Full opinion text
MEMORANDUM OPINION SPELLMAN, District Judge. “Life is like an onion; you peel off one layer at a time, and sometimes you weep.” Carl Sandburg This case has been described by the Government as nothing more than an attack on the proper constitutional effort of the United States to protect its borders from invasion. It has been described by the Plaintiffs as the worse possible case of the Government of the United States engaging in invidious discrimination. The detention policy giving rise to this lawsuit has been described by some in the news media as a moral disgrace and by others as simply President Reagan’s answer to Carter’s timidity. The policy attempted to be formulated and implemented has been both praised and criticized before Congress. The religious leaders have assailed this matter as a moral issue; the Attorney General of the United States as a political decision. The letters received by this Court from the outset of receipt of this case in December of 1981 make it clear that to whomever this matter is addressed it is received neither dispassionately, objectively or without some bias having been formed well in advance. This opinion, the Court fears, will lack the understanding necessary to convey the complexity of the issues formed and the absolute necessity that in recognizing the right of the executive to exercise certain inherent powers, we must never lose sight of the rule of law. It is hoped that in the passioned subjectivity and prejudice of those that read this opinion those that assert detention to be morally wrong must realize that the executive branch of Government must sometimes adopt drastic policies to achieve purposes otherwise unattainable; and to those who would assert the omnipotent power of government to recognize that in adopting such policies they are never above the rule of law, however well intended their actions. The primary question raised by this action is whether an excludable alien can be incarcerated during the pendency and possible appeal of his claim for admission to this country. This case in a nutshell involves the individual right of freedom versus the right of the United States to enforce the immigration laws of this country. The sovereign United States government has an absolute right to control its borders. “The right to do so stems not only from legislative power, but is inherent in the executive power to control the foreign affairs of the nation. United States v. Curtis-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255; Fong Yue Ting v. United States, 149 U.S. 698, 713, 13 S.Ct. 1016, 1022, 37 L.Ed. 905. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.” Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950). Congress has passed extensive legislation governing the admission of aliens into this country. The legislation provides the executive with a [relatively] clear indication of Congress’ view of immigration policy and a way to carry out their intent. The basic premise of the immigration law is that no alien may enter the United States unless his entry is authorized by statute. An alien thus cannot lawfully come across the border of this country unless the law sanctions his entry. Conversely, an alien who complies with the legislative directives has a right to enter if he presents himself at a port of entry. 1 C. Gordon & H. Rosenfeld, Immigration Law and Procedure § 2.1b (footnotes omitted). The chief and almost exclusive concern of the immigration laws is with aliens who seek to enter the United States from abroad. Congress has imposed three types of restrictions on such aliens: qualitative restrictions bar certain classes of undesirable aliens, principally on health, moral, criminal, political or economic grounds. Numerical limits govern those aliens who come to stay permanently. Documentary restrictions establish identity and assure compliance with other prescribed requirements by commanding entering aliens to obtain and present certain documents, usually in the form of passports or equivalent papers. Congress has charged the executive branch with the duty to enforce the immigration laws. The Immigration and Naturalization Service (hereinafter INS), a component of the Department of Justice, is the agency that carries out the enforcement function of the executive branch in matters relating to immigration. INS has found the most efficient way to carry out this mandate is by requiring all aliens seeking admission to present themselves to immigration for inspection at designated ports of entry. Upon arriving at immigration, the aliens must establish their admissibility to the satisfaction of the immigration officer in charge. Admissibility is easily established if the alien has in his possession all of the documents necessary to enter provided these documents are in good order and not suspect. Many aliens choose not to follow the prescribed procedures for entering the United States. Some seek to enter surreptitiously at night, by crossing the border in remote, inaccessible areas; others through fraud. Within this class of aliens, motives vary from a simple desire to seek a better life to some individuals who truly seek to escape persecution and repression in their homeland. If an alien successfully crosses the border surreptitiously, the chances of being apprehended at a later time are slim. INS does not have the resources to make large scale searches for illegal entrants, to proceed against them and possibly expel them. It is much more efficient to use border patrol personnel to apprehend and deter aliens seeking to enter the country unlawfully. INS’ efforts in this regard are of marginal effectiveness because this nation’s borders are too expansive to be effectively patroled without continuous use of hundreds of thousands of guards. All of INS’ efforts are designed to ferret out aliens who for one reason or another are inadmissible, thereby keeping the number and character of immigrants entering the United States in line with congressional policy. Inadmissible aliens are either deportable or excludable; the former being persons who have effected an “entry”, the latter being persons deemed not to have entered the United States. The irony of this distinction is that deportable aliens, many of whom entered the country surreptitiously, are given more rights under the law than excludable aliens who present themselves to immigration. The practical effect of this is to encourage those who attempt to sneak across the border because they are rewarded with greater rights than those aliens who attempt to comply with our laws. Regardless of whether an alien is excludable or deportable, if the alien claims to be admissible INS must determine the merits of the claim. In the case of excludable aliens, Congress has enacted legislation giving them a right to an exclusion hearing. An exclusion hearing is a quasi-judicial proceeding that is held before an immigration judge. While the hearing is not subject to all of the protections of due process, it must be fair and in accordance with the statutes and regulations. If the alien loses at the exclusion hearing, the statute provides that he may seek review of that decision in the Board of Immigration Appeals (BIA). If this appeal is unsuccessful and a final order of exclusion is entered against the alien, that order may be reviewed by filing a petition for a writ of habeas corpus in the federal district court. The district court’s decision can be appealed to the United States Circuit Court of Appeals and ultimately the alien may seek review by certiorari in the United States Supreme Court. The practical effect of trial and appellate rights for excludable aliens is that if he is apprehended, an alien determined to stay here who retains a skilled immigration lawyer may prolong his departure from this country for years. A. BACKGROUND The ineffectiveness of our immigration system is vividly reflected by the present conditions in South Florida. The migration of undocumented Haitians to South Florida began in December 1972. By the beginning of 1981, an estimated thirty-five thousand undocumented Haitians were already present in this region. Yet, throughout this time, INS has failed to develop a comprehensive policy to deal with the situation. During this period of time, INS entered into an agreement with the National Council of Churches providing that Haitians who arrived in South Florida by boat other than a certified carrier were to be detained only a brief period of time for medical screening and were routinely released to available sponsors and given work authorizations. The release of Haitians lasted until the Spring of 1981. In early April 1980 some 10,000 Cubans sought sanctuary in the Peruvian Embassy in Havana, Cuba. Within a few days thereafter, boats began to leave South Florida for Cuba’s Mariel Harbor, in order to bring Cubans to the United States. Thus began the Mariel Boatlift or Freedom Flotilla during which some 125,000 Cubans were brought to the United States in the Spring of 1980. The boatlift, and the Government’s inability to control it, were natural and foreseeable consequences of this country’s lack of a comprehensive immigration policy. Once the “Freedom Flotilla” started, nothing could be done except to allow the Cubans to arrive and then formulate, on a post hoc basis, a plan to process and resettle them. When the plan was developed, it also took into account the Haitians who had entered the United States during this period. The Carter Administration established a “Cuban/Haitian” entrant status for all Cubans who arrived in the United States between April 21 and June 20,1980, and for all Haitians who arrived prior to June 20. The Carter Administration’s plan did no more than assign an immigration status to these aliens and assist in the efforts to resettle them. The local communities were left with the task of providing jobs, housing, health care and food for the approximately 150,000 new residents of South Florida. This burden taxed local resources to their limits and continues to do so. B. POLICY CHANGE In February 1981, the Select Committee on Immigration that was appointed by the Carter Administration issued a report that concluded what this community was already painfully aware of: an immigration crisis exists in this country. As a result, President Reagan, in March 1981, convened a special task force to consider the continuing problem of illegal immigration into the United States. The Attorney General presided over the task force which consisted of the cabinet officers in charge of the Departments of State, Defense, Transportation, Labor, Commerce, Health and Human Services and the Director of the Office of Management and Budget. The task force recognized the tremendous problems created by illegal immigration, particularly at a time of inflation and unemployment, and noted that the public “[cjoncern has been heightened by the mass influx of Cubans and Haitians into South Florida and the continuing arrivals of refugees from other parts of the globe.” Materials were submitted to the task force demonstrating that there were anywhere between three to six million people, possibly more, here illegally and that we had developed an underground society in America. Because these people constantly lived in fear of being deported, they were particularly vulnerable to unfair labor practices, as well as other forms of economic intimidation. In addition, the task force found that illegal aliens became associated with criminal acts and even when they were not participants, they would not come forward as either victims or witnesses of crimes. The task force attempted to develop comprehensive solutions to deal with these and other problems resulting from continuing illegal immigration and the presence in American society of large numbers of illegal aliens. The policy proposals that came out of the task force can best be described by dividing them into two categories. The first proposal was designed to deal with those illegal aliens already present in the United States. Rather than waste the resources that would be necessary to apprehend, bring deportation proceedings and possibly expel these people, the task force recommended to the President that there be an amnesty program to legalize the status of the illegal alien population. Having made this decision, a second group of proposals dealing with aliens unlawfully coming to the United States was necessary. The task force was concerned that an amnesty program, particularly on so large a scale, would encourage even more illegal immigration by persons seeking to obtain the benefits thereof. Accordingly, the task force also recommended increased efforts to enforce the immigration laws as written and proposed new legislation designed to correct problem areas in the existing legislation. One of the major new policies that was recommended and adopted were sanctions against employers who employ illegal aliens. This was designed to remove one of the motivations to come here illegally. Another proposal was to amend the criminal laws so that it clearly became a crime to bring aliens illegally into the country regardless of whether it is done surreptitiously or openly as it was done during the Mariel Boatlift. Such a statute would hopefully deter another Mariel. It vras also recommended that there be a return to a policy of detaining aliens until they can establish to INS’ satisfaction a prima facie claim for admission to this country. The President approved the recommendations of the Task Force with respect to an amnesty proposal and increased enforcement efforts, including detention. In addition, he approved a limited proposal to interdict the flow of illegal immigration from the Caribbean. Thereafter, on July 30, 1981, the President issued a statement on the immigration policy of this nation. That statement noted that “[i]mmigration and refugee policy is an important part of our past and fundamental to our national interest.” Moreover, the statement emphasized the need to “establish control over immigration” and pointed out that the Attorney General was taking administrative actions as well as submitting proposed legislation designed to guarantee that foreigners were admitted to the United States “in a controlled and orderly fashion. . .” That same day the Attorney General appeared before a joint session of the Senate Subcommittee on Immigration and Refugee Policy and the House Subcommittee on Immigration and Refugee Policy and the House Subcommittee on Immigration, Refugees and International Law. The Attorney General advised Congress that “we have lost control of our borders. We have pursued unrealistic policies. We have failed to enforce our laws effectively.” In that connection, the Attorney General noted that the Government’s attempt to screen and process those seeking entry into the United States has simply “crumbled under the burden of overwhelming numbers.” As part of the overall plan to regain control over the borders, the Attorney General emphasized the “necessity of detaining illegal aliens pending exclusion.” Part of the new immigration program approved by the President called for more restrictive use of parole and increased use of detention. However, the Task Force’s proposal in this area, and the statute on which they relied, did not indicate to those who had to administer the new policy which excludable aliens were to be detained. Justice Department and INS personnel were given the responsibility to develop the specific aspects of this plan. The people in charge of drafting the detention guidelines were cognizant of the fact that the new policy was not applicable to all excludable aliens. INS never intended to physically incarcerate persons who complied with the prescribed procedures for admission but were excludable on minor, technical grounds such as a clerical error on their visa. The policy was designed to deal with another Mariel type situation, regardless of the nationality or number of the arriving aliens. Therefore, the guidelines for detention had to reflect the perceived characteristics such a group of aliens would have. The problem was isolating these characteristics and incorporating them into guidelines that were capable of being objectively applied in individual cases. The President did not specify whether the development of specific detention and parole criteria was to be accomplished internally by INS or through a rulemaking procedure in which the public could participate. INS elected to do neither. They admitted to the Court that they made a conscious decision not to promulgate a rule pursuant to the Administrative Procedure Act. The evidence shows that they never seriously undertook the difficult task of drafting a set of guidelines concerning which aliens would be placed in detention. Instead, INS issued general instructions to its field officers to start detaining excludable aliens who do not establish a prima facie claim for admission. Defendants can point to no operating instruction, internal memorandum or other document that completely reflects the official detention policy. Consequently, the Court cannot precisely define the criteria for detention any better than the Government’s witnesses articulated them. However, the general theme that emerges from the evidence is that aliens are to be detained unless and until they establish to INS’ satisfaction a prima facie claim for admission. Within this framework, the District Director had no discretion to grant deferred inspection to Haitians arriving aboard non-signatory carriers without first placing them in detention. C. THE CLASS — THE EVIDENCE The evidence shows that prior to May 20, 1981, Haitian refugees arriving in this country, for whom the INS initiated exclusion proceedings, were detained for a brief period of time necessary for routine public health screening and released on parole into the community to relatives or voluntary agencies willing to act as sponsors. This “policy” abruptly changed sometime between May 20,1981 and July 31, 1981; and a policy of detention was initiated. Notwithstanding the fact that there are no clear guidelines for who should be detained and who should be paroled, INS has continued to enforce the new policy. As of the date of this Order, pursuant to this policy, some class members have been in detention for over 11 months awaiting a determination on their claims for admission. The Court heard testimony that some non-Haitians in exclusion proceedings were not detained even though they arrived after the effective date of the new policy. Most of the testimony in this regard was general but some specific examples were given. While it appeared some of these individuals were clearly excludable, the evidence was insufficient to establish that they had similar immigration status but were treated differently than Plaintiffs. In addition to the testimony regarding disparate treatment, both parties introduced documentary evidence on the number of Haitians versus non-Haitians being detained and paroled. The evidence shows that both Haitians and non-Haitians are being detained, but that more Haitians are being detained and for longer periods of time than non-Haitians. The evidence also demonstrates that a larger percentage of non-Haitians are granted parole or deferred inspection than the percentage of Haitians. Plaintiffs’ expert statistician interpreted this data to mean there is a statistically significant relationship between being detained and being Haitian. The Court does not quarrel with this conclusion but believes that it does not deserve much weight in determining the merits of Plaintiffs’ discrimination claim. Parole is not a random process and the probability of parole is not the same for every person. The decision to grant a deferred inspection takes into account many factors not contained in the data analyzed by Plaintiffs’ statistician. Factors that may be considered include the age and health of the alien as well as the reason he does not appear entitled to enter this country. Other factors include being accompanied by a minor and pendency of an 1-130 application. These factors, with the exception of documentation, were not separately analyzed by Plaintiffs’ expert. With regard to his analysis of the significance of possessing documents it was far too simplistic because it did not distinguish between the types of documents possessed and the facial validity thereof. The evidence before the Court simply did not establish the existence of a statistically significant relationship between being detained and being Haitian in the context of similarly situated individuals. The only conclusion that can be drawn from this evidence is that Haitians are being impacted by the detention policy to a greater degree than aliens of any other nationality at the present time. Detention was not and is not intended to be an end in itself. It was proposed and adopted as an integral part of an overall revision of our immigration policy. At or about the time detention began, other changes in the exclusion procedure were being implemented. These changes included (1) immediate service on the alien of a notice to appear for an exclusion hearing (1-122), (2) interviews with the alien prior to the hearing to determine the nature of his claim for admission and (3) mass exclusion hearings. In response to these changes in the hearing procedure, this lawsuit was instituted. On September 30, 1981 nunc pro tunc September 9,1981, Judge Hastings entered a Temporary Restraining Order, later converted into a preliminary injunction, that prohibited the Defendants from holding exclusion hearings for class members. That Order did not address the issue of the propriety of Plaintiffs’ detention. In the summer of 1981, the Krome detention facility became severely overcrowded. This condition resulted from a combination of factors including HRC’s assumption of legal responsibility for representing over 500 Haitians detained at Krome, the filing of this lawsuit and subsequent injunction of exclusion proceedings by Judge Hastings and the continuous flow of Haitians into South Florida. In July 1981, the State of Florida instituted suit against the Federal Government because of the overcrowding at Krome. In the course of the litigation, the Government represented that efforts would be made to keep the population at Krome at or under 1000 persons. In order to abide by this representation to the Court, the Government had to start transferring Haitians out of Krome whenever the population exceeded 1000. As space became available in July 1981, the Government transferred Haitians from Krome to other INS detention locations, including Fort Allen, Puerto Rico; Brooklyn, New York, and to facilities made available by the Bureau of Prisons in places such as Otisville and Raybrook, New York; La-tuna and Big Springs, Texas; Lexington, Kentucky; Morgantown and Alderson, West Virginia. Pursuant to the new detention policy, approximately 2100 individual Plaintiffs continue to be incarcerated in these various detention facilities. D. THE CLASS — PLAINTIFFS’ CLAIMS The Plaintiffs herein are the Haitian Refugee Center, Inc., Lucien Louis, Wilner Luberisse, Jean Louis Servebien, Pierre Silien, Serge Verdieu, Milfort Vilgard, Joel Casimir, Job Dessin and Prophete Talleyvand, on behalf of themselves and all others similarly situated. The class certified by the Court consists of: All Haitian aliens who have arrived in the Southern District of Florida on or after May 20, 1981, who are applying for entry into the United States and also are presently in detention pending exclusion proceedings at various INS detention facilities, for whom an order of exclusion has not been entered and who are either: 1) Unrepresented by counsel; or 2) Represented by counsel pro bono publico assigned by the Haitian Refugee Volunteer Lawyer Task Force of the Dade County Bar Association. Plaintiffs have advanced a two-prong attack on the Government’s new detention policy. They argue first that before the policy was instituted, they were entitled, under the provisions of the Administrative Procedure Act (hereinafter “APA”), to notice and an opportunity to comment. See 5 U.S.C. § 553. INS’ failure to follow this procedure, they claim, requires this Court to find their detention to be unlawful. Second, Plaintiffs contend that the detention policy is discriminatory on its face in that only Haitians fall within its purview. In the alternative, if the policy is construed to apply to all excludable aliens, Plaintiffs claim it is being applied unequally to their detriment. Thus, the essence of their second argument is that the detention policy is illegal because it is discriminatory on its face and/or in its application. Plaintiffs claim such discrimination violates the Equal Protection guarantees of the Fifth Amendment to the United States Constitution as well as the provisions of Articles 3 and 31 of the United Nations Convention and Protocol Relating to the Status of Refugees, to which the United States is a signator. See 19 UST 6260 T.I.A.S. No. 6577 (the “Convention”); 19 UST 6223, T.I.A.S. No. 6557 (the “Protocol”). E. JUSTICIABILITY Prior to contesting the merits of the claims before the Court, Defendants raised three issues of justiciability: exhaustion of administrative remedies, the political question doctrine and standing. Some of these issues have been partially addressed in a prior Order of the Court but apparently they have not been put to rest. Because these challenges go to the heart of the Court’s power to adjudicate the case before it, the Court will take this opportunity to set forth its reasons for exercising jurisdiction. 1. EXHAUSTION OF ADMINISTRATIVE REMEDIES Defendants contend that this lawsuit is an improper attempt to procure the release en masse of detained Haitians even though they have made no showing that some or all of the aliens have requested parole and parole has been denied. Until Plaintiffs request the District Director to exercise his discretion to parole them, Defendants believe judicial intervention is inappropriate. Plaintiffs have countered this argument by introducing evidence that some, if not all, of the class members have requested parole. The evidence consists of written requests for parole made on behalf of Haitians in detention by relatives, the Haitian Refugee Center, Inc., privately retained attorneys, pro bono attorneys, and religious and charitable organizations. There is also testimony that class members regularly make oral requests for release to the INS officials at the various detention facilities. Plaintiffs argue that the Court should take jurisdiction over their claims even if the evidence does not support a finding that all class members requested parole because their claims fall within certain exceptions to the exhaustion rule and a balancing of equities mandates judicial intervention at this time. A party will normally be denied judicial relief until the administrative remedies available to him have been exhausted. By refusing to interrupt the administrative process, several policies are advanced: (1) a more complete record is developed; (2) the agency is allowed to exercise its discretion or expertise; (3) the agency is allowed to correct its own errors and (4) the agency is not weakened by easy circumvention of its procedures. See generally Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 58 S.Ct. 963, 82 L.Ed. 1408 (1938); Meyers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 52 S.Ct. 459, 82 L.Ed. 638 (1938); McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). However, the exhaustion doctrine should not be rigidly applied. It is a flexible concept that must be tailored to the administrative statutes and circumstances peculiar to the case. Thus, the failure of one or more of the Plaintiffs to exhaust his administrative remedies does not automatically preclude the Court from hearing their claims. That decision must be based on a balancing test that employs the policy factors favoring exhaustion and the circumstances peculiar to Plaintiffs’ case that favor judicial review. See Ecology Center of Louisiana Inc. v. Coleman, 515 F.2d 860 (5th Cir. 1975). Continuous use of the balancing test has resulted in the judiciary’s development of several exceptions to the exhaustion rule. In Patsy v. Florida International University, 634 F.2d 900 (5th Cir. 1981) the Fifth Circuit, sitting en banc, stated: Briefly the traditional exceptions are first, exhaustion is not required when the prescribed administrative remedy is plainly inadequate because either no remedy is available, the available remedy will not give relief commensurate with the claim, or the remedy would be so unreasonably delayed as to create a serious risk of irreparable injury. Walker v. Southern Railway, 385 U.S. 196, 87 S.Ct. 365, 17 L.Ed.2d 294 (1966); Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910 (1956); United States v. Joseph A. Holpuch Co., 328 U.S. 234, 66 S.Ct. 1000, 90 L.Ed. 1192 (1946); United States Alkali Export Association v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554 (1945): 3 K. Davis, Administrative Law § 20.07 (1958 and Supp.1970, 1976 & 1978). Second, when the claimant seeks to have a legislative act declared unconstitutional and administrative action will leave standing the constitutional question, exhaustion is not required. Public Utilities Commission v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470 (1958); Davis, supra, at § 20.04. Third, courts do not require exhaustion when the question of the adequacy of the administrative remedy is for all practical purposes co-extensive with the merits of the plaintiff’s claim, such as when, for example, the plaintiff contends that the administrative system itself is unlawful or unconstitutional in form or application. Fuentes v. Roher, 519 F.2d 379 (2d Cir. 1975); Finnerty v. Cowen, 508 F.2d 979, 982-83 (2d Cir. 1974). Fourth, exhaustion of administrative remedies is not required if it would be futile to comply with the administrative procedures because it is clear that the claim will be rejected. City Bank Farmers Trust Co. v. Schnader, 291 U.S. 24, 54 S.Ct. 259, 78 L.Ed. 628 (1934); Montana National Bank v. Yellowstone County, 276 U.S. 499, 48 S.Ct. 331, 72 L.Ed. 673 (1928). 634 F.2d at 903-04. In the case at bar,, the Court believes that the third and fourth exceptions to the exhaustion rule make Plaintiffs’ claim justiciable. The administrative remedy available is co-extensive with Plaintiffs’ claim in that the form and application of the remedy is under attack on statutory and constitutional grounds. Clearly, INS has no power to adjudicate the legality of its own policy under the provisions of the APA and the agency is similarly incapable of resolving the challenges to the manner in which the policy is applied. Moreover, its incapacity in this regard leads the Court to conclude that further attempts for administrative relief would be futile. The Court can see no rational purpose for requiring these class members to seek relief from the INS, since the law never requires one to do a useless act; here such a request would, with few exceptions, fall on deaf ears. Nor does the Court feel that the policy factors favoring exhaustion will be advanced by requiring these Plaintiffs to request parole at this time. First, the record before the Court is satisfactory in that it establishes the current criteria for release on parole. Individual administrative records are not necessary because the Court is not being asked to review individual parole decisions. The issue before the Court is legal, not factual, and further development of the administrative record would not significantly aid judicial review. Second, allowing the agency to exercise its discretion would accomplish nothing if, as Plaintiffs allege, the District Directors either have no discretion to parole them, or use unlawfully adopted criteria for release when exercising their discretion. Finally, the Court is of the view that additional requests for parole will not result in a decision to change or correct this allegedly unlawful policy. Without a judicial determination that Plaintiffs’ detention is unlawful, it appears that many of them will remain in custody and under these circumstances, allowing them to challenge their detention will not weaken the established administrative mechanism to attain release on parole. Thus, after balancing the harshness of requiring exhaustion and the apparent inability of INS to provide relief against the factors favoring exhaustion, the Court finds that a dismissal on this ground is unwarranted. Ecology Center of Louisiana v. Coleman, 515 F.2d 860 (5th Cir. 1975). 2. THE POLITICAL QUESTION DOCTRINE The essence of Defendants’ second challenge to the justiciable nature of this lawsuit is that: [A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference. (Citations omitted). Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976). Parole of Haitians, Defendants contend, raises political questions over which this Court does not have jurisdiction. It is inconceivable that the decision whether to detain or parole these class members would have a significant impact on the manner in which this country conducts its foreign policy. Assuming arguendo that the decision to detain excludable aliens is “intricately interwoven” with our foreign policy, the political question doctrine is inapplicable. The Court has not been called upon to determine the propriety of the detention policy and it intimates no view on the wisdom of the Administration’s decision in this regard. Plaintiffs are asking the Court to decide whether their statutory and constitutional rights are being violated. To ensure that individuals are not injured by unlawful action in the immigration and naturalization context, courts rarely apply the political question doctrine when such challenges are brought. As one treatise notes: Finally, the pervasive influence of the political question doctrine on fields touching on foreign affairs has not led courts to surrender their power to protect individuals against government action. To the contrary, individual rights are protected carefully, although within a framework that takes account of the broad substantive powers of the other branches. Harisiades v. Shaughnessy, [342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952) ] provides a much-invoked illustration. Ultimately the Court upheld the challenged deportation order, and it spoke tenderly of the threads weaving policy toward aliens into the pattern of political judgments dealing with foreign affairs. But it decided on the merits challenges based on due process, the First Amendment, and the ex post facto clause. Respect for the political branches affects, but does not preclude, decision on the merits. 13 Wright & Miller, Federal Practice and Procedure § 3534 at 314 (1976). (Footnotes omitted). For these reasons, the Court believes this case is justiciable notwithstanding the Supreme Court’s admonition in Mathews v. Diaz, supra. 3. STANDING The “three-part test [for standing to contest the validity of agency actions] established in Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) and Association of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ... is: (1) the challenged action must result in injury-in-fact to the plaintiffs; (2) the interest invaded must be arguably within the zone of interest to be protected by the statute; and (3) there must be no statutory prohibitive of judicial services.” Suntex Dairy v. Bergland, 591 F.2d 1063, 1066 (5th Cir. 1979). The injury-in-fact element of the standing test requires Plaintiffs to demonstrate a sufficiently direct and concrete injury. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), which is likely to be readdressed if Plaintiffs prevail on the merits. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 262, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). The Plaintiff class members in the case sub judice have met this constitutional requisite for standing; their injury-in-fact consists of their continued, allegedly illegal, incarceration pending resolution of their political asylum claims. The second element of the standing test is mandated by the APA. A person who is “adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof” under Section 10(a) of the APA. 5 U.S.C. § 702. A plaintiff satisfies the APA’s standing requirement if his interests are arguably within the zone of interests that the statute in question was intended to protect or regulate. Association of Data Processing Service Organization, Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). The “relevant statute” is the agency’s enabling act or other legislation under which the zone of interests is purported to exist. 5 B. Mezines, J. Stein & J. Gruff, Administrative Law § 50.03, at 50-25 (1980). The Court believes that the “relevant statute” in the case at bar is Section 212(d)(5) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(d)(5); the statute which the agency’s new policy authoritatively interprets. State of Florida v. Weinberger, 492 F.2d 488, 494 (5th Cir. 1974). Although the statute speaks in terms of parole “for emergent reasons or for reasons deemed strictly in the public interest”, parole has been characterized by the Supreme Court as a “device through which needless confinement is avoided while administrative proceedings are conducted.” Leng May Ma v. Barber, 357 U.S. 185, 190, 78 S.Ct. 1072, 1075, 2 L.Ed.2d 1246 (1958). Viewed from the latter perspective, the interests Plaintiffs seek to advance, to wit, freedom pending resolution of their asylum claims, are arguably within the zone of interests sought to be protected by Section 212(d)(5) of the Immigration & Naturalization Act. The final question is whether judicial review of agency action is prohibited. The Court’s consideration of this question must of necessity encompass Defendants’ claim that decisions regarding parole are not judicially reviewable because release on parole is committed to agency discretion within the meaning of Section 10 of the APA, 5 U.S.C. § 701(a)(2), by 8 U.S.C. § 1182(d) (5)(A). As a general rule, “a person suffering legal wrong because of agency action or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof.” 5 U.S.C. § 702. The general rule applies “except to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(1), (2). The exception from APA review of agency action “committed to agency discretion” is a very narrow exception. Save the Bay, Inc. v. Administrator of the E.P.A., 556 F.2d 1282, 1293 (5th Cir. 1977). The legislative history of the APA, referred to in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), indicates that the committed to agency discretion exception to judicial review is intended to be “applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ S.Rep.No.752, 79th Cong. 1st Sess. 26 (1945).” Id. at 410, 91 S.Ct. at 820. (Emphasis added). In construing 5 U.S.C. § 701(a) the Supreme Court has stressed the “basic presumption of review.” Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). The burden of proving nonreviewability is on the agency involved. See Id. Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); “[JJudicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.” See Morris v. Gressets, 432 U.S. 491, 501, 97 S.Ct. 2411, 2418, 53 L.Ed.2d 506 (1977); Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 1857, 44 L.Ed.2d 377 (1975); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971); Tooahnippah v. Hickel, 397 U.S. 598, 606, 90 S.Ct. 1316, 1321, 25 L.Ed.2d 600 (1970); Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 155-57, 90 S.Ct. 827, 830-31, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970). The reviewing court must determine “whether Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion.” Morris v. Gressette, 432 U.S. 491, 501, 97 S.Ct. 2411, 2418, 53 L.Ed.2d 506 (1977); Barlow v. Collins, 397 U.S. 159, 165, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970). As no provision of the Immigration and Naturalization Act expressly precludes judicial review of the Attorney General’s actions under § 212(d)(5), it is necessary to determine “whether unreviewability can fairly be inferred.” 397 U.S. at 166. See Association of Data Processing Service Organization v. Camp, 397 U.S. 150, 157, 90 S.Ct. 827, 831, 25 L.Ed.2d 184 (1970); Switchmen v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943); Morris v. Gressette, 432 U.S. 491, 501, 97 S.Ct. 2411, 2418, 53 L.Ed.2d 506 (1977). That inquiry requires an evaluation of the legislative scheme as well as the practical and policy implications of judicial review. Bullard v. Webster, 623 F.2d 1042, 1046 (5th Cir. 1980), cert. denied 451 U.S. 907, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981); Local 2855 v. United States, 602 F.2d 574, 575 (3rd Cir. 1969). There must be a weighing of the need for, and feasibility of, judicial review versus the potential for disruption of the administrative process. Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969). Criteria suggested by the Third Circuit in Local 2855 for making such a determination include (1) the broad discretion given an agency in a particular area of operation, (2) the extent to which the challenged action is the product of political, economic or managerial choices that are inherently not subject to judicial review, and (3) the extent to which the challenged agency action is based on some special knowledge or expertise. 623 F.2d at 1046. Section 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(5) provides in part “[t]he Attorney General may ... in his discretion parole into the United States temporarily and under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States...” The Attorney General’s discretion has been delegated to the District Directors by regulation, see 8 C.F.R. § 212.5, and the District Director has further delegated that authority to his subordinates provided they are not below the level of an officer in charge or an immigrant inspector in charge of a port of entry. See INS Operations Instruction 212.5. The fact that the statute by its terms permits rather than compels, agency action does not alone commit that action to the agency’s unreviewable discretion. See Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093 (D.C.Cir.1970); cited in Save the Bay, Inc. v. Administrator of the E.P.A., 556 F.2d 1282, 1293 (5th Cir. 1977). Nor can nonreviewability be inferred from the apparently broad discretion given INS in this area of operation. For many years, the statute’s language has been construed to mean that aliens seeking admission to the United States should not be placed in physical incarceration unless they were a security risk to the United States or likely to abscond. This interpretation was recognized by the Supreme Court in Leng May Ma v. Barber, 357 U.S. 185, 190, 78 S.Ct. 1072, 1074, 2 L.Ed.2d 1246 (1958) and by INS in its Immigrant Inspector’s Handbook. INS’ Operations Instruction and the regulations, 8 C.F.R. § 212.5, appear to be consistent with this expansive reading of the parole provision because they give INS officials broad discretion to grant release on parole. Thus, the statute delineates some limits on INS’ discretion to parole aliens and thereby provides a standard for courts to decide in particular cases whether there has been an abuse of discretion and application of the criteria require no special knowledge or expertise. The need for judicial review of parole decisions is apparent. Regardless of their status as excludable aliens, Plaintiffs are persons within the territorial jurisdiction of the United States and they cannot be denied their liberty without due process of law. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976); Haitian Refugee Center, Inc. v. Smith, 676 F.2d 1023 (11th Cir. 1982). Judicial review is the only means to insure that aliens seeking parole get the process they are due. An alien’s challenge to a denial of parole in no way affects or impedes INS’ ability to proceed to determine his admissibility; and, therefore, the Court believes judicial review is feasible without disruption of the administrative process. After reviewing the statute, regulations and legislative history thereof, the Court has been unable to find “clear and convincing evidence” that Congress intended to cut off judicial review of parole decisions. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1969). Clearly, the Attorney General’s decision involves some degree of discretion of judgment. But it cannot be said that, for this reason, his actions are unreviewable. Moreover, the Court believes that the need for and feasibility of judicial review far outweighs the potential disruption of the administrative process and it finds, therefore, that parole determinations are not committed to agency discretion by law and can be reviewed pursuant to 5 U.S.C. § 702. Assuming arguendo that the substantive decision to parole is committed to agency discretion, judicial review is still available for limited, specific issues subsumed in the decision making process. See Ness Investment Corp. v. United States, 512 F.2d 706 (9th Cir. 1975); East Oakland Fruitvale Planning Counsel v. Rumsfeld, 471 F.2d 524 (9th Cir. 1972); Medical Committee for Human Rights v. SEC, 432 F.2d 659 (D.C.Cir.1970), vacated as moot, 404 U.S. 403, 92 S.Ct. 557, 30 L.Ed.2d 560 (1972); Save the Bay, Inc. v. Administrator of E.P.A., 556 F.2d 1282 (5th Cir. 1977). Such partial review serves to protect individuals’ interests adversely affected by agency action while imposing only limited, acceptable intrusion upon the administrative process and the dockets of the federal courts. See Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion,” 82 Harv.L.Rev. 367 (1968). Along these lines it has been said that “[T]he question is not whether agency action is by law committed to agency discretion but to what extent agency action is so committed.” 4 K. Davis, Administrative Law Treatise 33 (1958), quoted in Medical Committee for Human Rights, Inc. v. SEC, supra, 432 F.2d at 673 (Emphasis in quote). 556 F.2d at 1293. The circumstances where judicial review is appropriate, in spite of a finding that agency action is committed to discretion by law, was cogently analyzed by the Ninth Circuit in Ness Investment Corp. v. United States, 512 F.2d 706 (9th Cir. 1975). The conclusion reached by the court was: Where consideration of the language, purpose and history of a statute indicate that action taken thereunder has been committed to agency discretion: (1) a federal court has jurisdiction to review agency action for abuse of discretion when the alleged abuse of discretion involves violation by the agency of constitutional, statutory, regulatory or other mandates or restrictions; (2) but a federal court does not have jurisdiction to review agency action for abuse of discretion when the alleged abuse of discretion consists only of the making of an informed judgment by the agency. 512 F.2d at 715. Plaintiffs seek to have the criteria for release declared unlawful because it was adopted in violation of the APA. Thus, the alleged abuse of discretion consists of a statutory violation not an error of judgment. Viewed from this perspective, the Court believes judicial review is permissible. In summary, the Court finds that Defendants’ challenges to Plaintiffs’ standing lack merit. Plaintiffs have met the constitutional requisite for standing in that their continued allegedly illegal incarceration constitutes injury-in-fact. They have met the APA’s standing criteria because they fall within the zone of interest of persons that the relevant statute was intended to protect or regulate. Finally, there is no statutory bar to judicial review and the Court cannot find any clear and convincing evidence that Congress intended to commit parole decisions to agency discretion. F. SUBJECT MATTER JURISDICTION [9,10] United States District Courts are tribunals of limited jurisdiction; their power to hear a case is dependent upon congressional implementation of one of the Constitution’s grants of subject matter jurisdiction. Plaintiffs as unadmitted and nonresident aliens occupy a unique position in the law. It is clear that they have no right to enter this country as nonimmigrants or otherwise. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904); Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950); Galvan v. Press, 347 U.S. 522, 530-32, 74 S.Ct. 737, 742-43, 98 L.Ed. 911 (1954); Harisiades v. Shaughnessy, 342 U.S. 580, 592, 72 S.Ct. 512, 520, 96 L.Ed. 586 (1952); Kliendeinst v. Mandel, 408 U.S. 753, 762, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972). “Whatever the procedure authorized by Congress is, it is due process as far as the alien denied entry is concerned.” 338 U.S. at 544, 70 S.Ct. at 313. The Defendants would have this Court rule that because Congress, when enacting the Immigration and Nationality Act, did not provide for judicial review of denials of requests for parole, federal courts have no jurisdiction to hear Plaintiffs’ challenges to their detention. Under the APA “[A] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. A person may be just as “affected or aggrieved” by agency action if he is an unadmitted alien as he would be if he was admitted. The Supreme Court and the Fifth Circuit have made this clear in their rulings in Brownell v. We Shung, 352 U.S. 180, 185, 77 S.Ct. 252, 255, 1 L.Ed.2d 225 (1956) and Estrada v. Aherns, 296 F.2d 690 (5th Cir. 1961); see generally C. Gordon & H. Rosenfeld, Immigration Law and Procedure § 8.8 (1980) (and cases cited therein). Even in cases involving unadmitted aliens, “[e]xceptions from the . . . Administrative Procedure Act are not lightly to be presumed, Marcello v. Bonds, 349 U.S. 302, 310, 75 S.Ct. 757, 761, 9 L.Ed. 1107 (1955), and unless made by clear language or supersedure the expanded mode of review granted by the Act cannot be modified.” 352 U.S. at 185, 77 S.Ct. at 255. Thus, the judicial review provisions of the APA apply to unadmitted aliens unless Congress makes its intent to the contrary clear as it did when it enacted Section 106 of the INA, 8 U.S.C. § 1105a, in response to the We Shung case. The mere absence of a provision in the INA for judicial review of parole decisions is not a clear indication that Congress intended to cut off judicial review. The Court finds, therefore, that its jurisdiction was properly invoked pursuant to the Declaratory Judgment Act, 28 U.S.C. 2201, 2202; and Section 10(a) of the Administrative Procedure Act 5 U.S.C. § 702, and 8 U.S.C. § 1329. The Court also believes that federal question jurisdiction exists pursuant to 28 U.S.C. § 1331. The allegations herein are consistent with the Eleventh Circuit’s ruling in Haitian Refugee Center, Inc. v. Smith, 676 F.2d 1023 (11th Cir. 1982), in that Plaintiffs have claimed INS engaged in a “pattern, program or scheme ... to violate [their] constitutional rights...” Id., 676 F.2d at 1033. To the extent it is not clear from Plaintiffs’ amended complaint, the Court finds they have invoked habeas corpus jurisdiction pursuant to 28 U.S.C. § 2241 and that jurisdiction exists pursuant to 8 U.S.C. § 1329 as well. See Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1202-03 (9th Cir. 1975), and cases cited therein. G. ADMINISTRATIVE PROCEDURE ACT CLAIM — FAILURE TO PROMULGATE DETENTION POLICY AS A RULE The evidence shows that prior to May 20, 1981, Haitian refugees arriving in this country, for whom the INS initiated exclusion proceedings, were detained for a brief period of time necessary for routine public health screening and released on parole into the community to relatives or voluntary agencies willing to act as sponsors. This “policy” abruptly changed sometime between May 20,1981, and July 31,1981; and a policy of detention was initiated. Under the new policy, parole is to be denied except for significant humanitarian reasons such as pregnancy or other health problems, extreme age or for the purpose of reuniting families. Pursuant to this policy, some class members have been in detention for over 10 months awaiting a determination of their right to remain in the United States. The essence of Plaintiffs’ claim is that the detention policy is illegal because it is a substantive rule that was not promulgated as required by the Administrative Procedure Act (hereinafter the “APA”). Under the APA, an administrative agency is prohibited from adopting any substantive rule unless it first publishes notice of the proposed rule and provides interested persons an opportunity to comment. 5 U.S.C. § 553. Because this procedure was not followed, Plaintiffs claim the detention policy is void and unenforceable and that the Court must order their release. Defendants admit that a new detention policy was instituted without employing rulemaking procedures, and that INS is an agency as defined by the APA. See 5 U.S.C. § 551(1). Notwithstanding these admissions, they contend Plaintiffs’ APA claim lacks merit for two reasons. First, the Defendants say the change in detention practice is not a “rule” as that term is defined in 5 U.S.C. §' 551(4). Second, assuming arguendo that the changes in detention and parole criteria constituted rule-making, they argue the Attorney General’s decision not to parole Haitian aliens would fall squarely within the Section 553(a)(1) and (b)(A) foreign policy and agency organization exceptions to the notice and comment requirements of 5 U.S.C. § 553. Section 551(4) of Title 5 defines the word “rule” as: (4) the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting practices bearing on any of the foregoing. This definition is inapplicable here according to the Defendants because “[i]n detaining the plaintiffs and other aliens, the Government is carrying out a clear legislative mandate. Accordingly, the Government need not rely upon any alleged rule of policy for its authority to detain plaintiffs. Instead, that authority is derived from an express statute.” Although this argument appears to be initially convincing, when scrutinized, its superficial nature becomes readily apparent. The “legislative mandate” of section 235(b) is not as clear as Defendants would like the Court to believe. Words used in statutes are to be given their ordinary meaning. Perrin v. United States, 444 U.S. 37, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979); Mai at v. Riddell, 383 U.S. 569, 86 S.Ct. 1030, 16 L.Ed.2d 102 (1966); Banks v. Chicago Grain Trimmers Association, 390 U.S. 459, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1968); Burns v. Alcala, 420 U.S. 529, 95 S.Ct. 1180, 43 L.Ed.2d 469 (1975). Detain means not only “arrest” or “keep in custody” but also “to delay”, “to retard”, or “to restrain from proceeding”. Black’s law dictionary 404 (5th ed. 1979). The phrase “shall be detained” could mean that an excludable alien shall be incarcerated until a final determination of his admissibility or that his entry into the United States should be delayed until inquiry is made at an exclusion hearing. Parole is perfectly consistent with such a reading of section 235(b) because, by definition, parole “shall not be regarded as an admission of the alien...” 8 U.S.C. § 1182(d)(5). But regardless of which view of the statute is correct, this analysis demonstrates that INS’ detention policy reflects their interpretation of the statute and, therefore, it is a rule as defined by the APA. Even if section 235(b) evidences a Congressional intent to incarcerate excludable aliens, section 212(d)(5), not section 235(b) is the relevant statutory provision because section 212(d)(5) gives the Attorney General the power to release excludable aliens on parole. The new parole criteria reflect INS’ interpretation of the statutory conditions for release, to wit, “for emergent reasons or for reasons deemed strictly in the public interest.” Clearly, when INS announced new criteria for release on parole, and the ensuing detention policy, it constituted an “agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy ...” which is a rule within the meaning of the Act. In order to engage in rulemaking, the Act requires an agency to (1) provide adequate advance notice and publication of the proposed rule in the Federal Register; (2) afford interested persons an opportunity to participate through the submission of written data, views, or arguments, with or without opportunity for oral argument; (3) publish the final rule with a statement of basis and purpose not less than thirty days before its effective date; and (4) grant interested persons the right to petition for the issuance, modification or repeal of a rule. 5 U.S.C. § 553(b)-(e). The APA contains certain exceptions to the notice and comment requirements of Section 553. Specifically, the Act’s requirements do not apply to (1) military or foreign affairs; (2) internal management or proprietary affairs; (3) interpretative rules, general statements of policy, or rules of practice and procedure; and (4) situations in which good cause exists for dispensing with notice and comment requirements. 5 U.S.C. § 553(a)(1), (2) and (b)(A). However, the courts have repea