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Title 45 Part 402

Title 45 → Subtitle B → Chapter IV → Part 402

Electronic Code of Federal Regulations e-CFR

Title 45 Part 402

e-CFR data is current as of May 26, 2020

Title 45Subtitle BChapter IV → Part 402


Title 45: Public Welfare


PART 402—STATE LEGALIZATION IMPACT ASSISTANCE GRANTS


Contents

Subpart F—Recordkeeping and Reporting

§402.50   Recordkeeping.
§402.51   Reporting.

Authority: 8 U.S.C. 1255a note, as amended.

Source: 53 FR 7858, Mar. 10, 1988, unless otherwise noted.

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Subpart A—Introduction

§402.1   General.

(a) These regulations implement section 204 of Pub. L. 99-603, the Immigration Reform and Control Act of 1986 (IRCA), as amended. This act establishes a temporary program of State Legalization Impact Assistance Grants (SLIAG) for States. The purpose of SLIAG is to lessen the financial impact on State and local governments resulting from the adjustment of immigration status under the Act of certain groups of aliens residing in the States, the District of Columbia, Puerto Rico, the Virgin Islands, and Guam.

(b) Funds appropriated by section 204 may be applied by States with approved applications to certain State and local government costs incurred:

(1) In providing public assistance and public health assistance to eligible legalized aliens,

(2) For making payments to State educational agencies for the purpose of assisting local educational agencies in providing certain educational services to eligible legalized aliens,

(3) To provide public education and outreach to lawful temporary resident aliens concerning the adjustment to lawful permanent resident status and other matters,

(4) To make payments for education and outreach efforts by State agencies regarding unfair discrimination in employment practices based on national origin or citizenship status, and

(5) To administer the funds provided under this part.

[56 FR 21246, May 7, 1991]

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§402.2   Definitions.

As used in this part—

The Act means the Immigration Reform and Control Act of 1986, Public Law 99-603, as amended.

Allocation means an amount designated for a State, as determined under §402.31, §402.33, or §402.34.

Allotment means the total amount awarded to a State, as determined under §402.31, §402.33, or §402.34.

Department means the U.S. Department of Health and Human Services.

Educational Services means:

(1) For eligible legalized aliens regardless of age enrolled in elementary or secondary school, services allowable under section 607 of the Emergency Immigrant Education Act, 20 U.S.C. 4101, et seq. (Pub. L. 98-511), as in effect on November 6, 1986.

(2) For adult eligible legalized aliens:

(i) Services authorized under the Adult Education Act, 20 U.S.C. 1201 et seq. (Pub. L. 89-750, as amended), as in effect November 6, 1986, and

(ii) English language and other programs designed to enable eligible legalized aliens to attain the citizenship skills required by section 245A(b)(1)(D)(i) of the INA.

Eligible legalized alien means an alien whose status has been adjusted to lawful temporary resident under section 245A, 210, or 210A of the Immigration and Nationality Act, beginning on the effective date of such adjustment as established by the Immigration and Naturalization Service, and continuing until the end of the five-year period beginning on the effective date of such adjustment, provided that during that time the alien remains in lawful temporary or permanent resident status granted under the Act.

Employment discrimination education and outreach means education and outreach efforts by State agencies regarding unfair discrimination in employment practices based on national origin or citizenship status.

INA means the Immigration and Nationality Act, 8 U.S.C. 1101, et seq.

Local educational agency means—

(a) A public board of education or other public authority legally constituted within a State for either administrative control of or direction of, or to perform service functions for, public elementary or secondary schools in—

(1) A city, county, township, school district, or other political subdivision of a State; or

(2) Such combination of school districts or counties a State recognizes as an administrative agency for its public elementary or secondary schools; or

(b) Any other public institution or agency that has administrative control and direction of a public elementary or secondary school.

Local government has the same meaning as in 45 CFR part 92.

Nonpublic, as applied to an agency, organization, or institution, means that the agency, organization, or institution is nonprofit and is not under Federal or public supervision or control.

Phase II outreach means public education and outreach (including the provision of information to individuals) to inform temporary resident aliens under section 210, 210A, 245A of the INA and aliens whose applications for such status are pending with the Immigration and Naturalization Service regarding:

(1) The requirements of sections 210, 210A, and 245A of the INA regarding the adjustment of resident status;

(2) Sources of assistance for such aliens obtaining the adjustment of status described in paragraph (1) of this definition, including educational, informational, and referral services, and the rights and responsibilities of such aliens and aliens lawfully admitted for permanent residence;

(3) The identification of health, employment, and social services; and,

(4) The importance of identifying oneself as a temporary resident alien to service providers.

Program administrative costs means those costs associated with administering public assistance, public health assistance, educational services, Phase II outreach, and employment discrimination education and outreach activities.

Public, as applied to an agency, organization, or institution, means that the agency, organization, or institution is under the administrative supervision or control of a government other than the Federal Government.

Public assistance means cash, medical, or other assistance provided to meet the basic subsistence needs or health needs of individuals.

(1) That is generally available to needy individuals residing in a State and

(2) That is provided with funds from units of State or local government.

As used in this definition, basic subsistence needs are minimal living requirements, including food, shelter and clothing. For purposes of this definition, assistance is considered to have been provided to needy individuals if specified income or resource requirements are used to determine eligibility or the amount of a fee or other charges to be paid for services. Other assistance means assistance and services, other than cash or medical assistance, that are directed at meeting basic subsistence needs, and that meet all of the criteria in this definition. Other assistance also means assistance and services in which participation is required as a condition of receipt of cash or medical assistance.

Public health assistance means health services (1) that are generally available to needy individuals residing in a State; (2) that receive funding from units of State or local government; and, (3) that are provided for the primary purpose of protecting the health of the general public, including, but not limited to, immunizations for immunizable diseases, testing and treatment for tuberculosis and sexually-transmitted diseases, and family planning services.

Recipient means grantee or subgrantee.

Secretary means the Secretary of the Department of Health and Human Services.

SLIAG administrative costs means the direct and indirect costs related to administration of funds provided under this part, including: planning and conferring with local officials, preparing the application, audits, allocation of funds, tracking and recordkeeping, monitoring use of funds, and reporting.

SLIAG-reimbursable activity means programs of public assistance, programs of public health assistance, educational services, employment discrimination education and outreach, Phase II outreach, program administrative costs, and SLIAG administrative costs, as those terms are defined in this part, that are included in a State's application approved pursuant to subpart E of this part.

SLIAG-related costs means expenditures made: To provide public assistance, public health assistance, or educational services, as defined in this part, to eligible legalized aliens; to provide public health assistance to aliens applying on a timely basis to become lawful temporary residents under sections 210, 210A, or 245A of the INA during such time as that alien's application with INS is pending approval; to provide employment discrimination education and outreach, as defined in this part; to provide Phase II outreach, as defined in this part; and for SLIAG administrative costs, as defined in this part. SLIAG-related costs include all allowable expenditures, including program administrative costs determined in accordance with §402.21(c), regardless of whether those expenditures actually are reimbursed or paid for with funds allotted to the State under this part. SLIAG-related costs for educational services, Phase II outreach, and employment discrimination education and outreach are limited to the amount of payment that can be made under the Act for those activities, as described in §402.11 (e), (k) and (l), respectively. SLIAG-related costs exclude: (1) Expenditures by a State or local government for costs which are reimbursed or paid for by Federal programs other than SLIAG; and (2) program income (as defined in 45 CFR 74.42 or 45 CFR 92.25(b), as applicable) received from or on behalf of eligible legalized aliens receiving services or benefits for which payment or reimbursement may be made under this part.

State means the 50 States, the District of Columbia, Puerto Rico, Guam, and the Virgin Islands of the United States.

State educational agency means—

(1) The State board of education or other agency or officer primarily responsible for the supervision of public elementary and secondary schools in a State. In the absence of this officer or agency, it is an officer or agency designated by the Governor or State law; or

(2) The State board of education or other agency or officer primarily responsible for the State supervision of public elementary and secondary schools; or if there is a separate State agency or officer primarily responsible for supervision of adult education in public schools, then that agency or officer may be designated for the purpose of the Act by the Governor or by State law. If no agency or officer qualifies under the preceding sentence, the term means an appropriate agency or officer designated for the purpose of the Act by the Governor.

Unexpended funds means the amount by which allotments awarded to a State, as determined under §402.31 and §402.33 of this part, exceed the State's SLIAG-related costs, as defined in this part, reported in annual reports pursuant to §402.51 and accepted by the Department as of March 15, 1995.

Unreimbursed SLIAG-related costs means the amount by which a State's total SLIAG-related costs, as defined in this part, reported in annual reports pursuant to §402.51 and accepted by the Department as of March 15, 1995, exceed the allotments awarded to a State, as determined under §402.31 and §402.33 of this part.

[53 FR 7858, Mar. 10, 1988, as amended at 56 FR 19808, Apr. 30, 1991; 56 FR 21246, May 7, 1991; 59 FR 65726, Dec. 21, 1994]

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Subpart B—Use of Funds

§402.10   Allowable use of funds.

(a) Funds provided under §402.31 and 402.33 of this part for a fiscal year may be used only with respect to SLIAG-related costs incurred in that fiscal year or succeeding fiscal years, except that funds provided for FY 1993 and FY 1994 may be used for SLIAG-related costs incurred in FY 1990 or succeeding years. Funds provided under §402.34 of this part may be used with respect to SLIAG-related costs incurred in any fiscal year of the program. Funds may be used, subject to §§402.11 and 402.26, for the following activities, as defined in this part:

(1) Public assistance;

(2) Public health assistance;

(3) Educational services;

(4) Employment discrimination education and outreach;

(5) Phase II outreach;

(6) SLIAG administrative costs; and

(7) Program administrative costs.

(b) Unless specifically prohibited by a statute enacted subsequent to November 6, 1986, a State may use SLIAG funds to pay the non-Federal share of costs allowable under (a) of this section incurred in providing assistance or services to eligible legalized aliens under Federal programs that have a matching or cost-sharing requirement, subject to the provisions of §402.11(f) of this part.

(c) [Reserved]

(d) Except as provided for in §402.11(n), funds awarded under this part may be used to reimburse or pay SLIAG-related costs incurred prior to the approval of a State's application or amendment to its application, pursuant to subpart E of this part, provided that such reimbursement or payment is consistent with the Act and this part.

[53 FR 7858, Mar. 10, 1988, as amended at 56 FR 19808, Apr. 30, 1991; 56 FR 21246, May 7, 1991; 59 FR 65726, Dec. 21, 1994]

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§402.11   Limitations on Use of SLIAG Funds.

(a) Funds provided under this part may be used only for SLIAG-reimbursable activities that—

(1) Meet the definitions of §402.2 of this part; and

(2) Are otherwise consistent with the rules and procedures governing such activities.

(b) Funds provided under this part may not be used for costs to the extent that those costs are otherwise reimbursed or paid for under other Federal programs.

(c) The amount of reimbursement or payment may not exceed 100% of SLIAG-related costs, as defined in this part, associated with SLIAG-reimbursable activites.

(d) A State must use a minimum of 10 percent of its allotment under this part in any fiscal year for costs associated with each of the following program categories: public assistance, public health assistance, and educational services. In the event that a State does not require use of a full 10% in one of the above categories, it must allocate the unused portion equally among the remaining categories listed in this paragraph.

(e) Payments for educational services in any fiscal year may not exceed the amounts described in (e) (3), (4) and (5) of this section, and are subject to the limitations in (e) (1), (2), and (6) of this section.

(1) Payments may be made to a local educational agency in a fiscal year for the purpose of providing educational services to eligible legalized aliens enrolled in elementary or secondary school only if 500 eligible legalized aliens meeting the conditions in (e)(2) of this section, are enrolled in elementary or secondary public or non-public schools in that local educational agency's jurisdiction in that fiscal year or if such eligible legalized aliens represent at least 3 percent of the total number of students enrolled in elementary or secondary public or non-public schools within that local educational agency's jurisdiction in that fiscal year.

(2) In computing payments to local education agencies or to providers of educational services described in section 204(c)(3)(C) of the Act, State educational agencies may take into account only eligible legalized aliens who have been enrolled in elementary or secondary school, public or non-public school or in educational activities for adults described in §402.2 in the United States for fewer than three complete academic years.

(3) The amount that may be paid in any fiscal year to a local educational agency with respect to eligible legalized aliens enrolled in elementary and secondary public or non-public school may not exceed an amount equal to $500 (less, in States receiving Emergency Immigrant Education Act (EIEA) funds, the amount described in (e)(6) of this section) multiplied by the number of eligible legalized aliens meeting the criteria specified in (e)(2) of this section, who are enrolled in public or private non-profit elementary and secondary schools in the jurisdiction of that local educational agency in that fiscal year.

(4) The amount that may be paid in any fiscal year to a local educational agency or other provider of educational services for adults (who are not enrolled in elementary or secondary school), as described in section 204(c)(3)(C) of the Act, may not exceed an amount equal to $500 multiplied by the number of eligible legalized aliens meeting the criteria in paragraph (e)(2) of this section who receive educational services from that provider in that fiscal year.

(5) In no event may the amount paid to a local education agency or other provider of educational services exceed the actual costs of providing those services to eligible legalized aliens, as determined in accordance with 45 CFR part 74 (for grants awarded in FY 1988) or 45 CFR part 92 (for grants awarded in FY 1989 and succeeding fiscal years).

(6) The maximum amount of payment to a local educational agency with respect to eligible legalized aliens enrolled in elementary and secondary school will be reduced from the amount described in (e)(3) of this section, by an amount equal to the amount of funds received by the local educational agency with respect to such eligible legalized aliens pursuant to section 606 of the Emergency Immigrant Education Act.

(f) Funds provided under this part may not be used to provide assistance under the programs of financial assistance from which eligible legalized aliens are barred by section 245A(h)(1), 210(f), or 210A(d)(6) of the INA. However, such funds may be used for the State and local share of the costs of providing such assistance to eligible legalized aliens who are excepted from the bar by section 245A(h) (2) or (3), 210(f), or 210A(d)(6) of the INA, provided that such individuals are otherwise eligible for benefits under such programs, and that the costs of providing those benefits are otherwise allowable under the Act, this regulation, and the State's approved application.

(g) Funds provided under this part shall not be used to perform abortions except where the life of the mother would be endangered if the fetus were carrier to term.

(h) Funds provided under this part shall not be used to reimburse or pay costs inurred by any public or private entity or any individual, in the conduct of a medical examination as required for application for adjustment to lawful temporary resident status under 8 CFR 245a.2(i), 8 CFR 210.2(d), or 8 CFR 210a.6(f).

(i) Funds provided under this part shall not be used for client counselling or any other service which would assume responsibility for the adjustment of status of aliens to that of lawful temporary or permanent residence. This prohibition includes assisting an alien to appeal INS decisions or representation of an alien before any administrative or judicial body.

(j) Funds under this part shall not be used to investigate or prosecute discrimination complaints beyond initial intake and referral, to pay legal fees or other expenses incurred to provide legal counsel to a party alleging discrimination, or to represent such parties before any administrative or judicial body.

(k) A State may use funds to make payments for Phase II outreach activities, including related program administration, from allotments made to it under this part for FY 1989 and succeeding fiscal years. The maximum amount that a State may use for this purpose from a fiscal year's allotment is the greater of 1% of its allotment for that fiscal year or $100,000.

(l) A State may use funds to make payments for employment discrimination education and outreach activities, including related program administration, from allotments made to it under this part for FY 1989 and succeeding fiscal years. The maximum amount that a State may use from a fiscal year's allotment for this purpose is the greater of 1% of the State's allotment for that fiscal year or $100,000.

(m) [Reserved]

(n)(1) Except as provided for in paragraph (n)(2) of this section, a State may use SLIAG funds alloted to it for a fiscal year to reimburse or pay only those SLIAG-related costs for employment discrimination education and outreach activities which occurred after approval by the Department of an application or amendment describing those activities, as required by §402.41(d).

(2) Costs incurred in FY 1990 prior to approval by the Department of an application or amendment containing the information required by §402.41(d), but after December 18, 1989, for reproduction and dissemination of public information material certified by the Office of the Special Counsel for Immigration-Related Unfair Employment Practices, Department of Justice (hereafter, “Office of the Special Counsel”), pursuant to paragraph (o) of this section may be reimbursed with funds allotted under this part.

(o)(1) With respect to employment discrimination education and outreach, a State shall not use SLIAG funds to pay for the cost of producing or distributing materials prepared for public dissemination unless the Office of the Special Counsel has certified that those materials meet the criteria in paragraph (o)(2) of this section.

(2) Certification of materials described in paragraph (o)(1) of this section shall consist of a finding by the Office of the Special Counsel that information contained in such materials relating to the discrimination provision of the Act is legally accurate and that those materials include reference to the Office of the Special Counsel as a source of information and referral for complaints of discrimination based on citizenship status or national origin. Information regarding the Office of the Special Counsel shall include its address and telephone number, including the toll-free number and toll-free TDD number for the hearing impaired. The Office of the Special Counsel, in the exercise of discretion, may agree to the deletion of any portion of the information referenced in the previous sentence, in those instances where space limitations in printed materials, or time limitations in electronically recorded materials, make inclusion of all the required information impractical.

(p) Funds provided under this part may be used only for SLIAG-related costs submitted to the Department pursuant to §402.51 and accepted as allowable costs by March 15, 1995.

(q) Funds made available to a State pursuant to §402.34 shall be utilized by the State to reimburse all allowable costs within 90 days after such State has received a reallocation of funds from the Secretary, but in no event later than July 31, 1995.

[53 FR 7858, Mar. 10, 1991, as amended at 56 FR 19808, Apr. 30, 1991; 56 FR 21247, May 7, 1991; 59 FR 65726, Dec. 21, 1994]

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§402.12   Use of SLIAG Funds for Costs Incurred Prior to October 1, 1987.

(a) Except as indicated in (b) and (c) of this section, States may not use funds provided under this part of costs incurred prior to October 1, 1987.

(b) A State may use funds provided under this part for administrative costs incurred prior to October 1, 1987, but after November 6, 1986, that are directly associated with implementation of this part. Such costs may include planning, preparing the application, establishing fund accounting and reporting systems, data development associated with the application, and other costs directly resulting from planning for implementation of this part.

(c) A State may use funds provided under this part for costs incurred prior to October 1, 1987, but after November 6, 1986, in providing public health assistance to eligible legalized aliens and to applicants for lawful temporary residence under sections 210, 210A and 245A of the INA, in conformity with the provisions of §402.10(a).

[53 FR 7858, Mar. 10, 1988, as amended at 56 FR 21247, May 7, 1991]

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Subpart C—Administration of Grants

§402.20   General provisions.

Except where otherwise required by Federal law, the Department rules codified at 45 CFR part 74 (for grants awarded in FY 1988) or 45 CFR part 92 (for grants awarded in FY 1989 and succeeding fiscal years), relating to the administration of grants, apply to funds awarded under this part. A State may, however, apply any or all provisions of part 92 to FY 1988 SLIAG funds.

[56 FR 19808, Apr. 30, 1991]

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§402.21   Fiscal control.

(a) Fiscal control and accounting procedures must be sufficient to permit preparation of reports required by the Act, this regulation, and other applicable statutes and regulations.

(b) States must have accounting procedures in place which allow funds provided under this part to be traced from drawdown to allowable SLIAG-related costs. Allowability of the amount and purpose of expenditures must be established for each recipient of SLIAG funds. States must demonstrate that SLIAG-related costs, as defined in this part, incurred in SLIAG-reimbursable activities, equal or exceed the amount of SLIAG funds expended with respect to costs incurred in those activities. Documentation of the method of accounting and appropriate supporting information must be available for audit purposes and for Federal program reviews. To establish allowability of expenditures, States may use methods prescribed in (c) of this section. Alternatively, the State may use any other reliable method of cost calculation, subject to Federal review.

(c)(1) For public assistance, States may establish allowability by accounting for actual expenditures made to or on behalf of identifiable eligible legalized aliens who qualify for and receive assistance and/or services from the recipient, or by use of a statistically valid sampling of a recipient's public assistance caseload.

(2) For public health assistance, States may establish allowability by accounting for actual expenditures made to or on behalf of identifiable eligible legalized aliens, or applicants for lawful temporary resident status under sections 210, 210A, or 245A of the INA, who qualify for and receive such assistance and/or services, by use of a statistically valid sampling of clients in the public health system of the State or local government, or by using the ratio of eligible legalized aliens in a service population to all members of the relevant service population.

(3) For educational services, States must be able to demonstrate that:

(i) Funds provided under this part were used to provide educational services, as defined in this part, to eligible legalized aliens, as defined in this part; and,

(ii) Payments to local educational agencies or other providers of educational services, as described in section 204(c)(3)(C) of the Act, did not exceed the amounts described in §402.11(e) of this part.

(4) With respect to Phase II outreach, as defined in this part, a State must demonstrate that the costs of activities that provide information directly to specific individuals are attributable only to lawful temporary residents under sections 210, 210A, or 245A of the INA, and applicants for such status whose applications were pending with the Immigration and Naturalization Service at the time information is provided. For Phase II outreach activities that do not involve the provision of information directly to specific individuals, States must demonstrate that such activities are targeted predominantly to or intended primarily for lawful temporary residents under sections 210, 210A, or 245A of the INA or applicants for such status whose applications are pending with the Immigration and Naturalization Service at the time information is provided. The State must demonstrate that the amount of any fiscal year's allotment used for this purpose did not exceed the amount described in §402.11(k) and was consistent with the limitations of §402.11(i).

(5) With respect to employment discrimination education and outreach, as defined in this part, the State must demonstrate that funds were expended only for activities described in the State's approved application pursuant to §402.41(d) and the limitations of §402.11 (i), (n), and (o) and that the amount of any fiscal year's allotment used for this purpose did not exceed the amount described in §402.11(1).

(6)(i) For program administrative costs, as defined in this part, a State may establish allowability by use of the proportion of eligible legalized aliens provided assistance and/or services allowable under this part by a recipient, as defined in this part, relative to all persons provided such assistance and/or services; by use of the proportion of program or service costs actually incurred in providing assistance and/or services allowable under this part by a recipient, relative to all costs of providing the same assistance and/or services allowable under this part by the recipient; or by use of such other basis as will document that administrative costs incurred in providing such assistance and/or services and reimbursed under this part are allowable, allocable to SLIAG, and reasonable.

(ii) Consistent with section 604 of the Emergency Immigrant Education Act, of the amount paid to a State educational agency for educational services, only 1.5 percent may be used for administrative costs incurred by the State educational agency in carrying out its function under this part.

[53 FR 7858, Mar. 10, 1988, as amended at 56 FR 21247, May 7, 1991]

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§402.22   [Reserved]

§402.23   Repayment.

The Department will order a State to repay amounts found not to have been expended in accordance with Federal law, regulations, the State's approved application, or terms of the State's grant. If a State refuses to repay such amounts, the Department may offset the amount against any other amount to which the State is or may become entitled under this part.

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§402.24   Withholding.

After notice and opportunity for a hearing, the Secretary may withhold payment of funds to any State which is not using its allotment in accordance with the Act, these regulations, 45 CFR part 74 (for grants awarded in FY 1988) or 45 CFR part 92 (for grants awarded in FY 1989 and succeeding fiscal years), and terms of the grant award.

[56 FR 19808, Apr. 30, 1991]

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§402.25   Appeals.

Appeals under this Subpart will be subject to 45 CFR part 16, Procedures of the Departmental Grant Appeals Board.

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§402.26   Time period for obligation and expenditure of grant funds.

(a) Any amount awarded to a State for a fiscal year and remaining unobligated at the end of such year shall remain available to the State for obligation in subsequent fiscal years, but not after September 30, 1994. The funding period of a SLIAG grant begins on October 1 of the Federal fiscal year for which the allotment is made and ends on September 30, 1994.

(b) Obligations by the State of funds awarded under §402.31 and §402.33 must be liquidated within the time limit set by 45 CFR 92.23(b). This time limit will not be extended. The time limit established by 45 CFR 92.23(b) does not apply to funds awarded under §402.34.

[53 FR 7858, Mar. 10, 1988, as amended at 56 FR 19808, Apr. 30, 1991; 59 FR 65727, Dec. 21, 1994]

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Subpart D—State Allocations

§402.30   Basis of awards.

The Secretary will award funds in a fiscal year under §402.31 or §402.33 to States with approved applications for that fiscal year in accordance with the apportionment of funds from the Office of Management and Budget. The Secretary will award funds under §402.34 to States whose annual reports submitted pursuant to §402.51 establish that their allowable SLIAG-related costs exceed the total of their allotments, as determined under §402.31 and §402.33. The grant award constitutes the authority to draw and expend funds for the purposes set forth in the Act and this regulation.

[53 FR 7858, Mar. 10, 1988, as amended at 59 FR 65727, Dec. 21, 1994]

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§402.31   Determination of allocations.

(a) Allocation formula. Allocations will be computed according to a formula using the following factors and weights:

(1) 50 percent based on the State's eligible legalized alien population, with 49 percent based upon the number of eligible legalized aliens in a State relative to the number of such aliens in all States, and 1 percent to States which have higher-than-average ratios of eligible legalized aliens to total population relative to the average for all States, based on the proportional number of such aliens; and

(2) 50 percent based on the ratio of SLIAG-related costs in a State to the total of all such costs in all States.

(b) Calculation of allocations. (1) Each time the Department calculates State allocations, it will use the best data then available to the Secretary on the distribution of eligible legalized aliens by State.

(2) For all years except fiscal years 1993 and 1994, the Department will determine each State's SLIAG-related costs to be included in the computation of its allocation for a fiscal year by adding to the sum of SLIAG-related costs reported for all previous fiscal years by that State, pursuant to §402.51(e) (1) and (2), the total amount of estimated SLIAG-related costs included in the State's approved application for that fiscal year, pursuant to §402.41(c) (1) and (2). For fiscal years 1993 and 1994, the Department will add to the amount of estimated SLIAG-related costs included in the State's approved applications for fiscal years 1993 and 1994, respectively, the sum of SLIAG-related costs for all previous years ending with FY 1991 (for FY 1993 applications) or FY 1992 (for FY 1994 applications), and the first and second quarters of FY 1992 (for FY 1993 applications) or FY 1993 (for FY 1994 applications), pursuant to §402.52(e)(4). In the event that a State has not submitted an approved report for a fiscal year, the Department will include no costs for that fiscal year in its calculation.

[53 FR 7858, Mar. 10, 1988, as amended at 56 FR 21248, May 7, 1991; 57 FR 19386, May 6, 1992; 58 FR 31913, June 7, 1993; 59 FR 65727, Dec. 21, 1994]

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§402.32   Determination of state allotments.

Except as noted below, a State's allotment is the difference between the amount determined under §402.31(b) of this regulation and the cumulative amount previously allotted to the State. In the event that the amount determined under §402.31(b) is less than the cumulative amount previously allotted to a State, that State's allotment will be zero. The allotments of the remaining States would be calculated by multiplying the difference between the amount determined under §402.31(b) of this regulation and the cumulative amount previously allotted to the State by the ratio of the amount of funds available for grants to States to the sum of the differences between the amounts determined under §402.31(b) and the amounts previously awarded to those States.

[56 FR 21248, May 7, 1991]

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§402.33   Allotment of excess funds.

If a State fails to qualify for an allotment in a particular fiscal year because it did not submit an approvable application by the deadline established in §402.43 of this part, or is not allotted its designated allocation amount because it indicated in its application that it does not intend to use, in the fiscal year for which the application is made or in any succeeding fiscal year before FY 1995, the full amount of its allocation, funds which would otherwise have been allotted to the State in that fiscal year shall be allotted among the remaining States submitting timely approved applications in proportion to the amount that otherwise would have been allotted to such State in that fiscal year.

[56 FR 19808, Apr. 30, 1991]

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§402.34   Allocation of unexpended funds.

(a) Any unexpended funds, as defined in this part, from allotments awarded to States under §402.31 and §402.33 of this part, will be allocated to States with unreimbursed SLIAG-related costs, as defined in this part.

(b) To determine the allocations, the ratio of each State's unreimbursed SLIAG-related costs to the total of all such costs in all States will be calculated. The ratio for each State with unreimbursed SLIAG-related costs will be multiplied by total unexpended funds to determine the allocation for each State. The amount allotted to a State will be the amount of the State's allocation under this section or the amount of the State's unreimbursed SLIAG-related costs, whichever is less.

[59 FR 65727, Dec. 21, 1994]

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Subpart E—State Applications

§402.40   General.

In order to be eligible for funds available under §402.31 and §402.33 of this part in a fiscal year, a State must submit an annual application. A State's application must be approved by the Secretary prior to the award of funds to that State. In order to be eligible for funds under §402.34 of this part, a State must submit annual reports pursuant to §402.51 which establish that the State has incurred SLIAG-related costs in excess of the amount of the allotments it received under §402.31 and §402.33 of this part.

[53 FR 7858, Mar. 10, 1988, as amended at 59 FR 65727, Dec. 21, 1994]

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§402.41   Application content.

A State application must:

(a) Contain certifications by the chief executive officer or an individual specifically designated to make such certifications on behalf of the chief executive officer that, notwithstanding other contents of the application, the State assures that:

(1) Funds allotted to the State will be used only to carry out the purposes described in the Act and this part.

(2) The State will provide a fair method for the allocation of funds among State and local agencies (as determined by the State) in accordance with the information in the application as required under (b) and (c) of this section and in accordance with the provisions of §402.11(d) of this part, which sets forth minimum funding levels for program categories.

(3) Fiscal control and accounting procedures used in the administration of SLIAG funds will be established that are adequate to meet the requirements established by the Act and this regulation.

(4) The State will comply with the prohibitions against discrimination on the basis of age under the Age Discrimination Act of 1975, on the basis of handicap under section 504 of the Rehabilitation Act of 1973, on the basis of sex under title IX of the Education Amendments of 1972, on the basis of race, color, or national origin under title VI of the Civil Rights Act of 1964, and on the basis of sex or religion under section 204(h)(1)(B) of the Immigration Reform and Control Act of 1986.

(b) Contain information on the number of eligible legalized aliens residing in the State. A State may either (1) adopt as its official State-level estimate the estimate of the State's number of eligible legalized aliens provided by the Department, or (2) provide its own estimate, including detailed information on the method and data used in deriving the estimate. If a State has previously provided this information to the Department, it need not be included in the application unless the information has changed.

(c) Contain an estimate of likely SLIAG-related costs for the fiscal year for which application is being made for each program or activity in which SLIAG-related costs will be incurred. Programs and activities must be identified by the purposes listed in §402.10(a). Such estimates for FY 1988 should include, as a discrete subset, costs incurred in FY 1987, pursuant to §402.12.

(d) Contain the following information pertaining to the estimates required by paragraph (c) of this section (the application must include sufficient detail to permit assessment by the Department of the reasonableness of such estimates and the allowability of such costs under the Act and this part):

(1)(i) Descriptions of the programs and activities for which SLIAG-related costs will be incurred; and,

(ii) If a State elects to use its allotment for employment discrimination education and outreach, a description of the State's planned education and outreach activities, including: descriptions of the kinds of government or private agencies or other entities, if any, through which these activities will be conducted; brief descriptions of the targeted audience(s) for these activities; and, preproduction copies or the text of any material intended for distribution to the public to be produced or disseminated with SLIAG funds, if available at the time the application is submitted.

(2) Descriptions of the methodologies used to determine SLIAG-related cost. This description is to include (i) the methodology used in determining the proportion (or actual number) of eligible legalized aliens who are likely to participate in or benefit from the program or service, and (ii) a description of how a unit or other measure of the cost of providing services or benefits was calculated, or, if the estimate is based on actual cost data, a description of how the data were obtained. For SLIAG administrative costs, Phase II outreach, and employment discrimination education and outreach, the descriptions must instead include the basis for the estimate of SLIAG-related costs, as defined in this part.

(e) Contain information on the criteria for and administrative methods of disbursing funds received under this part.

(f) Designate a single point of contact (SPOC) in the State responsible for securing and submitting information required by the Act and this regulation and provide the name, title, mailing address, and telephone number of such official. If the grantee agency is different from the SPOC, also provide the name, title, mailing address, and telephone number of the official in that agency responsible for State administration of funds available under this part. In either case, provide the employer identification number of the grantee agency. If the State elects to use SLIAG funds for employment discrimination education and outreach, it must also designate in its application a contact person for this activity, if different from the single point of contact.

[53 FR 7858, May 7, 1991, as amended at 56 FR 21248, May 7, 1991; 56 FR 49707, Oct. 1, 1991]

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§402.42   Application format.

A State may determine the format of its application as long as it contains all the information required by §402.41.

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§402.43   Application deadline.

(a) An application from a State for SLIAG funds for any Federal fiscal year except fiscal years 1993 and 1994 must be received by the Department by October 1 of that fiscal year. Applications for fiscal years 1993 and 1994 must be received by July 1, 1992, and July 1, 1993, respectively. If a State fails to submit an application by this date, funds which it may otherwise have been eligible to receive shall be distributed among States submitting timely approved applications in accordance with §402.33 of this part.

(b) In order to receive funds under this part, a State's application for any fiscal year except fiscal years 1993 and 1994 must be approvable by the Secretary by December 15 of that fiscal year. Applications for fiscal years 1993 and 1994 must be approvable by the Secretary by September 15, 1992, and September 15, 1993, respectively. This may necessitate a State's providing clarification, revision, or additional material, as required, to render its application approvable by the Secretary. If a State fails to render its application approvable by the Secretary by these dates, funds which it may otherwise have been eligible to receive shall be distributed among States which have submitted approvable applications in accordance with §402.32 of this part.

(Approved by the Office of Management and Budget under control number 0970-0079)

[53 FR 7858, Mar. 10, 1988, as amended at 54 FR 23984, June 5, 1989; 55 FR 26207, June 27, 1990; 56 FR 21248, May 7, 1991; 57 FR 19386, May 6, 1992; 58 FR 31913, June 7, 1993]

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§402.44   Basis for approval.

(a) The Department will review each State's application to ensure that it contains all of the required assurances and information and otherwise is consistent with the Act and this part.

(b) The Department will assess the reasonableness of each State's estimates of SLIAG-related costs, as required by §402.41(c) (1) and (2), based on the following:

(1) Are the activities for which estimates are included in the application allowable under the Act and this part?

(2) Are the rates of participation by eligible legalized aliens in the activities for which estimates of SLIAG-related costs are included in the application and other assumptions underlying the cost estimates based on reliable empirical data?

(3) To what extent are the estimates based on actual costs incurred? Are actual costs based on methodologies described in this part or other methodologies likely to result in valid measures of SLIAG-related costs?

(4) Do current estimates appear to be consistent with past estimates, known actual costs pursuant to §402.41(c)(2), and current INS eligible legalized alien population data?

(5) Are revised estimates a result (all or in part) of changes in program activities?

(c) The Department will notify the State that (1) its application has been approved or (2) its application has been disapproved, together with the reasons for disapproval.

(d)(1) The Department will forward to the Office of Special Counsel information provided by a State pursuant to §402.41(d).

(2) The Office of the Special Counsel will review information forwarded to it by the Department pursuant to paragraph (d) (1) of this section to determine whether the activities described therein conflict with or unnecessarily duplicate other employment discrimination education and outreach efforts. Certification to the Department by the Office of the Special Counsel that the State's submission meets this criterion is a prerequisite for approval by the Department.

[53 FR 7858, Mar. 10, 1988, as amended at 56 FR 21248, May 7, 1991]

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§402.45   Amendments to applications.

(a)(1) If, during the course of a fiscal year, a State adds a program or activity for which it intends to claim reimbursement or make payment in that fiscal year, it must submit an amendment (containing appropriate information pursuant to §402.41(c)) to its approved application for that fiscal year prior to the due date for reports required by §402.51 of this part.

(2) If a State plans to initiate employment discrimination education and outreach activities not described in its application pursuant to §402.41(d), it must submit an application amendment, which shall be reviewed in accordance with procedures described in §402.41(d) of this part. The Department's approval of such an amendment is a prerequisite for the initiation of such new activities, except as provided for in §402.11(n) (2).

(b) Except as provided for in §402.11(k) and (n), a State may use SLIAG funds received for a fiscal year to reimburse or pay SLIAG related costs for programs or activities described in paragraph (a) of this section retroactive to the date the activity began, but no earlier than the first day of the fiscal year and only to the extent described in §402.10(d), except that funds received in FY 1992, if any, may be used for costs incurred on or after October 1, 1989. Costs incurred prior to October 1, 1987, are allowable only to the extent described in §402.12.

[53 FR 7858, Mar. 10, 1988, as amended at 56 FR 21249, May 7, 1991]

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Subpart F—Recordkeeping and Reporting

§402.50   Recordkeeping.

A State must provide for the maintenance of such records as are necessary:

(a) To meet the requirements of the Act and Department regulations relating to retention of and access to records.

(b) To allow the State to provide to the Department (1) an accurate description of its activities undertaken with SLIAG funds, and (2) a complete record of the purposes for which SLIAG funds were spent, and of the recipients of such funds; and

(c) To allow the Department and auditors of the State to determine the extent to which SLIAG funds were expended consistent with the Act and this regulation.

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§402.51   Reporting.

(a)(1) After the end of each Federal fiscal year through FY 1994 for which it received or during which it obligated or expended SLIAG funds and by the due date indicated below, a State must submit annual reports containing the information identified in (c) and (e) of this section. The reports are due no later than 90 days after the end of a Federal fiscal year.

(2) A State which receives funds pursuant to §402.31 and §402.33 and which expends funds pursuant to §402.26(b) must submit a report containing the information identified in paragraph (e) of this section. The report is due no later than December 29, 1994.

(b)(1) Failure to submit the annual report required in (a) of this section by the deadline, without prior written permission from the Secretary, constitutes a basis for withholding of SLIAG funds.

(2) Failure by a State to submit the required information prior to the calculation of allocations pursuant to Subpart D will result in the Secretary's including no SLIAG-related costs for the fiscal year for that State in the calculation of State allocations.

(c) A State's annual report must provide information on the status of each fiscal year's funds, as of September 30, for the fiscal year for funds received under §402.31 and §402.33, including:

(1) Identification of the amount obligated and the amount expended by the State grantee agency;

(2) Identification of any amount remaining unobligated at the end of the fiscal year which the State intends to carry over to succeeding fiscal years; and,

(3) Identification of any amount remaining unobligated at the end of the fiscal year which the State does not desire to carry over to the succeeding fiscal year.

(d) A State must use SF-269 in its reporting under paragraph (c) of this section, but it may determine the format of its annual report content under paragraph (e) of this section.

(e)(1) For all years except fiscal years 1992 and 1993, a State's annual report must also provide the actual SLIAG-related costs incurred during the fiscal year. The report must provide, for each program or activity identified in the State's application, the amount of SLIAG-related costs, as defined in this part, incurred in that program or activity, identified as public assistance, public health assistance, educational services, Phase II outreach, employment discrimination education and outreach, and SLIAG administrative costs, as defined in this part, the amount of SLIAG funds obligated for that program or activity, and the time period for which the funds were obligated.

(2) The report must contain a description of the methodology used to determine actual SLIAG-related costs, if different from the description provided in the State's application pursuant to §402.41 (d) (2) of this part.

(3) Federal and State costs of providing assistance under a State plan approved under title XIX of the Social Security Act to aliens whose status has been adjusted under sections 245A and 210A of the INA by virtue of the exceptions to the bar to Medicaid eligibility (sections 245A (h) (2) and (3) of the INA) must be shown separately in States' reports.

(4) For fiscal years 1992 and 1993, a State must report actual SLIAG-related costs, pursuant to paragraphs (e) (1), (2) and (3) of this section, for the first and second quarters, along with its application for SLIAG funding for fiscal years 1993 and 1994, respectively, in accordance with §402.43(a) of this part, and for the third and fourth quarters in accordance with paragraph (a) of this section.

(Approved by the Office of Management and Budget under control number 0970-0079)

[53 FR 7858, Mar. 10, 1988, as amended at 56 FR 21249, May 7, 1991; 57 FR 19386, May 6, 1992; 58 FR 31913, June 7, 1993; 59 FR 65727, Dec. 21, 1994]

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