[Federal Register Volume 59, Number 113 (Tuesday, June 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14440]
[[Page Unknown]]
[Federal Register: June 14, 1994]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 65
[INS No. 1449-92; AG Order No. 1892-94]
RIN 1115-AD40
Emergency Federal Law Enforcement Assistance: Immigration
Emergency Fund
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This final rule implements provisions in the Immigration and
Nationality Act that establish an ``Immigration Emergency Fund'' and
that provide for assistance to States and local governments for
services provided, at the request of the Attorney General, to meet an
immigration emergency declared by the President, to aid in the
administration of the immigration laws of the United States, or to meet
urgent demands arising from the presence of aliens in a State or local
jurisdiction. This rule sets forth procedures governing: Requests for a
Presidential declaration of an immigration emergency; requests from the
Attorney General for state or local government assistance when the
President has declared an immigration emergency and in certain other
circumstances; and applications from States and local governments for
assistance from the Immigration Emergency Fund.
EFFECTIVE DATE: June 14, 1994.
FOR FURTHER INFORMATION CONTACT:
Michael J. Coster, Associate General Counsel, Immigration and
Naturalization Service, 425 I Street, NW., room 6100, Washington, DC
20536, telephone (202) 514-2895.
SUPPLEMENTARY INFORMATION: The Department of Justice (``Department'')
promulgated a proposed rule on January 14, 1992, 57 FR 1439, which set
forth procedures and requirements for reimbursement from the
Immigration Emergency Fund to States and localities for assistance
provided in the absence of a Presidential determination that an
immigration emergency exists under paragraph (b)(2) of section 404 of
the Immigration and Nationality Act (``INA''), 8 U.S.C. 1101, note
(b)(2). After receiving several comments, the rule was expanded and
amended significantly, and the Department promulgated another proposed
rule on November 5, 1993, 58 FR 58994. The proposed rule set forth
procedures and requirements for reimbursement from the Immigration
Emergency Fund to States and local governments under all the provisions
of section 404(b) of the INA as required by section 610 of the
Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1992, Public Law 102-140, 105 Stat. 782,
832. The Supplementary Information section of the publication at 58 FR
58994 contains an exhaustive history of the legislation.
The second proposed rule originally required written comments to be
submitted by December 6, 1993. On January 5, 1994, at 59 FR 558, the
Department extended the comment period to January 26, 1994, and three
sets of comments were received. Two were from government entities while
the third was from a public policy group. The Department received and
evaluated the comments as follows:
Comment: The definition of ``assistance'' for which the fund could
be used to reimburse State and local governments should be expanded to
include direct and indirect costs, such as overhead and administrative
costs, associated with providing services and resources to aliens,
including those illegal aliens incarcerated in jails and prisons for
violation of State criminal laws. Additionally, assistance should also
include providing for basic medical, cash, and social service needs in
the short run, and housing, education, and human service needs in the
longer rule. This type of social service assistance should not be tied
to the establishment of large shelter facilities.
Response: These changes have not been adopted. The Immigration
Emergency Fund provides only limited resources which must be allocated
in a judicious fashion. The Department believes that the use of the
funds should be limited to assistance provided to the Attorney General
in the enforcement and administration of the immigration laws of the
United States. This view is supported by the statutory language, which
provides for reimbursement for ``assistance as required by the Attorney
General * * *.'' 8 U.S.C. 1101, note (b)(2)(A) (emphasis added). The
Attorney General's mission does not include providing social services
or providing costs of incarcerating persons for violating State
criminal laws. Thus, only in limited circumstances do these types of
services assist the Attorney General.
Comment: It should be made clear that any denial of funds is
without prejudice, and that there may be an opportunity for the States
or local governments to renew their request.
Response: This change is unnecessary and has not been adopted. The
regulation contains no language which would limit the ability of a
State or local government to renew an application.
Comment: For the purpose of determining the increase in the number
of asylum applications in an Immigration and Naturalization Service
(``INS'') district for a given quarter, the number of Cuban nationals
who remain in the INS district after the expiration of their visitors
visas should be included as de facto asylum applicants, whether or not
the Cuban nationals have formally applied for asylum.
Response: This change has not been adopted. The suggested method
for calculating the number of asylum applications filed in a certain
quarter is inconsistent with the plain language of the statute and
other portions of the INA. However, the Attorney General may consider
the concerns raised by the comment regarding Cubans who remain without
filing asylum applications as ``other circumstances'' justifying access
to the fund.
Comment: The definition of ``other circumstances'' is weak, thus
making it difficult to understand what this may cover. This definition
should be reconsidered and elaborated upon by the Department before
final regulations are published.
Response: This change has not been adopted. The statutory language
indicates that Congress intended to give the Attorney General broad
discretion in determining which ``other circumstances'' would justify
access to the fund. The regulation should not unnecessarily limit that
discretion.
Comment: The regulation concerning application requirements should
be more specific. The application process should be triggered by a
phone call by the chief executive of the impacted jurisdiction to the
Attorney General declaring his or her intention to apply to access the
fund. This call would immediately be followed by a facsimile
correspondence reiterating the chief executive's intent to apply.
Within twenty-four hours of the call and facsimile, the Attorney
General and the chief executive or their designees would meet to
facilitate the negotiation of the application. The written application
would need to be submitted within five calendar days of this meeting
and would include: (a) A cover letter from the chief executive; (b) a
written narrative of the emergency conditions and listing the state
point of contact; (c) a listing of the broad service categories
required by the aliens; (d) a description of the services; (e) the
number or estimated number of aliens to be served; (f) the cost or
estimated cost to be incurred; and (g) time parameters for service
provision with a proviso that access to the funds could be extended
without formal reapplication in the case of exigent circumstances.
Response: The specific procedures recommended would be a sound and
welcome way for a State or local government to present its request for
funding, but the regulation has not been amended to require adherence
to those specific procedures. The flexible application process
prescribed in the regulation is sufficiently specific without being
unduly burdensome in the information requirements or overly confining
in the formal requirements of the application. The rule has been
amended to allow the Attorney General to use the grant or cooperative
agreement process to provide funding, in addition to negotiating a
separate reimbursement agreement. Accordingly, State and local
governments may also use standard grant applications. The informal
communication recommended by the commentator is already included in the
regulation at Sec. 65.85(b), and is strongly encouraged.
Comment: The regulation is currently promulgated under 28 CFR part
65, which is entitled ``Emergency Federal Law Enforcement Assistance.''
The regulation should be retitled to reflect the overall intent of the
statute and the contents of the regulation more accurately.
Response: This change has not been adopted. The regulation remains
codified under 28 CFR part 65. However, subpart I is entitled
``Immigration Emergency Fund,'' and the Department will consider
redesignating the regulation in the future.
Procedural Matters
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule does not have a significant adverse economic impact on a
substantial number of small entities. This rule is promulgated in
accordance with the principles set forth in Executive Order 12866, and
the Department considers the rule a ``significant regulatory action''
within the meaning of section 3(f) of E.O. 12866. Accordingly, the rule
has been reviewed by the Office of Management and Budget (``OMB'').
The regulation adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The information collection requirements contained in this rule have
been cleared by OMB under the provisions of the Paperwork Reduction
Act. The OMB clearance number is 1115-0184.
List of Subjects in 28 CFR Part 65
Grant programs--law, Law enforcement, Reporting and recordkeeping
requirements.
Accordingly, part 65 of chapter I of title 28 of the Code of
Federal Regulations is amended as follows:
PART 65--[AMENDED]
1. The authority citation for part 65 is revised to read as
follows:
Authority: The Comprehensive Crime Control Act of 1984, Title
II, Chap. VI, Div. I, Subdiv. B, Emergency Federal Law Enforcement
Assistance, Pub. L. 98-473, 98 Stat. 1837, Oct. 12, 1984 (42 U.S.C.
10501 et seq.); 8 U.S.C. 1101 note; Sec. 610, Pub. L. 102-140, 105
Stat. 832.
2. Part 65 is amended by adding a new subpart I to read as follows:
Subpart I--Immigration Emergency Fund
65.80 General.
65.81 General definitions.
65.82 Procedure for requesting a Presidential determination of an
immigration emergency.
65.83 Assistance required by the Attorney General.
65.84 Procedures for the Attorney General seeking State or local
assistance.
65.85 Procedures for State or local governments applying for
reimbursement.
Subpart I--Immigration Emergency Fund
Sec. 65.80 General.
The regulations of this subpart set forth procedures for
implementing section 404(b) of the Immigration and Nationality Act
(``INA''), 8 U.S.C. 1101 note, by providing for Presidential
determinations of the existence of an immigration emergency, and for
payments from the Immigration Emergency Fund to State and local
governments for assistance provided in meeting an immigration
emergency. The regulations of this subpart also establish procedures by
which the Attorney General may draw upon the Immigration Emergency
Fund, without a Presidential determination that an immigration
emergency exists, to provide funding to State and local governments for
assistance provided as required by the Attorney General in certain
specified circumstances.
Sec. 65.81 General definitions.
As used in this part:
Assistance means any actions taken by a State or local government
directly relating to aiding the Attorney General in the administration
of the immigration laws of the United States and in meeting urgent
demands arising from the presence of aliens in the State or local
government's jurisdiction, when such actions are taken to assist in
meeting an immigration emergency or under any of the circumstances
specified in section 404(b)(2)(A) of the INA. Assistance may include,
but need not be limited to, the provision of large shelter facilities
for the housing and screening of aliens, and, in connection with these
activities, the provision of such basic necessities as food, water
clothing, and health care.
Immigration emergency means an actual or imminent influx of aliens
which either is of such magnitude or exhibits such other
characteristics that effective administration of the immigration laws
of the United States is beyond the existing capabilities of the
Immigration and Naturalization Service (``INS'') in the affected area
or areas. Characteristics of an influx of aliens, other than magnitude,
which may be considered in determining whether an immigration emergency
exists include: the likelihood of continued growth in the magnitude of
the influx; an apparent connection between the influx and increases in
criminal activity; the actual or imminent imposition of unusual and
overwhelming demands on law enforcement agencies; and other similar
characteristics.
Other circumstances means a situation that, as determined by the
Attorney General, requires the resources of a State or local government
to ensure the proper administration of the immigration laws of the
United States or to meet urgent demands arising from the presence of
aliens in a State or local government's jurisdiction.
Sec. 65.82 Procedure for requesting a Presidential determination of an
immigration emergency.
(a) The President may make a determination concerning the existence
of an immigration emergency after review of a request from either the
Attorney General of the United States or the chief executive of a State
or local government. Such a request shall include a description of the
facts believed to constitute an immigration emergency and the types of
assistance needed to meet that emergency. Except when a request is made
by the Attorney General, the requestor shall file the original
application with the Office of the President and shall file copies of
the application with the Attorney General and with the Commissioner of
INS.
(b) If the President determines that an immigration emergency
exists, the President shall certify that fact to the Judiciary
Committees of the House of Representatives and of the Senate.
Sec. 65.83 Assistance required by the Attorney General.
The Attorney General may request assistance from a State or local
government in the administration of the immigration laws of the United
States, or in meeting urgent demands where the need for assistance
arises because of the presence of aliens in that State or local
jurisdiction, and may provide funding to a State or local government
relating to such assistance from the Immigration Emergency Fund,
without a Presidential determination of an immigration emergency, in
any of the following circumstances:
(a) An INS district director certifies to the Commissioner of INS,
who shall, in turn, certify to the Attorney General, that the number of
asylum applications filed in that INS district during the relevant
calendar quarter exceeds by at least 1,000 the number of such
applications filed in that district during the preceding calendar
quarter. For purposes of this paragraph, providing parole at a point of
entry in a district shall be deemed to constitute an application for
asylum in the district.
(b) The Attorney General determines that there exist circumstances
involving the administration of the immigration laws of the United
States that endanger the lives, property, safety, or welfare of the
residents of a State or locality.
(c) The Attorney General determines that there exist any other
circumstances, as defined in Sec. 65.81 of this subpart, such that it
is appropriate to seek assistance from a State or local government in
administering the immigration laws of the United States or in meeting
urgent demands arising from the presence of aliens in a State or local
jurisdiction.
Sec. 65.84 Procedures for the Attorney General seeking State or local
assistance.
(a) When the Attorney General determines to seek assistance from a
State or local government under Sec. 65.83 of this subpart or when the
President has determined that an immigration emergency exists, the
Attorney General shall negotiate the terms and conditions of that
assistance with the State or local government, and shall set forth
those terms and conditions. Funding related to such assistance can be
provided by a reimbursement agreement, grant, or cooperative agreement.
(b) A reimbursement agreement shall contain the procedures under
which the State or local government is to obtain reimbursement for its
assistance. A reimbursement agreement shall include the title of the
official to whom claims are to be submitted, the intervals at which
claims are to be submitted, a description of the supporting
documentation to be submitted, and any limitations on the total amount
of reimbursement that will be provided. Grants and cooperative
agreements shall be made and administered in accordance with the
uniform procedures in Part 66 of this title.
(c) In exigent circumstances, the Attorney General may agree to
provide funding to a State or local government without a written
agreement. A reimbursement agreement, grant, or cooperative agreement
conforming to the specifications in this section shall be reduced to
writing as soon as practicable.
Sec. 65.85 Procedures for State or local governments applying for
funding.
(a) In the event that the chief executive of a State or local
government determines that any of the circumstances set forth in
Sec. 65.83 of this subpart exists, he or she may pursue the procedures
in this section to submit to the Attorney General an application for a
reimbursement agreement, grant, or cooperative agreement as described
in Sec. 65.84 of this subpart.
(b) The Department strongly encourages chief executives of States
and local governments, if possible, to consult informally with the
Attorney General and the Commissioner of INS prior to submitting a
formal application. This informal consultation is intended to
facilitate discussion of the nature of the assistance to be provided by
the State or local government, the requirements of the Attorney
General, if any, for such assistance, the costs associated with such
assistance, and the Department's preliminary views on the
appropriateness of the proposed funding.
(c) The chief executive of a State or local government shall submit
an application in writing to the Attorney General, and shall file a
copy with the Commissioner of INS. The application shall set forth in
detail the following information:
(1) The name of the jurisdiction requesting reimbursement;
(2) All facts supporting the application;
(3) The nature of the assistance which the State or local
government has provided or will provide, as required by the Attorney
General, for which funding is requested;
(4) The dollar amount of the funding sought;
(5) A justification for the amount of funding being sought;
(6) The expected duration of the conditions requiring State or
local assistance;
(7) Information about whether funding is sought for past costs or
for future costs;
(8) The name, address, and telephone number of a contact person
from the requesting jurisdiction.
(d) If the Attorney General determines that the assistance for
which funding is sought under paragraph (c) of this section is
appropriate under the standards of this subpart, the Attorney General
may enter into a reimbursement or cooperative agreement or may make a
grant in the same manner as if the assistance had been requested by the
Attorney General as described under Sec. 65.84 of this subpart.
(e) The Attorney General will consider all applications from State
or local governments until the Attorney General has expended the
maximum amount authorized in section 404(b)(2)(B) of the INA. The
Attorney General will make a decision with respect to any application
submitted under this section, and containing the information described
in paragraph (c) of this section, within 15 calendar days of receipt of
such application.
(f) In exigent circumstances, the Attorney General may waive the
requirements of this section concerning the form, contents, and order
of consideration of applications, including the requirement in
paragraph (c) of this section that applications be submitted in
writing.
Dated: June 8, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-14440 Filed 6-13-94; 8:45 am]
BILLING CODE 4410-01-M
