[Federal Register: September 20, 2001 (Volume 66, Number 183)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 287
[INS No. 2171-01]
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comment.
SUMMARY: This rule amends the Immigration and Naturalization Service
(Service) regulations on the period of time after an alien's arrest
within which the Service must make a determination whether the alien
will be continued in custody or released on bond or recognizance and
whether to issue a notice to appear and warrant of arrest. This rule
provides that unless voluntary departure has been granted, the Service
must make such determinations within 48 hours of arrest, except in the
event of emergency or other extraordinary circumstance in which case
the Service must make such determinations within an additional
reasonable period of time.
DATES: Effective date: September 17, 2001.
Comment date: Written comments must be submitted on or before
November 19, 2001.
ADDRESSES: Please submit written comments to the Director, Policy
Directives and Instructions Branch, Immigration and Naturalization
Service, 425 I Street, NW., Room 4034, Washington, DC 20536. To ensure
proper handling please reference INS No. 2171-01 on your
correspondence. You may also submit comments electronically to the
Service at firstname.lastname@example.org. When submitting comments electronically
please include INS No. 2171-01 in the subject box. Comments are
available for public inspection at the above address by calling (202)
514-3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Cristina Hamilton, Office of the
General Counsel, Immigration and Naturalization Service, 425 I Street,
NW., Room 6100, Washington, DC 20536, telephone (202) 514-2895.
What Is the Basis for the Interim Rule?
The current rule provides that unless voluntary departure is
granted, the Service must make determinations within 24 hours of an
alien's arrest whether to continue the alien in custody or to release
the alien on bond or recognizance and whether to issue a notice to
appear and a warrant of arrest. However, this 24-hour period is not
mandated by constitutional requirements. The interim rule provides the
Service 48 hours to make these determinations, except in the event of
emergency or other extraordinary circumstance in which case the Service
must make such determinations within an additional reasonable period of
Explanation of Changes
The interim rule amends Sec. 287.3(d), ``Custody procedures.'' The
current language of that section provides that unless voluntary
departure has been granted pursuant to subpart C of 8 CFR part 240, the
Service has a period of 24 hours following the arrest of an alien in
which it must determine whether the alien will be continued in custody
or released on bond or recognizance and whether to issue a notice to
appear and warrant of arrest as prescribed in 8 CFR parts 236 and 239.
Inasmuch as the 24-hour determination period is not mandated by
constitutional principles, the Service is amending the rule to provide
that unless voluntary departure has been granted pursuant to subpart C
of 8 CFR part 240, the Service generally must make the determinations
as to custody or release of the alien and as to the issuance of the
notice to appear and warrant of arrest within 48 hours of arrest. The
Service may often require this additional time in order to establish an
alien's true identity; to check domestic, foreign, or international
databases and records systems for relevant information regarding the
alien; and to liaise with appropriate law enforcement agencies in the
United States and abroad.
In situations involving an emergency or other extraordinary
circumstance, the Service may require additional time beyond 48 hours
to process cases, to arrange for additional personnel or resources, and
to coordinate with other law enforcement agencies. Therefore, the
interim rule provides an exception to the 48-hour general rule for any
case arising during or in connection with an emergency or other
extraordinary circumstance, in which case the Service must make the
determinations as to custody or release and as to the issuance of the
notice to appear and warrant of arrest within an additional reasonable
period of time.
Administrative Procedure Act 5 U.S.C. 553
The Service's implementation of this rule as an interim rule, with
provision for post-promulgation public comment, is based on the foreign
affairs exception, 5 U.S.C. 553(a)(1), and upon findings of good cause
pursuant to 5 U.S.C. 553(b)(B) and (d).
The immediate implementation of this interim rule without public
comment is necessary to ensure that the Service has sufficient time,
personnel, and resources to process cases--including establishing true
identities and communicating with other law enforcement agencies--that
arise in connection with the emergency posed by the recent terrorist
activities perpetrated on United States soil. This rule does not alter
the standards for issuing charging documents or determining the issue
of custody or release, but simply extends the period by which the
Service must make such determinations. For this reason, the Service has
determined that there is good cause to publish this interim rule and to
make it effective immediately, because the delays inherent in the
regular notice and comment process would be ``impracticable,
unnecessary and contrary to the public interest.''
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, 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 economic impact on a substantial number of
small entities. The rule addresses only government operations. It
places no new obligations on small entities or other private
individuals or businesses. It should have no appreciable economic
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
Small Business Regulatory Enforcement Fairness Act of 1996
This rule in not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. 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, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this regulation has been submitted to the Office
of Management and Budget for review.
Executive Order 13132
This rule 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 the various
levels of government. Therefore, in accordance with section 6 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 Civil Justice Reform
This interim rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting and recordkeeping
requirements inherent in a final rule. This rule does not impose any
new reporting or recordkeeping requirements under the Paperwork
List of Subjects in 8 CFR Part 287
Administrative practice and procedure, Aliens, Immigration.
Accordingly, part 287 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 287--FIELD OFFICERS; POWERS AND DUTIES
1. The authority citation for part 287 continues to read as
Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; 8
CFR part 2.
2. Section 287.3(d) is revised to read as follows:
Sec. 287.3 Disposition of cases of aliens arrested without warrant.
* * * * *
(d) Custody procedures. Unless voluntary departure has been granted
pursuant to subpart C of 8 CFR part 240, a determination will be made
within 48 hours of the arrest, except in the event of an emergency or
other extraordinary circumstance in which case a determination will be
made within an additional reasonable period of time, whether the alien
will be continued in custody or r
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