Sec. 287.8(a)(1) - Non-Deadly Force

Several commenters criticized the rule for providing insufficient guidelines on the use of non-deadly force and insufficient inducements for the use of control devices, such as stun guns and gas guns, that do not inflict bodily injury. The commenters also stated that the rule should provide specific requirements for the use of self-defense equipment, including bullet-proof vests and helmets, by Service officers. The Service issues batons, tear gas, bullet proof vests, and helmets to law enforcement agents , as appropriate, and as appropriated funds permit; the Service does not issue stun guns, gas guns, or other such devices for routine law enforcement purposes. The Service and the Department agree that immigration officers should be trained in a broad range of options in the use of force in order to handle varying situations, that the use of lethal force should be minimized, and that Service officers should be furnished with self-protection equipment and techniques. Such standards cannot be appropriately addressed in rulemaking because of the numerous contingencies that are involved. Service officers are trained in such matters and receive updates in their training to incorporate new law enforcement techniques and new protective devices.

Section 287.8(a)(2) - Deadly Force

The commenters stated that deadly force is an extreme measure and should only be used when an officer reasonably believes it is necessary in defense of human life, including the life of the officer or any person in immediate threat of serious physical harm. To this end, the commenters stated that the rule should require specialized training in specific types of situations to offer guidance to the officer in order to minimize the use of deadly force. Training should include ethics, human rights, and altern atives to the use of force and firearms. "Reasonable belief" and "serious bodily injury" should be defined, according to the commenters, by current judicial standards. The commenters stated that the rule should require that where use of deadly force is likely, the officer should give a warning and allow sufficient time for the warning to be obeyed, but only when the officer or other persons are not at risk.

The Department agrees with many of these suggestions. Furthermore, the rule is consistent with the Department's interpretation of Tennessee v. Garner , 471 U.S. 1 (1985), and its progeny, as applied to the missions of the respective Service officers. However, the Department disagrees that these issues can be appropriately addressed in this rule. As stated previously, Service training standards on the use of force are in accordance with prevailing guidelines for all federal law enforcement officials. These guidelines include provisions addressing the issues identified by the commenters.

Section 287.10 - Expedited Internal Review Process

The commenters criticized the expedited internal review process proposed in Sec. 287.10 as legally insufficient on a number of grounds. The commenters criticized the proposed rule for incorporating current policies and procedures of the Department's Office of the Inspector General and the Office of Professional Responsibility, stating that these policies and procedures do not provide safeguards that are "accessible and thorough." The commenters stated that the proposed rule provided inadequate notice to t he public of its right to lodge complaints. The commenters suggested that an outreach system, including posters, private telephones for detainees, and a 24-hour toll-free number staffed by multi-lingual personnel be mandated in the final rule.

The commenters also stated that a formal procedure for notifying complainants of the receipt and disposition of their complaints should be implemented by the rule. Confidentiality of complaints should be ensured to protect against retaliation, and information obtained in the process of investigating complaints should be excluded from use against the complainant in deportation or exclusion proceedings. The commenters stated that an official record of all complaints, even unsubstantiated complaints, should be retained so that individual officers can be properly evaluated and, if necessary, retrained, counseled, or investigated. Some of the commenters suggested that this information, including unsubstantiated complaints, should be kept in the officer's official personnel file.

The commenters suggested that specific procedures for the investigation of complaints, including provisions for public hearings in the case of serious charges, should be included in the rule. The commenters also stated that an appeals process should be available in cases where complainants or Service officers are dissatisfied with an investigator's report and recommendations. Several commenters also stated that the process for reviewing complaints against Service officers must be improved in order to addr ess allegations of human rights abuses by Service officers patrolling border areas adjacent to Mexico.

In response, the Department notes that many of the suggestions made by these commenters are good practices that are addressed in the policies and procedures of the Department's investigative organizations. However, many of the specific recommendations regarding public notification and timeliness in the completion of investigations are beyond the scope of this rule and must be addressed in these internal policies and procedures. The Department disagrees with the suggestion that an appeals process be provid ed. Sufficient review of investigatory reports is already provided in the policies and procedures mentioned above. Under these policies and procedures, confidentiality will be maintained in the course of these investigations. If cause for administrative action is found, the administrative process will be followed, and if grounds for civil or criminal prosecution are found, the appropriate litigation will be undertaken. The Department's investigative organizations currently have established procedures to protect the identities of complainants and witnesses from disclosure to Service personnel. Records of unsubstantiated allegations will be centrally maintained by the Service for the purposes identified in the comments and to provide a basis for management review of the number of allegations that have been made to determine whether additional action should be taken at a management level to improve operations and training, but these records will not be kept in an officer's official personnel file.

The commenters also stated that implementation of this section of the rule should be immediate because the reasons for allowing a one-year delay in the provisions of the rule governing enforcement authority do not apply to internal review. The Service and the Department would be in a position to agree if, immediately upon publication of the final rule, the standards were developed and the commensurate training was provided to designated immigration officers. However, the purpose of the one-year delayed im plementation period is to enable the Service to develop the standards, provide the training, and certify all designated immigration officers. Because Sec. 287.10 creates an expedited review process exclusively for violations of the standards that will be developed during the one-year implementation period, the effective date of Sec. 287.10 must coincide with all other sections of the final rule. However, this does not alter the established internal review process for alleged violations of existing enforce ment policies and procedures.

The commenters also expressed concern that Sec. 287.10(e) of the proposed rule, which would permit Department components to supplement or expand policies and procedures to ensure proper conduct of Service employees and officers, should not limit or undermine the regulations that govern the review of allegations of improper conduct by Service employees and officers. Neither the Department nor the Service intended that Sec. 287.10(e) be so construed. It is the intention of the Department to provide greater assurances that its officers and employees will conduct themselves appropriately, not to diminish existing standards.

Section 287.11 - Disclaimer

The commenters claimed that Sec. 287.11 would preclude victims of unlawful Service enforcement practices from pursuing remedies for regulatory violations. However, this disclaimer merely states that the regulations provide no independent grounds for relief in any civil or criminal proceeding by any party. It does not prevent any party from pursuing relief for alleged violations of the Constitution or laws of the United States. As such, the disclaimer is consistent with the holding in United States v. Caceres , 440 U.S. 741 (1979). This disclaimer is a standard element for all regulations affecting substantive federal criminal law enforcement authority and is only intended to ensure that the regulations do not create rights not otherwise existing in law.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this final rule and, by approving it, certifies that the rule will not have a significant economic impact on a substantial number of small entities.

Executive Order No. 12866

This rule is not considered by the Department of Justice or the Immigration and Naturalization Service to be a "significant regulatory action" under E.O. 12866, Sec. 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under Sec. 6(a)(3)(A).

Executive Order No. 12612

The regulations 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 E.O. 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order No. 12606

The Attorney General certifies that she has assessed this rule in light of the criteria in E.O. 12606 and has determined that this rule will not have an impact on family formation, maintenance, or general well-being.

List of Subjects

8 CFR Part 242

Administrative practice and procedure, Aliens.

8 CFR Part 287

Immigration, Law enforcement officers.

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

PART 242 -- PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

1. The authority citation for part 242 continues to read as follows:

Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note, 1252b, 1254, 1362; 8 CFR part 2.

2. Section 242.1 is amended by revising paragraph (a) to read as follows:

Sec. 242.1 Order to show cause and notice of hearing.

(a) Commencement. Every proceeding to determine the deportability of an alien in the United States, except an alien who has been admitted to the United States under the provisions of section 217 of the Act and part 217 of this chapter other than such an alien who has applied for asylum in the United States, is commenced by the filing of an order to show cause with the Office of the Immigration Judge. In the proceeding, the alien shall be known as the respondent. An order to show cause may only be issued by the following immigration officers:

(1) District directors (except foreign);

(2) Deputy district directors (except foreign);

(3) Assistant district directors for investigations;

(4) Deputy assistant district directors for investigations;

(5) Assistant district directors for deportation;

(6) Deputy assistant district directors for deportation;

(7) Assistant district directors for examinations;

(8) Deputy assistant district directors for examinations;

(9) Officers in charge (except foreign);

(10) Assistant officers in charge (except foreign);

(11) Chief patrol agents;

(12) Deputy chief patrol agents;

(13) Associate chief patrol agents;

(14) Assistant chief patrol agents;

(15) The Assistant Commissioner, Investigations;

(16) Service center directors;

(17) The Director, Organized Crime Drug Enforcement Task Force (OCDETF);

(18) Assistant Director, OCDETF (New York, NY; Houston, TX; Los Angeles, CA; and Miami, FL);

(19) The Assistant Commissioner, Refugees, Asylum and Parole; or

(20) Supervisory asylum officers.

* * * * *

3. Section 242.2 is amended by revising paragraphs (a)(1) and (c)(1) to read as follows: