Uniform Relocation Assistance and Real Property Acquisition Regulations for Federal and Federally Assisted Programs

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 24

[FHWA Docket No. FHWA-98-3379]

RIN 2125-AE34

Uniform Relocation Assistance and Real Property Acquisition

Regulations for Federal and Federally Assisted Programs

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: This proposal would implement several amendments to the

Uniform Relocation Assistance and Real Property Acquisition Policies

Act (Uniform Act), 42 U.S.C. 4601-4655, that were made by Pub. L. 105-

117, enacted on November 21, 1997. Those amendments provide that an

alien not lawfully present in the United States shall not be eligible

to receive relocation payments or any other assistance provided under

the Uniform Act, unless such ineligibility would result in exceptional

and extremely unusual hardship to the alien's spouse, parent, or child,

and such spouse, parent, or child is a citizen or an alien admitted for

permanent residence. The amendments direct the lead agency (the FHWA)

to promulgate implementing regulations within one year of their

enactment. If promulgated, this rule would apply to the Uniform Act

activities of all Federal departments and agencies that are covered by

the Act.

DATES: Comments must be received on or before August 11, 1998.

ADDRESSES: Your signed, written comments must refer to the docket

number appearing at the top of this document and you must submit the

comments to the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400

Seventh Street, SW., Washington, DC 20590-0001. All comments received

will be available for examination at the above address between 10 a.m.

and 5 p.m., e.t., Monday through Friday, except Federal holidays. Those

desiring notification of receipt of comments must include a self-

addressed, stamped envelope or post card.

FOR FURTHER INFORMATION CONTACT: Marshall Schy, Office of Right-of-Way,

(202) 366-2035; or Reid Alsop, Office of the Chief Counsel, HCC-31,

(202) 366-1371, Federal Highway Administration, 400 Seventh Street,

SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15

p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

Internet users can access all comments received by the U.S. DOT

Dockets, Room PL-401, by using the universal resource locator (URL):

http://dms.dot.gov. It is available 24 hours each day, 365 days each

year. Please follow the instructions online for more information and

help.

An electronic copy of this document may be downloaded by using a

modem and suitable communications software from the Federal Register

Electronic Bulletin Board Service at (202) 512-1661. Internet users may

reach the Federal Register's home page at: http://www.nara.gov/nara/

fedreg and the Government Printing Office's database at: http://

www.access.gpo.gov/su__docs.

Background

The Uniform Act designates the Department of Transportation (the

Department) as the lead agency for implementing the Uniform Act. The

Department has delegated this responsibility to the FHWA (49 CFR 1.48

(cc)). Pursuant to section 213 of the Uniform Act, the FHWA promulgated

a single governmentwide regulation for implementing the Uniform Act, at

49 CFR part 24. That regulation was developed with the active

cooperation

of the Department of Housing and Urban Development, and was coordinated

with sixteen other affected Federal agencies.

Pub. L. 105-117, 111 Stat. 2384, was enacted on November 21, 1997.

It amends the Uniform Act to provide that an alien who is not lawfully

present in the United States is not eligible for relocation benefits or

assistance, under the Uniform Act, unless the denial of eligibility

would result in an exceptional and extremely unusual hardship to such

alien's spouse, parent, or child who is a citizen or is lawfully

admitted for permanent residence in the United States. This amendment

was apparently enacted in response to a well publicized case in

California in which a person considered to be an illegal immigrant was

provided with a substantial relocation payment.

Persons who are forced to move from their homes, businesses, or

farms by Federal or federally assisted programs or projects suffer

substantial inconvenience and, in many cases, may also suffer financial

burdens or other hardships. The Uniform Act is intended to provide

assistance to such persons.

Section 201(b) of the Uniform Act makes it clear that the Act is

intended to establish a uniform policy for the fair and equitable

treatment of persons who are displaced as a direct result of programs

or projects that are undertaken by a Federal agency or with Federal

financial assistance. Its primary purpose is to ensure that displaced

persons ``shall not suffer disproportionate injuries as the result of

programs and projects designed for the benefit of the public as a whole

and to minimize the hardship of displacement on such persons.''

Consistent with the overall objectives of the Uniform Act, this

proposed rule seeks to implement Pub. L. 105-117 in a way that would

avoid imposing significant administrative or procedural burdens on the

thousands of persons who are displaced from their homes, businesses,

and farms each year by Federal or federally assisted activities. The

proposal also seeks to minimize the administrative burdens that would

be imposed on the many Federal, State and local agencies that implement

the Uniform Act.

This proposal would require each person seeking relocation payments

or assistance under the Uniform Act to certify, as a condition of

eligibility, that he or she is lawfully present in the United States.

The certification could be a part of a person's claim for relocation

benefits (described in 49 CFR 24.207).

Displacing agencies would deny eligibility only if: (1) a person

fails to provide the required certification; or (2) the agency

determines that a person's certification is invalid, based on a fair

and nondiscriminatory review of an alien's documentation or other

information that the agency considers reliable and appropriate.

However, no specific level or type of review would be prescribed. If a

displacing agency believes, based on its review or on other credible

evidence, that a person is an alien not lawfully present in the United

States, it would obtain verification from the local office of the

Immigration and Naturalization Service before making a final

determination to deny eligibility.

Another option, not proposed in this NPRM, would be to establish

more detailed requirements that would mandate such things as

documentation that would have to be provided by each person to be

displaced, and the review procedures that would have to be followed and

the findings that would have to be made by affected Federal, State or

local agencies.

We believe that the proposal set forth in this NPRM document is

adequate to prevent payment of relocation benefits in cases, such as

the one that gave rise to Pub. L. 105-117, in which a person is

determined by the displacing agency to be an illegal alien, without

imposing substantial administrative burdens and costs on displaced

persons or displacing agencies.

The NPRM also contains a proposed definition of the term ``alien

not lawfully present in the United States''. The proposed definition

includes aliens whose entry into the United States was unlawful and

aliens who may have entered lawfully but whose presence in the United

States has become unlawful. Immigration and Naturalization Service

(INS) regulations currently contain a definition of the term ``alien

who is lawfully present in the United States'' at 8 CFR 103.12. The

proposed definition would utilize that INS definition, by providing

that an ``alien not lawfully present'' in the U.S. is someone who is

not included in the INS's definition of an ``alien who is lawfully

present'' in the U.S.

Further, the proposal provides that relocation eligibility would be

allowed, even if a person is not lawfully present in the United States,

if the agency concludes that denial would result in ``exceptional and

extremely unusual hardship'' to such person's spouse, parent, or child

who is a citizen or is lawfully admitted for permanent residence in the

United States. Any person who is denied eligibility may utilize the

existing appeals procedure, described in 49 CFR 24.10.

This proposed rule includes a definition of the phrase

``exceptional and extremely unusual hardship'' as it applies to such

spouse, parent, or child, which focuses on significant and demonstrable

impacts upon health, safety, or family cohesion.

In drafting this proposal, consideration was given to cases in

which some, but not all, occupants of a dwelling are not lawfully

present in the United States and would be denied Uniform Act benefits

under this rule. In such cases we believe that only the eligible

occupants should be considered in selecting comparable dwellings and

computing a replacement housing payment. However, this proposal does

not contain detailed information concerning the computation of a

replacement housing payment in such a situation. Comments are requested

as to whether additional information or guidance on this subject should

be included in the final rule.

It should be noted that most States have their own relocation

statutes, which enable State agencies to comply with the Uniform Act on

programs or projects that receive Federal financial assistance. Such

States should consider whether any changes to State law or regulations

are necessary to comply with Pub. L. 105-117. While specific details

concerning the law's implementation will not be known until a final

rule is promulgated, it appears probable that, in order to comply with

the Uniform Act, State or local displacing agencies will need to obtain

some type of certification or verification from all persons who are to

be displaced as the result of a federally assisted project. Further,

while we do not believe that Pub. L. 105-117 preempts provisions of

State relocation statutes, Federal funds could no longer participate in

the costs of any relocation payments or assistance, provided to aliens

on federally assisted projects, that are not consistent with the

provisions of Pub. L. 105-117 and implementing regulations.

Finally, this proposed rule would make two technical changes to 49

CFR 24.2 unrelated to Pub. L. 105-117. First, it would eliminate the

paragraph designations in the alphabetized list of definitions

contained therein, to reflect current drafting policies of the Office

of the Federal Register. Second, it would modify the definition of

``State'' to delete the outdated reference to the Trust Territories of

the Pacific Islands.

Cross References

Part 24 of title 49, CFR, constitutes the governmentwide regulation

implementing the Uniform Act. The regulations and directives of many

other Federal departments and agencies

contain a cross reference to this part in their regulations, and the

change proposed in this notice of proposed rulemaking would be directly

applicable to the relocation assistance activities of these departments

and agencies. The proposed changes would also apply to other agencies

within DOT that are covered by the Act. The parts of the Code of

Federal Regulations which contain a cross reference to this part, are

listed below:

Department of Agriculture, 7 CFR part 21

Department of Commerce, 15 CFR part 11

Department of Defense, 32 CFR part 259

Department of Education, 34 CFR part 15

Department of Energy, 10 CFR part 1039

Environmental Protection Agency, 40 CFR part 4

Federal Emergency Management Agency, 44 CFR part 25

General Services Administration, 41 CFR part 105-51

Department of Health and Human Services, 45 CFR part 15

Department of Housing and Urban Development, 24 CFR part 42

Department of Justice, 41 CFR part 128-18

Department of Labor, 29 CFR part 12

National Aeronautics and Space Administration, 14 CFR part 1208

Pennsylvania Avenue Development Corporation, 36 CFR part 904

Tennessee Valley Authority, 18 CFR part 1306

Veterans Administration, 38 CFR part 25

Rulemaking and Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this action is not a significant

regulatory action within the meaning of Executive Order 12866, nor is

it a significant regulatory action within the Department of

Transportation's regulatory policies and procedures. It is anticipated

that the economic impact of this rulemaking will be minimal; therefore,

a full regulatory evaluation is not required. The FHWA does not

consider this action to be a significant regulatory action because the

amendments would merely update existing regulations so that they are

consistent with Pub. L. 105-117. By this rulemaking, the agency merely

proposes to implement several amendments to the Uniform Act to ensure

that aliens not lawfully present in the United States are ineligible

for relocation benefits or assistance. In an effort to protect other

occupants of a dwelling, however, this proposal would allow the

displacing agency to grant relocation eligibility if the agency

concludes that denial would result in ``exceptional and extremely

unusual hardship'' to such person's spouse, parent, or child who is a

citizen or is lawfully admitted for permanent residence in the United

States. Neither the individual nor cumulative impact of this action

would be significant because this action would not alter the funding

levels available in Federal or federally assisted programs covered by

the Uniform Act. The proposal would merely prevent payment of

relocation benefits in cases where the displacing agency determines a

person to be in this country unlawfully.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,

5 U.S.C. 601-612), the agency has evaluated the effects of this rule on

small entities and hereby certifies that this action will not have a

significant economic impact on a substantial number of small entities.

This action would merely update and clarify existing procedures used by

displacing agencies so as to prevent the payment of relocation benefits

to aliens who are in this country unlawfully, in accordance with Pub.

L. 105-117.

Environmental Impacts

The FHWA has also analyzed this action for the purpose of the

National Environmental Policy Act (42 U.S.C. 4321 et seq.), and has

determined that this action would not have any effect on the quality of

the human environment.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that this action does not have sufficient federalism implications to

warrant the preparation of a federalism assessment. Pub. L. 105-117

would discourage State and local governments from providing relocation

benefits under the Uniform Act to persons who are not lawfully present

in the United States (unless certain hardships would result) by denying

the participation of Federal funds in any such benefits. The FHWA

expects this to affect only a relatively small percentage of all

persons covered by the Uniform Act. Further, this proposal seeks to

implement the requirements of Pub. L. 105-117 in a way that will keep

administrative burdens to a minimum.

Unfunded Mandates Reform Act

Under Section 202 of the Unfunded Mandates Reform Act of 1995 (Pub.

L. 104-4, 109 Stat. 48), the FHWA must prepare a budgetary impact

statement on any proposal or final rule that includes a Federal mandate

that may result in estimated annual costs to State, local or tribal

government of $100 million or more. The Congressional Budget Office has

concluded that Pub. L. 105-117 would impose no Federal mandates, as

defined in the Unfunded Mandates Reform Act, and would impose no

significant costs on State, local, or tribal governments. The FHWA

concurs in that conclusion, and does not intend to impose any duties

upon State, local or tribal governments beyond those prescribed by Pub.

L. 105-117.

Paperwork Reduction Act

This proposal contains new collection of information requirements

for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-

3520. The proposed collection of information is mandated by section 1

of Pub. L. 105-117, 111 Stat. 2384, but this proposal seeks to minimize

such collection requirements.

This NPRM would add additional information collection requirements

to the Office of Management and Budget (OMB) approved information

collection budget for OMB control number 2105-0508. Displacing agencies

would require each person who is to be displaced by a Federal or

federally assisted project, as a condition of eligibility for

relocation payments or advisory assistance, to certify that he or she

is lawfully present in the United States. This certification could

normally be provided as a part of the existing relocation claim

documentation used by displacing agencies.

The FHWA estimates that during 1996 there were approximately 6,900

persons displaced as a result of DOT programs or projects. Since the

FHWA believes that each displaced person should know whether they are a

citizen or are lawfully present in the United States, the FHWA

estimates that the proposed certification would take no more than 10

seconds per person.

Accordingly, the FHWA estimates the public recordkeeping burden of

this proposed collection of information to be 20 hours for each year of

implementation.

Organizations and individuals desiring to submit comments only on

the information collection requirements must direct them to the Office

of Information and Regulatory Affairs, OMB, Room 10235, New Executive

Office Building, Washington, DC 20503; Attention: Desk Officer for

Federal Highway Administration. Also, please send a copy of any

comments forwarded to the OMB to FHWA, too.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN contained in the heading of

this document can be used to cross reference this action with the

Unified Agenda.

List of Subjects in 49 CFR Part 24

Real property acquisition, Relocation assistance, Reporting and

recordkeeping requirements, Transportation.

In accordance with the foregoing, the FHWA proposes to amend part

24 of title 49, Code of Federal Regulations, as set forth below.

PART 24--[AMENDED]

1. The authority citation for 49 CFR part 24 continues to read as

follows:

Authority: 42 U.S.C. 4601 et seq.; 49 CFR 1.48(cc).

2. Section 24.2 is amended by removing the alphabetical paragraph

designations from all definitions; by adding a new term Alien not

lawfully present in the United States; by revising paragraph (1)

introductory text of the definition of Displaced person and adding a

paragraph (2)(xii); and revising the definition of State to read as

follows:

Sec. 24.2 Definitions.

* * * * *

Alien not lawfully present in the United States. The phrase ``alien

not lawfully present in the United States'' means an alien who is not

``lawfully present'' in the United States as defined in 8 CFR 103.12

and includes:

(1) An alien present in the United States who has not been admitted

or paroled into the United States pursuant to the Immigration and

Nationality Act and whose stay in the United States has not been

authorized by the United States Attorney General, and

(2) An alien who is present in the United States after the

expiration of the period of stay authorized by the United States

Attorney General or who otherwise violates the terms and conditions of

admission, parole or authorization to stay in the United States.

* * * * *

Displaced person--

(1) General. The term ``displaced person'' means, except as

provided in paragraph (2) of this definition, any person who moves from

the real property or moves his or her personal property from the real

property: (This includes a person who occupies the real property prior

to its acquisition, but who does not meet the length of occupancy

requirements of the Uniform Act as described at Secs. 24.401(a) and

24.402(a)): * * *

* * * * *

(2) * * *

(xii) A person who is not lawfully present in the United States and

who has been determined to be ineligible for relocation benefits in

accordance with Sec. 24.208.

* * * * *

State. Any of the several States of the United States or the

District of Columbia, the Commonwealth of Puerto Rico, any territory or

possession of the United States, or a political subdivision of any of

these jurisdictions.

* * * * *

3. In part 24, in the list below, for each section indicated in the

left column, remove the word or words indicated in the middle column

wherever they appear in the section, and add the word or words

indicated in the right column:

------------------------------------------------------------------------

Section Remove Add

------------------------------------------------------------------------

24.102(k)....................... 24.2(w)........... 24.2.

24.103(c)....................... 24.2(s)........... 24.2.

24.105(c)....................... 24.2(s)........... 24.2.

24.202.......................... 24.2(g)........... 24.2.

24.203(b)....................... 24.2(k)........... 24.2.

24.204(a)....................... 24.2(d)........... 24.2.

24.205(c)(2): (ii)(B)........... 24.2(d) and (f)... 24.2.

24.301 intro paragraph.......... 24.2(g)........... 24.2.

24.303(a)....................... 24.2(g)........... 24.2.

24.304 intro paragraph.......... 24.2(t)........... 24.2.

24.306(a)(6).................... 24.2(e)........... 24.2.

24.306(c)....................... 24.2(i)........... 24.2.

24.307(a)....................... 24.2(aa) and (bb). 24.2.

24.401(c)(4)(ii)................ 24.2(f)........... 24.2.

24.403(a)....................... 24.2(d)........... 24.2.

24.403(b)....................... 24.2(f)........... 24.2.

24.404(c)(2).................... 24.2(d)(2)........ 24.2.

Appendix A under the heading of

Section 24.2 Definitions:

First Parag................. Section 24.2(d)(2) Removed.

Sec. 24.2(d)(2).. 24.2.

Fourth Parag................ Section 24.2(d)(7) Paragraph (7)

under this

definition.

Seventh Parag............... Section 24.2(g)(2) Removed.

Seventh Parag............... Section Paragraph (2)(iv)

24.2(g)(2)(iv). under this

definition.

Ninth Parag................. Section 24.2(k)... Removed.

Appendix A under the heading of

Section 24.404 Replacement

Housing of Last Resort:

First Parag................. 24.2(p)........... 24.2.

------------------------------------------------------------------------

4. Part 24 is amended by redesignating Sec. 24.208 as Sec. 24.209

and by adding a new Sec. 24.208 to read as follows:

Sec. 24.208 Aliens not lawfully present in the United States.

(a) Each person seeking relocation payments or relocation advisory

assistance shall, as a condition of eligibility, certify that he or she

is either:

(1) A citizen or national of the United States, or

(2) An alien who is lawfully present in the United States.

(b) The displacing agency shall consider the certification provided

pursuant to paragraph (a) of this section to be valid, unless the

displacing agency determines in accordance with paragraph (d) that it

is invalid based on a review of an alien's documentation or other

information that the agency considers reliable and appropriate.

(c) Any review by the displacing agency of the certifications

provided pursuant to paragraph (a) of this section shall be conducted

in a nondiscriminatory fashion. Each displacing agency will apply the

same standard of review to all such certifications it receives, except

that such standard may be revised periodically.

(d) If, based on a review of an alien's documentation or other

credible evidence, a displacing agency has reason to believe that a

person's certification is invalid (for example a document reviewed does

not on its face reasonably appear to be genuine), and that, as a

result, such person may be an alien not lawfully present in the United

States, it shall obtain the following information before making a final

determination.

(1) If the agency has reason to believe that the certification of a

person who has certified that he or she is an alien lawfully present in

the United States is invalid, the displacing agency shall obtain

verification of the alien's status from the local Immigration and

Naturalization Service (INS) Office. A list of local INS offices was

published in the Federal Register on November 17, 1997 at 62 FR 61350.

Any request for INS verification shall include the alien's full name,

date of birth and alien number, and a copy of the alien's

documentation.

(2) If the agency has reason to believe that the certification of a

person who has certified that he or she is a citizen or national is

invalid, the displacing agency shall request evidence of United States

citizenship or nationality from such person and, if considered

necessary, verify the accuracy of such evidence with the issuer.

(e) No relocation payments or relocation advisory assistance shall

be provided to a person who is determined to be not lawfully present in

the United States, unless such person can demonstrate to the displacing

agency's satisfaction that the denial of relocation benefits will

result in exceptional and extremely unusual hardship to such person's

spouse, parent, or child who is a citizen of the United States, or is

an alien lawfully admitted for permanent residence in the United

States.

(f) For purposes of paragraph (e) of this section, ``exceptional

and extremely unusual hardship'' to such spouse, parent, or child of

the person not lawfully present in the United States means that the

denial of relocation payments and advisory assistance to such person

will directly result in:

(1) A significant and demonstrable adverse impact on the health or

safety of such spouse, parent, or child;

(2) A significant and demonstrable adverse impact on the continued

existence of the family unit of which such spouse, parent, or child is

a member; or

(3) Any other impact that the lead agency determines will have a

significant and demonstrable adverse impact on such spouse, parent, or

child.

(g) The certification referred to in paragraph (a) of this section

may be included as part of the claim for relocation payments described

in Sec. 24.207.

Issued on: June 5, 1998.

Kenneth R. Wykle,

Federal Highway Administrator.

[FR Doc. 98-15608 Filed 6-11-98; 8:45 am]

BILLING CODE 4910-22-P