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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 287

[INS No. 2171-01]
RIN 1115-AG40

Custody Procedures

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comment.

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SUMMARY: This rule amends the Immigration and Naturalization Service 
(Service) regulations on the period of time after an alien's arrest 
within which the Service must make a determination whether the alien 
will be continued in custody or released on bond or recognizance and 
whether to issue a notice to appear and warrant of arrest. This rule 
provides that unless voluntary departure has been granted, the Service 
must make such determinations within 48 hours of arrest, except in the 
event of emergency or other extraordinary circumstance in which case 
the Service must make such determinations within an additional 
reasonable period of time.

DATES: Effective date: September 17, 2001.
Comment date: Written comments must be submitted on or before 
November 19, 2001.

ADDRESSES: Please submit written comments to the Director, Policy 
Directives and Instructions Branch, Immigration and Naturalization 
Service, 425 I Street, NW., Room 4034, Washington, DC 20536. To ensure 
proper handling please reference INS No. 2171-01 on your 
correspondence. You may also submit comments electronically to the 
Service at insregs@usdoj.gov. When submitting comments electronically 
please include INS No. 2171-01 in the subject box. Comments are 
available for public inspection at the above address by calling:
 (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Cristina Hamilton, Office of the 
General Counsel, Immigration and Naturalization Service, 425 I Street, 
NW., Room 6100, Washington, DC 20536, telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION:

Background

What Is the Basis for the Interim Rule?

The current rule provides that unless voluntary departure is 
granted, the Service must make determinations within 24 hours of an 
alien's arrest whether to continue the alien in custody or to release 
the alien on bond or recognizance and whether to issue a notice to 
appear and a warrant of arrest. However, this 24-hour period is not 
mandated by constitutional requirements. The interim rule provides the 
Service 48 hours to make these determinations, except in the event of 
emergency or other extraordinary circumstance in which case the Service 
must make such determinations within an additional reasonable period of 
time.

Explanation of Changes

The interim rule amends Sec. 287.3(d), ``Custody procedures.'' The 
current language of that section provides that unless voluntary 
departure has been granted pursuant to subpart C of 8 CFR part 240, the 
Service has a period of 24 hours following the arrest of an alien in 
which it must determine whether the alien will be continued in custody 
or released on bond or recognizance and whether to issue a notice to 
appear and warrant of arrest as prescribed in 8 CFR parts 236 and 239.
Inasmuch as the 24-hour determination period is not mandated by 
constitutional principles, the Service is amending the rule to provide 
that unless voluntary departure has been granted pursuant to subpart C 
of 8 CFR part 240, the Service generally must make the determinations 
as to custody or release of the alien and as to the issuance of the 
notice to appear and warrant of arrest within 48 hours of arrest. The 
Service may often require this additional time in order to establish an 
alien's true identity; to check domestic, foreign, or international 
databases and records systems for relevant information regarding the 
alien; and to liaise with appropriate law enforcement agencies in the 
United States and abroad.
In situations involving an emergency or other extraordinary 
circumstance, the Service may require additional time beyond 48 hours 
to process cases, to arrange for additional personnel or resources, and 
to coordinate with other law enforcement agencies. Therefore, the 
interim rule provides an exception to the 48-hour general rule for any 
case arising during or in connection with an emergency or other 
extraordinary circumstance, in which case the Service must make the 
determinations as to custody or release and as to the issuance of the 
notice to appear and warrant of arrest within an additional reasonable 
period of time.

Administrative Procedure Act 5 U.S.C. 553

The Service's implementation of this rule as an interim rule, with 
provision for post-promulgation public comment, is based on the foreign 
affairs exception, 5 U.S.C. 553(a)(1), and upon findings of good cause 
pursuant to 5 U.S.C. 553(b)(B) and (d).
The immediate implementation of this interim rule without public 
comment is necessary to ensure that the Service has sufficient time, 
personnel, and resources to process cases--including establishing true 
identities and communicating with other law enforcement agencies--that 
arise in connection with the emergency posed by the recent terrorist 
activities perpetrated on United States soil. This rule does not alter 
the standards for issuing charging documents or determining the issue 
of custody or release, but simply extends the period by which the 
Service must make such determinations. For this reason, the Service has 
determined that there is good cause to publish this interim rule and to 
make it effective immediately, because the delays inherent in the 
regular notice and comment process would be ``impracticable, 
unnecessary and contrary to the public interest.''

[[Page 48335]]

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities. The rule addresses only government operations. It 
places no new obligations on small entities or other private 
individuals or businesses. It should have no appreciable economic 
impact.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule in 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 12866

This rule is considered by the Department of Justice, Immigration 
and Naturalization Service, to be a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review. Accordingly, this regulation has been submitted to the Office 
of Management and Budget for review.

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, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

This interim rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

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 and recordkeeping 
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 in 8 CFR Part 287

Administrative practice and procedure, Aliens, Immigration.

Accordingly, part 287 of chapter I of title 8 of the Code of 
Federal Regulations is amended as follows:

PART 287--FIELD OFFICERS; POWERS AND DUTIES

1. The authority citation for part 287 continues to read as 
follows:

Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; 8 
CFR part 2.


2. Section 287.3(d) is revised to read as follows:


Sec. 287.3 Disposition of cases of aliens arrested without warrant.

* * * * *
(d) Custody procedures. Unless voluntary departure has been granted 
pursuant to subpart C of 8 CFR part 240, a determination will be made 
within 48 hours of the arrest, except in the event of an emergency or 
other extraordinary circumstance in which case a determination will be 
made within an additional reasonable period of time, whether the alien 
will be continued in custody or released on bond or recognizance and 
whether a notice to appear and warrant of arrest as prescribed in 8 CFR 
parts 236 and 239 will be issued.

Dated: September 17, 2001.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 01-23545 Filed 9-17-01; 4:51 pm]
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