[Federal Register Volume 64, Number 67 (Thursday, April 8, 1999)]
[Proposed Rules]
[Pages 17128-17130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8773]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 64, No. 67 / Thursday, April 8, 1999 / 
Proposed Rules  

[[Page 17128]]


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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]
BILLING CODE 4410-10-M