[Federal Register Volume 68, Number 38 (Wednesday, February 26, 2003)]
[Rules and Regulations]
[Pages 8820-8822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4441]


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DEPARTMENT OF JUSTICE

28 CFR Part 65

[INS No. 2241-02; AG Order No. 2659-2003]
RIN 1115-AG84


Abbreviation or Waiver of Training for State or Local Law 
Enforcement Officers Authorized To Enforce Immigration Law During a 
Mass Influx of Aliens

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule amends Department of Justice regulations to 
authorize the Attorney General to waive normally required training 
requirements in the event that the number of State or local law 
enforcement officers available to respond in an expeditious manner to 
urgent and quickly developing events during a declared mass influx of 
aliens is insufficient to protect public safety, public health, or 
national security. This action is necessary to provide the Attorney 
General with the tools and flexibility to address any unanticipated 
situations that might occur during a mass influx of aliens.

DATES: Effective date: This interim rule is effective February 26, 
2003.
    Comment date. Written comments must be submitted on or before April 
28, 2003.

ADDRESSES: Please submit written comments to the Regulations and Forms 
Services Division, Immigration and Naturalization Service, 425 I 
Street, NW., Room 4034, Washington, DC 20536. To ensure proper 
handling, please reference INS No. 2241-02 on your correspondence. You 
may also submit comments electronically at [email protected]. When 
submitting comments electronically you must include ``INS No. 2241-02'' 
in the subject box to ensure that the comments are properly routed to 
the appropriate office for review. Comments are available for public 
inspection at the above address by calling (202) 514-3291 to arrange 
for an appointment.

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: Section 372 of the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, Div. 
C., 110 Stat. 3009-646, amended section 103(a) of the Immigration and 
Nationality Act (``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 Immigration and Naturalization Service (``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.'' 8 U.S.C. 1103(a)(8).
    The Department of Justice has published a final rule implementing 
this authority. See 67 FR 48354 (July 24, 2002). The rule detailed the 
procedures the Attorney General must follow when seeking assistance 
from a State or local government during a declared mass influx of 
aliens. In accordance with the rule, the Attorney General is required 
to execute written agreements with appropriate State or local officials 
that set forth the terms and conditions of the assistance before the 
State or local law enforcement officer may exercise immigration law 
enforcement authorities pursuant to section 103(a)(8) of the Act. The 
regulations also permit the Attorney General to enter into written 
contingency agreements prior to the declaration of a mass influx of 
aliens. All of the written agreements must include a requirement that 
State or local law enforcement officers cannot exercise any authorized 
functions of Service officers or employees under 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. See 28 CFR 65.84(a)(3)(iv). 
Because of the need to respond quickly in the event of a mass influx of 
aliens, most of these State and local law enforcement officers likely 
will be trained pursuant to contingency agreements in place prior to 
any declared mass influx of aliens.
    The Department recognizes the desirability for all State or local 
law enforcement officers to receive training prior to being authorized 
to exercise immigration law enforcement authority pursuant to section 
103(a)(8) of the Act during a mass influx of aliens. Indeed, the 
Department fully anticipates that all State or local law enforcement 
officers authorized to exercise immigration law enforcement authority 
under the Act will have been certified in basic immigration law, 
immigration law enforcement fundamentals and procedures, civil rights 
law, and sensitivity and cultural awareness issues. While drafting the 
final rule, however, the Department realized that unanticipated 
situations might arise during a declared mass influx of aliens in which 
the number of State or local law enforcement officers trained pursuant 
to a written agreement would be insufficient to respond in an 
expeditious manner in order to protect public safety, public health, or 
national security. As a result of this concern, the Attorney General 
has determined that,

[[Page 8821]]

in exceptional circumstances, it would be prudent to allow the Attorney 
General to abbreviate or waive the normally required training for State 
and local law enforcement officers.
    The Department believes that it will rarely be necessary for the 
Attorney General to declare a mass influx of aliens. As discussed below 
in the Regulatory Procedures Section, however, the Department believes 
that the country currently is facing an increased risk of a mass influx 
of aliens. In the event that a mass influx of aliens does occur, the 
need to abbreviate or waive the normally required training may be 
necessary if the Service does not receive enough advance knowledge of 
the mass influx of aliens or the influx occurs at an unanticipated 
location. The Department believes that it is necessary to provide the 
Attorney General with the tools and flexibility to address any 
unanticipated situations that might occur during a mass influx of 
aliens. Therefore, the Department is amending the applicable 
regulations to allow the Attorney General to abbreviate or waive the 
otherwise normally required training requirement when such an action is 
necessary to protect public safety, public health, or national 
security. Such officers, however, still would be required to adhere to 
applicable Service policies and standards.
    This interim rule is intended to solicit comments from the public 
on the very limited issue of whether the regulations should allow for 
the abbreviation or waiver of the normal training requirement. The 
Department welcomes comments on steps that can be taken to minimize the 
need for the Attorney General to exercise his authority to abbreviate 
or waive training requirements in the event of a declared mass influx 
of aliens. In particular, the Department welcomes comments on how the 
written contingency agreements with the appropriate State or local 
officials could be formulated to help ensure that this authority would 
be exercised only under extraordinary circumstances. The Department 
does not intend to reconsider any of the other issues addressed by the 
final rulemaking.
    It is important to note that even if State and local law 
enforcement officers have not completed the training devised by the 
Service, these individuals still are trained law enforcement officers 
and can be expected to respond in an appropriate manner. In addition, 
most, if not all, of the functions such State and local law enforcement 
officers would be asked to perform during a declared mass influx of 
aliens would not require detailed training in immigration matters. 
Rather, these individuals are likely to be asked only to apprehend, 
transport, or temporarily guard aliens who are part of the mass influx. 
As a result, the abbreviation or waiver of the normally required 
training requirement is not likely to affect the public in an adverse 
manner.

Regulatory Procedures

Good Cause

    This interim rule is effective immediately upon the date of 
publication. The Department finds that good cause exists for adopting 
this rule without the prior notice ordinarily required by 5 U.S.C. 
553(b) because a delay in the implementation of the rule would pose a 
substantial risk to public safety and national security.
    The Department believes that the country currently is at risk for a 
mass influx of aliens. Present conditions in Haiti are prime for 
creating a mass migration to the United States. Not only have rising 
prices and the collapse of the informal banking sector worsened an 
already reeling economy, but a prolonged drought has afflicted the 
northwest portion of the country and severe floods have hit southern 
Haiti. Internal security in Haiti also has deteriorated.
    Indeed, on October 29, 2002, a Haitian vessel beached off Biscayne 
Bay, Florida, with 214 predominantly Haitian aliens jumping off and 
wading ashore. Another 21 migrants were detained offshore by an United 
States Coast Guard (``USCG'') cutter. On November 8, 2002, the USCG 
interdicted 25 Haitians who were using a small wooden vessel to attempt 
a voyage to the United States. The interdiction took place off the 
coast of Haiti. Finally, on November 11, 2002, the USCG interdicted two 
wooden vessels carrying a total of 237 Haitians and one Bahamian, 30 
miles south of Great Inagua, in the Bahamas.
    At the present time, an insufficient number of State and local law 
enforcement officers who have completed the otherwise required 
immigration training are available to exercise immigration law 
enforcement authority pursuant to section 103(a)(8) of the Act in an 
expeditious manner in the event the Attorney General declares a mass 
influx of aliens. This lack of State and local officers who have 
completed training presents an immediate risk to public safety and 
national security. Therefore, the publication of this interim rule is 
necessary to provide the Attorney General with the tools and 
flexibility to address any unanticipated situations that might occur 
during a mass influx of aliens.
    For the same reasons, the Department also finds that it has good 
cause to issue this interim rule with an immediate effective date, in 
accordance with 5 U.S.C. 553(d). Because additional delay is contrary 
to the public interest, there is good cause under 5 U.S.C. 553(d) to 
make this rule effective as of February 26, 2003.

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 economic 
impact on a substantial number of small entities. This rule allows the 
Attorney General to waive normally required training requirements in 
the event that the State or local law enforcement officers available to 
respond to a mass influx of aliens is insufficient to protect public 
safety, public health, or national security. Because this rule involves 
only the waiver of training requirements, it should impose little or no 
economic impact on small entities. Indeed, the exercise of this waiver 
may confer a small economic benefit on affected entities because they 
will not have to devote personnel and time for any training that is 
waived. Moreover, this rule does not affect a substantial number of 
small entities as that term is defined in 5 U.S.C. 601(6). Because of 
the remote chance of a mass influx of aliens occurring in most States, 
only a very few local law enforcement agencies are ever expected to 
enter into agreements with the Attorney General to exercise immigration 
law enforcement authorities pursuant to section 103(a)(8) of the Act. 
In addition, the decision of a small entity to participate in the event 
of a mass influx of aliens is purely voluntary on the part of the 
entity.

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

[[Page 8822]]

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. 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.

List of Subjects in 28 CFR Part 65

    Grant programs--law, Law enforcement, Reporting and recordkeeping 
requirements.


    Accordingly, part 65 of chapter I of title 28 of the Code of 
Federal Regulations is amended as follows:

PART 65--EMERGENCY FEDERAL LAW ENFORCEMENT ASSISTANCE

    1. 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.


    2. Section 65.84 is amended by adding paragraph (a)(4), to read as 
follows:


Sec.  65.84  Procedures for the Attorney General when seeking State or 
local assistance.

    (a) * * *
    (4) The Attorney General may abbreviate or waive any of the 
training required pursuant to a written agreement regarding assistance 
under Sec.  65.83(d) of this chapter, including contingency agreements, 
in the event that the number of State or local law enforcement officers 
available to respond in an expeditious manner to urgent and quickly 
developing events during a declared mass influx of aliens is 
insufficient to protect public safety, public health, or national 
security. Such officers still would be required to adhere to applicable 
policies and standards of the Immigration and Naturalization Service. 
The decision to abbreviate or waive these training requirements is at 
the sole discretion of the Attorney General.
* * * * *

    Dated: February 20, 2003.
John Ashcroft,
Attorney General.
[FR Doc. 03-4441 Filed 2-25-03; 8:45 am]
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