data.

In particular, this respondent argued that applicants should be able to

claim all alien inmates for whom they have legal responsibility,

regardless of where they are housed. This commentator also indicated

that facility costs are part and parcel of what jurisdictions must pay

to house inmates and by not including them, the Federal Government is

not reimbursing for all costs of housing undocumented aliens. Finally,

this respondent was concerned that cost data for the reporting period

would not be available by the date the application was due.

Response. In general, BJA has required and received the same type

of cost information under essentially the same rules in both prior

years. The method required gives applicants the flexibility to use

readily available cost-per-inmate data that is not restricted to the

cost of incarcerating the inmates counted for reimbursement. Only

routine operating costs are allowed, but applicants can claim the full

costs of running all facilities in their system. In recognition of the

differences in accounting methods and fiscal years, BJA allows

applicants to use the most current fiscal data available to them,

including prior year data.

In FY 1995, applicants were allowed to claim a standard percentage

over routine operating costs to cover nonroutine costs. However,

capital expenses and other nonroutine costs do not fall evenly over all

applicants and their inclusion could radically increase the cost per

inmate for some applicants in some years. Because funds are limited and

will not cover all costs claimed by applicants, BJA continues to

believe that the restriction to the ``routine operating costs''

approach is fairer to all eligible applicants.

Recognizing that inmates move among institutions frequently and

that many correctional agencies have inmates housed out of their

jurisdiction or are housing inmates for other jurisdictions, BJA

adopted an approach which offsets costs as the means of controlling for

a number of possible situations in which the legally responsible agency

is not the immediate custodian of an inmate. Applicants add in payments

they make to other jurisdictions or private vendors for housing their

inmates elsewhere and deduct payments to them for housing other

jurisdictions' inmates. By using this method, BJA allows applicants to

count all otherwise qualifying inmates actually housed in their

institution during the reporting period without incurring duplication

of costs or requiring cost information to be particularized to the

individual inmates counted.

BJA does not feel it necessary or appropriate, based on these

comments, to change the basic requirements for inmate costs. BJA is

providing more detail on the types of situations which might arise in

making these calculations to address issues that have occurred in the

past 2 years of program administration.

Other comments. One comment questioned the need for requiring

applicants to give assurances that they are complying with a wide range

of Federal laws that have no relevance to the specific goals of SCAAP

or the rules governing use of SCAAP funds. Two noted a desire to have

feedback from INS as to specific aliens positively identified in prior

award cycles. One respondent pointed out potentially confusing

terminology regarding qualifying aliens.

Response. While SCAAP is unusual in that it provides reimbursement

payments that, once legally obtained by the applicant, can be used by

the applicant for any legitimate purpose, it remains a Federal grant

program providing funds to eligible applicants. As such, applicants

must adhere to standard Federal grant eligibility requirements, which

include adherence to Federal laws. If applicants cannot meet these

criteria, they are not eligible to receive Federal funds, no matter the

purposes to which they plan to apply their reimbursement. Thus, all

standard Federal assurances and certifications must be made at the time

of application.

After the FY 1995 awards, INS did provide applicants with

information on those aliens who were positively identified, whether or

not the inmates had been determined to fall within a reimbursement

category. Such information is not necessary to make the FY 1997

application, however, since there will be no reliance on the ratio of

reimbursable to nonreimbursable aliens in determining the portion of

unmatched alien inmates for which FY 1997 reimbursement will be made.

However, this information may be of use to the applicant and INS plans

to provide this information, as soon as feasible, to those applicants

who received FY 1996 awards and who receive FY 1997 funds.

BJA and INS would like to thank all respondents for their

thoughtful comments. This feedback has assisted

[[Page 35229]]

us in developing our final guidance for FY 1997, which is set forth

below.

In addition, BJA would encourage any eligible applicants, and

particularly local jurisdictions as few in this category responded to

the earlier announcement, to provide BJA with comment on their

experiences in making application in FY 1997 or their reasons for not

making application, should that be their choice. Such comments can be

submitted to the address for applications shown in the beginning of

this notice, to the attention of Linda McKay, SCAAP Coordinator.

III. Final Application Guidance

Correctional facilities in eligible jurisdictions will receive an

application kit that will include the following general guidance as

well as proper forms and other materials with instructions for

completing the forms, formatting data, and mailing in the application.

Thus, the following information concerns only the essential

requirements for application, as were previously announced and/or as

modified from that prior announcement.

A. Eligible Applicants

Eligible applicants are States and political subdivisions of States

(hereafter, ``localities'' or ``subdivisions'') that exercise authority

with respect to the incarceration of an undocumented criminal alien in

a facility that provides secure, overnight custody of inmates for

periods extending beyond 72 hours. Only one application may be

submitted by each State or locality; therefore, cost and inmate

information from all facilities operated by a single applicant must be

consolidated into a single application. A State correctional agency

which directly operates some or all jails located in its political

subdivisions should consolidate data from all such facilities.

The applicant may be either the chief executive officer (CEO)

(e.g., governor, county executive, mayor) of the political entity or

the head (e.g., director, commissioner, sheriff) of the correctional

facility in that jurisdiction, pursuant to a delegation from the CEO.

Such delegation must be made in writing and be submitted to BJA by the

CEO or correctional agency head applying on behalf of the jurisdiction.

A copy of a valid delegation previously obtained and submitted to BJA

for the purpose of SCAAP will be acceptable.

Awards will be made to the place of business of the signatory on

the application, regardless of designation. That is, if the county

board chair (or county manager, county auditor, etc.) signs the

application, the formal applicant is the county, at the address of the

county office. If the county sheriff signs the application pursuant to

delegation from the county board, the formal applicant is the sheriff,

and the award will go directly to the address of the sheriff (or the

county correctional facility). Jurisdictions that want awarded SCAAP

funds to be deposited into an existing governmental bank account or

Letter of Credit (LOCES) account rather than into the correctional

agency's account should have the CEO or a designated governmental

officer (e.g., county manager or chief financial officer) sign the

application and use their place of business as the official applicant

name and address.

For the purposes of the remainder of this guidance, ``applicant''

refers to the head of the correctional facility housing the alien

inmates, as this facility is the source of both inmate and cost data

required for the application.

B. Reimbursable Inmates and Length of Stay Calculation

Applicants will be expected to submit records on all inmates in

their custody who have a foreign country of birth and who have been

convicted of a felony or two misdemeanors. Applicants should not screen

out aliens known or believed to be nonreimbursable. The methodology for

determining reimbursability of unmatched inmates (as discussed below in

subsection D, ``Verification of Inmate Data'') will not depend on the

ratio of reimbursable to nonreimbursable inmates, as was the case in

prior years. This change means that applicants will not be required to

make any judgments about the potential reimbursability of their

incarcerated aliens.

Not all foreign-born inmates whose records are submitted will be

determined to be reimbursable aliens under the law. To be reimbursable,

an inmate must:

Have a foreign country of birth. The record submitted must

contain the name of that foreign country. See the discussion under

subsection D below for submission of suspected foreign-born inmates who

do not self-report a foreign country of birth.

Fall within one of three categories specified in the

statute:

Entered the United States without inspection or at any

time or place other than as designated by the Attorney General;

Was the subject of exclusion or deportation proceedings at

the time he or she was taken into custody by the State or a political

subdivision of the State; or

Was admitted as a nonimmigrant and at the time he or she

was taken into custody by the State, or a political subdivision of the

State has failed to maintain the nonimmigrant status in which the alien

was admitted (or to which it was changed) or to comply with the

conditions of any such status.

In determining who is the ``subject of'' proceedings under the

second category, an alien would be considered eligible to be counted

for reimbursement if the charging document had been issued by INS prior

to that alien's entry into the applicant's custody. The charging

document need not be served against the alien nor filed with the

immigration court. Alien inmates with final orders of deportation or

exclusion will also be considered the ``subject of'' proceedings.

Cubans who entered the United States as part of the 1980 Marielito

boatlift (``Mariel Cubans'') are not separately eligible and will not

automatically be included for reimbursement; rather, Cuban inmates, as

all other inmates, will be reimbursable only to the extent they fall

under one of the categories listed above.

Have been in the applicant's custody at some point between

July 1, 1996, and June 30, 1997. Applicants should count and report on

all inmates who are otherwise qualifying under this section who were in

their custody during this period and for whom they can provide the

mandatory data elements described in C below. If correctional agency

records are not adequate to provide information on inmates housed for

the full year, the applicant may report on any lesser time period

within this year-long reporting period. These less-than-full-year

counts will not be used to credit applicants with higher estimated

counts for a full year; rather, applicants will receive credit only for

individual inmates for whom complete records are submitted. However,

this intermediate option should certainly increase the number of

inmates for whom these applicants may receive reimbursement.

A one-day count option is allowed, but applicants should use this

method only if it cannot recreate accurate data for inmates who left

the institution prior to the end of the reporting period. Applicants

using this one-day count will receive credit only for those inmates

counted who are determined to be qualifying aliens and only for the

lengths of stay of these individual inmates that occurred within the

reporting period. Applicants using this option may choose any day up to

the day of application submission to make the one-day count.

[[Page 35230]]

Applicants are asked to provide, for each inmate counted, the date

the inmate first came into the custody of the applicant and the date

the inmate was released from custody (if already released). If an

inmate is still in the applicant's custody at the end of the reporting

period (or at the time of the one day count if that option is chosen),

the field for release date should be left blank. All calculations of

lengths of stay will be made by INS. Note that a cap of 365 days will

be imposed on the number of days an applicant may claim for a single

inmate.

Applicants will be asked to report, on the official application

form, the count option chosen and the time period (up to 365 days) for

which they were able to provide complete inmate records. Further

instructions will be contained in the application kit.

Have been in the applicant's custody for a period

exceeding 72 hours. Police ``lockups'' and similar holding facilities

are excluded, and applicants are not expected to submit records for

persons held pending arraignment on new charges who are then released

and not again incarcerated. However, once an applicant has exercised

custody over an inmate beyond 72 hours, all time in custody (up to 365

days per inmate) will be credited in the length of stay calculation for

an otherwise qualified alien, as defined in this section.

Have one felony conviction or two misdemeanor convictions.

Qualifying conviction(s) can occur prior to entry into the applicant's

custody or be the result of charges that led to that incarceration.

Once a conviction does occur, all time in custody during the specified

one-year reporting period may be counted, even though some of the time

in custody may have occurred prior to the conviction and even though no

final sentence has been imposed. This interpretation recognizes that in

most cases, once a conviction occurs, the eventual sentence takes into

account ``time served,'' which converts the pretrial custody period

into part of the final disposition for purposes of fulfilling the

sentence. Although some States have laws automatically requiring this

action, in most, the sentencing authority is given this discretion.

Please note that, in either case, the applicant must be able to

determine and document that the qualifying convictions have taken place

by providing indication of level and type of offense. Thus,

particularly for those inmates for whom the qualifying conviction(s)

occurred prior to entry into applicant's custody, the applicant must

have ready access to accurate and complete criminal history

information.

For the purposes of this determination, the applicant should follow

its own State law as to what constitutes a felony or misdemeanor and

what actions constitute a valid conviction. If a State has no set

definition of ``felony,'' a felony should be considered any offense for

which the potential sentence that could be imposed upon conviction is

more than one year.

C. Specification for Inmate Records

The applicant will have two options for providing information about

inmates: (1) Applicants may use their own inmate data system to produce

a properly formatted data file, or (2) applicants may reenter data into

a database shell on a diskette to be provided by BJA. For applicants

choosing the first option, all inmate data submitted must be in ASCII

format, in fixed length fields. Further, unless a specific exception is

noted below, all data fields must be completed. Failure to provide the

requested data in the proper format will result in exclusion of the

record from the verification process. Exact information on the order

and length of data fields will be provided in the application kit,

which will be mailed to eligible jurisdictions.

The following inmate data will be requested:

Alien (``A'') number. An ``A'' number is an 7-, 8-, or 9-

digit number that may have been assigned to an inmate by INS and may or

may not be known to the applicant. If no A number is available, the

applicant may leave this field blank.

First, middle, and last names of the inmate, including all

aliases. A separate record may be submitted for each alias, but each

record must repeat all required information in the proper data fields

as if it were the only record being submitted for that individual.

Date of birth. If more than one date of birth is provided,

a separate record should be used for each date, as in the case of

different names.

Unique identifying number for each inmate. This number

will allow INS to check separate alias or date of birth records, but

avoid duplicate counting of the same inmate. The number is assigned to

that inmate by the applicant and will generally be used by the

applicant for other identification purposes.

Foreign country of birth. Applicants should supply the

actual name of the foreign country (up to the first 10 letters of the

name will be allowed) or use a coding system. If a coding system is

used, applicants must submit documentation of the codes as part of

their applications, preferably in electronic form as a separate file on

the inmate diskette submitted.

Date upon which the alien entered into the applicant's

custody and date of release, if the inmate has already been released.

These dates will be required for all inmates, not just those

potentially qualifying under the ``subject of proceedings'' category

and will be used to calculate the length of stay of inmates counted.

For inmates still in applicants' custody at the end of the reporting

period (or date of the one day count), the date of release field can be

left blank. Unlike last year, no predetermined, standard lengths of

stay will be allowed. Both State and local facilities will be expected

to comply with this requirement.

Type and level of crime of the qualifying conviction(s).

Applicants will be expected to code the level of the qualifying

conviction (using ``F'' for one felony or ``M'' for two misdemeanors)

and code the actual type of offense for which a conviction has

occurred. The preferred coding scheme for the latter is the Federal

Bureau of Investigation's National Criminal Information Center (NCIC)

coding scheme, which provides 2-, 4-, and 8-digit codes. However, this

year applicants may use the coding scheme currently in use for normal

operational purposes and provide (preferably in electronic form on the

inmate data diskette submitted to BJA) a data dictionary that

identifies the offenses covered by the codes.

Only one of the two qualifying misdemeanors required under the law

will need to be coded. BJA is not requiring applicants to establish a

hierarchy among offenses nor is it placing any time limit within which

such offenses must have occurred. Any qualifying conviction about which

the applicant has information can be used, although the applicant

should record the most serious offense for which it has conviction

information. Thus, applicants who have limited information may rely on

the ``controlling'' offense that resulted in the incarceration (if

sentencing has already occurred) or on any known prior qualifying

conviction or on a qualifying conviction that occurs during the

reporting period.

FBI number. Although not required, this information that

will increase the probability of a positive match between applicant and

existing INS records.

In addition, each applicant will be preassigned a jurisdictional

identification number that must appear on the diskette label and as

part of every record submitted. This number must also appear on the

formal application

[[Page 35231]]

document. BJA will preprint this number on the labels and form, and it

will be preentered into the BJA-provided inmate diskette. However,

applicants converting their data directly into ASCII on their own

diskette must ensure that their unique jurisdictional number is entered

as part of each record submitted.

D. Verification of Inmate Data

INS will verify applicants' inmate records by matching those

records to records in INS databases. The matching process will result

in three groups of inmates: Positively identified reimbursable inmates,

positively identified nonreimbursable inmates, and inmates not matched.

A reimbursement rate will be applied to inmates whose eligibility

cannot be determined through a positive match. Unlike in prior years,

this rate will not be based on the ratio of matched reimbursable to

nonreimbursable inmates whose records are submitted by the applicant,

but rather is based on a separate process. A study by INS of how likely

it would be that INS databases did not have information on alien

inmates who were nonreimbursable used the results of interviews of

inmates that were conducted by INS field agents over a period of time.

The study indicated that approximately 95 percent of those interviewed

who had no previous record in any INS database were determined to be

undocumented aliens. Thus, this year applicants will be given credit

for 95 percent of the unmatched inmates with valid foreign countries of

birth. This new procedure will lead to more uniformity among applicant

submissions and thus be more equitable to all applicants.

Applicants who have a reasonable basis to believe that an inmate

has falsely claimed to have been born in the United States or its

territories and possessions (e.g., Guam, Northern Mariana Islands, the

Virgin Islands, or Puerto Rico) may include those inmates in their data

submissions. Similarly, applicants may include in their submissions

inmates for whom they have no known country of birth. If INS is able to

match these inmate records, they will be retained as part of the

applicants' submissions. However, if INS is unable to match inmates for

whom no foreign country of birth is provided, those records will be

deleted from the applicants' submissions.

E. Cost of Inmate Custody

Only routine operating expenditures will be allowed as part of the

calculation of annual inmate costs; capital expenditures and nonroutine

costs will not be allowed. Cost calculations should be based on

routinely maintained cost figures for all facilities administered by

the political subdivision submitting an application, not on costs

directly associated with alien inmates claimed. The costs should be

calculated based on the average number of bed spaces filled in all

facilities under the applicant's control over the course of the year,

not on an average of the costs of running each separate component

facility.

In making calculations, all payments, including Federal payments,

to the applicant from other jurisdictions to cover costs of housing

inmates for those jurisdictions must be deducted from the inmates'

overall upkeep costs. Payments made by the applicant to other

jurisdictions to house their inmates can be added to the cost figures.

Similarly, services provided within facilities but not charged to the

budget of the correctional agency (e.g., vocational training funded

through the State's department of education) should not be included.

Nor should applicants use inmate cost rates negotiated with Federal or

State or other jurisdictions as their basis of claim. Rather,

calculations should be based on their own actual costs of inmate

custody for the current or the immediately prior fiscal year.

Local facilities that receive State funds that supplement their

overall budget, as opposed to funds for housing of specific inmates,

should include that State amount in the overall calculation of their

routine operating cost. After award, these localities will be expected

to share their reimbursement with the State in the same proportion as

that State assistance contributes to the local facility's incarceration

expenses.

BJA will review and compare inmate cost figures submitted. If

requested to do so by BJA, the Department of Justice, or any other

authorized auditor, applicants must be able to provide the detailed

information that went into their claimed costs calculation. However,

this underlying documentation should not be submitted as part of the

application.

F. Formal Application and Deadline for Application

Application kits will be mailed directly to correctional facilities

(unless BJA has been notified by an eligible jurisdiction to provide

the kit to another office) by June 30, 1997. The kit will contain:

This final guidance as well as more detailed instructions

for completing all application materials, including inmate data

submissions.

A one-page application form as well as a diskette

containing the same data fields to allow electronic submission of the

form. The hardcopy application form will be scannable, so only the

original can be returned to BJA. If the applicant chooses to enter the

data into the diskette provided, the hardcopy form should not be

returned. In addition to the basic information on the applicant (e.g.,

address, contact person, etc.), the application form will ask for

information about the CEO of the jurisdiction and the form the

delegation will take; the count method used, the inmate diskette option

chosen, and number of inmates for which a claim is being made; and, the

annual cost per inmate claimed. The authorized signing official for the

applicant will, by his or her signature, make all necessary standard

Federal assurance and certifications. If the application diskette is

used, the electronic entry of the signatory's name constitutes the

necessary certifications.

A diskette preprogrammed to allow direct entry of inmate

data on alien inmates counted in the proscribed format. The kit will

also contain a diskette label to be put on the applicant's own diskette

if the applicant chooses to directly convert its inmate data into the

ASCII format.

Mailing envelopes, one for the submission of diskettes and

one for any hardcopy documents to be submitted, including the scannable

application form, data dictionaries, or the delegation from the CEO of

the jurisdiction, if the applicant is not the CEO. However, this

delegation may be mailed separately to BJA.

The deadline for submission of the inmate data and all other

application documents (other than the delegation) will be August 30,

1997. This date is a firm deadline (evidenced by postmark); no

extensions will be given and late submissions of inmate diskettes will

not be allowed. This deadline gives applicants approximately 60 days to

complete the required application. During the application period, BJA

staff will be available to answer any questions that applicants may

have about filling in the formal application. Data specialists familiar

with the electronic submissions requested or allowed as options will

also be available. After an applicant has met the deadline, BJA

reserves the right to ask for additional information to clarify or

correct minor errors in the application. Any delegation required must

be submitted by September 30, 1997.

G. Award Calculation and Funding Availability

The FY 1997 amount available for distribution is approximately

[[Page 35232]]

$492,500,000. As in past years, the formula for award calculation will

establish the final dollar claim of each applicant, based on the

verification of its inmate and cost data. This calculation will involve

multiplying the number of reimbursable inmates (including a percentage

of inmates not matched) by the lengths of stay for these inmates by the

applicant's actual annual cost per day per inmate. The final claims for

all applicants will then be totaled and divided into the available

appropriation to determine the percentage payoff on the dollar of each

claim. Finally, the award amount for each applicant will be calculated

based on that payoff percentage.

Applicants cannot be assured of receiving an award, however,

because it is possible that, following INS verification of inmate data,

there will be no reimbursable inmates upon which to base an award.

Similarly, past reimbursements should not be used to predict future

reimbursements because the number of applicants may vary and the

eligibility criteria have changed in each of the three years of this

program's operation.

The CEO's of all eligible jurisdictions should note that payments

can only be made to the applicant named in the application. Therefore,

jurisdictions that want awarded SCAAP funds to be deposited into an

existing governmental bank account or Letter of Credit (LOCES) account

rather than into the correctional agency's account should have the CEO

or a designated governmental officer (e.g., county manager or chief

financial officer) sign the application and use their place of business

as the official applicant name and address.

H. Award and Post-Award Processing

BJA will continue to utilize grants as its reimbursement mechanism.

The conditions governing general award eligibility, drawdown, use of

funds after drawdown, and the processes used for these events will

remain the same as in the past year. In particular, all payments to

applicants will be made electronically. New applicants will be expected

to provide information to allow electronic transfer of funds as part of

their award acceptance. Grant closeout will be automatic. Award funds,

once properly distributed to eligible applicants, may be used by these

jurisdictions for any lawful purposes and need not be applied towards

reimbursement of correctional costs.

Dated: June 24, 1997.

Nancy E. Gist,

Director, Bureau of Justice Assistance.

[FR Doc. 97-16998 Filed 6-27-97; 8:45 am]

BILLING CODE 4410-18-P