[Federal Register Volume 72, Number 10 (Wednesday, January 17, 2007)]
[Rules and Regulations]
[Pages 1923-1925]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-137]
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DEPARTMENT OF HOMELAND SECURITY
Bureau of Immigration and Customs Enforcement
8 CFR Part 236
[ICE 2355-05; DHS Docket No. ICE-2006-0012]
RIN 1653-AA53
Consular Notification for Aliens Detained Prior to an Order of
Removal
AGENCY: Bureau of Immigration and Customs Enforcement, DHS.
ACTION: Final rule.
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SUMMARY: This final rule amends the Department of Homeland Security
(DHS) regulations governing the detention of aliens prior to an order
of removal. The rule updates the list of countries in 8 CFR 236.1(e),
which, based on existing treaties, requires immediate communication
with consular or diplomatic officers when nationals of listed countries
are detained in the United States. The rule adds Algeria, Tunisia, and
Zimbabwe to the list of countries and removes Albania and South Korea
from the list of countries. In addition, the rule clarifies provisions
related to treaties that the United States has with China, Hong Kong,
and Poland. Finally, the rule updates the list with Antigua and
Barbuda's official name and by adding clarifying language about
provisions governing U.S.S.R. successor states.
DATES: This final rule is effective January 17, 2007.
FOR FURTHER INFORMATION CONTACT: Lisa Hoechst, Bureau of Immigration
and Customs Enforcement, Department of Homeland Security, 425 I Street,
NW., Washington, DC 20536, telephone 202-732-2868.
SUPPLEMENTARY INFORMATION:
I. Background
Bilateral treaties between the United States and many countries
require immediate communication with a consular or diplomatic officer
of such a country whenever one of their nationals is arrested or
detained in the United States. The immediate communication must occur,
regardless of whether the alien requests such communication and even if
the alien requests that no such communication be undertaken on his or
her behalf.
There are three states that are party to such a treaty with the
United States but are not included in the current list of countries in
8 CFR 236.1(e). Those states are Algeria, Tunisia, and Zimbabwe. The
relevant portions of the bilateral treaties with those states are
provided below.
The Consular Convention with the Democratic and Popular
Republic of Algeria, Jan. 12, 1989, U.S.-Alg., art. 33(1), S. Treaty
Doc. No. 101-13, provides:
The consular post of the sending State shall be informed without
delay of any measure taken to deprive one of its nationals of his
liberty and the motivating circumstances.
The Consular Convention with the Republic of Tunisia, May
12, 1988, U.S.-Tunis., art. 39(1), S. Treaty Doc. No. 101-12, provides:
The competent authorities of the receiving State shall, without
delay, inform the appropriate consular post whenever a national of
the sending state is the subject of an arrest or of any form of
restriction on his personal freedom. For the purpose of this
article, the term ``without delay'' contemplates that this
notification will be made within three days following restriction on
the freedom of nationals of the sending State, or in cases where the
notification cannot be made within three days because of
communications or other difficulties, as soon as possible
thereafter.
The Consular Convention with the United Kingdom, June 6,
1951, U.S.-U.K., art. 16(2), 3 U.S.T. 3426, which has continued to
apply to Zimbabwe since it became independent, provides:
A consular officer shall be informed immediately by the appropriate
authorities of the territory when any national of the sending state
is confined in prison awaiting trial or is otherwise detained in
custody within his district.* * *
In addition, there are two countries currently on the list in 8 CFR
236.1(e) that are not covered by such a treaty: Albania and South
Korea. There is currently no bilateral consular convention in force
between the United States and Albania. The multilateral Vienna
Convention on Consular Relations (VCCR), April 24, 1963, art. 36(1)(b),
21 U.S.T. 77, 101, 596 U.N.T.S. 261, 292 governs the notification of
consular officials when Albanian nationals are detained in the United
States. It provides that:
[I]f he so requests, the competent authorities of the receiving
State shall, without delay, inform the consular post of the sending
State if, within its consular district, a national of that State is
arrested or committed to prison or to custody pending trial or is
detained in any other manner.* * * [Emphasis added.]
Consular notification is not mandatory--it is at the request of the
detained person.
The Consular Convention with the Republic of Korea, January 8,
1963, U.S.-S. Korea, art. 5(2), 14 U.S.T. 1637, also does not require
mandatory consular notification. It states:
The appropriate authorities of the receiving state shall, at the
request of any national of the sending state who is under arrest or
otherwise detained in custody, immediately inform a consular officer
of the sending state. * * * [Emphasis added.]
Any detained South Korean national has the discretion to decide whether
his or her consulate will be notified of the detention.
II. Provisions of the Rule
This rule amends 8 CFR 236.1(e) to add Algeria, Tunisia, and
Zimbabwe to the list of foreign countries having a bilateral treaty
that requires consular notification when their nationals are detained
in the U.S. The rule also removes Albania and South Korea from the
list.
The rule also makes several changes with regard to China. The rule
states, in a footnote to ``China'' in the list of countries, that
consular notification is not mandatory for any person who carries a
``Republic of China'' passport issued by Taiwan. Such persons are not
covered by any consular convention that provides for mandatory consular
notification.
In addition, the rule removes Hong Kong from the list of British
dependencies in the footnote to ``United Kingdom.'' It adds ``Hong
Kong'' to the list of countries and adds a footnote to the entry for
``Hong Kong.'' The footnote discusses the reversion of Hong Kong to
Chinese sovereignty and to the requirement that United States officials
notify Chinese consular officials whenever the bearer of a Hong Kong
passport is arrested or detained in the United States. The latter
requirement is contained in the Agreement Regarding the Maintenance of
the United States Consulate General in the Hong Kong Special
Administrative Region, March 25, 1997, U.S.-China, 33 U.S.T. 2973,
para. 3(f)(2):
If a national of the sending State is arrested or placed under any
form of detention within the consular district, the competent
authorities of the receiving State shall immediately, but no later
than within four days from the date of arrest or detention, notify
the consulate of the sending State. If it is not possible to notify
the consulate of the sending State within four days because of
communications difficulties, they should try to provide notification
as soon as possible. * * *
This provision is identical to article 35(2) of the Consular Convention
with China, Sept. 17, 1980, U.S.-China, 33 U.S.T. 2973.
The rule also adds a footnote to ``Poland'' in the list of
countries, stating
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that mandatory consular notification does not apply to any Polish
national who has been admitted to permanent residence in the United
States. The Consular Convention with Poland, May 31, 1972, U.S.-Pol.,
art. 29(2), 24 U.S.T. 1231, states:
The appropriate authorities of the receiving State shall immediately
inform a consular officer of the sending State of the detention or
arrest of any national of the sending State who has not been
admitted to permanent residence in the receiving State. In the case
of the detention or arrest of a national of the sending State who
has been admitted to permanent residence in the receiving State, the
appropriate authorities of the receiving State, on the request of
such national, shall immediately inform a consular officer of the
sending State of such detention or arrest. [Emphasis added.]
Finally, the rule changes ``Antigua'' in the list of countries to
``Antigua and Barbuda,'' the official name of that country. It also
adds language to the footnote to ``U.S.S.R.,'' which clarifies that
mandatory consular notification applies to a national of any of its
successor states who is still traveling on a U.S.S.R. passport.
It is crucial that DHS make these changes, especially the addition
of Algeria, Tunisia, and Zimbabwe to the list of countries whose
consular or diplomatic officials must, under treaty, be notified if
their nationals are detained in the United States. The failure to list
these countries has led to complaints from those countries' governments
that DHS has not always notified consular officials as required under
treaty. It could lead such governments to not honor their treaty
obligation to notify officials of the United States when United States
nationals are detained. Accordingly, DHS is inserting this language to
help assure that such governments honor their treaty obligation to
notify officials of the United States when United States nationals are
detained.
III. Regulatory Analyses
A. Administrative Procedure Act
This rule is exempt from requirements for notice and comment
rulemaking under 5 U.S.C. 553(a)(1), because it relates to a foreign
affairs function of the United States. Moreover, the rule does not
implement any additional rights or responsibilities incumbent upon the
general public, but merely consolidates a list of provisions of
treaties currently in force. Accordingly, DHS has determined that the
rulemaking provisions of the Administrative Procedure Act do not apply
and that this rule is effective immediately upon publication in the
Federal Register.
B. Regulatory Flexibility Act
Since no notice of proposed rulemaking is required, the provisions
of the Regulatory Flexibility Act, 5 U.S.C. 605(b), do not apply.
C. 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 are deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995, Public Law 104-4, 109 Stat. 48 (March 22, 1995) (2 U.S.C. 1502 et
seq.).
D. 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 Fairness 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 the United States-based companies to
compete with foreign-based companies in domestic and export markets.
E. Executive Order 12866
This rule is exempt from Executive Order 12866 review, and is
therefore not subject to OMB review, because it ``pertains to a
military or foreign affairs function of the United States.'' See
section 2(d)(2) of Executive Order 12866.
F. 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, this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement under section 6 of Executive Order 13132.
G. Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements as described in the Paperwork Reduction Act, 44 U.S.C.
3507. Therefore, DHS does not need to submit any such requirement to
the Office of Management and Budget (OMB) for review and approval.
List of Subjects in 8 CFR Part 236
Administrative practice and procedure, Aliens, Foreign relations,
Immigration, Treaties.
0
Accordingly, part 236 of chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 236-APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
0
1. The authority citation for part 236 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1224,
1225, 1226, 1227, 1231, 1362; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part
2.
0
2. Section 236.1(e) is amended by revising the list of countries, and
the accompanying footnotes, to read as follows:
Sec. 236.1 Apprehension, custody, and removal.
* * * * *
(e) * * *
Algeria \1\
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\1\ Arrangements with the countries listed in 8 CFR 236.1(e)
provide that U.S. authorities shall notify responsible
representatives within 72 hours of the arrest or detention of one of
their nationals.
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Antigua and Barbuda
Armenia
Azerbaijan
Bahamas, The
Barbados
Belarus
Belize
Brunei
Bulgaria
China (People's Republic of) \2\
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\2\ Notification is not mandatory in the case of any person who
carries a ``Republic of China'' passport issued by Taiwan. Such
persons should be informed without delay that the nearest office of
the Taipei Economic and Cultural Representative Office (``TECRO''),
the unofficial entity representing Taiwan's interests in the United
States, can be notified at their request.
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Costa Rica
Cyprus
Czech Republic
Dominica
Fiji
Gambia, The
Georgia
Ghana
Grenada
Guyana
Hong Kong \3\
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\3\ Hong Kong reverted to Chinese sovereignty on July 1, 1997,
and is now officially referred to as the Hong Kong Special
Administrative Region, or ``S.A.R.'' Under paragraph 3(f)(2) of the
March 25, 1997, U.S.-China Agreement on the Maintenance of the U.S.
Consulate General in the Hong Kong Special Administrative Region,
U.S. officials are required to notify Chinese officials of the
arrest or detention of the bearers of Hong Kong passports in the
same manner as is required for bearers of Chinese passports--i.e.,
immediately, and in any event, within four days of the arrest or
detention.
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Hungary
Jamaica
Kazakhstan
Kiribati
Kuwait
Kyrgyzstan
Malaysia
Malta
Mauritius
Moldova
Mongolia
Nigeria
Philippines
Poland \4\
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\4\ Consular communication is not mandatory for any Polish
national who has been admitted for permanent residence in the United
States. Such notification should only be provided upon request by a
Polish national with permanent residency in the United States.
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Romania
Russian Federation
St. Kitts and Nevis
St. Lucia
St. Vincent/Grenadines
Seychelles
Sierra Leone
Singapore
Slovak Republic
Tajikistan
Tanzania
Tonga
Trinidad and Tobago
Tunisia
Turkmenistan
Tuvalu
Ukraine
United Kingdom \5\
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\5\ United Kingdom includes England, Scotland, Wales, Northern
Ireland and Islands and the British dependencies of Anguilla,
British Virgin Islands, Bermuda, Montserrat, and the Turks and
Caicos Islands. Their residents carry British passports.
U.S.S.R. \6\
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\6\ All U.S.S.R. successor states are covered by this agreement.
They are: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Russian Federation, Tajikistan, Turkmenistan,
Ukraine, and Uzbekistan. Although the U.S.S.R. no longer exists, the
U.S.S.R is listed here, because some nationals of its successor
states may still be traveling on a U.S.S.R. passport. Mandatory
consular notification applies to any national of such a state,
including one traveling on a U.S.S.R. passport.
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Uzbekistan
Zambia
Zimbabwe
* * * * *
Dated: January 9, 2007.
Michael Chertoff,
Secretary.
[FR Doc. 07-137 Filed 1-11-07; 2:27pm]
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