[Federal Register Volume 62, Number 52 (Tuesday, March 18, 1997)]
[Notices]
[Pages 12848-12851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6740]


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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 (BJA), 
Justice.

ACTION: Notice of proposed guidelines.

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SUMMARY: This notice is to request comment on the proposed guideline 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: Comments on this proposed guideline must be received on or 
before April 22, 1997.
    Final guidelines and application information will be published and 
issued within 30 days of the end of this comment period and applicants 
will be given at least 30 working days to make that application.

ADDRESSES: Comments may be mailed to: Office of Justice Programs, 
Office of the General Counsel, 633 Indiana Avenue, NW, Room 1245, 
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: The State Criminal Alien Assistance Program (SCAAP) provides 
reimbursement for certain criminal aliens who are incarcerated in State 
and local correctional facilities. The program is administered by the 
Bureau of Justice Assistance (BJA), which is part of the Office of 
Justice Programs (OJP) in the Department of Justice. The program is 
authorized and governed by the provisions of the Immigration and 
Nationality Act of 1990, as amended, 8 U.S.C. 1251(i), originally 
enacted as part of the Violent Crime Control and Law Enforcement Act of 
1994 (Pub. L. 103-322) at section 20301.
    This section provides the authority, at the option of the Attorney 
General whenever an appropriation is made, to either reimburse States 
and localities for costs incurred in incarcerating qualifying criminal 
aliens or take such aliens into Federal custody. For Fiscal Year 1997 
(FY 1997), the Attorney General has delegated the authority to 
implement the program to BJA. BJA is a criminal justice grant making 
and administrative agency within the Department of Justice and, thus, 
has no ability to take custody. Therefore, SCAAP will continue to be 
administered only as a reimbursement program. For FY 1997, 
$500,000,000, less administrative costs, is available for reimbursement 
payments under SCAAP.
    For FY 1997, records related to all foreign-born inmates with one 
felony or two misdemeanor convictions who are or have been incarcerated 
within a State

[[Page 12849]]

or local correctional facility during a specified one-year period 
should be included in an applicant's claim for an award. All State or 
local jurisdictions which have facilities housing such aliens for 
periods over 72 hours will be eligible. Applicants must provide inmate-
specific information for comparison with records maintained by the 
Immigration and Naturalization Service (INS). Award amounts will depend 
on the number of reimbursable aliens verified by INS, on the lengths of 
stay of those aliens in the applicant's facilities, and on the 
applicant's costs of incarceration. Last year, reimbursement was 
approximately 60 percent of the amount claimed by applicants for 
verified, reimbursable aliens.
    FY 1997 will be the third fiscal year in which funding for SCAAP 
has occurred. In each of these years, there have been changes to the 
authorization for SCAAP and modifications in data gathering and formal 
application procedures. Because of these changes, BJA is issuing its 
proposed model for distributing FY 1997 SCAAP funds to allow and 
encourage comment by potential applicants and other interested parties.
    Comment is particularly requested about the methodology to be used 
to count inmates who fit within the criteria for reimbursement and the 
types of data elements about those inmates that must be provided for 
INS verification. The ability of eligible applicants to access 
necessary criminal history information and the completeness and 
accuracy of that information is also a critical area that should also 
be addressed, as it will be relevant to the provision of requested data 
(see subsection 2 below). Comment on any other aspect of this proposed 
distribution model is also welcome.
    BJA is attempting to increase the body of information available 
about all incarcerated criminal aliens, to ensure that the data 
underlying its awards are complete and accurate, without establishing 
requirements for data submission that are overly burdensome for 
applicants. For these reasons, the model proposed expands the types of 
data required while streamlining the methodology for obtaining that 
data.

1. 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 locality; therefore, cost and inmate information from 
all facilities within a single subdivision must be consolidated into a 
single application.
    The applicant may be either the chief executive officer (CEO) 
(e.g., governor, county executive, mayor) of the political subdivision 
itself or the head (e.g., director, commissioner, sheriff, etc.) of the 
correctional facility in that jurisdiction, pursuant to a delegation 
from the CEO. Such delegation must be 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.) will be signing 
the application, the formal applicant would be the county, at the 
address of the county office. If the county sheriff will be signing the 
application pursuant to delegation from the county board, the formal 
applicant would be the sheriff, and the award will go directly to the 
address of the sheriff (or county correctional facility).
    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.

2. 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 in 
subsection 4 below) 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:
    <bullet> Have a foreign country of birth. The record submitted must 
contain the name of that foreign country. See the discussion under 
subparagraph 4 below for proposed rules for submitting and verifying 
suspected foreign-born inmates who do not self-report a foreign country 
of birth.
    <bullet> Have been in the applicant's custody at some point between 
July 1, 1996, and June 30, 1997. Only the number of days in custody 
during this time period may be counted toward the length of stay for 
that inmate. Thus, a cap of 365 days will be imposed on the number of 
days which an applicant may claim for a single inmate.
    <bullet> Have been in the applicant's custody for a period 
exceeding 72 hours. Police ``lockups'' and similar holding facilities 
are excluded, and the applicant would not be expected to submit records 
for persons held pending arraignment on new charges who are then 
released and not again incarcerated. However, once the facility has 
exercised custody over an inmate beyond 72 hours, all time in custody 
may be included in the length of stay reported for an otherwise 
qualified inmate, as defined in this section.
    <bullet> 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. In 
the case of aliens who entered with previous qualifying convictions, 
all time in custody during the specified one-year period may be 
counted, regardless of the disposition of the charges which led to the 
current incarceration. In the case of aliens who did not have the 
qualifying conviction(s) before entering into applicant's custody, only 
the time spent during the one-year period in applicant's custody after 
the qualifying conviction occurs may be counted, unless the inmate is 
also sentenced during the specified year period to some sentence (e.g., 
``time served'') which converts the pretrial custody period into part 
of the final disposition for purposes of fulfilling the sentence. In 
this situation, all time in custody can be counted.
    Please note that, in either case, the applicant must be able to 
determine and document that the qualifying convictions have taken 
place. 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

[[Page 12850]]

potential sentence that could be imposed upon conviction is more than 
one year.
    <bullet> Fall within one of three categories specified in the 
statute:
    <bullet> Entered the United States without inspection or at any 
time or place other than as designated by the Attorney General;
    <bullet> 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,
    <bullet> 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.

3. Specification for Inmate Records

    The applicant will have two options for providing information about 
inmates: (1) Applicants may use their own 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 final instructions.
    The following data will be requested:
    <bullet> Alien (``A'') number. An ``A'' number is an 7-, 8-, or 9-
digit number which may or may not have been assigned to an inmate by 
INS and be known to the applicant. If no A number is available, the 
applicant may leave this field blank.
    <bullet> First, middle, and last names of the inmate, including all 
aliases. A separate record will be required for each alias.
    <bullet> Unique identifying number for each inmate. This number 
will allow INS to check separate alias records, but avoid duplicate 
counting of the same inmate. The number will be assigned to that inmate 
by the applicant and will generally be used by the applicant for other 
identification purposes.
    <bullet> 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.
    <bullet> Foreign country of birth. Applicants should supply the 
actual name of the foreign country (at least the first 10 letters of 
the name will be required) or use a coding system. If a coding system 
is used, applicants must submit documentation of the codes as part of 
their applications.
    <bullet> Date upon which the alien entered into the applicant's 
custody. This date will be a required field for all inmates, not just 
those potentially qualifying under the ``subject of proceedings'' 
category.
    <bullet> Type and level of crime of the qualifying conviction(s). 
Applicants will be expected to code the qualifying felony or 
misdemeanor convictions utilizing the Federal Bureau of Investigation's 
(FBI's) National Criminal Information Center (NCIC) coding scheme. Both 
of the qualifying misdemeanors will need to be coded. More specific 
directions for accessing and utilizing these codes will appear in the 
final guidance for application. These instructions will also address 
the issue of which among possible qualifying convictions should be 
coded.
    Because this will be the first year in which the qualifying 
offenses will need to be submitted, and because of the specificity and 
reliability that would result from use of NCIC codes for all offenses, 
BJA particularly solicits comment by potential applicants on their 
ability to provide this data in the form requested.
    <bullet> Actual length of stay in the applicant's custody between 
July 1, 1996 and June 30, 1997 that is ``qualifying'' under the 
criteria set forth in subsection 2 above. Applicants will be expected 
to specify the exact number of days of incarceration for each inmate. 
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.
    <bullet> Earliest possible release date for the inmate, if that 
inmate is currently serving a sentence in applicant's custody. This 
field may be left blank if the inmate is in pretrial status (but has 
the qualifying prior felony or two misdemeanor convictions) or has been 
convicted but not yet sentenced for the charge(s) which brought the 
inmate into applicant's custody, or if the determination will be made 
by a State facility after transfer of a sentenced inmate from a local 
to a State facility.
    <bullet> FBI number. This information will not be a required but is 
data 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 document. Other data that might be useful in making 
positive identifications of inmates may be requested, but will not be 
required.
    Applicants that cannot provide data on lengths of stay for all 
inmates incarcerated during the one-year period will be allowed to do a 
one-day count at any point during the application period. However, they 
may only claim the lengths of stay for the inmates who were 
incarcerated on the day of that count. This option should only be used 
if it is impossible to provide full-year data, because it is very 
likely to result in a lower level of reimbursement than would use of 
the preferred method.

4. 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 will be based on a separate process. The INS is currently 
working to gather data that will produce an estimate of the proportion 
of unmatched inmates who are likely to be eligible for reimbursement. 
The estimate will likely be based on the information about the 
immigration status of criminal aliens interviewed during the last year 
who previously did not have files in INS

[[Page 12851]]

databases. Depending on the results of this study, a single, nationwide 
rate will probably be developed, although it is possible that regional 
or state-specific rates will be necessary. This new procedure is 
expected to allow more uniformity among applicant submissions while 
being 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, 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 the inmates 
with no foreign country of birth provided, those inmate records will be 
deleted from the applicants' submissions. Aliens whose records are 
deleted from a submission will not be included in the pool of unmatched 
inmates to which the special reimbursement rate is applied.

5. 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 qualifying facilities 
administered by the political subdivision making 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 other jurisdictions must be deducted from the overall 
prisoners' upkeep costs. Payments made by the jurisdiction 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.
    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.

6. Formal Application and Deadline for Application

    Application kits with final instructions will be mailed directly to 
correctional facilities (unless BJA has been notified by an eligible 
jurisdiction to provide the kit to another office) and will consist of 
a formal application form, required Federal assurances and 
certifications, and a diskette for provision of inmate data (at the 
applicant's option; see subsection 3 above). An original, signed 
delegation from the CEO of the jurisdiction will also be required if 
the applicant is not the CEO. If both the CEO and the designated 
signatory for the jurisdiction are the same as reflected in prior 
applications under this program in FY 1995 or FY 1996, a copy of the 
previously submitted delegation will be acceptable.
    As was the case last year, BJA anticipates requesting a mix of 
electronic and hardcopy documentation as part of the application 
package. All inmate data must be submitted in electronic form (on 
diskette). A scannable, hardcopy application form will be used to 
obtain basic information on the applicant (e.g., address, contact 
person, etc.). Separate, hardcopy certifications and assurance forms 
may be used, or the scannable application form may contain the 
necessary standard certifications. In any event, the applicant will be 
required to provide all inmate and cost information necessary for BJA 
to make the award, as is described in this announcement.
    In a change from last year, the deadline for submission of both 
inmate data and the other application documents will be on the same 
date. This date will be a firm deadline (evidenced by postmark); no 
extensions of this deadline will be given and late submissions of 
inmate diskettes will not be allowed. Applicants will be given at least 
30 working days to complete the required application. During the 
application period, BJA staff will provide technical assistance to 
potential applicants preparing the inmate data diskettes and will be 
available to answer any questions that applicants may have about 
filling in the formal application documents. After applicants have met 
the deadline, BJA reserves the right to ask for additional information 
to clarify or correct minor errors in the application.

7. Award Calculation and Funding Availability

    The FY 1997 amount available for distribution is $492,038,000. As 
in past years, the formula for award calculation will, first, 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.

8. Award and Post-Award Processing

    BJA will continue to utilize grants as its reimbursement mechanism. 
The conditions governing general award eligibility, drawdown, and 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.
Nancy E. Gist,
Director, Bureau of Justice Assistance.
[FR Doc. 97-6740 Filed 3-17-97; 8:45 am]
BILLING CODE 4410-18-P