Federal Register / Vol. 72, No. 10 / Wednesday, January 17, 2007 / Rules and Regulations 1923 

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. 

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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1924 Federal Register / Vol. 72, No. 10 / Wednesday, January 17, 2007 / Rules and Regulations 

1Arrangements 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. 

2Notification 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. 

3Hong Kong reverted to Chinese sovereignty on 

July 1, 1997, and is now officially referred to as the 

Hong Kong Special Administrative Region, or 

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 foreignbased 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. 

■ 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 

■ 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. 

■ 2. Section 236.1(e) is amended by 

revising the list of countries, and the 

accompanying footnotes, to read as 

follows: 

§ 236.1 Apprehension, custody, and 

removal. 

* * * * * 

(e) * * * 

Algeria 1

Antigua and Barbuda 

Armenia 

Azerbaijan 

Bahamas, The 

Barbados 

Belarus 

Belize 

Brunei 

Bulgaria 

China (People’s Republic of) 2

Costa Rica 

Cyprus 

Czech Republic 

Dominica 

Fiji 

Gambia, The 

Georgia 

Ghana 

Grenada 

Guyana 

Hong Kong 3

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Federal Register / Vol. 72, No. 10 / Wednesday, January 17, 2007 / Rules and Regulations 1925 

‘‘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. 

4Consular 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. 

5United 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. 

6All 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. 1 71 FR 37862 (July 3, 2006). 

Hungary 

Jamaica 

Kazakhstan 

Kiribati 

Kuwait 

Kyrgyzstan 

Malaysia 

Malta 

Mauritius 

Moldova 

Mongolia 

Nigeria 

Philippines 

Poland 4

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

U.S.S.R. 6

Uzbekistan 

Zambia 

Zimbabwe 

* * * * * 

Dated: January 9, 2007. 

Michael Chertoff, 

Secretary. 

[FR Doc. 07–137 Filed 1–11–07; 2:27pm] 

BILLING CODE 4410–10–P 

DEPARTMENT OF THE TREASURY 

Office of Thrift Supervision 

12 CFR Part 563 

[No. 2007–02] 

RIN 1550–AC06 

Subordinated Debt Securities and 

Mandatorily Redeemable Preferred 

Stock 

AGENCY: Office of Thrift Supervision, 

Treasury. 

ACTION: Final rule. 

SUMMARY: This final rule updates OTS 

regulations that require a savings 

association to obtain approval (or nonobjection) before it may include 

subordinated debt securities or 

mandatorily redeemable preferred stock 

in supplementary (tier 2) capital. The 

final rule removes several unnecessary 

or outdated requirements and conforms 

certain provisions, such as maturity 

period requirements and purchaser 

restrictions, to the rules issued by the 

other federal banking agencies. The final 

rule also reconciles conflicting rules, 

adds appropriate statutory crossreferences, and rewrites the rule in plain 

language. 

DATES: This rule is effective April 1, 

2007. 

FOR FURTHER INFORMATION CONTACT: 

David W. Riley, Senior Analyst, (202) 

906–6669; Capital Policy, Karen 

Osterloh, Special Counsel, (202) 906–

6639, Regulations and Legislation 

Division, or Gary Jeffers, Senior 

Attorney, (202) 906–6457, Business 

Transactions Division, Office of Thrift 

Supervision, 1700 G Street, NW., 

Washington, DC 20552. 

SUPPLEMENTARY INFORMATION: 

I. Discussion 

A savings association must obtain 

OTS approval (or non-objection) before 

it may include subordinated debt 

securities or mandatorily redeemable 

preferred stock in supplementary (tier 2) 

capital. OTS rules at 12 CFR 563.81 

address application and notice 

procedures, requirements that securities 

must meet to be included in 

supplementary capital, conditions for 

OTS approval (or non-objection), and 

other requirements. 

On July 3, 2006, OTS proposed to 

update 12 CFR 563.81 to delete 

unnecessary or outdated requirements 

and conform certain provisions, such as 

maturity period requirements and 

purchaser restrictions, to the rules 

issued by the other federal banking 

agencies. In addition, OTS proposed to 

reconcile 12 CFR 563.81 with 

conflicting OTS rules, add appropriate 

statutory cross-references, and rewrite 

the rule in plain language.1

OTS received comments from two 

trade associations in support of the 

proposed rule. Both commenters 

observed that the proposed rule is a 

much-needed update to the existing 

provisions. They noted that the 

proposed rule clarifies the existing 

requirements, is more consistent with 

the rules issued by other federal banking 

agencies, is less burdensome than the 

current rule, and provides greater 

flexibility to savings associations. 

Commenters suggested only a few 

revisions to the proposed rule. These 

suggestions are discussed below. Unless 

otherwise noted, OTS has adopted the 

proposed rule without substantive 

change. 

A. Processing and Review of 

Applications and Notices—Final 

§ 563.81(b) and (d) 

The proposed rule amended the 

existing rules governing OTS processing 

and review of applications and notices 

seeking approval of, or non-objection to, 

the inclusion of subordinated debt 

securities or mandatorily redeemable 

preferred stock in supplementary 

capital. These revisions deleted 

outdated rules that overlapped or 

duplicated 12 CFR part 516 

(Application Processing Guidelines), 

and substituted appropriate crossreferences to that part. 

Commenters generally supported 

these revisions. One commenter, 

however, noted that proposed 

§ 563.81(a) stated that a savings 

association may file its application or 

notice before or after it issues the 

covered securities, but may not include 

the covered securities in supplementary 

capital until OTS approves the 

application or does not object to the 

notice. This commenter urged OTS to 

establish a 30-day time limit on OTS’s 

ability to object to a notice. The 

commenter argued that this change 

would provide a savings association 

with certainty that the covered 

securities that were the subject of a 

notice could be treated as tier 2 capital 

without further OTS action. 

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