Subpoena Issuance Authority [60 FR 56936][FR 60-95]

DOCUMENT NUMBER: FR 60 - 95

FEDERAL REGISTER CITE: 60 FR 56936

DATE PUBLISHED: November 13, 1995

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 287

[INS No. 1717-95]

RIN 1115-AE15

Subpoena Issuance Authority

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This rule amends existing Immigration and Naturalization Service (Service) regulations by adding the Assistant Chief Patrol Agency Officer position to the lists of those immigration officers who may issue and designate service of subpoenas under this section. These changes will reduce unnecessary delay in the processing of criminal and civil investigations by reducing the need to transfer case files between offices for signatures. These changes will allow the Service to maximize its use of personnel and resources. The rule is in keeping with current organizational command structure and program responsibility within a Border Patrol sector.

EFFECTIVE DATE: December 13, 1995.

FOR FURTHER INFORMATION CONTACT: Alan R. Conroy, Assistant Chief Border Patrol, Immigration and Naturalization Service, 425 I Street, N.W., Washington, DC 20536, Telephone: (202) 514-3073.

SUPPLEMENTARY INFORMATION: The Service is modifying section 287.4(a)(1) and 287.4 (c) of its existing regulations to add Assistant Chief Patrol Agent positions to those immigration officials authorized to issue and designate service of subpoenas. One of the Service priorities is the apprehension and removal of criminal aliens. The authority for Assistant Chief Patrol Agents to issue subpoenas will allow for greater flexibility in the processing of these aliens. The subpoena is issued in criminal or civil investigations to require the production of documentary evidence, for use in a Service-related case. Currently employees above and below the Assistant Chief level have the power to issue subpoenas. Implementation of the rule will add continuity to the Immigration and Naturalization Service and the Border Patrol chains of command. The Service's implementation of this rule as a final rule, without provision for public comment, is based upon the exception found in 5 U.S.C. 553(b)(B). This rule related to agency management and is a dministrative in nature. Thus, the comment period and noticed are deemed unnecessary and contrary to the public interest.

Executive Order 12612

The regulation adopted herein 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 Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federal Assessment.

Executive Order 12866

This rule is not 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, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), had reviewed this regulation and, by approving it, certifies that the rule will not have a significant economic impact on a substantial number of small entities. The regulation is administrative in nature and the rule relates only to agency management.

List of Subjects in 8 CFR Part 287

Immigration, Law enforcement officers.

For the reasons set forth in the preamble, part 287 in chapter I of title 8 of the Code of Federal Regulations, is amended as set forth below.

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. In Section 287.4 paragraphs (a)(1) and (c) are revised to read as follows:

§ 287.4 Subpoena.

(a) * * *

(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 District Directors, Investigations, Supervisory Criminal Investigators (Anti-Smuggling), Regional Directors, Office of Professional Responsibility, Service Center Directors, and Assistant District Directors for Examinations, may issue a subpoena requiring the production of records and evidence for use in criminal or civil investigations.

* * * * *

(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, and Office of Professional Responsibility, having administrative jurisdiction over the office in which the subpoena is issued. 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 Service, 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.

* * * * *

October 10, 1995 _________________ Dated:

Signed _______________________________ Doris Meissner, Commissioner,Immigration and Naturalization Service.