[Federal Register Volume 67, Number 142 (Wednesday, July 24, 2002)]
[Rules and Regulations]
[Pages 48354-48361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18655]
[[Page 48354]]
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DEPARTMENT OF JUSTICE
8 CFR Part 2
28 CFR Part 65
[INS No. 1924-98; AG Order No.2601-2002]
RIN 1115-AF20
Powers of the Attorney General to Authorize State or Local Law
Enforcement Officers To Exercise Federal Immigration Enforcement
Authority During a Mass Influx of Aliens
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This rule implements section 103(a)(8) of the Immigration and
Nationality Act (Act), which permits the Attorney General to authorize
any State or local law enforcement officer, with the consent of the
head of the department, agency, or establishment under whose
jurisdiction the individual is serving, to perform or exercise certain
powers, privileges, or duties of officers or employees of the
Immigration or Naturalization Service (INS or Service) during the
period of a declared ``mass influx of aliens.''
This rule provides a cooperative process by which State or local
governments can agree to place authorized State or local law
enforcement officers under the direction of the INS in exercising
Federal immigration enforcement authority whenever the Attorney General
determines that such assistance is necessary during a declared mass
influx of aliens. This rule allows the Commissioner of the INS to enter
into advance written ``contingency agreements'' with State or local law
enforcement officials to explain the terms and conditions (including
the reimbursement of expenses) under which State or local law
enforcement officers can exercise Federal immigration enforcement
authority during a declared mass influx of aliens. The rule also
ensures that appropriate notifications are made to Congress and the
Administration.
Finally, this rule is necessary to ensure that the Service, in
conjunction and coordination with State or local governments, can
respond in an expeditious manner to urgent and quickly developing
events during a declared mass influx of aliens to protect public
safety, public health, and national security, while ensuring that
performance of duties under this special authorization is cognizant of,
and consistent with, constitutional and civil rights protections.
DATES: This final rule is effective August 23, 2002.
FOR FURTHER INFORMATION CONTACT: Ronald W. Dodson, Supervisory Special
Agent, Director, Evaluation and Support Branch, Headquarters Office of
Investigations, Immigration and Naturalization Service, 425 I Street,
NW, Room 1000, Washington, DC 20536, telephone (202) 514-2998.
SUPPLEMENTARY INFORMATION:
What Authority Does the Department of Justice Have to Publish this
Regulation?
Section 372 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C., 110
Stat. 3009-646, amended section 103(a) of the Act, 8 U.S.C. 1103(a), to
permit the Attorney General to authorize any State or local law
enforcement officer, with the consent of the head of the department,
agency, or establishment under whose jurisdiction the individual is
serving, to perform or exercise any of the powers, privileges, or
duties conferred or imposed by the Act or implementing regulations upon
officers or employees of the Service during a period of a mass influx
of aliens.
Under section 103(a)(8) of the Act, the Attorney General may
authorize State or local law enforcement officers to perform such
powers, privileges, or duties only if the Attorney General determines
that ``an actual or imminent mass influx of aliens arriving off the
coast of the United States, or near a land border, presents urgent
circumstances requiring an immediate Federal response.'' Under these
regulations, the Attorney General will be authorized to consider
factors described in the definitions of ``immigration emergency'' and
``other circumstances'' contained in 28 CFR 65.81 when determining
whether a mass influx of aliens is imminent or occurring. As described
in 28 CFR 65.81, the phrase ``immigration emergency'' means
an actual or imminent influx of aliens which either is of such
magnitude or exhibits such other characteristics that effective
administration of the immigration laws of the United States is
beyond the existing capabilities of the [INS] in the affected area
or areas. Characteristics of an influx of aliens, other than
magnitude, which may be considered in determining whether an
immigration emergency exists include: the likelihood of continued
growth in the magnitude of the influx; an apparent connection
between the influx and increases in criminal activity; the actual or
imminent imposition of unusual and overwhelming demands on law
enforcement agencies; and other similar characteristics.
Finally, the phrase ``other circumstances'' means ``a situation that,
as determined by the Attorney General, requires the resources of a
State or local government to ensure the proper administration of the
immigration laws of the United States or to meet urgent demands arising
from the presence of aliens in a State or local government's
jurisdiction.''
In declaring that a mass influx of aliens is imminent or occurring,
the Attorney General will define the boundaries of the geographic area
where the declared mass influx of aliens is imminent or occurring. The
Commissioner of the INS is authorized to amend and redefine these
boundaries to expand or decrease them, as necessary, based on evolving
developments. This authority shall not be further delegated. The
Attorney General will also define the time periods that denote the
beginning and the end of the declared mass influx of aliens. The
authority of State or local law enforcement officers to enforce
immigration laws under section 103(a)(8) of the Act can be exercised
only during a mass influx of aliens, as determined and declared by the
Attorney General. State or local law enforcement officers authorized to
exercise immigration law enforcement authorities for transporting or
guarding aliens in custody may exercise such authorities as necessary
beyond the defined geographic boundaries where the declared mass influx
of aliens is imminent or occurring. Apart from this exception, State or
local law enforcement officers authorized to enforce immigration laws
pursuant to section 103(a)(8) of the Act can exercise that authority
only within the defined geographic boundaries where the mass influx of
aliens has been declared. In all circumstances, State or local officers
may exercise authority pursuant to section 103(a)(8) of the Act only
during the time period prescribed by the Attorney General.
The implementation of this final rule will facilitate an
expeditious and coordinated response during a mass influx of aliens by
enabling the Attorney General to draw upon the voluntary assistance of
State or local law enforcement resources to meet urgent and quickly
developing demands.
A proposed rule with request for comments was published by the
Department of Justice in the Federal Register on April 8, 1999. 64 FR
17128. The Service received a total of eighteen comments, all of which
were considered in the formulation of this final rule. Comments were
received from the Office of the Governor of the State of
[[Page 48355]]
Florida, the Florida Department of Law Enforcement, law enforcement
organizations in the State of Florida representing Florida sheriffs and
chiefs of police, and from non-governmental organizations. Of the
total, four commenters expressed support for the regulation and
fourteen commenters opposed the rule.
What Were the Comments and What Changes Are Being Made in This Final
Rule?
Of the fourteen commenters opposing the regulation, nine commenters
opposed State or local law enforcement officers exercising Federal
immigration enforcement authority under any circumstances. All the
opposing comments expressed concern that authorizing State or local law
enforcement officers to exercise Federal immigration enforcement
authority would result in civil rights violations and racial profiling
by State or local police. The majority of opposing comments also
expressed concern that the authorization of State or local law
enforcement officers to exercise Federal immigration enforcement
authority would undermine public safety by interfering with the normal
duties of police in serving and protecting the community at large.
Authorization: Scope and Geographic Area
The commenters opposing the regulation generally based their
concerns on the premise that the Attorney General would authorize state
or local law enforcement officers to exercise Federal immigration
enforcement authority during a declared mass influx of aliens in a
large geographic area, thereby creating a greater likelihood for racial
profiling. Moreover, commenters were concerned that a conflict in
police functions would be created that would be counter to the purpose
and intent of neighborhood and community policing. Commenters also were
concerned that State and local law enforcement officers would use their
authority under section 103(a)(8) of the Act to further particular
State and local interests, such as gathering information or evidence
relating to a State offense.
The Service recognizes and appreciates these concerns, but notes
that pursuant to the provisions of section 103(a)(8) of the Act, the
Attorney General will authorize State or local law enforcement officers
to exercise Federal immigration enforcement authority only during a
declared mass influx of aliens, the determination of which will be
based on the factors set forth in the definitions of the terms
``assistance,'' ``immigration emergency,'' and ``other circumstances''
as defined in 28 CFR 65.81. The Attorney General will authorize the
exercise of only those immigration law enforcement authorities that are
essential to meeting the demands imposed by the situation.
In an ``immigration emergency,'' local Service resources are
inadequate to meet the immediate threat to public safety, public
health, and national security. Immediate response and immigration law
enforcement under such circumstances would be essential. It must be
presumed that many of the first officials responding to events in such
an urgent and quickly developing situation would be State or local law
enforcement officers. They must be provided with the necessary
authority to provide effective assistance to Federal authorities to
contain and control the situation. In these circumstances, the
assistance of State or local law enforcement officers would be
essential to protect public safety, public health, and national
security.
The regulation does not abridge or abrogate constitutional or civil
rights protections. The Service believes that sufficient additional
safeguards to protect civil rights have been incorporated in the
regulation, and that these safeguards will be further strengthened
through supplemental policy and procedures. These safeguards include
defining the boundaries and duration of the event, thus limiting the
geographic area and time period when State and local law enforcement
officers would exercise Federal immigration law enforcement authority.
The regulation requires Service training and certification for State or
local officers who would exercise immigration law enforcement
authorities. The Attorney General will authorize the exercise of only
those authorities that are essential to meet the demands imposed by the
emergent event. The regulation also requires that State or local law
enforcement officers exercising Federal immigration law enforcement
authorities adhere to applicable Service policies and standards. The
regulation also requires that a contingency agreement between the
Service and State or local law enforcement agencies include a statement
that the exercise of Federal immigration law enforcement authority will
not abrogate or abridge constitutional or civil rights protections.
Further, the rule requires a complaint reporting and resolution
procedure to be in place and a mechanism to record and monitor
complaints of misconduct or wrongdoing by State or local officers in
the exercise of Federal immigration law enforcement authority.
Contingency agreements with State or local police agencies that
voluntarily agree to assist during a declared mass influx of aliens
will detail any authority to enforce immigration laws that State or
local law enforcement officers will exercise pursuant to section
103(a)(8) of the Act. State or local law enforcement officers will not
be authorized to enforce immigration laws pursuant to section 103(a)(8)
of the Act during a declared mass influx of aliens without completing a
required training program as required by the regulation.
Preliminary contingency agreements between the Service and several
State or local law enforcement agencies in the State of Florida have
been developed in order to be in place prior to the authorization of
immigration law enforcement in the event a mass influx of aliens is
declared. Plans call for the Service to develop and provide training to
State or local law enforcement officers who would exercise Federal
immigration law enforcement authority during such an event. The Service
will oversee and coordinate all immigration law enforcement activities
during a declared mass influx of aliens.
The regulation has been modified to provide the Attorney General
with the sole authority and responsibility, when declaring a mass
influx of aliens, to define the initial geographic boundaries where the
mass influx of aliens is imminent or occurring. The regulation will
authorize the INS Commissioner subsequently to amend and redefine the
boundaries to expand or decrease them as necessary based on evolving
developments in the event. The authority to determine and define the
boundaries of a mass influx of aliens may not be further delegated.
This regulatory scheme will limit the geographic area in which
designated State or local law enforcement officers would be authorized
to perform the functions of immigration officers.
The regulation has been modified to require the Attorney General to
determine when a mass influx of aliens event has concluded, at which
point the authorization of State and local law enforcement officers to
enforce immigration law under the provisions of section 103(a)(8) of
the Act would cease.
Potential for Racial Profiling
The majority of the commenters opposing the implementation of the
regulation expressed serious concern that the proposed rule would
exacerbate racial profiling. To support these reservations, the
commenters cited and quoted several reports and news media
[[Page 48356]]
articles. A number of the commenters pointed out that the proposed rule
indicated bias by indicating that the authority to exercise Federal
immigration law enforcement authority would be limited to State or
local law enforcement agencies whose jurisdiction is along the southern
land border or the coastline of South Florida, thus implying that a
mass influx of aliens would be made up of Latino or Caribbean migrants.
Several aspects of the final rule address these concerns. The final
rule has been modified to remove reference to the southern land border
and the coastline of South Florida and to insert in place of those
references the phrase, ``aliens arriving off the coast or near a land
border of the United States.'' During a declared mass influx of aliens,
the Service would exercise oversight and control to focus the assisting
State or local law enforcement resources on the essential immigration
law enforcement activities necessary to contain and control the
situation in the defined areas of such an event. Moreover, the
potential for unwarranted stops based solely on ethnic appearance would
be significantly reduced by the presence of other distinguishing
factors consistent with the characteristics of the event.
Several comments dealt with training. Several commenters expressed
concern that Service training of State or local law enforcement
officers would be insufficient to erase biases or to address the
likelihood that police would end up stopping those people who look like
members of the group entering or about to enter the United States
during a declared mass influx of aliens. Also, given the complex and
changing nature of immigration law, concern was expressed that adequate
training could not be provided to State or local law enforcement
officers to enable them properly to exercise Federal immigration
enforcement authority. Concern also was expressed that a significant
amount of time could pass between the initial training the Service
would provide to State or local law enforcement officers and the time
the authorization to exercise Federal immigration authority would
occur. Therefore, at the time when they would be expected to apply
their knowledge of immigration law, State or local law enforcement
officers might not be able to recall crucial elements required for
effective enforcement. One commenter recommended that the State or
local law enforcement officers who may be called upon to exercise
Federal immigration enforcement authority during a mass influx of
aliens be required to undergo thorough retraining on a regular basis.
One of the comments noted:
In addition, local law enforcement officers should also be trained
to distinguish between situations when they are acting to enforce
the INA (Immigration and Nationality Act) and when they are not.
Special attention should be paid to this difference so that officers
do not abuse their powers and claim to be engaging in immigration
enforcement activity that is really a pretext for criminal
enforcement activities.
The training concerns and recommendations presented in these
comments are noted. The Service agrees that training for State or local
law enforcement officers who may be called upon to exercise Federal
immigration enforcement authority during a mass influx of aliens is a
critically important matter. State or local law enforcement officers
cannot perform any functions of a Service officer or employee pursuant
to section 103(a)(8) of the Act and under the provisions of this rule
until they successfully complete training prescribed by the Service and
become certified in basic immigration law, immigration law enforcement
fundamentals and procedures, civil rights law, and sensitivity and
cultural awareness issues. Recognizing that a significant amount of
time could pass between initial training and certification and the time
when authorization to enforce immigration laws occurs, the Service also
will develop a means to provide appropriate refresher training. The
Service believes that it is important to mandate the general
requirement for training in the regulation, but that the details of how
the training will be developed and provided should be addressed through
internal policy. The Service will do its utmost to ensure that the
training developed and provided meets the essential and critical
requirements for sufficiency and timeliness.
One commenter suggested that in addition to training to prevent
constitutional and civil rights violations, the regulation should also
require that an entity be established to monitor the exercise of
Federal immigration enforcement authority by State or local law
enforcement officials. The commenter expressed concern that the
proposed regulation did not seem to contemplate the possibility that
State or local law enforcement officers authorized pursuant to section
103(a)(8) of the Act to enforce immigration laws would engage in
improper activity that might warrant discipline.
The Service agrees that a mechanism is needed to monitor the
immigration law enforcement activities of State or local law
enforcement officers conducted pursuant to section 103(a)(8) of the
Act, but does not agree that an independent entity needs to be
established to do so. The regulation has been modified to direct that a
mechanism to monitor complaints and allegations regarding the
immigration enforcement activities of State or local law enforcement
officers pursuant to section 103(a)(8) of the Act be included in the
contingency agreements implemented between participating State or local
law enforcement agencies and the Service. There are existing publicized
means for reporting complaints of wrongdoing or misconduct against
State or local law enforcement officers. The Service believes that
creating a separate entity to handle complaints and violations with
respect to the exercise of authorized immigration law enforcement
powers would be less effective and efficient than the procedures
already established. However, because of the importance of this issue,
this rule has been modified to require that a complaint reporting and
resolution procedure for such allegations be included in the
contingency agreement between the cooperating State or local department
and the Service.
Definition of ``Mass Influx of Aliens''
Several commenters opposing the rule expressed concern that the
proposed rule was inherently vague in that it allowed the Attorney
General to make the determination that a mass influx of aliens is
imminent or occurring without precisely defining what constitutes a
mass influx of aliens. Some of these commenters expressed the view that
the vague nature of these provisions was problematic in that the
discretionary power to determine whether the power should be exercised
is in the hands of the same person who would exercise the power. They
expressed concern that such discretionary power can become arbitrary
when there are no limiting factors or guidelines that must be met
before the authority can be legitimately triggered. The commenters
noted that the notice of proposed rulemaking did not offer historical
precedent as to whether a mass influx of aliens has occurred at any
time in the past. The commenters also noted that there is no guidance
to quantify how many incoming noncitizens need to be at the border or
off the coast of the United States before the Attorney General of the
United States can determine that a mass influx of aliens is imminent or
occurring.
The Service notes that there have been a number of events during
the past two decades that required the Federal
[[Page 48357]]
Government to adopt extraordinary measures beyond the capacity of the
Service to meet the challenges posed by large groups of undocumented
migrants either arriving or en route to the United States. Some of
these past events originated in the Caribbean. More recently,
significant numbers of undocumented migrants have been discovered bound
for this country from China in the holds of cargo vessels. The intent
of those directing some of these seagoing cargo vessels has been to run
the vessel aground and force their human cargo to abandon ship. In at
least one instance, such an event resulted in loss of life. There have
been periods when a significant number of such cargo vessels carrying
substantial numbers of undocumented migrants in their holds were
identified. Again, extraordinary actions by the Federal Government
beyond the capacity of the Service were required to deal with these
events.
In all of these situations, the undocumented migrants were exposed
to extreme hazards and life-threatening conditions. The belief that the
Federal Government will not be able to respond and prevent such actions
may bolster and encourage such brazen attempts by migrants to enter the
United States illegally, with reckless and criminal disregard for human
life and safety. The Federal Government must have the capability and
the regulatory basis upon which to mobilize and coordinate with State
or local law enforcement resources to respond to such events. In so
doing, the coordinated efforts of Federal, State, and local governments
can be combined to confront, manage, and possibly deter such reckless
and illegal behavior by undocumented migrants and those criminal
enterprises that seek to prosper unlawfully from them. Such illegal
entries into the United States not only greatly endanger the lives of
the undocumented migrants, but also endanger the safety, security, and
well-being of the United States, affected communities, and the public
at large. They cannot go unchecked.
The Service does not believe that it is necessary or appropriate to
quantify the basis for the declaring of a mass influx of aliens by the
Attorney General. There are several factors articulated in 28 CFR
65.81, specifically those noted in the definitions of ``immigration
emergency'' and ``other circumstances,'' that the Attorney General will
consider in determining whether to declare a mass influx of aliens.
Some of the commenters opposed any rule that would authorize State
and local law enforcement officers to exercise Federal immigration
enforcement authority. The Service strongly disagrees with this
viewpoint. The exercise of Federal law enforcement authority by State
and local law enforcement officers is not unique to this rule. For
example, the Department has deputized State and local law enforcement
officers to assist them in enforcing federal law. Moreover, this final
rule sets forth the guidelines under which the Attorney General can
authorize State and local officers to exercise Federal immigration law
enforcement authority during a mass influx of aliens and establishes
appropriate limits on the exercise of such authority.
Coordinated Law Enforcement Response
Four sets of comments strongly supported the regulation. These
comments came from the Office of the Governor of the State of Florida,
the Florida Department of Law Enforcement, and from two law enforcement
organizations in the State of Florida representing Florida sheriffs and
chiefs of police, respectively. All of these commenters pointed out
that the State of Florida has experienced a number of immigration-
related crises over the years. They unanimously expressed the belief
that the implementation of this rule would facilitate coordination
between agencies to more effectively meet the challenges and demands
that arise during such a mass influx event. These comments strongly
advocated the position that safety and security of all parties are the
paramount government interests during such an event. The commenters
also recognized and supported the establishment of contingency
agreements between the Service and State or local law enforcement
agencies as an effective means to formalize the working relationships
and expectations between the Service and State or local law enforcement
agencies during a mass influx event.
The Service believes that these commenters reflected the essence of
the statutory intent of section 103(a)(8) of the Act and the purpose of
this regulatory action. The declaration of a ``mass influx'' of aliens
by the Attorney General would signal an urgent and quickly developing
event that requires a coordinated and effective response by the
combined resources of the Federal Government and the State or local
governments representing the communities that would be directly
affected. During such an event, Service resources by themselves would
be inadequate to meet the demands imposed by such a crisis. During such
an occurrence, the Service would require the use of State or local law
enforcement resources to augment available Service resources. Prior
planning, appropriate authorizations, adequate training, organized
mobilization, and sufficient coordination between the Service and State
or local law enforcement agencies would be essential to ensure that
public safety, public health, and national security are protected. This
regulation provides the foundation and framework to accomplish these
essential requirements in the event that an Attorney General declares
that a mass influx of aliens is imminent or occurring becomes
necessary.
Explanation of Changes
This rule implements the intent of section 103(a)(8) of the Act by
providing a mechanism by which a trained cadre of State or local law
enforcement officers will be available to enhance the Federal
Government's ability to provide an immediate and effective response to
a declared mass influx of aliens.
To enable implementation of the Attorney General's authority, the
rule provides that the Commissioner of the INS may execute written
contingency agreements with State or local law enforcement agencies
regarding assistance under section 103(a)(8) of the Act, which may be
activated in the event that the Attorney General determines that such
assistance is required during a period of a declared mass influx of
aliens. Such contingency agreements shall not authorize State or local
law enforcement officers to perform any functions of Service officers
or employees pursuant to the provisions of section 103(a)(8) of the Act
until the Attorney General declares that a mass influx of aliens is
imminent or occurring, and specifically authorizes such performance.
Written agreements regarding assistance under 28 CFR 65.83(d),
including contingency agreements, shall include the following:
(1) A statement of the powers, privileges, or duties that State or
local law enforcement officers will be authorized to perform or
exercise and the conditions under which they may be performed or
exercised;
(2) a statement of the types of assistance by State or local law
enforcement officers for which the Attorney General shall be
responsible for reimbursing the relevant parties in accordance with the
procedures set forth;
(3) a statement that the relevant State or local law enforcement
officers are not authorized to perform any functions of Service
officers or employees pursuant
[[Page 48358]]
to section 103(a)(8) of the Act until the Attorney General has made a
determination pursuant to that section and authorizes such performance;
(4) a requirement that State or local law enforcement officers
cannot perform any authorized functions of Service officers or
employees pursuant to section 103(a)(8) of the Act until they have
successfully completed and been certified in a Service prescribed
course of instruction in basic immigration law, immigration law
enforcement fundamentals and procedures, civil rights law, and
sensitivity and cultural awareness issues;
(5) a description of the duration of both the written agreement and
the authority the Attorney General will confer upon State or local law
enforcement officers pursuant to section 103(a)(8) of the Act, along
with a mechanism for amending, terminating, or extending the duration
of authority and/or the written agreement;
(6) a requirement that the performance of any Service officer
functions by State or local law enforcement officers pursuant to
section 103(a)(8) of the Act be at the direction of the Service;
(7) a requirement that any State or local law enforcement officer
performing Service officer or employee functions pursuant to section
103(a)(8) of the Act must adhere to the policies and standards set
forth during the training, including applicable immigration law,
immigration law enforcement standards and procedures, civil rights law,
and sensitivity and cultural awareness issues;
(8) a statement that the authority to perform Service officer or
employee functions pursuant to section 103(a)(8) does not abrogate or
abridge constitutional or civil rights protections;
(9) a requirement that a complaint reporting and resolution
procedure for allegations of misconduct or wrongdoing by State or local
officers designated, or activities undertaken, pursuant to section
103(a)(8) of the Act be in place;
(10) a requirement that a mechanism to record and monitor
complaints regarding the immigration enforcement activities of State or
local law enforcement officers exercising the authority to enforce
immigration laws be in place;
(11) a listing by position (title and name, when available) of the
Service officers authorized to provide operational direction to State
or local law enforcement officers assisting in a Federal response
pursuant to section 103(a)(8) of the Act;
(12) a requirement that a State or local law enforcement agency
maintain records of operational expenditures incurred as a result of
supporting the Federal response to a mass influx of aliens;
(13) provisions concerning State or local law enforcement officer
use of Federal property or facilities, if any;
(14) a requirement that any department, agency, or establishment
whose State or local law enforcement officer is performing Service
officer or employee functions shall cooperate fully in any Federal
investigation related to allegations of misconduct or wrongdoing in
conjunction with such functions, or to the written agreement; and
(15) a procedure by which the appropriate law enforcement
department, agency, or establishment will be notified that the Attorney
General has made a determination under section 103(a)(8) of the Act to
authorize State or local law enforcement officers to exercise Federal
immigration enforcement authority under the provisions of the
respective agreements.
The boundaries of the geographic area where the declared mass
influx of aliens is imminent or occurring would be defined by the
Attorney General, who would also determine the time period of the mass
influx of aliens. The Commissioner is authorized to amend and redefine
the geographic boundaries of the area of the mass influx of aliens,
including expanding or decreasing the boundaries, as necessary, based
on evolving developments in the scope of the event. This authority
shall not be further delegated.
State or local law enforcement officers cannot perform any
functions of a Service officer or employee pursuant to section
103(a)(8) of the Act and under the provisions of this rule until they
successfully complete training prescribed by the Service and become
certified in basic immigration law, immigration law enforcement
fundamentals and procedures, civil rights law, and sensitivity and
cultural awareness issues.
The Service will provide all necessary training materials and will
conduct training sessions to designated officers at sites within their
jurisdictional or commuting areas when possible. Any employing State or
local law enforcement agency, department, or establishment will be
required to fund its officers' transportation, lodging, and subsistence
costs as may be required.
This rule amends the existing regulations of the Department of
Justice relating to the Immigration Emergency Fund. Under the amended
rule, the Department of Justice has the authority to reimburse State or
local law enforcement agencies that assist in the Federal response to a
mass influx of aliens from any authorizing statutory source or other
available funding source, provided such funding exists and has been
made available to the Department for this purpose. Therefore, the final
rule allows for the reimbursement of these entities up to the amount
available to the Department of Justice for such purposes. This rule
provides no guarantee of reimbursement for actual expenses incurred but
seeks to assure State or local law enforcement agencies that they will
not bear undue increased operational expenditures incurred in direct
support of a Federal response to declaration of a mass influx of
aliens.
Execution of advance contingency agreements will expedite
subsequent action by the Attorney General to authorize State or local
law enforcement officers to exercise Federal immigration enforcement
authority. The execution of advance contingency agreements will also
facilitate reimbursement of actual expenditures in support of a Federal
response to a mass influx of aliens, pursuant to existing financial
requirements.
Within the regulation, the phrase ``State or local law enforcement
officers'' means State law enforcement officers, local law enforcement
officers, or both. The phrase ``State or local law enforcement
agencies'' refers to State law enforcement agencies, local law
enforcement agencies, or both.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant impact on a
substantial number of small entities because of the following factors:
(1) The Service anticipates that participation in written
agreements executed with State or local law enforcement agencies under
section 103(a)(8) of the Act and this rule will be limited to those
State or local law enforcement agencies whose jurisdiction is along the
coast of the United States, or near a land border;
(2) Participation by State or local law enforcement agencies is
voluntary, and no State or local law enforcement agency outside the
contiguous area of a mass influx of aliens would be affected by
implementation of this rule;
(3) This rule provides a means to relieve undue financial burdens
on participating law enforcement agencies by allowing for reimbursement
of actual
[[Page 48359]]
expenses incurred in direct support of a Federal response to
declaration of a mass influx of aliens; and
(4) It is anticipated that the authorization of State or local law
enforcement officers to enforce immigration law under the provisions of
this rule will be infrequent, as such authorization can occur only
during times of an actual or imminent mass influx of aliens into the
United States pursuant to such declaration by the Attorney General.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined in the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule
will not result in an annual effect on the economy of $100 million or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice to be a
``significant regulatory action'' under section 3(f) of Executive Order
12866, Regulatory Planning and Review. Accordingly, this regulation has
been submitted to the Office of Management and Budget for review.
Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among
various levels of government. This rule allows for reimbursement by the
Department of Justice (contingent upon availability of such funds) as
determined by the Attorney General, of actual expenditures incurred by
State or local law enforcement agencies whose law enforcement officers
are supporting a Federal response to an actual or imminent mass influx
of aliens. Moreover, participation by State or local law enforcement
agencies is voluntary. Therefore, in accordance with section six of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.
Paperwork Reduction Act
As contained in this rule under 28 CFR 65.85(e), the Attorney
General will consider all applications from State or local governments
for reimbursement of actual expenses incurred in direct support of a
Federal response to a mass influx of aliens, until the Attorney General
has obligated funding available for such purposes as determined by the
Attorney General. The information that must be included in the
application for reimbursement is described in 28 CFR 65.85(c). The
information required in 28 CFR 65.85(c) is considered an information
collection covered under the Paperwork Reduction Act (PRA). This
information collection has previously been approved by the Office of
Management and Budget (OMB) under the PRA. The OMB control number for
this approved information collection is 1115-0184.
List of Subjects
8 CFR Part 2
Authority delegations (government agencies).
28 CFR Part 65
Grant programs--law, Law enforcement, Reporting and recordkeeping
requirements.
Accordingly, part 2 of chapter I of title 8 of the Code of Federal
Regulations, and part 65 of chapter I of title 28 of the Code of
Federal Regulations are amended as follows:
TITLE 8--ALIENS AND NATIONALITY
PART 2--AUTHORITY OF THE COMMISSIONER
1. The authority citation for part 2 continues to read as follows:
Authority: 28 U.S.C. 509, 510; 5 U.S.C. 301; 8 U.S.C. 1103.
2. Section 2.1 is amended by:
(a) Designating the existing text as paragraph (a); and by
(b) Adding a new paragraph (b), to read as follows:
Sec. 2.1 Authority of the Commissioner.
* * * * *
(b) The Commissioner, pursuant to 28 CFR 65.84(a), may execute
written contingency agreements with State or local law enforcement
agencies regarding assistance under section 103(a)(8) of the Act, 8
U.S.C. 1103(a)(8), which may be activated in the event that the
Attorney General determines that such assistance is required during a
period of a declared mass influx of aliens, as provided in 28 CFR
65.83(d). Such contingency agreements shall not authorize State or
local law enforcement officers to perform any functions of Service
officers or employees pursuant to the provisions of section 103(a)(8)
of the Act until the Attorney General declares that a mass influx of
aliens is imminent or occurring and specifically authorizes such
performance. The boundaries of the geographic area of the mass influx
of aliens shall be defined by the Attorney General. In addition, the
Attorney General will define the inclusive time period of a mass influx
of aliens by declaring the beginning and the end of such an event
pursuant to 28 CFR 65.83(d). Based on evolving developments in the
scope of the event, the Commissioner is authorized to amend and
redefine by new definition, as necessary, the geographic area defined
by the Attorney General to expand or decrease the boundaries. This
authority shall not be further delegated.
TITLE 28--JUDICIAL ADMINISTRATION
PART 65--EMERGENCY FEDERAL LAW ENFORCEMENT ASSISTANCE
3. The authority citation for part 65 continues to read as follows:
Authority: The Comprehensive Crime Control Act of 1984, Title
II, Chap. VI, Div. I, Subdiv. B, Emergency Federal Law Enforcement
Assistance, Pub. L. 98-473, 98 Stat. 1837, Oct. 12, 1984 (42 U.S.C.
10501 et seq.); 8 U.S.C. 1101 note; Sec. 610, Pub. L. 102-140, 105
Stat. 832.
4. In Sec. 65.80, the first sentence is revised to read as follows:
Sec. 65.80 General.
The regulations of this subpart set forth procedures for
implementing section 404(b) of the Immigration and Nationality Act
(``INA''), 8 U.S.C. 1101 note, by providing for Presidential
determinations of the existence of an immigration emergency, and for
payments from the Immigration Emergency Fund or other funding available
for such purposes, to State and
[[Page 48360]]
local governments for assistance provided in meeting an immigration
emergency. * * *
5. Section 65.83 is amended by:
a. Revising the introductory text; and by
b. Adding a new paragraph (d), to read as follows:
Sec. 65.83 Assistance required by the Attorney General.
The Attorney General may request assistance from a State or local
government in the administration of the immigration laws of the United
States or in meeting urgent demands where the need for assistance
arises because of the presence of aliens in that State or local
jurisdiction, and may provide funding to a State or local government
relating to such assistance from the Immigration Emergency Fund or
other funding available for such purposes, without a Presidential
determination of an immigration emergency, in any of the following
circumstances:
* * * * *
(d)(1) If, in making a determination pursuant to paragraph (b) or
(c) of this section, the Attorney General also determines that the
situation involves an actual or imminent mass influx of aliens arriving
off the coast or near a land border of the United States and presents
urgent circumstances requiring an immediate Federal response, the
Attorney General will formally declare that a mass influx of aliens is
imminent or occurring. The determination that a mass influx of aliens
is imminent or occurring will be based on the factors set forth in the
definitions contained in Sec. 65.81 of this subpart. The Attorney
General will determine and define the time period that encompasses a
mass influx of aliens by declaring when such an event begins and when
it ends. The Attorney General will initially define the geographic
boundaries where the mass influx of aliens is imminent or occurring.
(2) Based on evolving developments in the scope of the event, the
Commissioner of the INS may, as necessary, amend and redefine the
geographic area defined by the Attorney General to expand or decrease
the boundaries. This authority shall not be further delegated.
(3) The Attorney General, pursuant to section 103(a)(8) of the INA,
8 U.S.C. 1103(a)(8), may authorize any State or local law enforcement
officer to perform or exercise any of the powers, privileges, or duties
conferred or imposed by the Act, or regulations issued thereunder, upon
officers or employees of the Service. Such authorization must be with
the consent of the head of the department, agency, or establishment
under whose jurisdiction the officer is serving.
(4) Authorization for State or local law enforcement officers to
exercise Federal immigration law enforcement authority for transporting
or guarding aliens in custody may be exercised as necessary beyond the
defined geographic boundaries where the mass influx of aliens is
imminent or occurring. Otherwise, Federal immigration law enforcement
authority to be exercised by State or local law enforcement officers
will be authorized only within the defined geographic boundaries where
the mass influx of aliens is imminent or occurring.
(5) State or local law enforcement officers will be authorized to
exercise Federal immigration law enforcement authority only during the
time period prescribed by the Attorney General in conjunction with the
initiation and termination of a declared mass influx of aliens.
6. Section 65.84 is amended by:
a. Revising the section heading; and
b. Revising paragraph (a) of this section, to read as follows:
Sec. 65.84 Procedures for the Attorney General when seeking State or
local assistance.
(a)(1) When the Attorney General determines to seek assistance from
a State or local government under Sec. 65.83 of this subpart, or when
the President has determined that an immigration emergency exists, the
Attorney General shall negotiate the terms and conditions of that
assistance with the State or local government. The Attorney General
shall then execute a written agreement with appropriate State or local
officials, which sets forth the terms and conditions of the assistance,
including funding. Such written agreements can be reimbursement
agreements, grants, or cooperative agreements.
(2) The Commissioner may execute written contingency agreements
regarding assistance under Sec. 65.83(d) of this subpart in advance of
the Attorney General's determination pursuant to that section. However,
such advance agreements shall not authorize State or local law
enforcement officers to perform any functions of Service officers or
employees under section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8),
until the Attorney General has made the necessary determinations and
authorizes such performance. Any such advance agreements shall contain
precise activation procedures.
(3) Written agreements regarding assistance under Sec. 65.83(d) of
this subpart, including contingency agreements, shall include the
following minimum requirements:
(i) A statement of the powers, privileges, or duties that State or
local law enforcement officers will be authorized to exercise and the
conditions under which they may be exercised;
(ii) A statement of the types of assistance by State or local law
enforcement officers for which the Attorney General shall be
responsible for reimbursing the relevant parties in accordance with the
procedures set forth in paragraph (b) of this section;
(iii) A statement that the relevant State or local law enforcement
officers are not authorized to exercise any functions of Service
officers or employees under section 103(a)(8) of the INA, 8 U.S.C.
1103(a)(8), until the Attorney General has made a determination
pursuant to that section and authorizes such performance;
(iv) A requirement that State or local law enforcement officers
cannot exercise any authorized functions of Service officers or
employees under section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8),
until they have successfully completed and been certified in a Service-
prescribed course of instruction in basic immigration law, immigration
law enforcement fundamentals and procedures, civil rights law, and
sensitivity and cultural awareness issues;
(v) A description of the duration of the written agreement, and of
the authority the Attorney General will confer upon State or local law
enforcement officers pursuant to section 103(a)(8) of the INA, 8 U.S.C.
1103(a)(8), along with a provision for amending, terminating, or
extending the duration of the written agreement, or for terminating or
amending the authority to be conferred pursuant to section 103(a)(8) of
the INA, 8 U.S.C. 1103(a)(8);
(vi) A requirement that the exercise of any Service officer
functions by State or local law enforcement officers pursuant to
section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), be at the direction
of the Service;
(vii) A requirement that any State or local law enforcement officer
performing Service officer or employee functions pursuant to section
103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), must adhere to the policies
and standards set forth during the training, including applicable
immigration law enforcement standards and procedures, civil rights law,
and sensitivity and cultural awareness issues;
(viii) A statement that the authority to perform Service officer or
employee functions pursuant to section 103(a)(8)
[[Page 48361]]
of the INA, 8 U.S.C. 1103(a)(8), does not abrogate or abridge
constitutional or civil rights protections;
(ix) A requirement that a complaint reporting and resolution
procedure for allegations of misconduct or wrongdoing by State or local
officers designated, or activities undertaken, pursuant to section
103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), be in place;
(x) A requirement that a mechanism to record and monitor complaints
regarding the immigration enforcement activities of State or local law
enforcement officers authorized to enforce immigration laws be in
place;
(xi) A listing by position (title and name when available) of the
Service officers authorized to provide operational direction to State
or local law enforcement officers assisting in a Federal response
pursuant to section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8);
(xii) A requirement that a State or local law enforcement agency
maintain records of operational expenditures incurred as a result of
supporting the Federal response to a mass influx of aliens;
(xiii) Provisions concerning State or local law enforcement officer
use of Federal property or facilities, if any;
(xiv) A requirement that any department, agency, or establishment
whose State or local law enforcement officer is performing Service
officer or employee functions shall cooperate fully in any Federal
investigation related to allegations of misconduct or wrongdoing in
conjunction with such functions, or to the written agreement; and
(xv) A procedure by which the appropriate law enforcement agency,
department, or establishment will be notified that the Attorney General
has made a determination under section 103(a)(8) of the INA, 8 U.S.C.
1103(a)(8), to authorize State or local law enforcement officers to
exercise Federal immigration enforcement authority under the provisions
of the respective agreements.
* * * * *
7. In Sec. 65.85, paragraph (e) is revised to read as follows:
Sec. 65.85 Procedures for State or local governments applying for
funding.
* * * * *
(e) The Attorney General will consider all applications from State
or local governments until the Attorney General has obligated funding
available for such purposes as determined by the Attorney General. The
Attorney General will make a decision with respect to any application
submitted under this section that contains the information described in
paragraph (c) of this section within 15 calendar days of such
application.
* * * * *
Dated: July 17, 2002.
John Ashcroft,
Attorney General.
[FR Doc. 02-18655 Filed 7-23-02; 8:45 am]
BILLING CODE 4410-10-P