[Federal Register Volume 68, Number 114 (Friday, June 13, 2003)]
[Rules and Regulations]
[Pages 35273-35282]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 03-14931]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 1, 103, 239 and 287

[ICE No. 2274-03]
RIN 1653 AA26


Powers and Authority of Officers and Employees; Revisions to the 
Internal Review Process for Alleged Violations of the Standards for 
Enforcement Activities

AGENCY: Department of Homeland Security.

ACTION: Final rule.

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SUMMARY: On November 25, 2002, the President signed into law the 
Homeland Security Act of 2002 (Pub. L. 107-296) (HSA), which created 
the new Department of Homeland Security (Department or DHS). Pursuant 
to the provisions of the HSA, DHS came into existence on January 24, 
2003. The functions of the Immigration and Naturalization Service 
(Service) and all authorities with respect to those functions, 
transferred to DHS on March 1, 2003, and the Service was abolished on 
that date, pursuant to the HSA and the Department of Homeland Security 
Reorganization Plan, as modified (Reorganization Plan). The transition 
and savings provisions of the HSA, including sections 1512(d) and 1517, 
provide that references relating to the Service in statutes, 
regulations, directives or delegations of authority shall be deemed to 
refer to the appropriate official or component of DHS. DHS is 
promulgating this rule to continue the process of conforming the text 
of Title 8 of the Code of Federal Regulations to the governmental 
structures established in the HSA and Reorganization Plan. This rule is 
not intended to and does not restrict or otherwise limit the authority 
of any DHS officer.

DATES: This final rule is effective June 13, 2003.

FOR FURTHER INFORMATION CONTACT: Catherine Muhletaler, Bureau of 
Immigration and Customs Enforcement, Office of General Counsel, 425 I 
Street, NW., Room 6100, Washington, DC 20536, telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION

Explanation of Changes

    First, the final rule expands the definitions of the terms 
``Service,'' ``Commissioner,'' and ``director'' at 8 CFR 1.1. 
Definitions for the terms ``Department,'' ``Secretary,'' and ``Bureau'' 
have been added. Definitions have also been added for ``BCIS,'' 
``CBP,'' and ``ICE,'' which are the acronyms for the bureaus within DHS 
that have been delegated the authorities of the former Service. The 
definitions provide clarification that the functions of the legacy 
components of the Service continue under the Department. The 
definitions refer to the ``Service'' in recognition that the term 
``Service'' continues to be used throughout Title 8 of the Code of 
Federal Regulations, and this final rule amends only limited portions 
of that title.
    Second, the term ``immigration enforcement agent'' has been added 
to 8 CFR 103.1(b) in recognition of an ongoing modification to the 
field structure of the Bureau of Immigration and Customs Enforcement 
(ICE). As part of a position reclassification the immigration agent 
position (within the investigations program of ICE) and the detention 
enforcement officer position (within the detention and removal program 
of ICE) will be combined and reclassified into the immigration 
enforcement agent position. Immigration enforcement agents will have 
responsibilities that include the identification and processing of 
detained criminal aliens within the institutional removal program.
    Third, the final rule revises the regulation at 8 CFR 239.1 that 
delegates authority to issue notices to appear. In his discretion, the 
Secretary of Homeland Security has published this delegation of 
authority to issue notices to appear in the Code of Federal 
Regulations, cross-referencing his general delegation authority under 8 
CFR 2.1. The list of officers authorized

[[Page 35274]]

to issue notices to appear is amended to reflect the ongoing 
reorganization of functions of the former Service among the Bureau of 
Citizenship and Immigration Services, the Bureau of Customs and Border 
Protection, and the Bureau of Immigration and Customs Enforcement. 
Removed from the list of those authorized to issue a notice to appear 
is the Director of Juvenile Affairs, based on the transfer of functions 
with respect to the care of unaccompanied alien children to the 
Department of Health and Human Services pursuant to section 462 of the 
Homeland Security Act of 2002, as amended, 6 U.S.C. 279.
    Fourth, the final rule revises 8 CFR 287 part 1 with respect to the 
powers and authority of officers and employees of these three bureaus. 
Deportation officers have been provided the authority to execute search 
warrants under 8 CFR 287.5(e)(1).
    In recognition of the position reclassification of detention 
enforcement officers to immigration enforcement agents, the term 
``immigration enforcement agent'' is added to the existing term of 
``detention enforcement officer'' in 8 CFR 103.1(b), 287.5(c)(6), 
287.5(e)(3), 287.5(f), 287.8(a)(1)(iv) and 287.8(a)(2)(iii). Pursuant 
to their duties and responsibilities within the institutional removal 
program, immigration enforcement agents are delegated the authority to 
make arrests under 8 CFR 287.5(c)(1), and 8 CFR 287.5(c)(2), to conduct 
searches under 8 CFR 287.5(d), to execute search warrants under 
287.5(e)(1), to serve warrants of arrest for non-immigration violations 
under 287.5(e)(4), and to issue detainers under 8 CFR 287.7(b).
    Fifth, the final rule revises the regulation at 8 CFR 287.10 
regarding the internal review process for alleged violations of the 
standards for enforcement activities to replace the references to 
offices within the Department of Justice that had been responsible for 
reviewing such allegations with the appropriate offices within DHS.
    Sixth, the final rule revises or removes several paragraphs in 8 
CFR 239.2 (cancellation of notices to appear), 8 CFR 287.3 (aliens 
arrested without warrant), and 8 CFR 287.4 (subpoenas), to reflect the 
recodification of regulations governing immigration proceedings. Under 
the HSA, the Executive Office for Immigration Review (EOIR), including 
the immigration judges and the Board of Immigration Appeals, remain in 
the Department of Justice, and the regulations pertaining to 
proceedings before EOIR have been codified in Chapter V of 8 CFR. 
Accordingly, this final rule makes conforming changes to 8 CFR 239.2, 
287.3, and 287.4 in recognition that the regulations governing 
immigration proceedings before the immigration judges and the Board are 
now codified at 8 CFR 1003 et seq. (including with reference to this 
rule, 8 CFR 1003.14, 1239.2, 1287.4, and 1292.2).
    Finally, the rule revises the regulation at 8 CFR 287.8 by adding a 
new subsection (g) which states that the criminal law enforcement 
activities authorized under this rule will be exercised in a manner 
consistent with all applicable DHS and Department of Justice guidelines 
and policies.

Good Cause Exception

    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.

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(a) 
and (b)(2) 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 Homeland Security has 
determined that this rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting requirements 
inherent in a final rule. This rule does not impose any new reporting 
or recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects

8 CFR Part 1

    Administrative practice and procedure, 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.

8 CFR Part 287

    Administrative practice and procedure, Aliens, Immigration,

[[Page 35275]]

Reporting and recordkeeping requirements.


0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is 
amended as follows:

Chapter I--Department of Homeland Security (Immigration and 
Naturalization)

0
1. The chapter heading is revised to read as set forth above.

PART 1--DEFINITIONS

0
2. The authority citation for part 1 continues to read as follows:

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


0
3-4. Section 1.1 is amended by revising paragraphs (c), (d), (o) and 
(p) and adding paragraphs (u) through (z) to read as follows:


Sec.  1.1  Definitions.

* * * * *
    (c) The term Service means the Immigration and Naturalization 
Service, as it existed prior to March 1, 2003. Unless otherwise 
specified, references to the Service after that date mean the Bureau of 
Citizenship and Immigration Services, the Bureau of Customs and Border 
Protection, and the Bureau of Immigration and Customs Enforcement.
    (d) The term Commissioner means the Commissioner of the Immigration 
and Naturalization Service prior to March 1, 2003. Unless otherwise 
specified, references after that date mean the Director of the Bureau 
of Citizenship and Immigration Services, the Commissioner of the Bureau 
of Customs and Border Protection, and the Assistant Secretary for the 
Bureau of Immigration and Customs Enforcement.
* * * * *
    (o) The terms director or district director prior to March 1, 2003, 
mean the district director or regional service center director, unless 
otherwise specified. On or after March 1, 2003, pursuant to delegation 
from the Secretary of Homeland Security or any successive re-
delegation, the terms mean, to the extent that authority has been 
delegated to such official: service center director; special agent in 
charge; field office director; district director for services; district 
director for interior enforcement; or director, field operations. The 
terms also mean such other official, including an official in an acting 
capacity, within the Bureau of Citizenship and Immigration Services, 
the Bureau of Customs and Border Protection, the Bureau of Immigration 
and Customs Enforcement, or other component of the Department of 
Homeland Security who is delegated the function or authority above 
referenced for a particular geographic district, region, or area.
    (p) The term lawfully admitted for permanent residence means the 
status of having been lawfully accorded the privilege of residing 
permanently in the United States as an immigrant in accordance with the 
immigration laws, such status not having changed. Such status 
terminates upon entry of a final administrative order of exclusion, 
deportation, or removal.
* * * * *
    (u) The term Department, unless otherwise noted, means the 
Department of Homeland Security.
    (v) The term Secretary, unless otherwise noted, means the Secretary 
of Homeland Security.
    (w) The term Bureau means generally, unless otherwise noted, the 
Bureau of Citizenship and Immigration Services, the Bureau of Customs 
and Border Protection, and the Bureau of Immigration and Customs 
Enforcement, as created by the Homeland Security Act of 2002, as 
amended, Pub. L. 107-296, November 25, 2002, 116 Stat. 2135, and the 
President's Reorganization Plan, as modified.
    (x) The term BCIS means the Bureau of Citizenship and Immigration 
Services.
    (y) The term CBP means the Bureau of Customs and Border Protection.
    (z) The term ICE means the Bureau of Immigration and Customs 
Enforcement.

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

0
5. The authority citation for part 103 continues 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; Pub. L. 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.


0
6. Section 103.1(b) is revised to read as follows:


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

* * * * *
    (b) Immigration Officer. The following employees of the Department 
of Homeland Security, including senior or supervisory officers of such 
employees, are designated as immigration officers authorized to 
exercise the powers and duties of such officer as specified by the Act 
and this chapter I: Immigration officer, immigration inspector, 
immigration examiner, adjudications officer, Border Patrol agent, 
aircraft pilot, airplane pilot, helicopter pilot, deportation officer, 
detention enforcement officer, detention officer, investigator, special 
agent, investigative assistant, immigration enforcement agent, 
intelligence officer, intelligence agent, general attorney (except with 
respect to CBP, only to the extent that the attorney is performing any 
immigration function), applications adjudicator, contact 
representative, legalization adjudicator, legalization officer, 
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.

PART 239--INITIATION OF REMOVAL PROCEEDINGS

0
7. The authority citation for part 239 continues to read as follows:

    Authority: 8 U.S.C. 1103, 1221, 1229; Homeland Security Act of 
2002, Pub. L. 107-296 (6 U.S.C. 1, et seq.); 8 CFR part 2.


0
8. Section 239.1 is revised to read as follows:


Sec.  239.1  Notice to appear.

    (a) Issuance of notice to appear. Any immigration officer, or 
supervisor thereof, performing an inspection of an arriving alien at a 
port-of-entry may issue a notice to appear to such 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) Assistant chief patrol agents;
    (6) Patrol agents in charge;
    (7) Assistant patrol agents in charge;
    (8) Field operations supervisors;
    (9) Special operations supervisors;
    (10) Supervisory border patrol agents;
    (11) Service center directors;
    (12) Deputy service center directors;
    (13) Assistant service center directors for examinations;
    (14) Supervisory district adjudications officers;
    (15) Supervisory asylum officers;
    (16) Officers in charge (except foreign);
    (17) Assistant officers in charge (except foreign);
    (18) Special agents in charge;
    (19) Deputy special agents in charge;
    (20) Associate special agents in charge;
    (21) Assistant special agents in charge;
    (22) Resident agents in charge;
    (23) Supervisory special agents;

[[Page 35276]]

    (24) Directors of investigations;
    (25) District directors for interior enforcement;
    (26) Deputy or assistant district directors for interior 
enforcement;
    (27) Director of detention and removal;
    (28) Field office directors;
    (29) Deputy field office directors;
    (30) Supervisory deportation officers;
    (31) Supervisory detention and deportation officers;
    (32) Directors or officers in charge of detention facilities;
    (33) Directors of field operations;
    (34) Deputy or assistant directors of field operations;
    (35) District field officers;
    (36) Port directors;
    (37) Deputy port directors; or
    (38) Other officers of employees of the Department or of the United 
States who are delegated the authority as provided by Sec.  2.1 of this 
chapter to issue notices to appear.
    (b) Service of notice to appear. Service of the notice to appear 
shall be in accordance with section 239 of the Act.

0
9. Section 239.2 is amended by:
0
a. Revising paragraphs (c) and (d); and by
0
b. Removing paragraph (f).
    The revisions read as follows:


Sec.  239.2  Cancellation of notice to appear.

* * * * *
    (c) Motion to dismiss. After commencement of proceedings pursuant 
to 8 CFR 1003.14, ICE counsel, or any officer enumerated in paragraph 
(a) of this section, may move for dismissal of the matter on the 
grounds set out under paragraph (a) of this section.
    (d) Motion for remand. After commencement of the hearing, ICE 
counsel, or any officer enumerated in paragraph (a) of this section may 
move for remand of the matter to district jurisdiction on the ground 
that the foreign relations of the United States are involved and 
require further consideration.
* * * * *

PART 287--FIELD OFFICERS; POWERS AND DUTIES

0
10. The authority citation for part 287 is revised to read as follows:

    Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; 
Homeland Security Act of 2002, Pub. L. 107-296 (6 U.S.C. 1, et 
seq.); 8 CFR part 2.

0
11. Section 287.1 is amended by:
0
a. Revising the words ``district director'' to read ``chief patrol 
agent for CBP, or the special agent in charge for ICE'' in paragraph 
(a)(2);
0
b. Revising paragraphs (b) and (g);
0
c. Removing the words ``and Sec.  242.2(a) of this part'' in paragraph 
(e); and by
0
d. Adding paragraphs (h) and (i).
    The revisions and additions read as follows:


Sec.  287.1  Definitions.

* * * * *
    (b) Reasonable distance; fixing by chief patrol agents and special 
agents in charge. In fixing distances not exceeding 100 air miles 
pursuant to paragraph (a) of this section, chief patrol agents and 
special agents in charge shall take into consideration topography, 
confluence of arteries of transportation leading from external 
boundaries, density of population, possible inconvenience to the 
traveling public, types of conveyances used, and reliable information 
as to movements of persons effecting illegal entry into the United 
States: Provided, That whenever in the opinion of a chief patrol agent 
or special agent in charge a distance in his or her sector or district 
of more than 100 air miles from any external boundary of the United 
States would because of unusual circumstances be reasonable, such chief 
patrol agent or special agent in charge shall forward a complete report 
with respect to the matter to the Commissioner of CBP, or the Assistant 
Secretary for ICE, as appropriate, who may, if he determines that such 
action is justified, declare such distance to be reasonable.
* * * * *
    (g) Basic immigration law enforcement training. The phrase basic 
immigration law enforcement training, as used in Sec. Sec.  287.5 and 
287.8, means the successful completion of one of the following courses 
of training provided at the Immigration Officer Academy or Border 
Patrol Academy: Immigration Officer Basic Training Course after 1971; 
Border Patrol Basic Training Course after 1950; Immigration Detention 
Enforcement Officer Basic Training Course after 1977; and Immigration 
Customs Enforcement Special Agent Training, after 2002; or training 
substantially equivalent thereto as determined by the Commissioner of 
CBP or the Assistant Secretary for ICE with respect to personnel in 
their respective bureaus. The phrase basic immigration law enforcement 
training also means the successful completion of the Other than 
Permanent Full-Time (OTP) Immigration Inspector Basic Training Course 
after 1991 in the case of individuals who are OTP immigration 
inspectors. Conversion by OTP immigration to any other status requires 
training applicable to that position.
    (h) References to specific titles of officers mean all individuals 
holding such positions and any individual acting in such position.
    (i) Nothing in this part limits the authority of any DHS officers 
to act pursuant to any authorities that they may otherwise possess.


Sec.  287.2  [Amended]

0
12. Section 287.2 is amended by:
0
a. Revising the words ``district director'' to read ``special agent in 
charge, port director,'';
0
b. Adding the phrase ``immigration and nationality'' immediately before 
the phrase ``laws administered or enforced''; and by
0
c. Revising the word ``Service'' to read ``Department''.


Sec.  287.3  [Amended]

0
13. Section 287.3 is amended by:
0
a. Revising the words ``8 CFR part 3'' to read ``8 CFR part 1003'' in 
paragraph (c); and by
0
b. Adding the phrase ``or 8 CFR 1292.2'' immediately after the phrase 
``Sec.  292.2 of this chapter'' in paragraph (c).
0
14. Section 287.4 is amended by:
0
a. Revising paragraph (a);
0
b. Adding the word ``immigration'' immediately before the word 
``officer'' and by revising the word ``Service'' to read ``Department'' 
in paragraph (b)(1);
0
c. Revising the word ``making'' to read ``taking'', adding the word 
``immigration'' immediately before the word ``officer'' and by revising 
the word ``Service'' to read ``Department'' in paragraph (b)(2); and by
0
d. Revising paragraph (c).
    The revisions read as follows:


Sec.  287.4  Subpoena.

    (a) Who may issue--(1) Criminal or civil investigations. All 
District Directors; Deputy District Directors; Chief Patrol Agents; 
Deputy Chief Patrol Agents; Assistant Chief Patrol Agents; Officers in 
Charge; Patrol Agents in Charge; Assistant Patrol Agents in Charge; 
Field Operations Supervisors; Special Operations Supervisors; 
Supervisory Border Patrol Agents; Assistant District Directors, 
Investigations; Supervisory Criminal Investigators, Anti-Smuggling; 
Regional Directors; Service Center Directors; Assistant District 
Directors, Examinations; Director, Detention and Removal; Special 
Agents in Charge; all Special Agents in supervisory positions; Field 
Office Directors; Deputy Field Office Directors; and any other 
immigration officer who has been expressly delegated such authority as 
provided by 8 CFR 2.1 may issue a subpoena requiring the production of

[[Page 35277]]

records and evidence for use in criminal or civil investigations.
    (2) Proceedings other than naturalization proceedings--(i) Prior to 
commencement of proceedings. All District Directors; Deputy District 
Directors; Chief Patrol Agents; Deputy Chief Patrol Agents; Officers in 
Charge; Director, Detention and Removal; Special Agents in Charge; 
Deputy Special Agents in Charge; Resident Agents in Charge; District 
Field Officers; Field Office Directors; Deputy Field Office Directors; 
and Port Directors may issue a subpoena requiring the attendance of 
witnesses or the production of documentary evidence, or both, for use 
in any proceeding under this chapter I, other than under 8 CFR part 
335, or any application made ancillary to the proceeding.
    (ii) Subsequent to commencement of any immigration court 
proceeding. Procedures for the issuance of a subpoena after the 
commencement of proceedings, in cases other than those arising under 
part 335 of this chapter, are set forth at 8 CFR 1003.35(b) and 1287.4.
* * * * *
    (c) Service. A subpoena issued under this section may be served by 
any person, over 18 years of age not a party to the case, designated to 
make such service by the District Director; Deputy District Director; 
Chief Patrol Agent; Deputy Chief Patrol Agent; Assistant Chief Patrol 
Agent; Patrol Agent in Charge; Officer in Charge; Assistant District 
Director, Investigations; Supervisory Criminal Investigator, Anti-
Smuggling; Regional Director; Special Agent in Charge; Deputy Special 
Agent in Charge; Resident Agent in Charge; District Field Officer; 
Field Office Director; Deputy Field Office Director; Supervisory 
Deportation Officer; Supervisory Detention and Deportation Officer; and 
Port Director having administrative jurisdiction over the office in 
which the subpoena is issued. The Director, Detention and Removal, 
shall also have the authority to make such designation. Service of the 
subpoena shall be made by delivering a copy thereof to the person named 
therein and by tendering to him/her the fee for one day's attendance 
and the mileage allowed by law by the United States District Court for 
the district in which the testimony is to be taken. When the subpoena 
is issued on behalf of the Department, fee and mileage need not be 
tendered at the time of service. A record of such service shall be made 
and attached to the original copy of the subpoena.
* * * * *

0
15. Section 287.5 is revised to read as follows:


Sec.  287.5  Exercise of power by immigration officers.

    (a) Power and authority to interrogate and administer oaths. Any 
immigration officer as defined in 8 CFR 103.1(b) is hereby authorized 
and designated to exercise anywhere in or outside the United States the 
power conferred by:
    (1) Section 287(a)(1) of the Act to interrogate, without warrant, 
any alien or person believed to be an alien concerning his or her right 
to be, or to remain, in the United States, and
    (2) Section 287(b) of the Act to administer oaths and to take and 
consider evidence concerning the privilege of any person to enter, 
reenter, pass through, or reside in the United States; or concerning 
any matter which is material or relevant to the enforcement of the Act 
and the administration of the immigration and naturalization functions 
of the Department.
    (b) Power and authority to patrol the border. The following 
immigration officers who have successfully completed basic immigration 
law enforcement training are hereby authorized and designated to 
exercise the power to patrol the border conferred by section 287(a)(3) 
of the Act:
    (1) Border patrol agents, including aircraft pilots;
    (2) Special agents;
    (3) Immigration inspectors (seaport operations only);
    (4) Adjudications officers and deportation officers when in the 
uniform of an immigration inspector and performing inspections or 
supervising other immigration inspectors performing inspections 
(seaport operations only);
    (5) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (6) Immigration officers who need the authority to patrol the 
border under section 287(a)(3) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner of CBP, or the 
Assistant Secretary for ICE.
    (c) Power and authority to arrest--(1) Arrests of aliens under 
section 287(a)(2) of the Act for immigration violations. The following 
immigration officers who have successfully completed basic immigration 
law enforcement training are hereby authorized and designated to 
exercise the arrest power conferred by section 287(a)(2) of the Act and 
in accordance with 8 CFR 287.8(c):
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration inspectors;
    (v) Adjudications officers;
    (vi) Immigration enforcement agents;
    (vii) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (viii) Immigration officers who need the authority to arrest aliens 
under section 287(a)(2) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner of CBP, the Assistant Secretary for ICE, or 
the Director of the BCIS.
    (2) Arrests of persons under section 287(a)(4) of the Act for 
felonies regulating the admission or removal of aliens. The following 
immigration officers who have successfully completed basic immigration 
law enforcement training are hereby authorized and designated to 
exercise the arrest power conferred by section 287(a)(4) of the Act and 
in accordance with 8 CFR 287.8(c):
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration inspectors;
    (v) Adjudications officers;
    (vi) Immigration enforcement agents;
    (vii) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (viii) Immigration officers who need the authority to arrest 
persons under section 287(a)(4) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner of CBP, the Assistant 
Secretary for ICE, or the Director of the BCIS.
    (3) Arrests of persons under section 287(a)(5)(A) of the Act for 
any offense against the United States. The following immigration 
officers who have successfully completed basic immigration law 
enforcement training are hereby authorized and designated to exercise 
the arrest power conferred by section 287(a)(5)(A) of the Act and in 
accordance with 8 CFR 287.8(c):
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration inspectors (permanent full-time immigration 
inspectors only);
    (v) Adjudications officers when in the uniform of an immigration 
inspector

[[Page 35278]]

and performing inspections or supervising other immigration inspectors 
performing inspections;
    (vi) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (vii) Immigration officers who need the authority to arrest persons 
under section 287(a)(5)(A) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner of CBP, or the 
Assistant Secretary for ICE.
    (4) Arrests of persons under section 287(a)(5)(B) of the Act for 
any felony. (i) Section 287(a)(5)(B) of the Act authorizes designated 
immigration officers, as listed in paragraph (c)(4)(iii) of this 
section, to arrest persons, without warrant, for any felony cognizable 
under the laws of the United States if:
    (A) The immigration officer has reasonable grounds to believe that 
the person to be arrested has committed or is committing such a felony;
    (B) The immigration officer is performing duties relating to the 
enforcement of the immigration laws at the time of the arrest;
    (C) There is a likelihood of the person escaping before a warrant 
can be obtained for his or her arrest; and
    (D) The immigration officer has been certified as successfully 
completing a training program that covers such arrests and the 
standards with respect to the immigration enforcement activities of the 
Department as defined in 8 CFR 287.8.
    (ii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the arrest power conferred by 
section 287(a)(5)(B) of the Act and in accordance with 8 CFR 287.8(c):
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Immigration inspectors (permanent full-time immigration 
inspectors only);
    (E) Adjudications officers when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (F) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (G) Immigration officers who need the authority to arrest persons 
under section 287(a)(5)(B) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner of CBP or the Assistant 
Secretary for ICE.
    (iii) Notwithstanding the authorization and designation set forth 
in paragraph (c)(4)(ii) of this section, no immigration officer is 
authorized to make an arrest for any felony under the authority of 
section 287(a)(5)(B) of the Act until such time as he or she has been 
certified by the Director of Training as successfully completing a 
training course encompassing such arrests and the standards for 
enforcement activities as defined in 8 CFR 287.8. Such certification 
shall be valid for the duration of the immigration officer's continuous 
employment, unless it is suspended or revoked by the Commissioner of 
CBP or the Assistant Secretary for ICE, or their respective designees, 
for just cause.
    (5) Arrests of persons under section 274(a) of the Act who bring 
in, transport, or harbor certain aliens, or induce them to enter.
    (i) Section 274(a) of the Act authorizes designated immigration 
officers, as listed in paragraph (c)(5)(ii) of this section, to arrest 
persons who bring in, transport, or harbor aliens, or induce them to 
enter the United States in violation of law. When making an arrest, the 
designated immigration officer shall adhere to the provisions of the 
enforcement standard governing the conduct of arrests in 8 CFR 
287.8(c).
    (ii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are authorized and 
designated to exercise the arrest power conferred by section 274(a) of 
the Act:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Immigration inspectors;
    (E) Adjudications officers when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (F) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (G) Immigration officers who need the authority to arrest persons 
under section 274(a) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner of CBP or the Assistant Secretary for ICE.
    (6) Custody and transportation of previously arrested persons. In 
addition to the authority to arrest pursuant to a warrant of arrest in 
paragraph (e)(3)(iv) of this section, detention enforcement officers 
and immigration enforcement agents who have successfully completed 
basic immigration law enforcement training are hereby authorized and 
designated to take and maintain custody of and transport any person who 
has been arrested by an immigration officer pursuant to paragraphs 
(c)(1) through (c)(5) of this section.
    (d) Power and authority to conduct searches. The following 
immigration officers who have successfully completed basic immigration 
law enforcement training are hereby authorized and designated to 
exercise the power to conduct searches conferred by section 287(c) of 
the Act:
    (1) Border patrol agents, including aircraft pilots;
    (2) Special agents;
    (3) Deportation officers;
    (4) Immigration inspectors;
    (5) Adjudications officers;
    (6) Immigration enforcement agents;
    (7) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (8) Immigration officers who need the authority to conduct searches 
under section 287(c) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner of CBP, the Assistant Secretary for ICE, or 
the Director of the BCIS.
    (e) Power and authority to execute warrants--(1) Search warrants. 
The following immigration officers who have successfully completed 
basic immigration law enforcement training are hereby authorized and 
designated to exercise the power conferred by section 287(a) of the Act 
to execute a search warrant:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration enforcement agents;
    (v) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph, 
and
    (vi) Immigration officers who need the authority to execute search 
warrants under section 287(a) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner of CBP or the Assistant 
Secretary for ICE.
    (2) Issuance of arrest warrants for immigration violations. A 
warrant of arrest may be issued by an immigration officer who has been 
authorized or delegated such authority:

[[Page 35279]]

    (i) District directors (except foreign);
    (ii) Deputy district directors (except foreign);
    (iii) Assistant district directors for investigations;
    (iv) Deputy assistant district directors for investigations;
    (v) Assistant district directors for deportation;
    (vi) Deputy assistant district directors for deportation;
    (vii) Assistant district directors for examinations;
    (viii) Deputy assistant district directors for examinations;
    (ix) Officers in charge (except foreign);
    (x) Assistant officers in charge (except foreign);
    (xi) Chief patrol agents;
    (xii) Deputy chief patrol agents;
    (xiii) Assistant chief patrol agents;
    (xiv) Patrol agents in charge;
    (xv) Assistant patrol agents in charge;
    (xvi) Field operations supervisors;
    (xvii) Special operations supervisors;
    (xviii) Supervisory border patrol agents;
    (xix) The Assistant Commissioner, Investigations;
    (xx) Institutional Hearing Program directors;
    (xxi) Area port directors;
    (xxii) Port directors;
    (xxiii) Deputy port directors;
    (xxiv) Supervisory deportation officers;
    (xxv) Supervisory detention and deportation officers;
    (xxvi) Director, Office of Detention and Removal;
    (xxvii) Special Agents in Charge;
    (xxviii) Deputy Special Agents in Charge;
    (xxix) Associate Special Agents in Charge;
    (xxx) Assistant Special Agents in Charge;
    (xxxi) Resident Agents in Charge;
    (xxxii) Field Office Directors;
    (xxxiii) Deputy Field Office Directors; or
    (xxxiv) District Field Officers.
    (3) Service of warrant of arrests for immigration violations. The 
following immigration officers who have successfully completed basic 
immigration law enforcement training are hereby authorized and 
designated to exercise the power pursuant to section 287(a) of the Act 
to execute warrants of arrest for administrative immigration violations 
issued under section 236 of the Act or to execute warrants of criminal 
arrest issued under the authority of the United States:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Detention enforcement officers or immigration enforcement 
agents (warrants of arrest for administrative immigration violations 
only);
    (v) Immigration inspectors;
    (vi) Adjudications officers when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (vii) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (viii) Immigration officers who need the authority to execute 
arrest warrants for immigration violations under section 287(a) of the 
Act in order to effectively accomplish their individual missions and 
who are designated, individually or as a class, by the Commissioner of 
CBP or the Assistant Secretary for ICE.
    (4) Service of warrant of arrests for non-immigration violations. 
The following immigration officers who have successfully completed 
basic immigration law enforcement training are hereby authorized and 
designated to exercise the power to execute warrants of criminal arrest 
for non-immigration violations issued under the authority of the United 
States:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration enforcement agents;
    (v) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (vi) Immigration officers who need the authority to execute 
warrants of arrest for non-immigration violations under section 287(a) 
of the Act in order to effectively accomplish their individual missions 
and who are designated, individually or as a class, by the Commissioner 
of CBP or the Assistant Secretary for ICE.
    (f) Power and authority to carry firearms. The following 
immigration officers who have successfully completed basic immigration 
enforcement training are hereby authorized and designated to exercise 
the power conferred by section 287(a) of the Act to carry firearms 
provided that they are individually qualified by training and 
experience to handle and safely operate the firearms they are permitted 
to carry, maintain proficiency in the use of such firearms, and adhere 
to the provisions of the enforcement standard governing the use of 
force in 8 CFR 287.8(a):
    (1) Border patrol agents, including aircraft pilots;
    (2) Special agents;
    (3) Deportation officers;
    (4) Detention enforcement officers or immigration enforcement 
agents;
    (5) Immigration inspectors;
    (6) Adjudications officers when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (7) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (8) Immigration officers who need the authority to carry firearms 
under section 287(a) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner of CBP or the Assistant Secretary for ICE.

0
16. Section 287.7 is revised to read as follows:


Sec.  287.7  Detainer provisions under section 287(d)(3) of the Act.

    (a) Detainers in general. Detainers are issued pursuant to sections 
236 and 287 of the Act and this chapter 1. Any authorized immigration 
officer may at any time issue a Form I-247, Immigration Detainer-Notice 
of Action, to any other Federal, State, or local law enforcement 
agency. A detainer serves to advise another law enforcement agency that 
the Department seeks custody of an alien presently in the custody of 
that agency, for the purpose of arresting and removing the alien. The 
detainer is a request that such agency advise the Department, prior to 
release of the alien, in order for the Department to arrange to assume 
custody, in situations when gaining immediate physical custody is 
either impracticable or impossible.
    (b) Authority to issue detainers. The following officers are 
authorized to issue detainers:
    (1) Border patrol agents, including aircraft pilots;
    (2) Special agents;
    (3) Deportation officers;
    (4) Immigration inspectors;
    (5) Adjudications officers;
    (6) Immigration enforcement agents;
    (7) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (8) Immigration officers who need the authority to issue detainers 
under section 287(d)(3) of the Act in order to effectively accomplish 
their individual missions and who are designated individually or as a 
class, by the Commissioner of CBP, the Assistant Secretary for ICE, or 
the Director of the BCIS.
    (c) Availability of records. In order for the Department to 
accurately determine

[[Page 35280]]

the propriety of issuing a detainer, serving a notice to appear, or 
taking custody of an alien in accordance with this section, the 
criminal justice agency requesting such action or informing the 
Department of a conviction or act that renders an alien inadmissible or 
removable under any provision of law shall provide the Department with 
all documentary records and information available from the agency that 
reasonably relates to the alien's status in the United States, or that 
may have an impact on conditions of release.
    (d) Temporary detention at Department request. Upon a determination 
by the Department to issue a detainer for an alien not otherwise 
detained by a criminal justice agency, such agency shall maintain 
custody of the alien for a period not to exceed 48 hours, excluding 
Saturdays, Sundays, and holidays in order to permit assumption of 
custody by the Department.
    (e) Financial responsibility for detention. No detainer issued as a 
result of a determination made under this chapter I shall incur any 
fiscal obligation on the part of the Department, until actual 
assumption of custody by the Department, except as provided in 
paragraph (d) of this section.
    17. Section 287.8 is revised to read as follows:


Sec.  287.8  Standards for enforcement activities.

    The following standards for enforcement activities contained in 
this section must be adhered to by every immigration officer involved 
in enforcement activities. Any violation of this section shall be 
reported to the Office of the Inspector General or such other entity as 
may be provided for in 8 CFR 287.10.
    (a) Use of force--(1) Non-deadly force. (i) Non-deadly force is any 
use of force other than that which is considered deadly force as 
defined in paragraph (a)(2) of this section.
    (ii) Non-deadly force may be used only when a designated 
immigration officer, as listed in paragraph (a)(1)(iv) of this section, 
has reasonable grounds to believe that such force is necessary.
    (iii) A designated immigration officer shall always use the minimum 
non-deadly force necessary to accomplish the officer's mission and 
shall escalate to a higher level of non-deadly force only when such 
higher level of force is warranted by the actions, apparent intentions, 
and apparent capabilities of the suspect, prisoner, or assailant.
    (iv) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the power conferred by section 
287(a) of the Act to use non-deadly force should circumstances warrant 
it:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Detention enforcement officers or immigration enforcement 
agents;
    (E) Immigration inspectors;
    (F) Adjudications officers when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (G) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed in this paragraph; 
and
    (H) Immigration officers who need the authority to use non-deadly 
force under section 287(a) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner of CBP or the Assistant 
Secretary for ICE.
    (2) Deadly force. (i) Deadly force is any use of force that is 
likely to cause death or serious physical injury.
    (ii) Deadly force may be used only when a designated immigration 
officer, as listed in paragraph (a)(2)(iii) of this section, has 
reasonable grounds to believe that such force is necessary to protect 
the designated immigration officer or other persons from the imminent 
danger of death or serious physical injury.
    (iii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the power conferred by section 
287(a) of the Act to use deadly force should circumstances warrant it:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Detention enforcement officers or immigration enforcement 
agents;
    (E) Immigration inspectors;
    (F) Adjudications officers when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (G) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (H) Immigration officers who need the authority to use deadly force 
under section 287(a) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner of CBP or the Assistant Secretary for ICE.
    (b) Interrogation and detention not amounting to arrest. (1) 
Interrogation is questioning designed to elicit specific information. 
An immigration officer, like any other person, has the right to ask 
questions of anyone as long as the immigration officer does not 
restrain the freedom of an individual, not under arrest, to walk away.
    (2) If the immigration officer has a reasonable suspicion, based on 
specific articulable facts, that the person being questioned is, or is 
attempting to be, engaged in an offense against the United States or is 
an alien illegally in the United States, the immigration officer may 
briefly detain the person for questioning.
    (3) Information obtained from this questioning may provide the 
basis for a subsequent arrest, which must be effected only by a 
designated immigration officer, as listed in 8 CFR 287.5(c). The 
conduct of arrests is specified in paragraph (c) of this section.
    (c) Conduct of arrests--(1) Authority. Only designated immigration 
officers are authorized to make an arrest. The list of designated 
immigration officers varies depending on the type of arrest as listed 
in 8 CFR 287.5(c)(1) through (c)(5).
    (2) General procedures. (i) An arrest shall be made only when the 
designated immigration officer has reason to believe that the person to 
be arrested has committed an offense against the United States or is an 
alien illegally in the United States.
    (ii) A warrant of arrest shall be obtained except when the 
designated immigration officer has reason to believe that the person is 
likely to escape before a warrant can be obtained.
    (iii) At the time of the arrest, the designated immigration officer 
shall, as soon as it is practical and safe to do so:
    (A) Identify himself or herself as an immigration officer who is 
authorized to execute an arrest; and
    (B) State that the person is under arrest and the reason for the 
arrest.
    (iv) With respect to an alien arrested and administratively charged 
with being in the United States in violation of law, the arresting 
officer shall adhere to the procedures set forth in 8 CFR 287.3 if the 
arrest is made without a warrant.
    (v) With respect to a person arrested and charged with a criminal 
violation of the laws of the United States, the arresting officer shall 
advise the person of the appropriate rights as required by

[[Page 35281]]

law at the time of the arrest, or as soon thereafter as practicable. It 
is the duty of the immigration officer to assure that the warnings are 
given in a language the subject understands, and that the subject 
acknowledges that the warnings are understood. The fact that a person 
has been advised of his or her rights shall be documented on 
appropriate Department forms and made a part of the arrest record.
    (vi) Every person arrested and charged with a criminal violation of 
the laws of the United States shall be brought without unnecessary 
delay before a United States magistrate judge, a United States district 
judge or, if necessary, a judicial officer empowered in accordance with 
18 U.S.C. 3041 to commit persons charged with such crimes. Accordingly, 
the immigration officer shall contact an Assistant United States 
Attorney to arrange for an initial appearance.
    (vii) The use of threats, coercion, or physical abuse by the 
designated immigration officer to induce a suspect to waive his or her 
rights or to make a statement is prohibited.
    (d) Transportation--(1) Vehicle transportation. All persons will be 
transported in a manner that ensures the safety of the persons being 
transported. When persons arrested or detained are being transported by 
vehicle, each person will be searched as thoroughly as circumstances 
permit before being placed in the vehicle. The person being transported 
shall not be handcuffed to the frame or any part of the moving vehicle 
or an object in the moving vehicle. The person being transported shall 
not be left unattended during transport unless the immigration officer 
needs to perform a law enforcement function.
    (2) Airline transportation. Escorting officers must abide by all 
Federal Aviation Administration, Transportation Security 
Administration, and airline carrier rules and regulations pertaining to 
weapons and the transportation of prisoners.
    (e) Vehicular pursuit. (1) A vehicular pursuit is an active attempt 
by a designated immigration officer, as listed in paragraph (e)(2) of 
this section, in a designated pursuit vehicle to apprehend fleeing 
suspects who are attempting to avoid apprehension. A designated pursuit 
vehicle is defined as a vehicle equipped with emergency lights and 
siren, placed in or on the vehicle, that emit audible and visual 
signals in order to warn others that emergency law enforcement 
activities are in progress.
    (2) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to initiate a vehicular pursuit:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Supervisory personnel who are responsible for supervising the 
activities of those officers listed in this paragraph; and
    (iii) Immigration officers who need the authority to initiate a 
vehicular pursuit in order to effectively accomplish their individual 
mission and who are designated, individually or as a class, by the 
Commissioner of CBP or the Assistant Secretary for ICE.
    (f) Site inspections. (1) Site inspections are Border and 
Transportation Security Directorate enforcement activities undertaken 
to locate and identify aliens illegally in the United States, or aliens 
engaged in unauthorized employment, at locations where there is a 
reasonable suspicion, based on articulable facts, that such aliens are 
present.
    (2) An immigration officer may not enter into the non-public areas 
of a business, a residence including the curtilage of such residence, 
or a farm or other outdoor agricultural operation, except as provided 
in section 287(a)(3) of the Act, for the purpose of questioning the 
occupants or employees concerning their right to be or remain in the 
United States unless the officer has either a warrant or the consent of 
the owner or other person in control of the site to be inspected. When 
consent to enter is given, the immigration officer must note on the 
officer's report that consent was given and, if possible, by whom 
consent was given. If the immigration officer is denied access to 
conduct a site inspection, a warrant may be obtained.
    (3) Adequate records must be maintained noting the results of every 
site inspection, including those where no illegal aliens are located.
    (4) Nothing in this section prohibits an immigration officer from 
entering into any area of a business or other activity to which the 
general public has access or onto open fields that are not farms or 
other outdoor agricultural operations without a warrant, consent, or 
any particularized suspicion in order to question any person whom the 
officer believes to be an alien concerning his or her right to be or 
remain in the United States.
    (g) Guidelines. The criminal law enforcement authorities authorized 
under this part will be exercised in a manner consistent with all 
applicable guidelines and policies of the Department of Justice and the 
Department of Homeland Security.

0
18. Section 287.9 is amended by:
0
a. Revising the word ``Commissioner'' to read ``Commissioner of CBP and 
the Assistant Secretary for ICE'' in paragraph (a); and by
0
b. Revising paragraph (b).
    The revisions read as follows:


Sec.  287.9  Criminal search warrant and firearms policies.

* * * * *
    (b) In using a firearm, an immigration officer shall adhere to the 
standard of conduct set forth in 8 CFR 287.8(a)(2). An immigration 
officer may carry only firearms (whether Department issued or 
personally owned) that have been approved pursuant to guidelines 
promulgated by the Commissioner of CBP or the Assistant Secretary for 
ICE. These officials shall promulgate guidelines with respect to:
    (1) Investigative procedures to be followed after a shooting 
incident involving an officer;
    (2) Loss or theft of an approved firearm;
    (3) Maintenance of records with respect to the issuance of firearms 
and ammunition; and
    (4) Procedures for the proper care, storage, and maintenance of 
firearms, ammunition, and related equipment.

0
19. Section 287.10 is revised to read as follows:


Sec.  287.10  Expedited internal review process.

    (a) Violations of standards for enforcement activities. Alleged 
violations of the standards for enforcement activities established in 
accordance with the provisions of Sec.  287.8 shall be investigated 
expeditiously consistent with the policies and procedures of the 
Department of Homeland Security and pursuant to any guidelines issued 
by the Secretary.
    (b) Complaints. Any persons wishing to lodge a complaint pertaining 
to violations of enforcement standards contained in Sec.  287.8 may 
contact the Department of Homeland Security, Office of the Inspector 
General, 245 Murray Drive--Building 410, Washington, DC, 20548, or 
telephone 1-800-323-8603. With respect to employees of the former INS, 
persons may contact the Office of Internal Audit, Bureau of Immigration 
and Customs Enforcement, 425 I Street NW., Washington, DC, 20536.
    (c) Expedited processing of complaints. When an allegation or 
complaint of violation of Sec.  287.8 is lodged against an employee or 
officer of the Department, the allegation or complaint shall be 
referred promptly for investigation in accordance with the

[[Page 35282]]

policies and procedures of the Department. At the conclusion of an 
investigation of an allegation or complaint of violation of Sec.  
287.8, the investigative report shall be referred promptly for 
appropriate action in accordance with the policies and procedures of 
the Department.
    (d) Unsubstantiated complaints. When an investigative report does 
not support the allegation, the employee or officer against whom the 
allegation was made shall be informed in writing that the matter has 
been closed as soon as practicable. No reference to the allegation 
shall be filed in the official's or employee's official personnel file.
    (e) Jurisdiction of Department of Justice organizations. Nothing in 
this section alters or limits, is intended to alter or limit, or shall 
be construed to alter or limit, the jurisdiction or authority conferred 
upon the Federal Bureau of Investigation, the United States Attorneys, 
the Criminal Division or the Civil Rights Division, or any other 
component of the Department of Justice that may have jurisdiction 
regarding criminal violations of law.

0
20. Section 287.12 is revised to read as follows:


Sec.  287.12  Scope.

    With regard to this part, these regulations provide internal 
guidance on specific areas of law enforcement authority. These 
regulations do not, are not intended to, and shall not be construed to 
exclude, supplant, or limit otherwise lawful activities of the 
Department or the Secretary. These regulations do not, are not intended 
to, shall not be construed to, and may not be relied upon to create any 
rights, substantive or procedural, enforceable at law by any party in 
any matter, civil or criminal. The Secretary shall have exclusive 
authority to enforce these regulations through such administrative and 
other means as he may deem appropriate.

    Dated: June 6, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-14931 Filed 6-10-03; 3:25 pm]
BILLING CODE 4410-10-P