[Federal Register Volume 72, Number 10 (Wednesday, January 17, 2007)]
[Rules and Regulations]
[Pages 1923-1925]
From the Federal Register Online via the Government Publishing 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.
    <bullet> 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.

    <bullet> 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.

    <bullet> 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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