Proposed Rule2026-19642
Department of Justice; Response to Correspondence Requesting Rulemaking
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Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 25, 2026
Issuing agencies
Justice Department
Abstract
This document responds to 10 submissions received by the Department of Justice ("DOJ" or "the Department") or its components that asked the Department or a component to initiate rulemaking. After reviewing these submissions, the Department declines to initiate rulemakings in response to them.
Full Text
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<title>Federal Register, Volume 91 Issue 185 (Friday, September 25, 2026)</title>
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[Federal Register Volume 91, Number 185 (Friday, September 25, 2026)]
[Proposed Rules]
[Pages 60905-60908]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-19642]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 91, No. 185 / Friday, September 25, 2026 /
Proposed Rules
[[Page 60905]]
DEPARTMENT OF JUSTICE
Office of the Attorney General
8 CFR Chapter V
27 CFR Chapter II
28 CFR Chapter I
[Docket No. OAG196; AG Order No. 7205-2026]
Department of Justice; Response to Correspondence Requesting
Rulemaking
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Petitions for rulemaking; denial.
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SUMMARY: This document responds to 10 submissions received by the
Department of Justice (``DOJ'' or ``the Department'') or its components
that asked the Department or a component to initiate rulemaking. After
reviewing these submissions, the Department declines to initiate
rulemakings in response to them.
DATES: September 25, 2026.
FOR FURTHER INFORMATION CONTACT:
For submissions to the Executive Office for Immigration Review:
Jamee E. Comans, Acting Assistant Director, Office of Policy, Executive
Office for Immigration Review, 5107 Leesburg Pike, Suite 2500, Falls
Church, VA 22041; telephone: (703) 305-0289.
For submissions to the Bureau of Alcohol, Tobacco, Firearms, and
Explosives: Vivian Chu, Office of Regulatory Affairs, Enforcement
Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and
Explosives, U.S. Department of Justice, 99 New York Ave. NE,
Washington, DC 20226; telephone: (202) 648-7070.
For other submissions: Christina Greer, Senior Counsel, Office of
Legal Policy, Department of Justice, Room 4254, 950 Pennsylvania Avenue
NW, Washington, DC 20530; telephone: (202) 514-5739.
SUPPLEMENTARY INFORMATION:
I. Background
The Administrative Procedure Act provides that ``[e]ach agency
shall give an interested person the right to petition for the issuance,
amendment, or repeal of a rule.'' 5 U.S.C. 553(e). The Department and
its components have reviewed the submissions requesting rulemaking
listed in Sections II and III of this Notice and decline to initiate
the requested rulemaking actions for the reasons provided below.
II. Submissions Relating to Immigration Issues
A. Submission From 100 Law Professors Dated May 27, 2021
On May 27, 2021, 100 law professors submitted correspondence,
``express[ing their] views'' on the construction and application of the
``unable or unwilling'' element of the ``refugee'' definition.
Recently, the Attorney General issued a decision \1\ concluding that
the legal framework within Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018),
is the best reading of the statute, inclusive of the ``unable or
unwilling'' element of the refugee definition. See Matter of S-S-F-M-,
29 I&N Dec. 207, 208 (A.G. 2025). Moreover, the Attorney General
instructed that inquiries regarding the proper application of the
``unable or unwilling'' standard ``are legal questions appropriately
resolved as part of the Attorney General's authority to issue
`controlling' decisions `with respect to all questions of law.''' Id.
at 209 (quoting Immigration and Nationality Act (``INA''), 103(a)(1), 8
U.S.C. 1103(a)(1)). Accordingly, as there is now current controlling
agency precedent on the ``unable or unwilling'' standard, which
specifically concludes that the issue is a legal question best left to
case-by-case adjudication, the Department declines to undertake
rulemaking as suggested in the law professors' submission. The petition
for rulemaking is, therefore, denied.
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\1\ Attorney General Pamela Bondi directed the Board of
Immigration Appeals to refer the case for her review pursuant to 8
CFR 1003.1(h)(1)(i). See Matter of S-S-F-M-, 29 I&N Dec. 207, 207
(A.G. 2025).
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B. Submission From Jonathan M. Kaufman Dated January 5, 2022
On January 5, 2022, Jonathan M. Kaufman submitted correspondence
requesting that the Department engage in rulemaking to implement the
William Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008 (``TVPRA''), Public Law 110-457, 122 Stat. 5044, asserting that
his client is entitled to a decision from an Immigration Judge that has
been informed by regulations promulgated in accordance with the TVPRA.
Although described in the correspondence as a petition for rulemaking,
this letter more squarely seeks resolution of issues for a particular
case that are more appropriately addressed through the administrative
adjudication or appeals process.
Additionally, the Department is already considering potential
regulatory action to implement the TVPRA and declines to take
additional rulemaking action at this time. See, e.g., Spring 2025
Unified Agenda, RIN 1125-AA70, Implementation of Section 235 of the
William Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008; Treatment of Unaccompanied Children, <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202504&RIN=1125-AA70">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202504&RIN=1125-AA70</a> [<a href="https://perma.cc/QM54-QS29">https://perma.cc/QM54-QS29</a>]. Should the Department decide to engage in rulemaking on
these topics in the future, the public is welcome to comment on any
proposed rule the Department may publish, as appropriate.
C. Submission From Members of Congress Dated October 30, 2023
On October 30, 2023, four members of Congress (Senators Richard J.
Durbin and Alex Padilla and Representatives Jerrold Nadler and Pramila
Jayapal) submitted a letter to former Attorney General Merrick Garland
and former Department of Homeland Security (``DHS'') Secretary
Alejandro Mayorkas requesting rulemaking to amend custody procedures,
including: shifting the burden of proof in bond proceedings; requiring
consideration of an alien's ability to pay bond when setting a bond
amount; providing aliens the opportunity to request review of mandatory
detention determinations under section 236(c) of the INA, 8 U.S.C.
1226(c); and scheduling periodic assessments of detained aliens to
identify unreasonably prolonged detention. Since this letter was
submitted, President Donald J. Trump issued an Executive Order titled
``Securing Our Borders,'' which establishes that it is the policy of
the
[[Page 60906]]
United States ``to take all appropriate action to secure the borders of
our Nation'' by ``[d]etaining, to the maximum extent authorized by law,
aliens apprehended on suspicion of violating Federal or State law,
until such time as they are removed from the United States.'' E.O.
14165, 90 FR 8467 (Jan. 20, 2025). The Department does not believe that
the requested actions comport with this directive. As such, the
Department denies the petition for rulemaking. Should the Department
decide to engage in rulemaking on these topics in the future, the
public is welcome to comment on any proposed rule the Department may
publish, as appropriate. The Department also notes, with respect to the
request to provide aliens the opportunity to seek review of mandatory
detention determinations, that Department regulations already provide
that aliens who are removable because of criminal or terrorism-related
grounds, and are therefore subject to mandatory detention under section
236(c)(1)(A)-(C) of the INA, 8 U.S.C. 1226(c)(1)(A)-(C), may seek ``a
determination by an [I]mmigration [J]udge that the alien is not
properly included within'' that class of aliens. 8 CFR
1003.19(h)(2)(ii).
D. Submission From Marta Alicia Mejia Alvarenga Dated September 11,
2023
Marta Alicia Mejia Alvarenga (``Mejia Alvarenga''), through
counsel, submitted correspondence dated September 11, 2023, titled
``Petition for Rulemaking Concerning the ```Unable or Unwilling''
Standard, the Proper Application of That Standard, and the Meaning of
the Statutory ``One Central Reason'' Test' (Matter of A-B-, 28 I & N
Dec. 307, 309 (A.G. 2021)),'' in which Mejia Alvarenga requests that
the Attorney General issue regulations clarifying certain requirements
for asylum and a related form of protection from removal. The petition
invokes President Joeseph R. Biden's Executive Order titled ``Creating
a Comprehensive Regional Framework to Address the Causes of Migration,
to Manage Migration Throughout North and Central America, and to
Provide Safe and Orderly Processing of Asylum Seekers at the United
States Border,'' see E.O. 14010, 86 FR 8267 (Feb. 2, 2021), which
ordered the Attorney General and Secretary of Homeland Security to
promulgate regulations within 270 days addressing certain requirements
for asylum and protection claims, id. at 8271, a deadline that had
passed by the time of the correspondence. Mejia Alvarenga also
expresses ``surpris[e]'' that a ``draconian standard'' for determining
whether a foreign government was or will be unable or unwilling to
provide protection from a persecutor was applied to her asylum
application and that the Department defended its application on
judicial review. Finally, Mejia Alvarenga asks that the Attorney
General issue the requested regulations unilaterally without the
concurrence of the Secretary of Homeland Security, if obtaining such
concurrence would ``slow down'' the process.
The Department declines to initiate rulemaking in response to this
correspondence for three reasons. First, on his first day in office,
President Trump revoked the Executive Order Mejia cites in her
petition. See Sec. 3(a), E.O. 14159, 90 FR 8443, 8443 (Jan. 20, 2025)
(``Protecting the American People Against Invasion''); Sec. 2(u), E.O.
14148, 90 FR 8237, 8238 (Jan. 20, 2025) (``Initial Rescissions of
Harmful Executive Orders and Actions''). Thus, the basis for Mejia
Alvarenga's request for rulemaking has been revoked. Second, although
labeled as a petition for rulemaking, the document more squarely
relates to Mejia Alvarenga's since-resolved challenge to her removal
order and her arguments as to the proper standard to apply for
determining whether a government is ``unable or unwilling'' to provide
protection from a persecutor. Notably, the Fifth Circuit has denied her
petition for review of her removal order. Mejia-Alvarenga v. Garland,
95 F.4th 319 (5th Cir. 2024). In so doing, the Fifth Circuit concluded
that the formulation of the ``unable or unwilling'' standard applied to
her--that is, whether the government condones the harm or is completely
helpless to protect the alien--is ``interchangeable'' with the ``unable
or unwilling'' standard. Id. at 324 (citing Gonzales-Veliz v. Barr, 938
F.3d 219, 233 (5th Cir. 2019)). Third, the Department is otherwise
unable to evaluate Mejia Alvarenga's request for rulemaking because she
provides no other reasons why the Department should grant her broad
request and fails to identify any specific regulatory changes that she
wants the Department to pursue. For these reasons, the Department
declines to initiate a rulemaking in response to Mejia Alvarenga's
correspondence. If the Department's view changes, Mejia Alvarenga is
welcome to comment on any proposed rule it may publish, as appropriate.
E. Submission From Sandra Beatriz Bustamante Leiva Dated September 11,
2023
On the September 11, 2023, Sandra Beatriz Bustamane Leiva and her
sons, through counsel, submitted a letter titled ``Petition for
Rulemaking Concerning `Circumstances in Which a Person Should Be
Considered a Member of a ``Particular Social Group,'' as That Term is
Used in 8 U.S.C. 1101(A)(42)(A)' (Ex[e]cutive Order No. 14010, 86 FR
8267, 8271 (Feb. 2, 2021)).'' The correspondence requests that the
Department take regulatory action so that their cases can be ``reviewed
under new regulations.''
The Department notes that the Executive Order cited as the basis
for the correspondence, Executive Order 14010, ``Creating a
Comprehensive Regional Framework to Address the Causes of Migration, to
Manage Migration Throughout North and Central America, and to Provide
Safe and Orderly Processing of Asylum Seekers at the United States
Border,'' has been revoked by two Executive Orders signed by President
Trump on January 20, 2025. See E.O. 14159, 90 FR 8443; E.O. 14148, 90
FR 8238. Accordingly, the Department will not be issuing rulemakings as
directed by Executive Order 14010. Should the Department decide to
engage in rulemaking on these topics in the future, the public is
welcome to comment on any proposed rule the Department may publish, as
appropriate.
F. Submission From the American Civil Liberties Union, et al., Dated
April 15, 2024
The American Civil Liberties Union (``ACLU'') and 52 other
organizations filed a petition dated April 15, 2024, titled ``Petition
for Rulemaking to Promulgate Regulations Governing the Provision of
Interpreters for Affirmative Asylum Interviews,'' in which they request
that DOJ and DHS promulgate regulations governing the provision of
interpreters for affirmative asylum interviews before U.S. Citizenship
and Immigration Services (``USCIS''). The Department thereafter
received letters supporting the petition from the New Mexico Immigrant
Law Center, American Gateways, the American Translators Association,
and the Florence Immigrant & Refugee Rights Project, among other
organizations.
The Department is denying this petition because the Department does
not have authority to amend regulations governing interviews before
DHS's asylum officers. As the petition for rulemaking recognizes,
authority over the adjudication of asylum applications is divided
between DOJ and DHS. The Homeland Security Act of 2002 (``HSA''),
Public Law 107-296, 116 Stat. 2135, as amended, transferred the
authority over affirmative asylum
[[Page 60907]]
applications from the Attorney General to the Secretary of Homeland
Security. See HSA 451(b)(3), 6 U.S.C. 271(b)(3). Accordingly, DHS has
authority over the consideration of affirmative asylum applications and
the concomitant procedures for such matters pending at USCIS. See INA
103(a), 208(b), 8 U.S.C. 1103(a), 1158(b). The petition for rulemaking
seeks an amendment to 8 CFR 208.9(g)(1), a DHS regulatory provision
located in chapter 1 of title 8 of the Code of Federal Regulations.
That provision governs interpreters in affirmative asylum interviews
before USCIS and outlines the procedures applicable before USCIS in the
affirmative asylum context--matters that are within the exclusive
purview of DHS. Accordingly, the Department declines to initiate the
rulemaking requested by the petition to amend the applicable DHS
regulation.
G. Submission From Amica Center for Immigrant Rights Dated July 12,
2024
In a petition for rulemaking dated July 12, 2024, the Amica Center
for Immigrant Rights, on behalf of itself and 28 other organizations,
urged DOJ and DHS to adopt regulations allowing for Immigration Judge
review of supervision conditions for aliens enrolled in the
Alternatives to Detention (``ATD'') programs overseen by DHS. The
organizations' stated concerns were based on the expanded use of ATD
programs, the lack of meaningful review of ATD conditions for specific
aliens, and the alleged harms caused by the use of such ATD programs.
For the same reasons described in Section II.C of this Notice, the
Department denies the petition. Specifically, since the petition was
submitted, President Trump issued an Executive Order entitled
``Securing Our Borders,'' which establishes that it is the policy of
the United States ``to take all appropriate action to secure the
borders of our Nation'' by ``[d]etaining, to the maximum extent
authorized by law, aliens apprehended on suspicion of violating Federal
or State law, until such time as they are removed from the United
States.'' E.O. 14165, 90 FR 8467. The Department does not believe that
the requested actions comport with this directive. As such, the
Department denies the petition for rulemaking. Should the Department
decide to engage in rulemaking on these topics in the future, the
public is welcome to comment on any proposed rule the Department may
publish, as appropriate.
H. Submission From the American Bar Association Dated December 12, 2024
On December 12, 2024, the American Bar Association (``ABA'')
through its President, William R. Bay, submitted correspondence
recommending that DOJ and DHS expedite Federal regulations that enhance
protections for individuals seeking asylum due to ``gender-based
violence.'' Specifically, the ABA recommended that DOJ and DHS: (1)
amend procedural standards regarding credibility assessments and
interpretations of the nexus prong and the particular social group
ground for asylum and withholding of removal; (2) develop and implement
trauma-informed procedures, training, and safeguards for all
interviews, hearings, and adjudications of ``gender-based'' claims for
protection; and (3) implement procedural safeguards to minimize the
risk of re-traumatization during interviews and hearings.
The Department believes that the Attorney General's recent decision
in Matter of S-S-F-M-, 29 I&N Dec. 207, provides sufficient clarity
regarding particular social group and nexus standards. Moreover,
procedural standards regarding credibility assessments and
interpretations of the nexus prong are sufficiently defined and
explained in the regulations and case law. See INA 208(b)(1)(B)(i), 8
U.S.C. 1158(b)(1)(B)(i) (establishing that the protected ground must be
``at least one central reason for persecuting the applicant''); id.
1158(b)(1)(B)(iii) (establishing the factors required for a credibility
determination); Matter of S-S-F-M-, 29 I&N Dec. at 209-210. Finally,
Immigration Judges receive robust training, and training requirements
do not need to be addressed through regulation. See, e.g.,
Massachusetts v. E.P.A., 549 U.S. 497, 527 (2007) (``[A]n agency has
broad discretion to choose how best to marshal its limited resources
and personnel to carry out its delegated responsibilities.'').
Accordingly, the ABA's request is denied.
III. Submissions Relating to Other Subjects
A. Submission From the American Clinical Laboratory Association Dated
September 30, 2024
The American Clinical Laboratory Association (``ACLA'') submitted a
petition dated September 30, 2024, pertaining to the Eliminating
Kickbacks in Recovery Act of 2018 (``EKRA''), 18 U.S.C. 220. EKRA
penalizes anyone who ``pays or offers any remuneration (including any
kickback, bribe, or rebate) . . . to induce'' a referral of a patient
to a lab, as well as anyone who solicits such remuneration. 18 U.S.C.
220(a)(1)-(2). EKRA was enacted after the Department of Health and
Human Services noted that abusive patient-brokering practices affected
private health insurance plans and that there was a gap in enforcement
because the Anti-Kickback Statute prohibited kickbacks impacting only
public payors and did not apply to privately insured patients. Elayne
J. Heisler & Jonathan H. Duff, Cong. Research Serv., R45423, Public
Health and Other Related Provisions in P.L 115-271, the SUPPORT for
Patients and Communities Act at 60-61 (updated Dec. 3, 2018).
ACLA's petition requests that the Attorney General issue rules to
permit a laboratory or any other employer to provide remuneration, in
any manner (including variable compensation), to an employed sales
representative provided that the employee does not knowingly and
willfully provide materially false or misleading information to
healthcare providers or patients. This appears to circumscribe the
scope of the statute to apply only in situations involving fraud, which
is already prohibited under other statutes. In addition, it would
contradict existing legal authority that recognizes that sales
representatives providing misleading information ``is not a necessary
set of circumstances'' for violating EKRA, although ``it is
sufficient.'' United States v. Schena, 142 F.4th 1217, 1226 (9th Cir.
2025). It also misunderstands the legislation's core purpose:
preventing financial incentives that could compromise patient care.
Even in the absence of fraud, such arrangements are harmful because
they deprive patients of choice and lead to unfair competition,
overutilization of services, unnecessary testing, and increased health
care costs. See Schena, 142 F.4th at 1224-25 (kickback payments to
physicians that induce referrals are illegal under EKRA); see also
United States v. Miles, 360 F.3d 472, 481 (5th Cir. 2004) (discussing
an Anti-Kickback Statute case in which a sale representative's
``judgment was shown to have been improperly influenced by the
payments'' without any fraudulent misrepresentations); HHS-Office of
Inspector Gen. Advisory Opinion No. 98-10 (Aug. 31, 1998) (Anti-
Kickback Statute Advisory Opinion), <a href="https://oig.hhs.gov/documents/advisory-opinions/385/AO-98-10.pdf">https://oig.hhs.gov/documents/advisory-opinions/385/AO-98-10.pdf</a> (certain marketing arrangements that
include compensation based on a percentage of sales ``appear to be
associated with an increased potential for program abuse,
[[Page 60908]]
particularly overutilization and excessive program costs'').
While framed as a narrow exception, allowing variable compensation
to sales representatives could effectively reintroduce the very
kickback structures EKRA was designed to eliminate. Adopting a
requirement that employees not knowingly and willfully provide false
information would set a high bar for enforcement that could hinder
efforts to prosecute cases where laboratories intentionally implement
commission-based payment systems to directly reward referrals. The
existing EKRA framework already permits reasonable employee
compensation structures unrelated to referral volume, while restricting
arrangements that create direct financial incentives for increasing
referrals.
Finally, any claimed regulatory burden imposed by EKRA on the
laboratory industry is substantially mitigated by the law's age and
established status. EKRA was signed into law by President Trump on
October 24, 2018, and it has now been in effect for almost eight years,
providing ample time for laboratories to adapt their business models
and compliance programs to align with its requirements. The laboratory
industry also has operated successfully under similar Anti-Kickback
Statute restrictions for variable compensation in connection with
Medicare and Medicaid for decades, with clear understanding of
compliant compensation structures. See United States ex rel. Lutz v.
Mallory, 988 F.3d 730, 738 (4th Cir. 2021) (``[F]ederal appellate
courts have frequently, and indeed invariably, upheld Anti-Kickback
Statute violations based on commission payments to third parties.'');
United States v. St. Junius, 739 F.3d 193, 210 (5th Cir. 2013) (``The
Anti-Kickback Statute prohibits receiving commissions in return for
referring a Medicare patient to a Medicare provider.''). The Department
has used its criminal enforcement power under EKRA judiciously and
there are no allegations in the request for rulemaking that it has
overreached. For these reasons, the Department denies ACLA's petition.
B. Submission From Howard S. Spokane Dated July 13, 2021
In July 2021, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (``ATF'') received a petition for rulemaking that suggested
ATF create a new licensing requirement for people possessing ``high-
velocity'' ammunition, which was developed for military use (the
petitioner stated this was explained in Wound Ballistics, a 1940s
publication) and causes much more severe injuries than conventional
ammunition. The petitioner suggested that this licensing requirement
include: (1) a law enforcement right to periodically inspect to ensure
the ammunition is stored safely; and (2) a psychiatrist's certification
that the applicant does not suffer from or have a history of mental
illness.
ATF declines to pursue this rulemaking. The Gun Control Act of
1968, as amended, prohibits the manufacture, importation, and
distribution of ``armor piercing ammunition,'' 18 U.S.C. 922(a)(7)-(8),
and also requires that individuals engaged in the business of importing
or manufacturing ammunition be licensed under 18 U.S.C. 922(a)(1)(B).
However, there is no statutory authority to regulate the sale or mere
possession of standard ammunition. As a result, ATF cannot establish a
licensing framework to possess high-velocity ammunition, as the
petitioner requests. To the extent that the petitioner considers high-
velocity ammunition to also be armor-piercing ammunition, ATF also
cannot pursue the petitioner's request because determining whether
ammunition is armor-piercing is a materials-based assessment under the
law and does not measure or test velocity. If a given high-velocity
ammunition is determined to be armor-piercing due to its materials, it
will already be regulated under ATF's current framework and additional
regulation would be unnecessary. Moreover, even in cases of armor-
piercing ammunition, ATF does not have statutory authority to license
possession.
Dated: September 21, 2026.
Todd Blanche,
Attorney General.
[FR Doc. 2026-19642 Filed 9-24-26; 8:45 am]
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