[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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: http://www.nara.gov/nara/ fedreg and the Government Printing Office's database at: http:// www.access.gpo.gov/su__docs. 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