Powers of the Attorney General to Authorize State or Local Law Enforcement Officers To Enforce Immigration Law During a Mass Influx of Aliens

DEPARTMENT OF JUSTICE

8 CFR Part 2

28 CFR Part 65

[INS No. 1924-98; AG Order No. 2215-99]

RIN 1115-AF20

Powers of the Attorney General to Authorize State or Local Law

Enforcement Officers To Enforce Immigration Law During a Mass Influx of

Aliens

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to implement section 103(a)(8) of the

Immigration and Nationality Act (the 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 certain

functions related to the enforcement of the immigration laws during a

period of mass influx of aliens. This rule provides for a cooperative

process by which State or local governments can agree to place

authorized State or local law enforcement officer(s) under the

direction of the Immigration and Naturalization Service (INS) in

enforcing immigration laws, whenever the Attorney General determines

that such assistance is necessary during a mass influx of aliens.

This rule also allows the Commissioner of the INS to enter into

advance written ``contingency'' agreements with State and local law

enforcement officials. The written agreements will explain the terms

and conditions (including the reimbursement of expenses) under which

State or local law enforcement officers an enforce immigration laws

during a mass influx of aliens. The rule also ensures that appropriate

notifications are made to Congress and the Administration. This rule is

necessary to ensure that the INS can respond in an expeditious manner

during a mass influx of aliens.

Finally, the rule ensures that the performance of duties under the

special authorization is consistent with civil rights protections.

DATES: Written comments must be submitted on or before June 7, 1999.

ADDRESSES: Please submit written comments, in triplicate, to the

Director, Policy Directives and Instructions Branch, Immigration and

Naturalization Service, 425 I Street, NW, Room 5307, Washington, DC

20536. To ensure proper handling, please reference INS number 1924-98

on your correspondence. Comments are available for public inspection at

the above address by calling (202) 514-3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT:

George M. Waldroup, Special Assistant, Field Operations, Immigration

and Naturalization Service, 425 I Street, NW, Room 7228, Washington, DC

20536, telephone (202) 305-7873.

SUPPLEMENTARY INFORMATION:

Background

Section 372 of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA) (Pub. L. 104-208, 110 Stat. 3009),

added section 103(a)(8) of the Act (8 U.S.C. 1103(a)(8)) 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 INS during a period of a mass influx of aliens. Under

section 103(a)(8) of the Act, such Attorney General authorization to

State or local law enforcement officers can occur only in the event

that 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.'' Any authority to enforce immigration laws that is

given to State or local law enforcement officers under section

103(a)(8) of the Act can be exercised only during such a mass influx of

aliens, as determined by the Attorney General. The implementation of

this proposed 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 and local

resources.

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 and/or local

law enforcement officers will be available to enhance the Federal

Government's ability to field an immediate and effective response to a

mass influx of aliens.

State/local law enforcement officers cannot perform any functions

of an INS officer or employee pursuant to 8 U.S.C. 1103(a)(8) and under

the provisions of this rule until they successfully complete training

prescribed by the INS in basic immigration law, enforcement

fundamentals, civil rights law, and sensitivity and cultural awareness

issues. INS will provide all necessary training materials and will

conduct training sessions to designated officers at sites within their

jurisdictional or commuting areas when possible. The employing State/

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 is an amendment to the existing regulations of the

Department of Justice relating to the Immigration Emergency Fund. By

tying reimbursement for actual expenses incurred to the Immigration

Emergency Fund, this rule also seeks to assure State and local law

enforcement agencies that they will not bear undue increased

operational expenditures. However, this rule provides no guarantee of

reimbursement for actual expenses incurred in excess of the balance of

uncommitted funds in the Immigration Emergency Fund. Without additional

appropriations to the Immigration Emergency Fund, any reimbursement

would be contingent on supplemental appropriations and/or other funding

that may be available. Execution of advance ``contingency'' agreements

will expedite subsequent action by the Attorney General to give

authority to State and/or local law enforcement officers to enforce

immigration laws and will facilitate reimbursement of actual

[[Page 17129]]

expenditures in support of a Federal response to a mass influx of

aliens, pursuant to existing financial requirements such as

Congressional notification and recordkeeping.

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) INS anticipates that participation in written agreements executed

with State and/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 southern

land border or the coastline of South Florida and who agree to provide

assistance in a Federal response to a mass influx of aliens into the

United States; (2) participation by State and/or local law enforcement

agencies is voluntary and no State or local law enforcement agency

outside the area of a mass influx of aliens would be affected by

implementation of this rule; (3) this rule believes undue financial

burdens on participating law enforcement agencies by providing for

reimbursement of actual expenses incurred in direct support of a

Federal response to a mass influx of aliens; and, (4) it is anticipated

that delegation of authority to State/local law enforcement officers to

enforce immigration law under the provisions of this rule will be

infrequent and will occur only during times of an actual or imminent

mass influx of aliens into the United States.

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 1 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 cost 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 12612

The regulation adopted herein 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 provides

for reimbursement through the Immigration Emergency Fund (contingent

upon availability of such funds) and/or supplemental appropriation, of

actual expenditures incurred by State/local law enforcement agencies

whose law enforcement officers are supporting a Federal response to an

actual or imminent mass influx of aliens. Therefore, in accordance with

Executive Order 12612, it is determined that this rule does not have

sufficient federalism implications to warrant the preparation of a

Federalism Assessment.

Executive Order 12988: Civil Justice Reform

This proposed rule meets the applicable standards set forth in

sections 3(a) and 3(b)(2) of Executive Order 12988.

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 maximum amount

of money in the Immigration Emergency Fund has been expended. 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 which is 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 proposed to be 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 and 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 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 INS officers or employees under 8 U.S.C. 1103(a)(8) until

the Attorney General determines that a mass influx of aliens exists,

and specifically authorizes such performance.

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. 65.83, a new paragraph (d) is added to read as follows:

Sec. 65.83 Assistance required by the Attorney General.

* * * * *

[[Page 17130]]

(d) 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 of the United States, or near a land border, which

presents urgent circumstances requiring an immediate Federal response,

the Attorney General, pursuant to 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 INA,

or regulations issued thereunder, upon officers or employees of the

INS. Such authorization must be with the consent of the head of the

department, agency, or establishment under whose jurisdiction the

officer is serving.

5. In Sec. 65.84, paragraph (a) is revised to read as follows:

Sec. 65.84 Procedures for the Attorney General 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, 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 of INS may execute written contingency

agreements regarding assistance under Sec. 65.83(d) 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 INS officers or

employees under 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),

including contingency agreements, shall include the following minimum

requirements:

(i) 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;

(ii) The types of assistance by State and 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 perform any functions of INS officers or

employees under 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 perform any authorized functions of INS officers or employees

under 8 U.S.C. 1103(a)(8) until they have successfully completed an INS

prescribed course of instruction in basic immigration law, enforcement

fundamentals, civil rights law, and sensitivity and cultural awareness

issues;

(v) 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 8 U.S.C. 1103(a)(8), along with a

mechanism for amending, terminating, or extending the duration of

authority and/or the written agreement;

(vi) A requirement that the performance of any INS officer

functions by State or local law enforcement officers pursuant to 8

U.S.C. 1103(a)(8) be at the direction of the INS;

(vii) A requirement that any State or local law enforcement officer

performing INS officer or employee functions pursuant to 8 U.S.C.

1103(a)(8) must adhere to the policies and standards set forth during

the training, including applicable enforcement standards, civil rights

law, and sensitivity and cultural awareness issues;

(viii) A listing by position (title and name when available) of the

INS officers authorized to provide operational direction to State or

local law enforcement officers assisting in a Federal response pursuant

to 8 U.S.C. 1103(a)(8);

(ix) Provisions concerning State or local law enforcement officer

use of Federal property or facilities, if any;

(x) A requirement that any department, agency, or establishment

whose State or local law enforcement officer is performing INS officer

or employee functions shall cooperate fully in any Federal

investigation related to the written agreement; and

(xi) A procedure by which the appropriate law enforcement

department, agency, or establishment will be notified that the Attorney

General has made a determination under 8 U.S.C. 1103(a)(8) to delegate

authority for State/local law enforcement officers to enforce

immigration law under the provisions of the respective agreements.

* * * * *

6. In Sec. 65.85, paragraph (e) is revised to read as follows:

Sec. 65.85 Procedures for State or local government applying for

funding.

* * * * *

(e) The Attorney General will consider all applications from State

or local governments until the Attorney General has expended the

maximum amount available in the Immigration Emergency Fund. The

Attorney General will make a decision with respect to any application

submitted under this section, subject to the necessary notifications

within the Administration or Congress, and containing the information

described in paragraph (c) of this section, within 15 calendar days of

such application.

* * * * *

Dated: April 1, 1999.

Janet Reno,

Attorney General.

[FR Doc. 99-8773 Filed 4-7-99; 8:45 am]

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