[Federal Register Volume 68, Number 44 (Thursday, March 6, 2003)]
[Rules and Regulations]
[Pages 10922-10924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5146]



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Part VII





Department of Homeland Security





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Immigration and Naturalization Service



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8 CFR Parts 1, 2, 103, and 239



Authority of the Secretary of Homeland Security; Delegations of 
Authority; Immigration Laws; Final Rule

  Federal Register / Vol. 68, No. 44 / Thursday, March 6, 2003 / Rules 
and Regulations  

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DEPARTMENT OF HOMELAND SECURITY

Immigration and Naturalization Service

8 CFR Parts 1, 2, 103, 239

RIN 1601-AA06


Authority of the Secretary of Homeland Security; Delegations of 
Authority; Immigration Laws

AGENCY: INS, Homeland Security.

ACTION: Final rule.

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SUMMARY: This final rule amends certain regulations relating to the 
administration and enforcement of the immigration laws to reflect the 
authority of the Secretary of Homeland Security and to address 
delegation of that authority, as a result of the March 1, 2003, 
transfer of the Immigration and Naturalization Service of the 
Department of Justice to the Department of Homeland Security.

DATES: This final rule is effective March 6, 2003. Written comments may 
be submitted to the Department of Homeland Security on or before April 
7, 2003.

ADDRESSES: Submit written comments (preferably an original and three 
copies) to the Associate General Counsel (General Law), Department of 
Homeland Security, Washington, DC 20528.

FOR FURTHER INFORMATION CONTACT: Philip B. Busch, (202) 514-2895, not a 
toll free call.

SUPPLEMENTARY INFORMATION: 

I. Background

    On November 25, 2002, the President signed into law the Homeland 
Security Act of 2002 (Pub. L. 107-296) (the Act), which created the new 
Department of Homeland Security (DHS). Pursuant to the provisions of 
the Act, DHS came into existence on January 24, 2003. As provided by 
the Act and by the Department of Homeland Security Reorganization Plan 
of November 25, 2002, as modified (Reorganization Plan), the functions 
of the Immigration and Naturalization Service (INS) of the Department 
of Justice, and all authorities with respect to those functions, 
transfer to DHS on March 1, 2003, and the INS is abolished on that 
date. The transition and savings provisions of the Act, including 
sections 1512(d) and 1517, provide that references relating to the INS 
in statutes, regulations, directives or delegations of authority shall 
be deemed to refer to the appropriate official or component of DHS. 
Despite this continued validity of Title 8 of the Code of Federal 
Regulations with respect to DHS, and its application as a matter of law 
in full to DHS as the successor to the INS unless and until 
specifically modified, it is appropriate at this time to begin the 
process of conforming the text of Title 8 to the new governmental 
structures provided by the Act and the Reorganization Plan.
    This rule is also a step in the process of separating DHS 
enforcement and services functions from Department of Justice 
adjudication functions as envisioned by the Act. DHS and the Department 
of Justice are working together to ensure that this complex task 
proceeds as smoothly as possible without unnecessary disruption to 
enforcement, adjudication, and other immigration functions.

II. The Final Rule

    First, this final rule replaces 8 CFR 2.1--stating the authority of 
the Commissioner of the INS and providing for his redelegation of 
authority--with an equivalent provision that vests all authorities and 
functions of DHS to administer and enforce the immigration laws in the 
Secretary of Homeland Security. The immigration laws are defined in 
section 101(a)(17) of the Immigration and Nationality Act (INA), 8 
U.S.C. 1101(a)(17), as the INA and all laws, conventions, and treaties 
of the United States relating to the immigration, deportation, 
expulsion, or removal of aliens (this INA definition is incorporated in 
Title 8 of the Code of Federal Regulations by 8 CFR 1.1(a)). The 
Secretary may redelegate any of his functions and authorities with 
respect to the immigration laws in his discretion to any official, 
officer or employee of DHS (including by means of successive 
redelegations), or to other employees of the United States to the 
extent authorized by law. He may delegate his authority in any manner 
he chooses, including by regulation or by memorandum, directive, or 
other method. The Secretary's delegations of authority may in his 
discretion be published as rules or notices in the Federal Register, 
but the Secretary is not required to publish his delegations of 
authority in the Federal Register. The new section 2.1 reflects the 
statutory authority that the Secretary of Homeland Security possesses 
under section 102 and other provisions of the Act and other applicable 
law, and does not limit or constrain that authority in any way.
    Second, the final rule deletes delegations of authority at 8 CFR 
103.1 that reflect the structure of the former INS and therefore no 
longer provide accurate information from the regulations. These 
delegations are replaced with a cross-reference to the Secretary of 
Homeland Security's delegation authority under 8 CFR 2.1. Delegations 
to replace the former Sec.  103.1 will be in place on March 1, 2003, 
but are not required to be, and will not be promulgated as rules or 
codified in the Code of Federal Regulations. The final rule retains the 
designations of ``immigration officer'' in former 8 CFR 103.1(j) (new 
Sec.  103.1(b)), and amends it to include additional officers in DHS as 
the Secretary may designate as provided by Sec.  2.1.
    Third, the final rule revises the regulation at 8 CFR 239.1 that 
delegates authority to issue notices to appear. The Secretary of 
Homeland Security has determined in his discretion that he will 
continue publication of this delegation to certain officers in the Code 
of Federal Regulations, but has added a cross-reference to his 
delegation authority under 8 CFR 2.1 to clarify that he may in his 
discretion supplement or revise the list by memorandum or other method 
other than rulemaking or publication in the Federal Register. The list 
has also been revised to reflect new titles. This rule omits the former 
first sentence of Sec.  239.1 as superfluous explanatory material that 
is unnecessary in light of the jurisdictional regulations of the 
Executive Office for Immigration Review of the Department of Justice at 
8 CFR 3.14.
    Fourth, the final rule supplements the regulatory definition of 
``director'' at 8 CFR 1.1(o) to clarify that on or after March 1, 2003, 
any reference to a district director or other director in Title 8 of 
the Code of Federal Regulations with respect to any function or 
authority will be a reference to that official within the Bureau of 
Immigration and Customs Enforcement, the Bureau of Customs and Border 
Protection, the Bureau of Citizenship and Immigration Services, or 
other component of DHS who has been delegated that function or 
authority for a district or other geographic area.

III. Procedural Requirements

Administrative Procedure Act

    Compliance with 5 U.S.C. 553 as to notice of proposed rulemaking or 
delayed effective date is unnecessary as this rule relates to agency 
organization and management. Accordingly, it is not a ``rule'' as that 
term is used by the Congressional Review Act (Subtitle E of the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)), and the 
reporting requirement of 5 U.S.C. 801 does not apply.

[[Page 10923]]

Executive Order 12866

    This rule making is limited to agency organization, management or 
personnel matters, and therefore is not a regulation or rule as defined 
by Executive Order 12866. It has also been determined that this 
rulemaking is not a significant regulatory action for the purposes of 
Executive Order 12866. Accordingly, a regulatory impact analysis is not 
required.

Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required, the 
provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do 
not apply.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12988: Civil Justice Reform.

    This rule meets the applicable standards set forth in section 3 of 
Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal government, 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.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, the Department of Justice has determined that 
this rule does not have sufficient federalism implications to warrant 
the preparation of a federalism summary impact statement.

List of Subjects

8 CFR Part 1

    Administrative practice and procedure, Immigration.

8 CFR Part 2

    Administrative practice and procedure, Authority delegation 
(Government agencies), Immigration.

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of information, Immigration, Privacy, 
Reporting and recordkeeping requirements, Surety bonds.

8 CFR Part 239

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

Authority and Issuance

    Accordingly, chapter I of Title 8 of the Code of Federal 
Regulations is amended as follows:

Chapter I--Immigration and Naturalization Service, Department of 
Homeland Security

    1. The chapter heading is revised to read as set forth above.

PART 1--DEFINITIONS

    1a. The authority citation for Part 1 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5 U.S.C. 301; Public 
Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.).


    2. In Sec.  1.1, paragraph (o) is revised to read as follows:


Sec.  1.1  Definitions.

* * * * *
    (o) The term director, when used with respect to any function, 
geographic area, office or authority, means the district director, 
service center director, district director for interior enforcement or 
for other specified function, or other official within the Bureau of 
Citizenship and Immigration Services, the Bureau of Immigration and 
Customs Enforcement, the Bureau of Customs and Border Protection, or 
other component of the Department of Homeland Security who has been 
delegated the function or authority by the Secretary of Homeland 
Security for an office, region, district or geographic area.
* * * * *

PART 2--AUTHORITY OF THE SECRETARY OF HOMELAND SECURITY

    3. The heading for Part 2 is revised to read as set forth above.:


    4. The authority citation for Part 2 is revised to read as follows:

    Authority: 8 U.S.C. 1103; 5 U.S.C. 301; Public Law 107-296, 116 
Stat. 2135 (6 U.S.C. 1 et seq.).


    5. Section 2.1 is revised to read as follows:


Sec.  2.1  Authority of the Secretary of Homeland Security.

    All authorities and functions of the Department of Homeland 
Security to administer and enforce the immigration laws are vested in 
the Secretary of Homeland Security. The Secretary of Homeland Security 
may, in the Secretary's discretion, delegate any such authority or 
function to any official, officer, or employee of the Department of 
Homeland Security, including delegation through successive 
redelegation, or to any employee of the United States to the extent 
authorized by law. Such delegation may be made by regulation, 
directive, memorandum, or other means as deemed appropriate by the 
Secretary in the exercise of the Secretary's discretion. A delegation 
of authority or function may in the Secretary's discretion be published 
in the Federal Register, but such publication is not required.

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

    6. The heading for Part 103 is revised to read as set forth above.


    7. The authority citation for Part 103 is revised to read as 
follows:

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 
1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 
et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 
8 CFR part 2.


    8. Section 103.1 is revised to read as follows:


Sec.  103.1  Delegations of authority; designation of immigration 
officers.

    (a) Delegations of authority. Delegations of authority to perform 
functions and exercise authorities under the immigration laws may be 
made by the Secretary of Homeland Security as provided by Sec.  2.1 of 
this chapter.
    (b) Immigration Officer. Any immigration officer, immigration 
inspector, immigration examiner, adjudications officer, Border Patrol 
agent, aircraft pilot, airplane pilot,

[[Page 10924]]

helicopter pilot, deportation officer, detention enforcement officer, 
detention officer, investigator, special agent, investigative 
assistant, intelligence officer, intelligence agent, general attorney, 
applications adjudicator, contact representative, chief legalization 
officer, supervisory legalization officer, legalization adjudicator, 
legalization officer and legalization assistant, forensic document 
analyst, fingerprint specialist, immigration information officer, 
immigration agent (investigations), asylum officer, other officer or 
employee of the Department of Homeland Security or of the United States 
as designated by the Secretary of Homeland Security as provided in 
Sec.  2.1 of this chapter, or senior or supervisory officer of such 
employee, is hereby designated as an immigration officer authorized to 
exercise the powers and duties of such officer as specified by the Act 
and this chapter.

PART 239--INITIATION OF REMOVAL PROCEEDINGS

    9. The authority citation for part 239 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1221, 1229; Homeland Security Act of 
2002, Public Law 107-296; 8 CFR part 2.


    10. Section 239.1 is amended by revising paragraph (a) to read as 
follows:


Sec.  239.1  Notice to appear.

    (a) Issuance of notice to appear. Any immigration officer 
performing an inspection of an arriving alien at a port-of-entry may 
issue a notice to appear to such an alien. In addition, the following 
officers, or officers acting in such capacity, may issue a notice to 
appear:
    (1) District directors (except foreign);
    (2) Deputy district directors (except foreign);
    (3) Chief patrol agents;
    (4) Deputy chief patrol agents;
    (5) Service center directors;
    (6) Deputy service center directors;
    (7) Assistant service center directors for examinations;
    (8) Officers in charge (except foreign);
    (9) Assistant officers in charge (except foreign);
    (10) Supervisory special agents;
    (11) Supervisory deportation officers;
    (12) Supervisory detention and deportation officers;
    (13) Supervisory district adjudications officers;
    (14) Supervisory asylum officers;
    (15) Supervisory border patrol agents;
    (16) Directors of investigations;
    (17) District directors for interior enforcement;
    (18) Deputy or assistant district directors for interior 
enforcement;
    (19) Director of detention and removal;
    (20) Supervisory asylum officers;
    (21) Port directors;
    (22) Deputy port directors;
    (23) Directors of juvenile affairs;
    (24) Directors or officers in charge of detention facilities;
    (25) Directors of field operations;
    (26) Deputy or assistant directors of field operations; or
    (27) Other officers or employees of the Department of Homeland 
Security or of the United States who are delegated the authority to 
issue notices to appear as provided by Sec.  2.1 of this chapter.
* * * * *

    Dated: February 28, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-5146 Filed 3-5-03; 8:45 am]
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