[Federal Register Volume 62, Number 125 (Monday, June 30, 1997)]
[Notices]
[Pages 35224-35232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16998]
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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,
Justice.
ACTION: Notice of final guidance and application information.
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SUMMARY: This notice is to announce funding availability and final
guidance 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: Application forms and supporting information will be mailed
directly to eligible applicants on or before June 30, 1997;
applications must be postmarked no later than August 30, 1997.
ADDRESSES: Applications should be submitted to the Bureau of Justice
Assistance Control Desk, Office of Justice Programs, 633 Indiana
Avenue, NW., 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:
I. Background
A. Proposed Guidance
The State Criminal Alien Assistance Program (SCAAP) provides
reimbursement to States and localities for costs incurred in
incarcerating undocumented criminal aliens. The program is administered
by the Bureau of Justice Assistance (BJA), a part of the Office of
Justice Programs (OJP) in the Department of Justice, in conjunction
with the Immigration and Naturalization Service (INS), which is
responsible for verifying the undocumented criminal alien status of all
individuals for whom records are submitted.
A notice of proposed guidance on the application process and
eligibility criteria for States and political subdivisions to obtain
reimbursement under SCAAP was published in the Federal Register on
March 18, 1997 (62 FR 12848). In that notice, BJA solicited comments on
the application procedures outlined therein. In this notice BJA
responds to public comments and provides the final guidance on
application procedures. However, actual application forms, including
preprogrammed diskettes for filing information electronically, will be
mailed directly to correctional agencies in eligible States and
political subdivisions by June 30, 1997.
B. Statutory Authority and Agency Administration
SCAAP is authorized by section 241 of the Immigration and
Nationality Act of 1990, as amended, 8 U.S.C. 1251(i). The Fiscal Year
(FY) 1997 Omnibus Appropriations Act, Pub. L. 104-208, 110 Stat. 3009
(September 30, 1996) amended the authorization for SCAAP in FY 1996,
redesignating section 242 of the INA as section 241 (codified at 8
U.S.C. 1251(i); 8 U.S.C.A. 1231(i)) and making changes to the
characterization of ``undocumented criminal alien.'' These changes are
discussed below and incorporated into this final guidance.
Section 241 gives the Attorney General the discretion, in the event
of an appropriation, to either reimburse States and localities for
costs incurred in incarcerating qualifying criminal aliens or to take
such aliens into Federal custody. For FY 1997, the Attorney General has
exercised her discretion to reimburse by delegating the authority
[[Page 35225]]
(through the Assistant Attorney General for the Office of Justice
Programs) to the Bureau of Justice Assistance (BJA) to implement the
program. BJA is a criminal justice grant making and administrative
agency within the Department of Justice. It is only authorized to award
and administer criminal justice grants and, thus, has no ability to
take custody of undocumented criminal aliens being held at the State
and local levels. Therefore, SCAAP is being administered as a
reimbursement program. For FY 1997, $500,000,000, less administrative
costs, is available for reimbursement payments under SCAAP.
C. Importance of Collecting Data on Aliens
As stated in the notice of proposed guidance, BJA has a
responsibility to gather sufficient information to verify alien status
and otherwise ensure that the data underlying its awards are complete
and accurate. BJA has attempted throughout its administration of SCAAP
to balance the burden on applicants to provide information relevant to
and supportive of their claims for awards with the need to ensure that
funds are being distributed in accordance with statutory criteria. To
that end, in its first two years of operation, BJA has allowed
applicants to provide, in good faith and on certification, limited data
to support the eventual distribution of award funds.
As the program matures and appropriation levels for SCAAP increase,
the focus of the program must move, as Congress intended, to
reimbursing and verifying on an individual basis rather than continued
reliance upon obtaining only partial or estimated information that may
be easier for the applicants to provide. Thus, while BJA has been
guided by the comments received to its proposed application
requirements to ask only for what is essential for applicants to
provide this year, we must adhere to requirements that further the
longer term goal of an application process which collects information
on individual incarcerated aliens using standardized coding schemes in
easily retrievable electronic form.
Therefore this year, because of a change in the law which greatly
expands the numbers and categories of incarcerated aliens who may be
counted, the applicant must provide information demonstrating the
requisite conviction level and type of offense for all aliens claimed
for reimbursement.
Further, a change in the manner in which applicants are reimbursed
for aliens for whom there is no positive match to INS records relieves
applicants of attempting to determine which inmates might be
reimbursable. This allows them to submit records for all suspected
alien inmates. INS will take the responsibility for ensuring that
aliens are properly identified and their status verified.
Most importantly, the continued reliance on a one-day count, which
provides only an estimate of bed spaces occupied by inmates who might
be qualifying aliens, as an equivalent option to a methodology that
leads to the actual identification of qualifying aliens, is no longer
acceptable. Therefore, BJA is asking all applicants to provide data on
as many aliens as they can determine were incarcerated in their
facilities during the one-year reporting period for this year's
reimbursement cycle; eligible applicants who cannot comply with this
requirement may use a one-day count taken at any point during the
application period. However, this method is likely to result in a much
lower level of reimbursement than would the use of the primary method.
Since aggregating the numbers of aliens housed throughout the year
will continue to be the method used for SCAAP, BJA strongly suggests
that all jurisdictions begin now to keep track of all foreign born
inmates entering and leaving their facilities, so that they may benefit
from SCAAP more completely in FY 1998.
D. Achieving Parity Between State and Local Applicants
A second goal for SCAAP this year, as suggested in the proposed
guidance, is to impose the same requirements on both the States and the
local subdivisions which apply. In the first year of SCAAP funding,
only State departments of corrections were eligible. However, when the
program was expanded last year to include local jails, some
distinctions were made between State applicants and local applicants.
This was based on the assumption of longer lengths of stay in State as
opposed to local institutions.
Although this distinction is reasonable as a rule of thumb, and
because there was some limited national data on lengths of stay for
sentenced felons housed in jails, BJA factored this distinction into
its formula in FY 1996 through the use of standardized lengths of stay
for inmates counted by those applicants choosing the one-day count
method. However, the lack of current, reliable data on lengths of stay
of all types of inmates in all types of correctional facilities cannot
support continued distinction among State and local agencies and BJA
cannot arbitrarily assign some standardized length of stay which is not
adequately supported by data and thus may be unduly favorable to one
type of applicant over another.
Therefore, beginning this year, both State and local applicants
will be expected to comply with the same requirements for SCAAP
application.
II. Comments Received and BJA Response
Responses were received from 10 State departments of corrections
and two county jail agencies. These responses addressed a number of
topics and led to some changes in the approach that BJA will take
during this year's distribution of SCAAP funds. In particular,
respondents were concerned that requirements had been added or prior
options restricted at the same time as the application period had been
shortened. While, BJA is bound by changes in the governing legislation
to add some restrictions and the proposed application period was not
significantly shorter than in the prior two cycles, BJA is acutely
aware of the increased amount of information required for the
application and has made modifications to accommodate applicants while
continuing to treat all eligible applicants fairly.
In particular, the need to ensure that applicants have a sufficient
amount of time to provide the necessary information (as set forth in
this announcement), has led BJA to extend the application period to 60
days and allow applicants to use their own offense coding system if use
of the FBI's NCIC codes is not feasible. However, as indicated in the
background section, BJA must ensure that the funds distribution model
described herein furthers the intent and goals of the legislation
governing this program.
The specific comments and BJA's response to them are as follows:
Foreign Country of Birth Information. Several comments concerned
the mandatory requirement to provide a foreign place of birth. In
particular, the comments were that it is the responsibility of INS to
determine alien status and place of birth is not necessary to this
determination; that place of birth information may be unreliable
because it is self-reported or because aliens will lie to avoid
possible deportation; that alien status may be suspected but the exact
foreign country is not known; and that inmates for whom no foreign
country of birth is given will be dropped completely from the numbers
claimed unless a positive match with INS records is made.
[[Page 35226]]
Response. BJA's clear responsibility under SCAAP is to reimburse
only for qualifying aliens. We do agree that only INS should determine
which inmates are aliens and which ones qualify for reimbursement under
the alien status categories listed in SCAAP law. Therefore, BJA asks
only that applicants demonstrate some reasonable basis that the inmates
they count and submit are potentially eligible by providing a foreign
country of birth. We have facilitated submission of this information by
allowing applicants to use their current data entry codes or
terminology and submit a data dictionary if place names are coded
rather than spelled out.
Further, BJA allows submission of records of inmates without
country of birth specified or even with U.S. birthplaces, if the
applicant has some reasonable basis for suspecting alien status,
although such submission are not encouraged and with the understanding
that, if there is no positive match, these records will be dropped.
Such inmates cannot be treated as ``unmatched aliens'' eligible for
reimbursement because we would be likely be reimbursing for inmates not
covered by the law. No change from the proposed requirements can be
made with regard to this requirement.
Qualifying Conviction Information. A number of comments were
received concerning the requirement for provision of information on the
conviction or convictions that qualify the alien inmate to be included
in the count. Specifically, some of those comments indicated that type
of qualifying conviction was not required for the purposes of alien
identification while others argued that since State institutions house
only felons, there was no need for additional proof of their
eligibility under this criteria (at least from State applicants). One
respondent indicated that this provision would require his institution
to obtain information on prior records which is not readily available
or is costly to obtain, and is frequently inaccurate. Another
questioned our definition of a felony. Eight respondents commented on
the proposed requirement to use the FBI's NCIC codes for identifying
offenses. The comments on NCIC coding primarily concerned lack of
sufficient time to do the reprogramming necessary to make the
conversion from the respondents' current offense coding schemes to NCIC
codes, rather than an inability to make the conversion.
Response. A change in the governing legislation, applicable to FY
1997 and future applications, dropped the requirement that all aliens
for which reimbursement was made be sentenced felons and instead allows
applicants to submit records for those inmates convicted of one felony
or two misdemeanors, regardless of whether sentences have been imposed.
Due to this major expansion in potential qualification of inmates for
reimbursement, and consistent with our overall goal of obtaining more
accurate and specific data on inmates for whom reimbursement is being
made, BJA strongly feels it must ask for the level and type of offense
that qualifies the inmate to be counted. The information requested has
been reduced from that first proposed, however, to ask only if the
qualifying conviction is a felony or two misdemeanors and what the
offense code is, for the most serious conviction about which the
applicant has information.
Further, for this award year, applicants will be allowed to use the
offense coding scheme they currently have in place, as long as they
submit a data dictionary (preferably in electronic form) which
indicates the actual offenses and their corresponding codes. Applicants
who can do so are strongly urged to use either the 2-digit or 4-digit
NCIC code, and all eligible applicants are notified that BJA intends to
move toward mandatory use of NCIC coding, perhaps as early as FY 1998.
Thus, jurisdictions should be taking this type of conversion into
account in their planning and systems programming.
With regard to which conviction offense should be coded, BJA will
not specify any hierarchy among offenses (other than to choose the most
serious if more than one qualifying conviction is known) nor set any
time limit within which such offense must have occurred. Any qualifying
conviction (one felony or the second misdemeanor) about which the
applicant has information can be used. Thus, applicants who have
limited information may rely on the ``controlling'' offense that
resulted in the incarceration (if conviction has already occurred), on
any known prior qualifying conviction, or on a qualifying conviction
occurring during the reporting period. If a qualifying conviction
exists, all of the time the inmate has been held in the applicant's
custody can be counted, regardless of when the conviction occurred or
whether or not a sentence of ``time served'' is subsequently imposed.
Although it is true that most State facilities house only felons,
some States and all local facilities house misdemeanants. Indeed, some
States run local facilities and others contribute to the costs of
running such facilities. Thus, there are many variants from the strict
State/local hierarchy suggested by some comments received. BJA feels
strongly the need to standardize the requirements placed on both
categories of applicants rather than to continue to make assumptions
more favorable and/or less burdensome to States than to local
applicants.
One applicant argued that the definition of ``felony'' should be
those offenses for which the possible sentence could be ``one year or
more'' rather than ``more than one year.'' The definition currently
used is consistent with normal Federal usage and is correct. It should
be noted, however, that this definition only applies if the applicant's
State law does not have any established definition of felony and is
applicable only to a few applicants.
Other inmate record requirements. One or more respondents had
comments (some negative and some positive) about several other proposed
inmate record requirements. One objected to the need for earliest
possible release date. Others commented on the option to provide
multiple records, generally indicating that they had no problem with
this option.
Response. The request for earliest possible release date has been
dropped. The option to submit multiple records for the same inmate is
retained because this option allows applicants great flexibility to
furnish additional identifying information on suspected criminal
aliens, which increases their chances of having positive matches to INS
records. Applicants may choose to submit only one record per inmate,
but they are encouraged to submit as many records for inmates with
legitimate indicators of alien status who have multiple names or dates
of birth as they can in a cost effective manner. Applicants are
reminded that multiple records must be traceable to a single inmate
through use of an unique inmate number, which is a required data
element.
Scope of alien coverage under the law. One respondent commented
that the criterion for reimbursement should be ``deportability'' and
another complained of the failure to automatically include ``Mariel
Cubans.''
Response. BJA's criteria for inmate qualification and alien
reimbursability come from a plain reading of the governing legislation.
Therefore, while this program addresses criminal aliens, it does not
provide reimbursement for every type of deportable alien, only for
those who are clearly designated within the categories listed in the
law itself. In particular, the inclusion or exclusion of ``Mariel
Cubans'' under SCAAP is of concern to some applicants. A clear
[[Page 35227]]
reading of the statute does not recognize ``Mariel Cubans'' as a
distinct category; thus, those aliens who might fit under that label
are treated as are all other inmates whose names are submitted.
Treatment of unmatched aliens. Two of those commenting noted the
proposed change in the way in which BJA and INS will determine the
percentage of unmatched inmates for which applicants will receive
reimbursement. Both indicated that they felt that the information given
in the announcement was insufficient to allow comment and that an
additional opportunity for comment should be allowed once the final
methodology for this distribution is determined.
Response. Last year, alien inmates who could not be positively
matched were allocated between reimbursable and nonreimbursable
categories in the same ratio as those positively identified. In its
earlier announcement of proposed guidance, BJA indicated that
allocation of unmatched alien inmates would be based on a study which
would determine how likely it was that the INS databases did not have
information on alien inmates who were nonreimbursable. This study was
to be based on the results of interviews of inmates that were conducted
by INS field agents and the study had not been concluded at the time
the initial announcement for comment was made.
The study indicated that approximately 95 percent of those
interviewed who had no previous record in any INS database were
determined to be undocumented aliens. Thus, this year applicants will
be given credit for 95 percent of the unmatched inmates with valid
foreign countries of birth. Since this percentage is higher than any
ratio applied to any applicant's unmatched inmates in either prior
year, BJA believes that no applicant will be prejudiced by its decision
not to provide an additional comment period on this one issue.
Inmate counting methodology. A frequent comment made about
provision of inmate records concerned the counting methodology to be
used. BJA proposed to essentially eliminate the ``one-day count'' that
had been used in the first two funding years in favor of an aggregate
count of all alien inmates in the applicant's custody during the year-
long reporting period (July 1, 1996 through June 30, 1997).
State agencies commenting indicated that providing a total or
aggregate count of inmates, especially with provision of individual
lengths of stay, would require extensive reprogramming that would take
time and require, in some cases, searching several data bases, not all
of which are under the direct control of the respondent. Almost
unanimously, the 10 State comments asked that the one-day count be
retained as a equal option to aggregate counting, with continued credit
for a full year's slot (bed space) for each alien counted.
One State and one local respondent suggested that an alternative
technique of sampling over some time period would be preferable to
counting every inmate for the full year or suffering a significant
reduction in total reimbursement due to use of a one-day count. One of
the two local respondents indicated that it was unlikely that they
could provide aggregate counts because they were not automated and thus
expected to be seriously prejudiced in terms of reimbursement.
However, as in the case of utilizing NCIC codes, most respondents
indicated that make the move to aggregate counting would require
reprogramming that would be time-consuming, rather than indicating that
it would be impossible to comply with the requirement.
Response. When working only with State agencies in the FY 1995
funding year, BJA had allowed a one-day count and gave applicants
credit for having the number of inmates counted every day during the
reporting year. That is, each reimbursable alien inmate verified by INS
was treated as a full-time equivalent on the theory that most State
correctional beds were always filled and that sentenced felons were
likely to be incarcerated for at least a year.
Those same assumptions could not be made for local jails, which
became eligible under the program in FY 1996. However, due to a
foreshortened application period and the lack of definitive information
on numbers, types, and lengths of stay of aliens in local jails, the
one-day option was again allowed in FY 1996. Local jails were allowed
to claim only 152 days for each alien inmate determined to be
reimbursable, however, which was the average length of stay determined
in an unrelated national survey results for sentenced felons housed in
local jails. State agencies continued to receive a full year's credit.
The aggregate count option (counting all aliens incarcerated during
the reporting year) was also allowed in FY 1996, and approximately one-
fourth of the State correctional agencies and two-thirds of the local
applicants chose that option. While the total numbers of applicants was
small, the high use of aggregate counts in FY 1996 was encouraging and
the evidence on actual lengths of stay was illuminating. For both State
and local agencies, the actual, average lengths were much shorter than
the standardized figures allowed.
More importantly, in proposing to move to aggregate counts as the
preferred option in FY 1997, BJA was motivated by concerns about
perpetuating a distinction between State and local agencies in counting
methodology and overall reimbursement formula which might not be fair.
Further, the use of standard lengths of stay emphasized ``bed spaces''
rather than individual incarcerated aliens.
In balancing the desire for better information against the limited
time that it can allow applicants to provide the information required,
BJA has decided to allow applicants a longer time period for
application, and retain the admittedly less favorable one-day count
option, for both State and local applicants to use only if they are
unable to reconstruct data about inmates released from their facilities
prior to the end of the official reporting period. Applicants selecting
this option may choose any day during the application response period
for the count, up to the day the application is submitted, but will
receive credit only for days the counted inmates were incarcerated
during the reporting period.
An intermediate option is also being allowed. This is to provide
less than full year data on those inmates, housed by the applicant
during the one-year reporting period, for which the applicant still has
sufficient information to supply mandatory data items. This option may
help some local jails that keep inmate data for limited periods. Note
that these less than full year counts will not be used to credit
applicants with estimated counts for the full year, but should
certainly increase the number of inmates for whom these applicants may
receive reimbursement.
However, in all cases, applicants will be expected to provide full
data on every inmate counted, including dates of entry and (if
applicable) release from custody. All applicants are notified that BJA
intends to move toward aggregate counting methodology and eliminate the
one-day count entirely in FY 1998.
Calculating lengths of stay for inmates counted. Related to the
count methodology issue was the difficulty of calculating lengths of
stay falling with the year-long reporting period. Several respondents
suggested it would be easier for them if they could give admission and
release dates and have BJA or INS do these calculations.
Response. BJA and INS will accede to this request. As part of its
review of inmate records, INS will do all calculations of the lengths
of stay for all inmates submitted, regardless of
[[Page 35228]]
whether applicants use the aggregate or the one-day count method. These
calculations will result in a final number of inmate equivalents for
reimbursement purposes. For each inmate counted, the applicant will
need to provide only the date he or she entered custody and the date he
or she was released from custody (if the inmate has been released),
regardless of whether these dates fall within the reporting year (July
1, 1996, through June 30, 1997).
Having the actual date upon which the inmate entered custody will
also allow INS to properly search for aliens qualifying under the
``subject of proceedings'' provision in the SCAAP law. Applicants
should note that the release date requested is not a projected date but
an actual date, and only applies if the applicant no longer has custody
of the inmate. If the inmate is still in custody on June 30, 1997, or
for those doing a one-day count, on the date of the count, this data
field should be left blank.
Length of the application period. A number of comments were
received indicating that the proposed applicant response time of at
least 30 working days would not be sufficient to meet the various
requirements proposed. Time periods from 60-120 days were mentioned as
being necessary for reprogramming required to do aggregate counting
and/or code qualifying offenses using NCIC codes.
Response. Despite the modifications BJA is adopting as a result of
the comments received, BJA understands that an application period
longer than 30 days may be necessary. Therefore, the due date has been
moved to August 30, 1997. This should also accommodate those
respondents who indicated that they would be pressed to finish by mid-
July an aggregate count ending on June 30, 1997. Any additional delay
in the deadline for application must be balanced against the desires of
applicants to receive reimbursement as soon as possible. It is hoped
that this extension of time will still allow final awards to be made in
December 1997.
To facilitate this process, application kits will again be sent
directly to correctional agencies that will have the necessary
information. However, BJA wishes to emphasize that an agency's parent
governmental entity (e.g, State, county or city) is the official
eligible applicant and the correctional agency may only apply by
delegation from that entity. An official delegation will be required in
order to complete the application.
Cost per inmate data requirements. Four comments addressed aspects
of the cost data required. Of these, three commentators indicated they
had no problems with the cost data calculation. The fourth respondent
criticized the method for making this calculation, the prohibition
against inclusion of capital expenses, and the timing of the cost data.
In particular, this respondent argued that applicants should be able to
claim all alien inmates for whom they have legal responsibility,
regardless of where they are housed. This commentator also indicated
that facility costs are part and parcel of what jurisdictions must pay
to house inmates and by not including them, the Federal Government is
not reimbursing for all costs of housing undocumented aliens. Finally,
this respondent was concerned that cost data for the reporting period
would not be available by the date the application was due.
Response. In general, BJA has required and received the same type
of cost information under essentially the same rules in both prior
years. The method required gives applicants the flexibility to use
readily available cost-per-inmate data that is not restricted to the
cost of incarcerating the inmates counted for reimbursement. Only
routine operating costs are allowed, but applicants can claim the full
costs of running all facilities in their system. In recognition of the
differences in accounting methods and fiscal years, BJA allows
applicants to use the most current fiscal data available to them,
including prior year data.
In FY 1995, applicants were allowed to claim a standard percentage
over routine operating costs to cover nonroutine costs. However,
capital expenses and other nonroutine costs do not fall evenly over all
applicants and their inclusion could radically increase the cost per
inmate for some applicants in some years. Because funds are limited and
will not cover all costs claimed by applicants, BJA continues to
believe that the restriction to the ``routine operating costs''
approach is fairer to all eligible applicants.
Recognizing that inmates move among institutions frequently and
that many correctional agencies have inmates housed out of their
jurisdiction or are housing inmates for other jurisdictions, BJA
adopted an approach which offsets costs as the means of controlling for
a number of possible situations in which the legally responsible agency
is not the immediate custodian of an inmate. Applicants add in payments
they make to other jurisdictions or private vendors for housing their
inmates elsewhere and deduct payments to them for housing other
jurisdictions' inmates. By using this method, BJA allows applicants to
count all otherwise qualifying inmates actually housed in their
institution during the reporting period without incurring duplication
of costs or requiring cost information to be particularized to the
individual inmates counted.
BJA does not feel it necessary or appropriate, based on these
comments, to change the basic requirements for inmate costs. BJA is
providing more detail on the types of situations which might arise in
making these calculations to address issues that have occurred in the
past 2 years of program administration.
Other comments. One comment questioned the need for requiring
applicants to give assurances that they are complying with a wide range
of Federal laws that have no relevance to the specific goals of SCAAP
or the rules governing use of SCAAP funds. Two noted a desire to have
feedback from INS as to specific aliens positively identified in prior
award cycles. One respondent pointed out potentially confusing
terminology regarding qualifying aliens.
Response. While SCAAP is unusual in that it provides reimbursement
payments that, once legally obtained by the applicant, can be used by
the applicant for any legitimate purpose, it remains a Federal grant
program providing funds to eligible applicants. As such, applicants
must adhere to standard Federal grant eligibility requirements, which
include adherence to Federal laws. If applicants cannot meet these
criteria, they are not eligible to receive Federal funds, no matter the
purposes to which they plan to apply their reimbursement. Thus, all
standard Federal assurances and certifications must be made at the time
of application.
After the FY 1995 awards, INS did provide applicants with
information on those aliens who were positively identified, whether or
not the inmates had been determined to fall within a reimbursement
category. Such information is not necessary to make the FY 1997
application, however, since there will be no reliance on the ratio of
reimbursable to nonreimbursable aliens in determining the portion of
unmatched alien inmates for which FY 1997 reimbursement will be made.
However, this information may be of use to the applicant and INS plans
to provide this information, as soon as feasible, to those applicants
who received FY 1996 awards and who receive FY 1997 funds.
BJA and INS would like to thank all respondents for their
thoughtful comments. This feedback has assisted
[[Page 35229]]
us in developing our final guidance for FY 1997, which is set forth
below.
In addition, BJA would encourage any eligible applicants, and
particularly local jurisdictions as few in this category responded to
the earlier announcement, to provide BJA with comment on their
experiences in making application in FY 1997 or their reasons for not
making application, should that be their choice. Such comments can be
submitted to the address for applications shown in the beginning of
this notice, to the attention of Linda McKay, SCAAP Coordinator.
III. Final Application Guidance
Correctional facilities in eligible jurisdictions will receive an
application kit that will include the following general guidance as
well as proper forms and other materials with instructions for
completing the forms, formatting data, and mailing in the application.
Thus, the following information concerns only the essential
requirements for application, as were previously announced and/or as
modified from that prior announcement.
A. 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 State or locality; therefore, cost and inmate
information from all facilities operated by a single applicant must be
consolidated into a single application. A State correctional agency
which directly operates some or all jails located in its political
subdivisions should consolidate data from all such facilities.
The applicant may be either the chief executive officer (CEO)
(e.g., governor, county executive, mayor) of the political entity or
the head (e.g., director, commissioner, sheriff) of the correctional
facility in that jurisdiction, pursuant to a delegation from the CEO.
Such delegation must be made 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.) signs the
application, the formal applicant is the county, at the address of the
county office. If the county sheriff signs the application pursuant to
delegation from the county board, the formal applicant is the sheriff,
and the award will go directly to the address of the sheriff (or the
county correctional facility). Jurisdictions that want awarded SCAAP
funds to be deposited into an existing governmental bank account or
Letter of Credit (LOCES) account rather than into the correctional
agency's account should have the CEO or a designated governmental
officer (e.g., county manager or chief financial officer) sign the
application and use their place of business as the official applicant
name and address.
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.
B. 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 below in
subsection D, ``Verification of Inmate Data'') 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
subsection D below for submission of suspected foreign-born inmates who
do not self-report a foreign country of birth.
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.
Have been in the applicant's custody at some point between
July 1, 1996, and June 30, 1997. Applicants should count and report on
all inmates who are otherwise qualifying under this section who were in
their custody during this period and for whom they can provide the
mandatory data elements described in C below. If correctional agency
records are not adequate to provide information on inmates housed for
the full year, the applicant may report on any lesser time period
within this year-long reporting period. These less-than-full-year
counts will not be used to credit applicants with higher estimated
counts for a full year; rather, applicants will receive credit only for
individual inmates for whom complete records are submitted. However,
this intermediate option should certainly increase the number of
inmates for whom these applicants may receive reimbursement.
A one-day count option is allowed, but applicants should use this
method only if it cannot recreate accurate data for inmates who left
the institution prior to the end of the reporting period. Applicants
using this one-day count will receive credit only for those inmates
counted who are determined to be qualifying aliens and only for the
lengths of stay of these individual inmates that occurred within the
reporting period. Applicants using this option may choose any day up to
the day of application submission to make the one-day count.
[[Page 35230]]
Applicants are asked to provide, for each inmate counted, the date
the inmate first came into the custody of the applicant and the date
the inmate was released from custody (if already released). If an
inmate is still in the applicant's custody at the end of the reporting
period (or at the time of the one day count if that option is chosen),
the field for release date should be left blank. All calculations of
lengths of stay will be made by INS. Note that a cap of 365 days will
be imposed on the number of days an applicant may claim for a single
inmate.
Applicants will be asked to report, on the official application
form, the count option chosen and the time period (up to 365 days) for
which they were able to provide complete inmate records. Further
instructions will be contained in the application kit.
Have been in the applicant's custody for a period
exceeding 72 hours. Police ``lockups'' and similar holding facilities
are excluded, and applicants are not expected to submit records for
persons held pending arraignment on new charges who are then released
and not again incarcerated. However, once an applicant has exercised
custody over an inmate beyond 72 hours, all time in custody (up to 365
days per inmate) will be credited in the length of stay calculation for
an otherwise qualified alien, 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.
Once a conviction does occur, all time in custody during the specified
one-year reporting period may be counted, even though some of the time
in custody may have occurred prior to the conviction and even though no
final sentence has been imposed. This interpretation recognizes that in
most cases, once a conviction occurs, the eventual sentence takes into
account ``time served,'' which converts the pretrial custody period
into part of the final disposition for purposes of fulfilling the
sentence. Although some States have laws automatically requiring this
action, in most, the sentencing authority is given this discretion.
Please note that, in either case, the applicant must be able to
determine and document that the qualifying convictions have taken place
by providing indication of level and type of offense. 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 potential sentence that could be imposed upon conviction is
more than one year.
C. Specification for Inmate Records
The applicant will have two options for providing information about
inmates: (1) Applicants may use their own inmate 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 application kit,
which will be mailed to eligible jurisdictions.
The following inmate data will be requested:
Alien (``A'') number. An ``A'' number is an 7-, 8-, or 9-
digit number that may have been assigned to an inmate by INS and may or
may not 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 may be submitted for each alias, but each
record must repeat all required information in the proper data fields
as if it were the only record being submitted for that individual.
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.
Unique identifying number for each inmate. This number
will allow INS to check separate alias or date of birth records, but
avoid duplicate counting of the same inmate. The number is assigned to
that inmate by the applicant and will generally be used by the
applicant for other identification purposes.
Foreign country of birth. Applicants should supply the
actual name of the foreign country (up to the first 10 letters of the
name will be allowed) or use a coding system. If a coding system is
used, applicants must submit documentation of the codes as part of
their applications, preferably in electronic form as a separate file on
the inmate diskette submitted.
Date upon which the alien entered into the applicant's
custody and date of release, if the inmate has already been released.
These dates will be required for all inmates, not just those
potentially qualifying under the ``subject of proceedings'' category
and will be used to calculate the length of stay of inmates counted.
For inmates still in applicants' custody at the end of the reporting
period (or date of the one day count), the date of release field can be
left blank. 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.
Type and level of crime of the qualifying conviction(s).
Applicants will be expected to code the level of the qualifying
conviction (using ``F'' for one felony or ``M'' for two misdemeanors)
and code the actual type of offense for which a conviction has
occurred. The preferred coding scheme for the latter is the Federal
Bureau of Investigation's National Criminal Information Center (NCIC)
coding scheme, which provides 2-, 4-, and 8-digit codes. However, this
year applicants may use the coding scheme currently in use for normal
operational purposes and provide (preferably in electronic form on the
inmate data diskette submitted to BJA) a data dictionary that
identifies the offenses covered by the codes.
Only one of the two qualifying misdemeanors required under the law
will need to be coded. BJA is not requiring applicants to establish a
hierarchy among offenses nor is it placing any time limit within which
such offenses must have occurred. Any qualifying conviction about which
the applicant has information can be used, although the applicant
should record the most serious offense for which it has conviction
information. Thus, applicants who have limited information may rely on
the ``controlling'' offense that resulted in the incarceration (if
sentencing has already occurred) or on any known prior qualifying
conviction or on a qualifying conviction that occurs during the
reporting period.
FBI number. Although not required, this information 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
[[Page 35231]]
document. BJA will preprint this number on the labels and form, and it
will be preentered into the BJA-provided inmate diskette. However,
applicants converting their data directly into ASCII on their own
diskette must ensure that their unique jurisdictional number is entered
as part of each record submitted.
D. 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 is based on a separate process. A study by INS of how likely
it would be that INS databases did not have information on alien
inmates who were nonreimbursable used the results of interviews of
inmates that were conducted by INS field agents over a period of time.
The study indicated that approximately 95 percent of those interviewed
who had no previous record in any INS database were determined to be
undocumented aliens. Thus, this year applicants will be given credit
for 95 percent of the unmatched inmates with valid foreign countries of
birth. This new procedure will lead to more uniformity among applicant
submissions and thus be more 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, or 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 inmates for
whom no foreign country of birth is provided, those records will be
deleted from the applicants' submissions.
E. 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 facilities administered by
the political subdivision submitting an 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 jurisdictions must be deducted from the inmates'
overall upkeep costs. Payments made by the applicant 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.
Local facilities that receive State funds that supplement their
overall budget, as opposed to funds for housing of specific inmates,
should include that State amount in the overall calculation of their
routine operating cost. After award, these localities will be expected
to share their reimbursement with the State in the same proportion as
that State assistance contributes to the local facility's incarceration
expenses.
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. However,
this underlying documentation should not be submitted as part of the
application.
F. Formal Application and Deadline for Application
Application kits will be mailed directly to correctional facilities
(unless BJA has been notified by an eligible jurisdiction to provide
the kit to another office) by June 30, 1997. The kit will contain:
This final guidance as well as more detailed instructions
for completing all application materials, including inmate data
submissions.
A one-page application form as well as a diskette
containing the same data fields to allow electronic submission of the
form. The hardcopy application form will be scannable, so only the
original can be returned to BJA. If the applicant chooses to enter the
data into the diskette provided, the hardcopy form should not be
returned. In addition to the basic information on the applicant (e.g.,
address, contact person, etc.), the application form will ask for
information about the CEO of the jurisdiction and the form the
delegation will take; the count method used, the inmate diskette option
chosen, and number of inmates for which a claim is being made; and, the
annual cost per inmate claimed. The authorized signing official for the
applicant will, by his or her signature, make all necessary standard
Federal assurance and certifications. If the application diskette is
used, the electronic entry of the signatory's name constitutes the
necessary certifications.
A diskette preprogrammed to allow direct entry of inmate
data on alien inmates counted in the proscribed format. The kit will
also contain a diskette label to be put on the applicant's own diskette
if the applicant chooses to directly convert its inmate data into the
ASCII format.
Mailing envelopes, one for the submission of diskettes and
one for any hardcopy documents to be submitted, including the scannable
application form, data dictionaries, or the delegation from the CEO of
the jurisdiction, if the applicant is not the CEO. However, this
delegation may be mailed separately to BJA.
The deadline for submission of the inmate data and all other
application documents (other than the delegation) will be August 30,
1997. This date is a firm deadline (evidenced by postmark); no
extensions will be given and late submissions of inmate diskettes will
not be allowed. This deadline gives applicants approximately 60 days to
complete the required application. During the application period, BJA
staff will be available to answer any questions that applicants may
have about filling in the formal application. Data specialists familiar
with the electronic submissions requested or allowed as options will
also be available. After an applicant has met the deadline, BJA
reserves the right to ask for additional information to clarify or
correct minor errors in the application. Any delegation required must
be submitted by September 30, 1997.
G. Award Calculation and Funding Availability
The FY 1997 amount available for distribution is approximately
[[Page 35232]]
$492,500,000. As in past years, the formula for award calculation will
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.
The CEO's of all eligible jurisdictions should note that payments
can only be made to the applicant named in the application. Therefore,
jurisdictions that want awarded SCAAP funds to be deposited into an
existing governmental bank account or Letter of Credit (LOCES) account
rather than into the correctional agency's account should have the CEO
or a designated governmental officer (e.g., county manager or chief
financial officer) sign the application and use their place of business
as the official applicant name and address.
H. Award and Post-Award Processing
BJA will continue to utilize grants as its reimbursement mechanism.
The conditions governing general award eligibility, drawdown, 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.
Dated: June 24, 1997.
Nancy E. Gist,
Director, Bureau of Justice Assistance.
[FR Doc. 97-16998 Filed 6-27-97; 8:45 am]
BILLING CODE 4410-18-P