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[Federal Register: July 24, 2002 (Volume 67, Number 142)]
[Rules and Regulations]               
[Page 48354-48361]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jy02-2]                         


[[Page 48354]]

=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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





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