12848 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Notices

suspension of Respondent’s registration.

On August 14, 1996, Judge Bittner

issued a Ruling denying Respondent’s

Motion for Reconsideration as lacking in

merit. Neither party filed exceptions to

her Opinion and Recommended

Decision, and on August 26, 1996, Judge

Bittner transmitted the record of these

proceedings to the Deputy

Administrator.

The Acting Deputy Administrator has

considered the record in its entirety,

and pursuant to 21 C.F.R. 1316.67,

hereby issues his final order based upon

findings of fact and conclusions of law

as hereinafter set forth. The Acting

Deputy Administrator adopts in full the

Opinion and Recommended Decision of

the Administrative Law Judge.

DEA has consistently interpreted the

Controlled Substances Act to preclude a

practitioner from holding a DEA

registration if the practitioner is without

authority to handle controlled

substances in the state in which he/she

practices. See 21 U.S.C. 823(f)

(authorizing the Attorney General to

register a practitioner to dispense

controlled substances only if the

applicant is authorized to dispense

controlled substances under the laws of

the state in which he or she practices);

and 21 U.S.C. 802(21) (defining a

practitioner as one authorized by the

United States or the state in which he

or she practices to handle controlled

substances in the course of professional

practice or research). This prerequisite

has been consistently upheld. See Rita

M. Coleman, M.D., 61 FR 35,816 (1996);

Dominick A. Ricci, M.D., 58 FR 51,104

(1993); Roy E. Hardman, M.D., 57 FR

49,195 (1992); and Bobby Watts, M.D.,

53 FR 11,919 (1988).

The Acting Deputy Administrator

finds that the controlling question is not

whether a practitioner’s license to

practice medicine in the state is

suspended or revoked; rather, it is

whether the Respondent is currently

authorized to handle controlled

substances in the state. In the instant

case, it is undisputed that Respondent is

not currently authorized to handle

controlled substances in the State of

Louisiana. Therefore, as Judge Bittner

notes, Respondent ‘‘is not currently

entitled to a DEA registration.’’

The Acting Deputy Administrator

concludes that Judge Bittner properly

granted the Government’s Motion for

Summary Disposition. Here, the parties

did not dispute the fact that Respondent

was unauthorized to handle controlled

substances in Louisiana. Therefore, it is

well-settled that when no question of

material fact is involved, a plenary,

adversary administrative proceeding

involving evidence and crossexamination of witnesses is not

obligatory. See Philip E. Kirk, M.D., 48

FR 32,887 (1983), aff’d sub nom. Kirk

versus Mullen, 749 F.2d 279 (6th Cir.

1984); Alfred Tennyson Smurthwaite,

M.D., 43 FR 11,873 (1978); see also

NLRB versus International Association

of Bridge, Structural and Ornamental

Ironworks, AFL–CIO, 549 F.2d 634 (9th

Cir. 1977); United States versus

Consolidated Mines & Smelting Co., 44

F.2d 432 (9th Cir. 1971).

In her Motion for Reconsideration,

Respondent argued that the permanent

revocation of a registration is a serious

sanction and ‘‘should not be rendered

without considering all of the evidence

in a particular case.’’ The Acting Deputy

Administrator notes that the revocation

of Respondent’s registration is not

permanent. Respondent may reapply for

a new DEA registration when her state

privileges to handle controlled

substances are reinstated. Further, the

Acting Deputy Administrator recognizes

that he has the discretionary authority

to either revoke or suspend a DEA

registration. However, given the

indefinite nature of the suspension of

Respondent’s state license to practice

medicine, the Acting Deputy

Administrator agrees with Judge Bittner

that revocation is appropriate in this

case.

Accordingly, the Acting Deputy

Administrator of the Drug Enforcement

Administration, pursuant to the

authority vested in him by 21 U.S.C. 823

and 824, and 28 C.F.R. 0.100(b) and

0.104, hereby orders that the DEA

Certificate of Registration AT6512152,

issued to Anne Lazar Thorn, M.D., be,

and it hereby is, revoked, and that any

pending applications for the renewal of

such registration be, and they hereby

are, denied. This order is effective April

17, 1997.

Dated: March 4, 1997.

James S. Milford,

Acting Deputy Administrator.

[FR Doc. 97–6794 Filed 3–17–97; 8:45 am]

BILLING CODE 4410–09–M

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.

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
Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Notices 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:

• 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.

• 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.

• 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.

• 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
12850 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Notices

potential sentence that could be

imposed upon conviction is more than

one year.

• 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.

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:

• 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.

• First, middle, and last names of the

inmate, including all aliases. A separate

record will be required for each alias.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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
Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Notices 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