[Federal Register Volume 63, Number 113 (Friday, June 12, 1998)]
[Proposed Rules]
[Pages 32175-32179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15608]


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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: <a href="http://www.nara.gov/nara/
fedreg">http://www.nara.gov/nara/
fedreg</a> and the Government Printing Office's database at: <a href="http://
www.access.gpo.gov/su__docs">http://
www.access.gpo.gov/su__docs</a>.

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

[[Page 32176]]

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

[[Page 32177]]

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

[[Page 32178]]

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.             
------------------------------------------------------------------------


[[Page 32179]]

    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