[Federal Register Volume 68, Number 44 (Thursday, March 6, 2003)]
[Rules and Regulations]
[Pages 10922-10924]
From the Federal Register Online via the Government Printing 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.
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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,
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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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