Waiver of Passport and Visa Requirements Due to an Unforeseen Emergency, 12032-12038 [2016-04741]

Download as PDF 12032 Proposed Rules Federal Register Vol. 81, No. 45 Tuesday, March 8, 2016 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. U.S. Office of Personnel Management. Beth F. Cobert, Acting Director. [FR Doc. 2016–05118 Filed 3–7–16; 8:45 am] BILLING CODE 6325–63–P DEPARTMENT OF HOMELAND SECURITY OFFICE OF PERSONNEL MANAGEMENT Customs and Border Protection 5 CFR Part 870 8 CFR Part 212 RIN 3206–AN21 RIN 1651–AA97 Federal Employees’ Group Life Insurance Program: Filing Deadlines for Court Review of Administrative Final Decisions; Withdrawal of Proposed Rule [USCBP–2016–0006] Waiver of Passport and Visa Requirements Due to an Unforeseen Emergency U.S. Office of Personnel Management. ACTION: Withdrawal of proposed rule. AGENCY: The United States Office of Personnel Management (OPM) issued a proposed rule on January 12, 2016 to amend the Federal Employees’ Group Life Insurance (FEGLI) Program regulations to establish a timeframe for filing civil actions or claims against the United States based on 5 U.S.C. chapter 870 (Life Insurance). OPM is withdrawing the proposed rule to undertake further analysis of the subject matter referenced in the proposed rule. DATES: The proposed rule published on January 12, 2016 at 81 FR 1336 is withdrawn effective March 8, 2016. FOR FURTHER INFORMATION CONTACT: Ronald Brown, Policy Analyst, Planning and Policy Analysis, U.S. Office of Personnel Management, Room 4312, 1900 E Street NW., Washington, DC 20415; or FAX to 202–606–0636 Attn: Ronald Brown. SUPPLEMENTARY INFORMATION: The United States Office of Personnel Management (OPM) issued a proposed rule on January 12, 2016, at 81 FR 1336. This proposed rule was intended to: (1) Establish a timeframe for filing legal action for judicial review of OPM or employing agency final action on FEGLI claims; and (2) provide a 3-year time limit for filing a court claim for review of agency or retirement system final decisions. The OPM is withdrawing this proposed rule to undertake further analysis of the subject matter referenced in the proposed rule. SUMMARY: asabaliauskas on DSK3SPTVN1PROD with PROPOSALS U.S. Customs and Border Protection, DHS. ACTION: Notice of proposed rulemaking. AGENCY: VerDate Sep<11>2014 16:21 Mar 07, 2016 Jkt 238001 This rule proposes to reinstate a 1996 amendment to a regulation in title 8 of the Code of Federal Regulations regarding a discretionary waiver of certain documentary requirements for nonimmigrants seeking admission to the United States. The 1996 amendment allowed the legacy Immigration and Naturalization Service (INS) (now U.S. Customs and Border Protection) to waive passport and visa requirements for nonimmigrants due to an unforeseen emergency while preserving its ability to fine carriers for unlawfully bringing aliens who do not have a valid passport or visa to the United States. The U.S. Court of Appeals for the Second Circuit ruled that the legacy INS and the U.S. Department of State (State Department) did not satisfy a statutory requirement to act jointly when the amendment was promulgated. As a result, the court found that the 1996 amendment to the regulation was procedurally deficient and reimposed an earlier version of the regulation that legacy INS and the State Department promulgated in 1994. This rule proposes to reinstate the 1996 amendment with some technical amendments. DHS and the State Department have acted jointly in this matter and the State Department is publishing a parallel proposed rule to amend its regulation in today’s edition of the Federal Register. DATES: Comments must be received on or before May 9, 2016. SUMMARY: PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 FOR FURTHER INFORMATION CONTACT: Joseph O’Donnell, Fines, Penalties and Forfeitures, Office of Field Operations, 202–344–1691. ADDRESSES: You may submit comments, identified by docket number, by one of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments via docket number USCBP–2016–0006. • Mail: Border Security Regulations Branch, Office of Regulations and Rulings, U.S. Customs and Border Protection, 90 K Street NE.,10th Floor, Washington, DC 20229–1177. Instructions: All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to https:// www.regulations.gov, including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the ‘‘Public Participation’’ heading of the SUPPLEMENTARY INFORMATION section of this document. Docket: For access to the docket to read background documents or comments received, go to https:// www.regulations.gov. Submitted comments may also be inspected during regular business days between the hours of 9 a.m. and 4:30 p.m. at the Office of International Trade, Regulations and Rulings, U.S. Customs and Border Protection, 90 K Street NE.,10th Floor, Washington, DC. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at (202) 325–0118. SUPPLEMENTARY INFORMATION: Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. U.S. Customs and Border Protection (CBP) also invites comments that relate to the economic, environmental or federalism effects that might result from this proposed rule. Comments that will provide the most assistance to CBP will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. E:\FR\FM\08MRP1.SGM 08MRP1 Federal Register / Vol. 81, No. 45 / Tuesday, March 8, 2016 / Proposed Rules Background In general, nonimmigrant aliens must present an unexpired passport and, if required, a valid unexpired visa in order to be admitted to the United States. See section 212(a)(7)(B)(i) of the Immigration and Nationality Act, as amended (INA) (8 U.S.C. 1182(a)(7)(B)(i)). The Secretary of Homeland Security and the Secretary of State, acting jointly, in specified situations, as provided in section 212(d)(4) of the INA (8 U.S.C. 1182(d)(4)), may waive either or both of these requirements.1 One of these situations is when the the agencies determine ‘‘in individual cases’’ that the nonimmigrant is unable to present the required documents due to an unforeseen emergency. See section 212(d)(4)(A) of the INA (8 U.S.C. 1182(d)(4)(A)). DHS regulations list those classes of persons who are not required to present a visa (or passport, in some cases) in 8 CFR 212.1. The unforeseen emergency waiver is provided for in 8 CFR 212.1(g).2 The State Department has a similar provision in 22 CFR part 41. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 1994 Regulatory Amendment On January 11, 1994, the legacy INS and the State Department each issued final rules amending their respective regulations to simplify the administrative procedure for granting unforeseen emergency waivers. See 59 FR 1467 and 59 FR 1473 (Jan. 11, 1994). The amended INS regulation (referred to in this document as the 1994 version of 212.1(g)) provided that the district director would have authority to grant a waiver of the passport and/or visa requirements under section 212(d)(4)(A) of the INA without the prior concurrence of the Department of State. Previously, the legacy INS needed to 1 Previously, the Attorney General acting jointly with the Secretary of State was authorized to waive the documentary requirements due to an unforeseen emergency. However, pursuant to the Homeland Security Act of 2002, Public Law 107–296, 116 Stat. 2135 (HSA), as of March 1, 2003, functions of the legacy INS of the Department of Justice and the legacy U.S. Customs Service of the Department of the Treasury were transferred to DHS. Specifically, pursuant to sections 102(a), 441, 1512(d) and 1517 of the HSA and 8 CFR 2.1, the authorities of the Attorney General, as described in section 212 of the INA (8 U.S.C. 1182), were transferred to the Secretary of Homeland Security, and the reference to the Attorney General in the statute is deemed to refer to the Secretary. Thus, the waiver authority in section 212 of the INA therefore now resides with the Secretary of Homeland Security acting jointly with the Secretary of State. 2 An example of an unforeseen emergency may be where a nonimmigrant loses his or her passport and/or visa or has these documents stolen immediately prior to departure for the United States, and does not have time to obtain replacement documents. VerDate Sep<11>2014 16:21 Mar 07, 2016 Jkt 238001 seek the concurrence of the State Department Visa Office prior to granting a waiver. The amended regulation also provided that a visa and a passport are not required of a nonimmigrant who satisfies the district director that the documents cannot be presented due to an unforeseen emergency. Specifically, the legacy INS amended 8 CFR 212.1(g) to provide that a visa and a passport are not required of a nonimmigrant who, either prior to his or her embarkation at a foreign port or place or at the time of arrival at a port of entry in the United States, satisfies the district director at the port of entry that, because of an unforeseen emergency, he or she is unable to present the required documents, in which case a waiver application shall be made on Form I– 193. The amended regulation also provided that the district director may approve a waiver of documents in each case in which he or she is satisfied that the nonimmigrant cannot present the required documents because of an unforeseen emergency and the waiver would be appropriate in the circumstances. See 59 FR 1467–68. The amended State Department regulation, 22 CFR 41.2(j), contained similar provisions.3 12033 On March 22, 1996, the legacy INS published a final rule that amended the unforeseen emergency waiver in 8 CFR 212.1(g). See 61 FR 11717. Among other things, the legacy INS final rule removed the statement that a ‘‘visa and a passport are not required of a nonimmigrant who . . . satisfies the district director at the port of entry that, because of an unforeseen emergency, he or she is unable to present the required documents. . . .’’ The legacy INS replaced this language with general language about the documentary requirements for a nonimmigrant seeking admission to the United States, a statement authorizing the legacy INS to waive the documentary requirements because of an unforeseen emergency, and a statement authorizing the legacy INS to revoke such a waiver. The amended text (referred to in this document as the 1996 version of 212.1(g)) provided that a nonimmigrant seeking admission to the United States must present an unexpired visa and a passport valid for the amount of time set forth in section 212(a)(7)(B) of the Act, or a valid border crossing identification card at the time of application for admission, unless the nonimmigrant satisfies the requirements described in one or more of the paragraphs (a) through (f) or (i) of 8 CFR 212.1. The amended text also provided that upon a nonimmigrant’s application on Form I– 193, a district director at a port of entry may, in the exercise of his or her discretion, on a case-by-case basis, waive the documentary requirements, if satisfied that the nonimmigrant cannot present the required documents because of an unforeseen emergency. Finally, the amended text provided that the district director or the Deputy Commissioner may at any time revoke a waiver previously authorized pursuant to this paragraph and notify the nonimmigrant in writing to that effect. See 61 FR 11720–21. One important distinction between the 1994 and 1996 versions of section 212.1(g) is that the 1994 version specifies that a visa and passport ‘‘are not required’’ of a nonimmigrant if the legacy INS (now CBP) concludes that the nonimmigrant is unable to present the required documents because of an unforeseen emergency. In contrast, the 1996 version does not include the phrase ‘‘are not required.’’ The absence of that language supported the legacy INS’ authority to fine carriers that transported aliens without a valid passport or visa even where the alien is granted a discretionary waiver under section 212(d)(4) of the INA.4 Section 273 of the INA (8 U.S.C. 1323) makes it unlawful for any person or company to bring an alien to the United States (other 3 The amended State Department regulation provided that a visa and passport are not required of an alien if, either prior to the alien’s embarkation abroad or upon arrival at a port of entry, the responsible district director of the Immigration and Naturalization Service in charge of the port of entry concludes that the alien is unable to present the required documents because of an unforeseen emergency. The amended State Department regulation further provided that any waiver of the visa or passport requirement may be granted by the INS district director pursuant to INA 212(d)(4)(A) without the prior concurrence of the Department of State in each case in which the district director concludes that the alien’s claim of emergency circumstances is legitimate and bona fide and that approval of the waiver would be appropriate under all of the attendant facts and circumstances. See 59 FR 1473 (Jan. 11, 1994). 4 The Board of Immigration Appeals (Board) supported legacy INS’ interpretations of both the 1994 and 1996 versions of 8 CFR 212.1(g). Prior to the 1996 amendment to the regulation, the Board had held ‘‘that liability to fine was not incurred . . . for bringing to the United States a nonimmigrant alien without a valid visa when such alien was paroled into the United States and was subsequently granted a waiver of the nonimmigrant visa.’’ Matter of United Airlines Flight UA802, 22 I&N Dec. 777, 780 (BIA 1999) (citing Matter of ‘‘Flight SR–4’’, 10 I&N Dec. 197 (BIA 1963)). However, in Matter of Finnair Flight AY103, 23 I&N Dec. 140 (BIA 2001), the Board held that a carrier was subject to a fine for bringing an alien passenger to the United States without a valid nonimmigrant visa even though the passenger was subsequently granted a waiver of the documentary requirements under the 1996–amended version of the regulation. 1996 Regulatory Amendment PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 E:\FR\FM\08MRP1.SGM 08MRP1 12034 Federal Register / Vol. 81, No. 45 / Tuesday, March 8, 2016 / Proposed Rules than from a foreign contiguous territory) who does not have a valid passport and an unexpired visa (if a visa is required), including under controlling regulations, and authorizes a fine against the carrier for each alien unlawfully brought into the United States.5 On May 28, 1999, the State Department amended 22 CFR 41.2(j) in a similar manner.6 See 64 FR 28915. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Litigation Challenging the 1996 Regulation Numerous airlines challenged the 1996 version of 212.1(g) in the U.S. District Court for the Eastern District of New York. Legacy INS had fined certain airlines for bringing undocumented aliens into the United States in violation of section 273 of the INA (8 U.S.C. 1323) even though some of the undocumented aliens had been granted unforeseen emergency waivers pursuant to 8 CFR 212.1(g) after the aliens arrived in the United States. Section 273 of the INA makes it unlawful for any person or company to bring an alien to the United States (other than from a foreign contiguous territory) who does not have a valid passport and an unexpired visa, if a visa was required, and authorizes a $4,300 fine against the carrier for each alien unlawfully brought into the United States.7 Legacy INS believed that granting unforeseen emergency waivers did not preclude the imposition of fines under section 273 of the INA on the airlines transporting such waiver recipients. Several of the airlines that legacy INS fined claimed that the fines were not authorized because the 1996 version of 212.1(g) was void due to procedural defects. Specifically, they claimed that the INA required joint action between the legacy INS and State Department and that the 1996 version of 212.1(g) was deficient because the legacy INS 5 Section 212(a)(7)(B)(i) of the INA, which concerns only nonimmgrants, uses the term ‘‘nonimmigrant.’’ Section 273 of the INA, which concerns immigrant and nonimmigrant aliens, uses the term ‘‘alien.’’ This document will generally use the term ‘‘nonimmigrant’’ when discussing the waiver provision contained in section 212(d)(4) of the INA or 8 CFR 212.1(g) and use the term ‘‘alien’’ when discussing the fines provision contained in section 273. 6 The legacy INS amended 8 CFR 212.1(g) on two occasions in 2002. First, it added a reference to section 212.1(o). 67 FR 4784 (Jan. 31, 2002). Second, it updated the documentary requirements by adding the phrase ‘‘, issued by the DOS on Form DSP 150.’’ Finally, DHS amended this provision in 2007 to add U nonimmigrants to the list of nonimmigrants who are not required to satisfy the visa and passport requirement under section 212(a)(7)(B) of the INA consistent with other regulatory provisions. See 8 CFR 212.1(p). 7 DHS adjusted the statutory fine of $3,000 to $4,300 to account for inflation. See 76 FR 74625 (Dec. 1, 2011). VerDate Sep<11>2014 16:21 Mar 07, 2016 Jkt 238001 acted on its own when promulgating the regulation. If the 1996 version was void, the 1994 version of 212.1(g) would control. As described above, the 1994 version specified that ‘‘a visa and passport are not required’’ of a nonimmigrant if the INS concludes that the nonimmigrant is unable to present the required documents because of an unforeseen emergency. Under this version, the legacy INS did not assess carrier fines for bringing in aliens who were unable to present a valid, unexpired visa and passport due to an unforeseen emergency. 1996 Regulation Found to Have Been Improperly Promulgated The district court ruled in favor of the legacy INS on this issue and the airlines appealed. On November 20, 2009, the United States Court of Appeals for the Second Circuit issued its opinion in United Airlines, Inc. v. Brien, 588 F.3d 158 (2d Cir. 2009), a consolidated appeal from three final orders of the lower court. Although the Second Circuit agreed with the Government’s view that the 1996 version of 8 CFR 212.1(g) would not have precluded the assessment of carrier fines when an unforeseen emergency waiver had been granted, it held that the 1996 amendment was void because it was improperly promulgated. The Court stated that section 212(d)(4)(A) of the INA ‘‘requires joint action, and the two agencies acted jointly when enacting the pre-1996 version of the regulation.’’ United Airlines, 588 F.3d at 179. The Court further stated that ‘‘[t]he INS’s attempt to amend the jointly enacted regulation on its own, therefore, [wa]s ineffective, and the pre-1996 version remains in effect’’ and that ‘‘[t]he INS’s failure to coordinate with the State Department in the amendment of the regulations render[ed] the 1996 amendment void.’’ Id. The Court also found that the 1999 State Department amendment of its regulation violated the joint action requirement, that the amendment should have undergone notice and comment rulemaking before being adopted, and that ‘‘the prior versions of both agencies’ regulations remain effective until the two agencies act jointly to amend them.’’ Id. at 180 (emphasis in original). As a result, the Court invalidated the 1996 amendment to 8 CFR 212.1(g), as well as subsequent amendments to the regulation made in 2002 and 2007.8 The Court reinstated the 1994 version of the regulation. 8 The INS amended the regulation in 2002 to update documentary requirements, and DHS amended the regulation in 2007 to include U nonimmigrants among those who could seek a PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 Proposal DHS is now proposing to reinstate the 1996, 2002 and 2007 amendments to 8 CFR 212.1(g). DHS and the State Department have consulted and are each proposing parallel and simultaneous amendments to 8 CFR 212.1(g) and 22 CFR 41.2(i), respectively, to reinstate the 1996, 2002 and 2007 amendments to 8 CFR 212.1(g) and the 1999 amendments to 22 CFR 41.2(i).9 The State Department’s Notice of Proposed Rulemaking is published in today’s Federal Register. The issuance of parallel regulations was specifically sanctioned by the Court in United Airlines when it noted that ‘‘[t]he 1999 State Department amendment, like the 1996 INS amendment, violated the joint action requirement, and the prior versions of both agencies’ regulations remain effective until the two agencies act jointly to amend them.’’ 588 F.3d at 180. With these amendments, DHS will be able to assess carrier fines under section 273 of the INA in appropriate cases notwithstanding that an ‘‘unforeseen emergency’’ waiver had been granted under section 212(d)(4)(A) of the Act and 8 CFR 212.1(g).10 Regulatory Analyses A. Executive Order 13563 and Executive Order 12866 Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is a ‘‘significant regulatory action,’’ although not an economically significant regulatory action, under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has reviewed this regulation. In 1996, the legacy INS published a final rule (61 FR 11717) amending 8 CFR 212.1(g) which allowed for the waiver of the requirement of proper entry documentation for a waiver. See 67 FR 71443 (Dec. 2, 2002) and 72 FR 53014 (Sept. 17, 2007). 9 22 CFR 41.2(j) was redesignated as 22 CFR 41.2(i) in 2016. See 81 FR 5908. 10 CBP generally would not consider it appropriate to apply a fine if CBP granted the waiver prior to the nonimmigrant alien’s boarding. E:\FR\FM\08MRP1.SGM 08MRP1 Federal Register / Vol. 81, No. 45 / Tuesday, March 8, 2016 / Proposed Rules asabaliauskas on DSK3SPTVN1PROD with PROPOSALS nonimmigrant in an unforeseen emergency while still retaining the ability to fine the carrier for transporting an alien to the United States without proper entry documentation. In 2009, the U.S. Court of Appeals for the Second Circuit issued an opinion in United Airlines, Inc. v. Brien, 588 F.3d 158 (2d Cir. 2009) which held that the regulation amending 8 CFR 212.1(g) was improperly promulgated because the State Department and the legacy INS did not jointly promulgate the rule. In its ruling, the Court upheld CBP’s right to issue fines under section 273 of the INA when aliens do not receive a waiver but are otherwise allowed to enter the United States without proper documents, such as when they are paroled into the United States.11 This has led to a situation where carriers are being penalized inconsistently when they transport aliens to the United States without proper documentation. If an alien qualifies for parole, the carrier is fined. If an alien does not qualify for parole but receives a waiver, the carrier is not fined. Since the carrier is equally violative in these situations, CBP believes the penalties should be the same for each. As such, DHS (functions of the legacy INS were transferred to DHS in 2003) and the State Department are now jointly promulgating rules to allow CBP to waive the requirement to present entry documents for nonimmigrants under an unforeseen emergency while still retaining the ability to fine the carrier a maximum penalty of $4,300 for transporting an alien to the United States without proper entry documentation. From FY 2010–2015, if this proposed rule had been in effect, carriers would have been subject to penalties averaging $1.7 million per year for 950 violations to section 273 of the INA. This $1.7 million represents a transfer from violative carriers to the United States government. To avoid the penalties imposed by this rule and existing penalties, carriers may adopt further oversight. CBP requests comment on any additional oversight costs that could result from this rule. 11 An alien may be paroled into the United States when he or she appears to be inadmissible to the inspecting officer but is allowed into the United States for urgent humanitarian reasons or when that alien’s entry is determined to be for significant public benefit. Parole does not constitute an admission to the United States and shall be terminated when, inter alia, the purpose of parole is accomplished or neither humanitarian reasons nor public benefit warrants the continued presence of the alien in the United States. See 8 CFR 212.5(e). See https://www.dhs.gov/definition-terms for information on various types of parole. VerDate Sep<11>2014 16:21 Mar 07, 2016 Jkt 238001 CBP currently issues penalties under this provision to any carriers that transport aliens without proper documents who are inadmissible, including when these aliens qualify for parole. Therefore, CBP will not have to set up a new process to fine carriers as a result of this rule. A penalty under this provision takes CBP approximately 2.5 hours to process. Therefore, on average this rule would take approximately 2,375 hours a year for CBP to administer. Currently, carriers are penalized for violations of section 273 inconsistently. When a carrier transports an alien without proper documentation, whether it is penalized depends not on the nature of the carrier’s violation, but on whether the alien it transported qualifies for a waiver. CBP believes it is more equitable to penalize carriers who violate section 273 equally. Additionally, CBP believes that the penalty provisions in the proposed regulation provide an economic incentive to enforce the statutory requirements of section 273 of the INA. For additional analysis on the impacts of this rule on small entities and a discussion of alternatives, see section B. Regulatory Flexibility Act. B. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996, requires agencies to assess the impact of regulations on small entities. A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act); a small notfor-profit organization; or a small governmental jurisdiction (locality with fewer than 50,000 people). As discussed above, DHS and the State Department are proposing parallel and simultaneous amendments to 8 CFR 212.1(g) and 22 CFR 41.2(i) respectively, that would allow CBP to waive the passport and/or visa requirements for nonimmigrants due to an unforeseen emergency while retaining the ability to enforce the statutory requirement imposing a maximum penalty of $4,300 on a carrier for transporting an alien to the United States without proper documentation. The Regulatory Flexibility Act does not specify thresholds for economic significance but instead gives agencies flexibility to determine the appropriate threshold for a particular rule. CBP believes that a maximum penalty of $4,300 may be considered a significant economic impact given the wide range PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 12035 of companies subject to the requirements of this rule and that it is possible that a specific small entity may receive more than one penalty in a year. Therefore CBP is preparing an Initial Regulatory Flexibility Analysis under section 603 of the Regulatory Flexibility Act. It is unlawful under section 273 of the INA for any person or company to transport an alien to the United States (other than from a foreign contiguous territory) who does not have a valid passport and an unexpired visa (if a visa is required). 8 U.S.C. 1323. As such, it is possible that any person or company engaged in the transportation of aliens may be affected by the proposed rule. Below, Table 1 presents data on the industries CBP has identified that could be affected by this rule. While CBP finds that only 41 small entities have violated section 273 of the INA from FY 2008 to FY 2012, CBP is unable to certify that substantial number of small entities will not be affected by the proposed regulation in the future.12 CBP is choosing not to certify that this rule will not have a significant economic impact on a substantial number of small entities. Accordingly, CBP has conducted the following Initial Regulatory Flexibility Analysis. 1. A Description of the Reasons Why Action by the Agency Is Being Considered In 1996, the legacy INS published a final rule (61 FR 11717) amending 8 CFR 212.1(g) which allowed for the waiver of the requirement of proper entry documentation for a nonimmigrant in an unforeseen emergency while still retaining the ability to fine the carrier for transporting an alien to the United States without proper entry documentation. In 2009, the U.S. Court of Appeals for the Second Circuit issued an opinion in United Airlines, Inc. v. Brien, 588 F.3d 158 (2d Cir. 2009) which held that the regulation amending 8 CFR 212.1(g) was improperly promulgated because the State Department and the legacy INS did not jointly promulgate the rule. As such, DHS (functions of the legacy INS were transferred to DHS in 2003) and the State Department are now jointly promulgating rules to allow CBP to waive the requirement to present entry documents for nonimmigrants under an unforeseen emergency while still 12 Since November 20, 2009 CBP has been unable to impose a penalty when a section 212(d)(4)(A) waiver has been granted to an alien without proper documentation. Nevertheless, the small entities listed in Table 1 transported aliens who received such waivers. The small entities responsible for transporting the aliens were not assessed a penalty. E:\FR\FM\08MRP1.SGM 08MRP1 12036 Federal Register / Vol. 81, No. 45 / Tuesday, March 8, 2016 / Proposed Rules retaining the ability to fine the carrier for transporting an alien to the United States without proper entry documentation. CBP believes that the penalty provisions in the proposed regulation provide the necessary economic incentive to enforce the statutory requirements of section 273 of the INA. 2. A Succinct Statement of the Objectives of, and Legal Basis for, the Proposed Rule The objective of this regulation is to allow CBP to waive the requirement of proper entry documents for nonimmigrants in an unforeseen emergency while still retaining the ability to fine the carrier for transporting an alien to the United States without proper entry documentation. In general, nonimmigrant aliens must present an unexpired passport and, if required, a valid unexpired visa in order to be admitted to the United States. See section 212(a)(7)(B)(i) of the INA (8 U.S.C. 1182(a)(7)(B)(i)). The Secretary of Homeland Security and the Secretary of State, acting jointly, in specified situations, as provided in section 212(d)(4) of the INA (8 U.S.C. 1182(d)(4)), may waive either or both of these requirements. One of these situations is when the nonimmigrant is unable to present the required documents due to an unforeseen emergency. See section 212(d)(4)(A) of the INA. DHS regulations list those classes of persons who are not required to present a visa (or passport, in some cases) in 8 CFR 212.1. The unforeseen emergency waiver is provided for in 8 CFR 212.1(g). The State Department has a similar provision in 22 CFR part 41. 3. A Description of and, Where Feasible, an Estimate of the Number of Small Entities to Which the Proposed Rule Will Apply It is unlawful under section 273 of the INA for any person or company to transport an alien to the United States (other than from a foreign contiguous territory) who does not have a valid passport and an unexpired visa (if a visa is required). As such, it is possible that any person or company engaged in the transportation of aliens may be affected by this rule. Below, Table 1 presents data on the industries CBP estimates could be affected by this rule. The data include the NAICS codes of an industry, a description of the industry, and the Small Business Administration’s (SBA) guidance on what qualifies an entity to be considered small in the respective industry. Additionally, Table 1 includes the number small entities in the respective industry that have violated section 273 of the INA from FY 2008 through FY 2012.13 Of the industries that could be affected, only four industries have had small entities that have violated section 273 of the INA from FY 2008 through FY 2012. TABLE 1 NAICS 481111 481112 481211 481212 481219 482111 482112 483111 483112 483113 483114 483211 483212 484230 485991 487110 488330 541614 621910 Industry description .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. SBA size standard Scheduled Passenger Air Transportation ............................................. Scheduled Freight Air Transportation ................................................... Nonscheduled Chartered Passenger Air Transportation ..................... Nonscheduled Chartered Freight Air Transportation ........................... Other Nonscheduled Air Transportation ............................................... Line-Haul Railroads .............................................................................. Short Line Railroads ............................................................................. Deep Sea Freight Transportation ......................................................... Deep See Passenger Transportation ................................................... Coastal and Great Lakes Freight Transportation ................................. Coastal and Great Lakes Passenger Transportation ........................... Inland Water Freight Transportation ..................................................... Inland Water Passenger Transportation ............................................... Specialized Freight (except, Used Goods) Trucking, Long-Distance .. Special Needs Transportation .............................................................. Scenic and Sightseeing Transportation, Land ..................................... Navigational Services to Shipping ........................................................ Process, Physical Distribution and Logistics Consulting Services ....... Ambulance Services ............................................................................. <1,500 employees ......................... <1,500 employees ......................... <1,500 employees ......................... <1,500 employees ......................... <$14 million in revenue ................. <1,500 employees ......................... <500 employees ............................ <500 employees ............................ <500 employees ............................ <500 employees ............................ <500 employees ............................ <500 employees ............................ <500 employees ............................ <$25.5 million in revenue .............. <$14 million in revenue ................. <$7 million in revenue ................... <$35.5 million in revenue .............. <$14 million in revenue ................. <$14 million in revenue ................. Small entities that have violated section 273 of the INA 0 0 16 0 0 0 0 1 0 0 0 0 1 0 0 0 0 23 0 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Sources: U.S. Census Bureau, Small Business Administration, and CBP. To estimate the number of small entities to which the proposed rule will apply, CBP needs an estimate of the total number of small entities within an industry and the number of these small entities that are, or will be, engaged in the transportation of aliens. The U.S. Census Bureau (Census) provides estimates of the number of entities within an industry. The Census organizes an industry by various intervals of annual revenue and number of employees.14 Using these intervals and the SBA’s small entity standards, CBP can estimate the number of small entities within an industry. However, the Census intervals do not necessarily correspond exactly with the SBA’s small entity size standards. As an example, as shown in Table 2 below, the SBA’s small entity size standards state that an entity classified under NAICS code 481211 is small if it has fewer than 1,500 employees. The Census, however, only has the following intervals of employees: 0–4 employees, 5–9 employees, 10–19 employees, 20–99 employees, 100–499 employees, and 500+ employees. It is not possible to differentiate between the entities in the 500+ employee interval that would be considered small under SBA’s small entity size standards (entities with fewer 13 Since November 20, 2009, CBP has been unable to impose a penalty when a 212.1(g) waiver has been granted to an alien without proper documentation. Nevertheless, the small entities listed in Table 1 transported aliens who received 212.1(g) waivers. The small entities responsible for transporting the aliens were not assessed a penalty. 14 https://www.census.gov/econ/susb/. VerDate Sep<11>2014 16:21 Mar 07, 2016 Jkt 238001 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 E:\FR\FM\08MRP1.SGM 08MRP1 Federal Register / Vol. 81, No. 45 / Tuesday, March 8, 2016 / Proposed Rules than 1,500 employees) and those entities the SBA does not consider small (entities with more than 1,500 employees). We therefore, sought an alternative data source to supplement the Census data. Any scheduled airline with a capacity of carrying over 18,000 pounds is required to report employee information to the Department of Transportation.15 Using this data, we were able to identify carriers with over 1,500 employees, who are not considered small entities under the SBA size standards. We subtracted these airlines from the total small entities in each NAICS code to estimate the total small entities that could be affected by this rule. We note that these estimates could include businesses with over 1,500 employees that have a payload of less than 18,000 pounds or that do not offer scheduled flights. As there are a large number of small businesses with over 18,000 pounds of capacity, as shown in DOT’s data, we do not believe there are many, if any, large carriers that are not included in DOT’s data. We request comment on this matter. Although CBP can use the Census and DOT data to provide an estimate of the number of small entities that have the 12037 potential to be affected by this rule, CBP cannot use the Census data to determine the number of small entities that are, or will be, engaged in the transportation of aliens within a reasonable degree of accuracy.16 As shown in both Tables 1 and 2, however, CBP’s internal records show that only 41 small entities from FY 2008 to FY 2012 violated section 273 of the INA and thus would have been subject to a penalty if this rule were in effect. CBP seeks comment on the number of small entities that are, or will be, engaged in the transportation of aliens. TABLE 2 Small entities that have violated section 273 of the INA NAICS Industry description SBA Size Standard Total number of entities Total number of small entities 481111 .............. 481112 .............. 481211 .............. Scheduled Passenger Air Transportation ... Scheduled Freight Air Transportation ......... Nonscheduled Chartered Passenger Air Transportation. Nonscheduled Chartered Freight Air Transportation. Other Nonscheduled Air Transportation ..... <1,500 employees .... <1,500 employees .... <1,500 employees .... 258 ................... 232 ................... 1498 ................. 233 ................... 227 ................... 1498 ................. 0 0 16 <1,500 employees .... 171 ................... 171 ................... 0 $14 million in revenue. <1,500 employees .... <500 employees ....... <500 employees ....... <500 employees ....... <500 employees ....... 476 ................... 477 ................... 0 not available ..... not available ..... 231 ................... 48 ..................... 376 ................... not available ..... not available ..... 213 ................... 41 ..................... 350 ................... 0 0 1 0 0 <500 employees ....... 170 ................... 170 ................... 0 <500 employees ....... <500 employees ....... $25.5 million in revenue. $14 million in revenue. $7 million in revenue 319 ................... 235 ................... 9,839 ................ 294 ................... 233 ................... 9,476 ................ 0 1 0 2,130 ................ 2,026 ................ 0 646 ................... 121 ................... 0 $35.5 million in revenue. $14 million in revenue. $14 million in revenue. 728 ................... 693 ................... 0 6,379 ................ 6,058 ................ 23 3,150 ................ 2,941 ................ 0 481212 .............. 481219 .............. 482111 482112 483111 483112 483113 .............. .............. .............. .............. .............. 483114 .............. 483211 .............. 483212 .............. 484230 .............. 485991 .............. 487110 .............. 488330 .............. 541614 .............. 621910 .............. Line-Haul Railroads ..................................... Short Line railroads ..................................... Deep Sea Freight Transportation ................ Deep See Passenger Transportation .......... Coastal and Great Lakes Freight Transportation. Coastal and Great Lakes Passenger Transportation. Inland Water Freight Transportation ........... Inland Water Passenger Transportation ..... Specialized Freight (except, Used Goods) Trucking, Long-Distance. Special Needs Transportation ..................... Scenic and Sightseeing Transportation, Land. Navigational Services to Shipping .............. Process, Physical Distribution and Logistics Consulting Services. Ambulance Services .................................... asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Sources: U.S. Census Bureau, Small Business Administration, and CBP. The proposed regulation does not propose changes to any required reporting, recordkeeping, or compliance requirements. The objective of the 15 https://transtats.bts.gov/Employment/. VerDate Sep<11>2014 16:21 Mar 07, 2016 Jkt 238001 proposed rule is to allow CBP in an unforeseen emergency to waive the requirement that a nonimmigrant present proper entry documents in order to be admitted into the United States while retaining the ability to fine the carrier that did not comply with the requirements pertaining to the proper transportation of an alien to the United States. When the nonimmigrant without proper documentation is not admitted, including when he or she is granted parole, CBP already has the authority to fine the carrier that did not comply with the requirements. This rule would only affect the carriers transporting aliens for whom CBP waives the document requirement. As discussed above, the proposed rule could affect any small entity that transports an alien without proper entry documentation. 16 For instance, CBP cannot tell which scheduled passenger air transportation entities do, or will, 4. A Description of the Projected Reporting, Recordkeeping and Other Compliance Requirements of the Proposed Rule, Including an Estimate of the Classes of Small Entities Which Will Be Subject to the Requirement and the Type of Professional Skills Necessary for Preparation of the Report or Record transport aliens and which do, or will, not transport aliens. PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\08MRP1.SGM 08MRP1 12038 Federal Register / Vol. 81, No. 45 / Tuesday, March 8, 2016 / Proposed Rules 5. An Identification, to the Extent Practicable, of All Relevant Federal Rules Which May Duplicate, Overlap or Conflict With the Proposed Rule The State Department is jointly promulgating this rule with DHS. DHS does not view this as duplicative, overlapping, or in conflict with this proposed rule as it is a judicial requirement stemming from the opinion in United Airlines, Inc. v. Brien, 588 F.3d 158 (2d Cir. 2009), which held that the 8 CFR 212.1(g) was improperly promulgated because the State Department and the legacy INS did not promulgate the rule jointly. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 6. A Description of Any Significant Alternatives to the Proposed Rule Which Accomplish the Stated Objectives of Applicable Statutes and Which Minimize Any Significant Economic Impact of the Proposed Rule on Small Entities Alternative 1 (chosen alternative): Allows CBP to waive the requirement for nonimmigrants to present valid documentation for entry into the United States in an unforeseen emergency while retaining the ability to enforce the statutory requirement imposing a maximum penalty of $4,300 on a carrier, regardless of size, for transporting an alien to the United States without proper documentation. When the nonimmigrant without proper documentation is not admitted, including when he or she is granted parole, CBP already has the authority to fine the carrier that did not comply with the requirements. Alternative 2: Same as Alternative 1, but waive the penalty in Alternative 1 for small entities. Alternative 3: No regulatory action (i.e. the world as it is now). CBP has chosen to implement Alternative 1. CBP believes that a penalty mechanism is necessary in order to enforce the statutory prohibition on transporting aliens into the United States without proper documentation. In addition, this rule would end the current inconsistency in fines for violations of section 273. Finally, CBP believes that the penalty provisions in the proposed regulation provide an economic incentive to enforce the statutory requirements of section 273 of the INA. Alternative 2 would eliminate the economic impact of the proposed rule on noncompliant small entities. CBP believes that it would also eliminate economic incentive to enforce the statutory requirement for small entities. Furthermore, 8 CFR 273.5 sets forth the mitigation criteria for the mitigation of VerDate Sep<11>2014 16:21 Mar 07, 2016 Jkt 238001 fines under § 273(e) of the INA and applies the administrative procedures provided for in 8 CFR 280.12 and 280.51. In determining the amount of the mitigation, CBP may take into account the effectiveness of the carrier’s screening procedures, the carrier’s history of fines, and the existence of extenuating circumstances. This mitigation is available to any carrier, including small entities. Alternative 3 would eliminate the economic impact of the proposed rule for all noncompliant carriers, regardless of size. In addition, the current inconsistency in fines for violations of section 273 would continue—carriers who transport aliens who qualify for parole would be fined if they do not adhere to the requirements of section 273, but those who transport aliens who qualify for unforeseen emergency waivers would not be fined. C. Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), 2 U.S.C. 1501 et seq., requires agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. 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 (adjusted for inflation), and it will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. D. Executive Order 13132 The 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, in accordance with section 6 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. E. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3507) an agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB. The collections of information for this NPRM are included in an existing collection for DHS Form I–193 (OMB control number 1651– 0107). PO 00000 Frm 00007 Fmt 4702 Sfmt 9990 List Of Subjects in 8 CFR Part 212 Administrative practice and procedure, Aliens, Immigration, Passports and visas, Reporting and recordkeeping requirements. Amendments to the Regulations For the reasons stated in the preamble, DHS proposes to amend part 212 of title 8 of the Code of Federal Regulations (8 CFR part 212), as set forth below: PART 212—DOCUMENTARY REQUIREMENTS: NONIMMIGRANT; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE 1. The authority citation for part 212 continues to read as follows: ■ Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108–458); 8 CFR part 2. 2. Section 212.1(g) is revised to read as follows: ■ § 212.1 Documentary Requirements for Nonimmigrants. * * * * * (g) Unforeseen emergency. A nonimmigrant seeking admission to the United States must present an unexpired visa and passport valid for the amount of time set forth in section 212(a)(7)(B)(i) of the Act, 8 U.S.C. 1182(a)(7)(B)(i), or a valid biometric border crossing card issued by the DOS on Form DSP–150, at the time of application for admission, unless the nonimmigrant satisfies the requirements described in one or more of paragraphs (a) through (f) or (i), (o), or (p) of this section. Upon a nonimmigrant’s application on Form I–193, or successor form, ‘‘Application for Waiver of Passport and/or Visa,’’ a district director may, in the exercise of its discretion, on a case-by-case basis, waive either or both of the documentary requirements of section 212(a)(7)(B)(i) if satisfied that the nonimmigrant cannot present the required documents because of an unforeseen emergency. The district director may at any time revoke a waiver previously authorized pursuant to this paragraph and notify the nonimmigrant in writing to that effect. * * * * * Dated: February 29, 2016. Jeh Charles Johnson, Secretary. [FR Doc. 2016–04741 Filed 3–7–16; 8:45 am] BILLING CODE 9111–14–P E:\FR\FM\08MRP1.SGM 08MRP1

Agencies

[Federal Register Volume 81, Number 45 (Tuesday, March 8, 2016)]
[Proposed Rules]
[Pages 12032-12038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04741]

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DEPARTMENT OF HOMELAND SECURITY

Customs and Border Protection

8 CFR Part 212

RIN 1651-AA97
[USCBP-2016-0006]

Waiver of Passport and Visa Requirements Due to an Unforeseen
Emergency

AGENCY: U.S. Customs and Border Protection, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This rule proposes to reinstate a 1996 amendment to a
regulation in title 8 of the Code of Federal Regulations regarding a
discretionary waiver of certain documentary requirements for
nonimmigrants seeking admission to the United States. The 1996
amendment allowed the legacy Immigration and Naturalization Service
(INS) (now U.S. Customs and Border Protection) to waive passport and
visa requirements for nonimmigrants due to an unforeseen emergency
while preserving its ability to fine carriers for unlawfully bringing
aliens who do not have a valid passport or visa to the United States.
The U.S. Court of Appeals for the Second Circuit ruled that the legacy
INS and the U.S. Department of State (State Department) did not satisfy
a statutory requirement to act jointly when the amendment was
promulgated. As a result, the court found that the 1996 amendment to
the regulation was procedurally deficient and reimposed an earlier
version of the regulation that legacy INS and the State Department
promulgated in 1994.
This rule proposes to reinstate the 1996 amendment with some
technical amendments. DHS and the State Department have acted jointly
in this matter and the State Department is publishing a parallel
proposed rule to amend its regulation in today's edition of the Federal
Register.

DATES: Comments must be received on or before May 9, 2016.

FOR FURTHER INFORMATION CONTACT: Joseph O'Donnell, Fines, Penalties and
Forfeitures, Office of Field Operations, 202-344-1691.

ADDRESSES: You may submit comments, identified by docket number, by one
of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments via docket number
USCBP-2016-0006.
Mail: Border Security Regulations Branch, Office of
Regulations and Rulings, U.S. Customs and Border Protection, 90 K
Street NE.,10th Floor, Washington, DC 20229-1177.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to https://www.regulations.gov, including any
personal information provided. For detailed instructions on submitting
comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov. Submitted comments
may also be inspected during regular business days between the hours of
9 a.m. and 4:30 p.m. at the Office of International Trade, Regulations
and Rulings, U.S. Customs and Border Protection, 90 K Street NE.,10th
Floor, Washington, DC. Arrangements to inspect submitted comments
should be made in advance by calling Mr. Joseph Clark at (202) 325-
0118.

SUPPLEMENTARY INFORMATION:

Public Participation

Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule. U.S. Customs and Border Protection (CBP) also invites
comments that relate to the economic, environmental or federalism
effects that might result from this proposed rule. Comments that will
provide the most assistance to CBP will reference a specific portion of
the proposed rule, explain the reason for any recommended change, and
include data, information, or authority that support such recommended
change.

[[Page 12033]]

Background

In general, nonimmigrant aliens must present an unexpired passport
and, if required, a valid unexpired visa in order to be admitted to the
United States. See section 212(a)(7)(B)(i) of the Immigration and
Nationality Act, as amended (INA) (8 U.S.C. 1182(a)(7)(B)(i)). The
Secretary of Homeland Security and the Secretary of State, acting
jointly, in specified situations, as provided in section 212(d)(4) of
the INA (8 U.S.C. 1182(d)(4)), may waive either or both of these
requirements.\1\ One of these situations is when the the agencies
determine ``in individual cases'' that the nonimmigrant is unable to
present the required documents due to an unforeseen emergency. See
section 212(d)(4)(A) of the INA (8 U.S.C. 1182(d)(4)(A)). DHS
regulations list those classes of persons who are not required to
present a visa (or passport, in some cases) in 8 CFR 212.1. The
unforeseen emergency waiver is provided for in 8 CFR 212.1(g).\2\ The
State Department has a similar provision in 22 CFR part 41.
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\1\ Previously, the Attorney General acting jointly with the
Secretary of State was authorized to waive the documentary
requirements due to an unforeseen emergency. However, pursuant to
the Homeland Security Act of 2002, Public Law 107-296, 116 Stat.
2135 (HSA), as of March 1, 2003, functions of the legacy INS of the
Department of Justice and the legacy U.S. Customs Service of the
Department of the Treasury were transferred to DHS. Specifically,
pursuant to sections 102(a), 441, 1512(d) and 1517 of the HSA and 8
CFR 2.1, the authorities of the Attorney General, as described in
section 212 of the INA (8 U.S.C. 1182), were transferred to the
Secretary of Homeland Security, and the reference to the Attorney
General in the statute is deemed to refer to the Secretary. Thus,
the waiver authority in section 212 of the INA therefore now resides
with the Secretary of Homeland Security acting jointly with the
Secretary of State.
\2\ An example of an unforeseen emergency may be where a
nonimmigrant loses his or her passport and/or visa or has these
documents stolen immediately prior to departure for the United
States, and does not have time to obtain replacement documents.
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1994 Regulatory Amendment

On January 11, 1994, the legacy INS and the State Department each
issued final rules amending their respective regulations to simplify
the administrative procedure for granting unforeseen emergency waivers.
See 59 FR 1467 and 59 FR 1473 (Jan. 11, 1994). The amended INS
regulation (referred to in this document as the 1994 version of
212.1(g)) provided that the district director would have authority to
grant a waiver of the passport and/or visa requirements under section
212(d)(4)(A) of the INA without the prior concurrence of the Department
of State. Previously, the legacy INS needed to seek the concurrence of
the State Department Visa Office prior to granting a waiver. The
amended regulation also provided that a visa and a passport are not
required of a nonimmigrant who satisfies the district director that the
documents cannot be presented due to an unforeseen emergency.
Specifically, the legacy INS amended 8 CFR 212.1(g) to provide that a
visa and a passport are not required of a nonimmigrant who, either
prior to his or her embarkation at a foreign port or place or at the
time of arrival at a port of entry in the United States, satisfies the
district director at the port of entry that, because of an unforeseen
emergency, he or she is unable to present the required documents, in
which case a waiver application shall be made on Form I-193. The
amended regulation also provided that the district director may approve
a waiver of documents in each case in which he or she is satisfied that
the nonimmigrant cannot present the required documents because of an
unforeseen emergency and the waiver would be appropriate in the
circumstances. See 59 FR 1467-68.
The amended State Department regulation, 22 CFR 41.2(j), contained
similar provisions.\3\
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\3\ The amended State Department regulation provided that a visa
and passport are not required of an alien if, either prior to the
alien's embarkation abroad or upon arrival at a port of entry, the
responsible district director of the Immigration and Naturalization
Service in charge of the port of entry concludes that the alien is
unable to present the required documents because of an unforeseen
emergency. The amended State Department regulation further provided
that any waiver of the visa or passport requirement may be granted
by the INS district director pursuant to INA 212(d)(4)(A) without
the prior concurrence of the Department of State in each case in
which the district director concludes that the alien's claim of
emergency circumstances is legitimate and bona fide and that
approval of the waiver would be appropriate under all of the
attendant facts and circumstances. See 59 FR 1473 (Jan. 11, 1994).
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1996 Regulatory Amendment

On March 22, 1996, the legacy INS published a final rule that
amended the unforeseen emergency waiver in 8 CFR 212.1(g). See 61 FR
11717. Among other things, the legacy INS final rule removed the
statement that a ``visa and a passport are not required of a
nonimmigrant who . . . satisfies the district director at the port of
entry that, because of an unforeseen emergency, he or she is unable to
present the required documents. . . .'' The legacy INS replaced this
language with general language about the documentary requirements for a
nonimmigrant seeking admission to the United States, a statement
authorizing the legacy INS to waive the documentary requirements
because of an unforeseen emergency, and a statement authorizing the
legacy INS to revoke such a waiver. The amended text (referred to in
this document as the 1996 version of 212.1(g)) provided that a
nonimmigrant seeking admission to the United States must present an
unexpired visa and a passport valid for the amount of time set forth in
section 212(a)(7)(B) of the Act, or a valid border crossing
identification card at the time of application for admission, unless
the nonimmigrant satisfies the requirements described in one or more of
the paragraphs (a) through (f) or (i) of 8 CFR 212.1. The amended text
also provided that upon a nonimmigrant's application on Form I-193, a
district director at a port of entry may, in the exercise of his or her
discretion, on a case-by-case basis, waive the documentary
requirements, if satisfied that the nonimmigrant cannot present the
required documents because of an unforeseen emergency. Finally, the
amended text provided that the district director or the Deputy
Commissioner may at any time revoke a waiver previously authorized
pursuant to this paragraph and notify the nonimmigrant in writing to
that effect. See 61 FR 11720-21.
One important distinction between the 1994 and 1996 versions of
section 212.1(g) is that the 1994 version specifies that a visa and
passport ``are not required'' of a nonimmigrant if the legacy INS (now
CBP) concludes that the nonimmigrant is unable to present the required
documents because of an unforeseen emergency. In contrast, the 1996
version does not include the phrase ``are not required.'' The absence
of that language supported the legacy INS' authority to fine carriers
that transported aliens without a valid passport or visa even where the
alien is granted a discretionary waiver under section 212(d)(4) of the
INA.\4\ Section 273 of the INA (8 U.S.C. 1323) makes it unlawful for
any person or company to bring an alien to the United States (other

[[Page 12034]]

than from a foreign contiguous territory) who does not have a valid
passport and an unexpired visa (if a visa is required), including under
controlling regulations, and authorizes a fine against the carrier for
each alien unlawfully brought into the United States.\5\ On May 28,
1999, the State Department amended 22 CFR 41.2(j) in a similar
manner.\6\ See 64 FR 28915.
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\4\ The Board of Immigration Appeals (Board) supported legacy
INS' interpretations of both the 1994 and 1996 versions of 8 CFR
212.1(g). Prior to the 1996 amendment to the regulation, the Board
had held ``that liability to fine was not incurred . . . for
bringing to the United States a nonimmigrant alien without a valid
visa when such alien was paroled into the United States and was
subsequently granted a waiver of the nonimmigrant visa.'' Matter of
United Airlines Flight UA802, 22 I&N Dec. 777, 780 (BIA 1999)
(citing Matter of ``Flight SR-4'', 10 I&N Dec. 197 (BIA 1963)).
However, in Matter of Finnair Flight AY103, 23 I&N Dec. 140 (BIA
2001), the Board held that a carrier was subject to a fine for
bringing an alien passenger to the United States without a valid
nonimmigrant visa even though the passenger was subsequently granted
a waiver of the documentary requirements under the 1996-amended
version of the regulation.
\5\ Section 212(a)(7)(B)(i) of the INA, which concerns only
nonimmgrants, uses the term ``nonimmigrant.'' Section 273 of the
INA, which concerns immigrant and nonimmigrant aliens, uses the term
``alien.'' This document will generally use the term
``nonimmigrant'' when discussing the waiver provision contained in
section 212(d)(4) of the INA or 8 CFR 212.1(g) and use the term
``alien'' when discussing the fines provision contained in section
273.
\6\ The legacy INS amended 8 CFR 212.1(g) on two occasions in
2002. First, it added a reference to section 212.1(o). 67 FR 4784
(Jan. 31, 2002). Second, it updated the documentary requirements by
adding the phrase ``, issued by the DOS on Form DSP 150.'' Finally,
DHS amended this provision in 2007 to add U nonimmigrants to the
list of nonimmigrants who are not required to satisfy the visa and
passport requirement under section 212(a)(7)(B) of the INA
consistent with other regulatory provisions. See 8 CFR 212.1(p).
---------------------------------------------------------------------------

Litigation Challenging the 1996 Regulation

Numerous airlines challenged the 1996 version of 212.1(g) in the
U.S. District Court for the Eastern District of New York. Legacy INS
had fined certain airlines for bringing undocumented aliens into the
United States in violation of section 273 of the INA (8 U.S.C. 1323)
even though some of the undocumented aliens had been granted unforeseen
emergency waivers pursuant to 8 CFR 212.1(g) after the aliens arrived
in the United States. Section 273 of the INA makes it unlawful for any
person or company to bring an alien to the United States (other than
from a foreign contiguous territory) who does not have a valid passport
and an unexpired visa, if a visa was required, and authorizes a $4,300
fine against the carrier for each alien unlawfully brought into the
United States.\7\ Legacy INS believed that granting unforeseen
emergency waivers did not preclude the imposition of fines under
section 273 of the INA on the airlines transporting such waiver
recipients.
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\7\ DHS adjusted the statutory fine of $3,000 to $4,300 to
account for inflation. See 76 FR 74625 (Dec. 1, 2011).
---------------------------------------------------------------------------

Several of the airlines that legacy INS fined claimed that the
fines were not authorized because the 1996 version of 212.1(g) was void
due to procedural defects. Specifically, they claimed that the INA
required joint action between the legacy INS and State Department and
that the 1996 version of 212.1(g) was deficient because the legacy INS
acted on its own when promulgating the regulation. If the 1996 version
was void, the 1994 version of 212.1(g) would control. As described
above, the 1994 version specified that ``a visa and passport are not
required'' of a nonimmigrant if the INS concludes that the nonimmigrant
is unable to present the required documents because of an unforeseen
emergency. Under this version, the legacy INS did not assess carrier
fines for bringing in aliens who were unable to present a valid,
unexpired visa and passport due to an unforeseen emergency.

1996 Regulation Found to Have Been Improperly Promulgated

The district court ruled in favor of the legacy INS on this issue
and the airlines appealed. On November 20, 2009, the United States
Court of Appeals for the Second Circuit issued its opinion in United
Airlines, Inc. v. Brien, 588 F.3d 158 (2d Cir. 2009), a consolidated
appeal from three final orders of the lower court. Although the Second
Circuit agreed with the Government's view that the 1996 version of 8
CFR 212.1(g) would not have precluded the assessment of carrier fines
when an unforeseen emergency waiver had been granted, it held that the
1996 amendment was void because it was improperly promulgated. The
Court stated that section 212(d)(4)(A) of the INA ``requires joint
action, and the two agencies acted jointly when enacting the pre-1996
version of the regulation.'' United Airlines, 588 F.3d at 179. The
Court further stated that ``[t]he INS's attempt to amend the jointly
enacted regulation on its own, therefore, [wa]s ineffective, and the
pre-1996 version remains in effect'' and that ``[t]he INS's failure to
coordinate with the State Department in the amendment of the
regulations render[ed] the 1996 amendment void.'' Id. The Court also
found that the 1999 State Department amendment of its regulation
violated the joint action requirement, that the amendment should have
undergone notice and comment rulemaking before being adopted, and that
``the prior versions of both agencies' regulations remain effective
until the two agencies act jointly to amend them.'' Id. at 180
(emphasis in original). As a result, the Court invalidated the 1996
amendment to 8 CFR 212.1(g), as well as subsequent amendments to the
regulation made in 2002 and 2007.\8\ The Court reinstated the 1994
version of the regulation.
---------------------------------------------------------------------------

\8\ The INS amended the regulation in 2002 to update documentary
requirements, and DHS amended the regulation in 2007 to include U
nonimmigrants among those who could seek a waiver. See 67 FR 71443
(Dec. 2, 2002) and 72 FR 53014 (Sept. 17, 2007).
---------------------------------------------------------------------------

Proposal

DHS is now proposing to reinstate the 1996, 2002 and 2007
amendments to 8 CFR 212.1(g). DHS and the State Department have
consulted and are each proposing parallel and simultaneous amendments
to 8 CFR 212.1(g) and 22 CFR 41.2(i), respectively, to reinstate the
1996, 2002 and 2007 amendments to 8 CFR 212.1(g) and the 1999
amendments to 22 CFR 41.2(i).\9\ The State Department's Notice of
Proposed Rulemaking is published in today's Federal Register. The
issuance of parallel regulations was specifically sanctioned by the
Court in United Airlines when it noted that ``[t]he 1999 State
Department amendment, like the 1996 INS amendment, violated the joint
action requirement, and the prior versions of both agencies'
regulations remain effective until the two agencies act jointly to
amend them.'' 588 F.3d at 180.
---------------------------------------------------------------------------

\9\ 22 CFR 41.2(j) was redesignated as 22 CFR 41.2(i) in 2016.
See 81 FR 5908.
---------------------------------------------------------------------------

With these amendments, DHS will be able to assess carrier fines
under section 273 of the INA in appropriate cases notwithstanding that
an ``unforeseen emergency'' waiver had been granted under section
212(d)(4)(A) of the Act and 8 CFR 212.1(g).\10\
---------------------------------------------------------------------------

\10\ CBP generally would not consider it appropriate to apply a
fine if CBP granted the waiver prior to the nonimmigrant alien's
boarding.
---------------------------------------------------------------------------

Regulatory Analyses

A. Executive Order 13563 and Executive Order 12866

Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule is a ``significant regulatory action,'' although
not an economically significant regulatory action, under section 3(f)
of Executive Order 12866. Accordingly, the Office of Management and
Budget has reviewed this regulation.
In 1996, the legacy INS published a final rule (61 FR 11717)
amending 8 CFR 212.1(g) which allowed for the waiver of the requirement
of proper entry documentation for a

[[Page 12035]]

nonimmigrant in an unforeseen emergency while still retaining the
ability to fine the carrier for transporting an alien to the United
States without proper entry documentation. In 2009, the U.S. Court of
Appeals for the Second Circuit issued an opinion in United Airlines,
Inc. v. Brien, 588 F.3d 158 (2d Cir. 2009) which held that the
regulation amending 8 CFR 212.1(g) was improperly promulgated because
the State Department and the legacy INS did not jointly promulgate the
rule. In its ruling, the Court upheld CBP's right to issue fines under
section 273 of the INA when aliens do not receive a waiver but are
otherwise allowed to enter the United States without proper documents,
such as when they are paroled into the United States.\11\ This has led
to a situation where carriers are being penalized inconsistently when
they transport aliens to the United States without proper
documentation. If an alien qualifies for parole, the carrier is fined.
If an alien does not qualify for parole but receives a waiver, the
carrier is not fined. Since the carrier is equally violative in these
situations, CBP believes the penalties should be the same for each.
---------------------------------------------------------------------------

\11\ An alien may be paroled into the United States when he or
she appears to be inadmissible to the inspecting officer but is
allowed into the United States for urgent humanitarian reasons or
when that alien's entry is determined to be for significant public
benefit. Parole does not constitute an admission to the United
States and shall be terminated when, inter alia, the purpose of
parole is accomplished or neither humanitarian reasons nor public
benefit warrants the continued presence of the alien in the United
States. See 8 CFR 212.5(e). See https://www.dhs.gov/definition-terms
for information on various types of parole.
---------------------------------------------------------------------------

As such, DHS (functions of the legacy INS were transferred to DHS
in 2003) and the State Department are now jointly promulgating rules to
allow CBP to waive the requirement to present entry documents for
nonimmigrants under an unforeseen emergency while still retaining the
ability to fine the carrier a maximum penalty of $4,300 for
transporting an alien to the United States without proper entry
documentation.
From FY 2010-2015, if this proposed rule had been in effect,
carriers would have been subject to penalties averaging $1.7 million
per year for 950 violations to section 273 of the INA. This $1.7
million represents a transfer from violative carriers to the United
States government. To avoid the penalties imposed by this rule and
existing penalties, carriers may adopt further oversight. CBP requests
comment on any additional oversight costs that could result from this
rule.
CBP currently issues penalties under this provision to any carriers
that transport aliens without proper documents who are inadmissible,
including when these aliens qualify for parole. Therefore, CBP will not
have to set up a new process to fine carriers as a result of this rule.
A penalty under this provision takes CBP approximately 2.5 hours to
process. Therefore, on average this rule would take approximately 2,375
hours a year for CBP to administer.
Currently, carriers are penalized for violations of section 273
inconsistently. When a carrier transports an alien without proper
documentation, whether it is penalized depends not on the nature of the
carrier's violation, but on whether the alien it transported qualifies
for a waiver. CBP believes it is more equitable to penalize carriers
who violate section 273 equally. Additionally, CBP believes that the
penalty provisions in the proposed regulation provide an economic
incentive to enforce the statutory requirements of section 273 of the
INA.
For additional analysis on the impacts of this rule on small
entities and a discussion of alternatives, see section B. Regulatory
Flexibility Act.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996,
requires agencies to assess the impact of regulations on small
entities. A small entity may be a small business (defined as any
independently owned and operated business not dominant in its field
that qualifies as a small business per the Small Business Act); a small
not-for-profit organization; or a small governmental jurisdiction
(locality with fewer than 50,000 people).
As discussed above, DHS and the State Department are proposing
parallel and simultaneous amendments to 8 CFR 212.1(g) and 22 CFR
41.2(i) respectively, that would allow CBP to waive the passport and/or
visa requirements for nonimmigrants due to an unforeseen emergency
while retaining the ability to enforce the statutory requirement
imposing a maximum penalty of $4,300 on a carrier for transporting an
alien to the United States without proper documentation.
The Regulatory Flexibility Act does not specify thresholds for
economic significance but instead gives agencies flexibility to
determine the appropriate threshold for a particular rule. CBP believes
that a maximum penalty of $4,300 may be considered a significant
economic impact given the wide range of companies subject to the
requirements of this rule and that it is possible that a specific small
entity may receive more than one penalty in a year. Therefore CBP is
preparing an Initial Regulatory Flexibility Analysis under section 603
of the Regulatory Flexibility Act.
It is unlawful under section 273 of the INA for any person or
company to transport an alien to the United States (other than from a
foreign contiguous territory) who does not have a valid passport and an
unexpired visa (if a visa is required). 8 U.S.C. 1323. As such, it is
possible that any person or company engaged in the transportation of
aliens may be affected by the proposed rule. Below, Table 1 presents
data on the industries CBP has identified that could be affected by
this rule. While CBP finds that only 41 small entities have violated
section 273 of the INA from FY 2008 to FY 2012, CBP is unable to
certify that substantial number of small entities will not be affected
by the proposed regulation in the future.\12\
---------------------------------------------------------------------------

\12\ Since November 20, 2009 CBP has been unable to impose a
penalty when a section 212(d)(4)(A) waiver has been granted to an
alien without proper documentation. Nevertheless, the small entities
listed in Table 1 transported aliens who received such waivers. The
small entities responsible for transporting the aliens were not
assessed a penalty.
---------------------------------------------------------------------------

CBP is choosing not to certify that this rule will not have a
significant economic impact on a substantial number of small entities.
Accordingly, CBP has conducted the following Initial Regulatory
Flexibility Analysis.
1. A Description of the Reasons Why Action by the Agency Is Being
Considered
In 1996, the legacy INS published a final rule (61 FR 11717)
amending 8 CFR 212.1(g) which allowed for the waiver of the requirement
of proper entry documentation for a nonimmigrant in an unforeseen
emergency while still retaining the ability to fine the carrier for
transporting an alien to the United States without proper entry
documentation. In 2009, the U.S. Court of Appeals for the Second
Circuit issued an opinion in United Airlines, Inc. v. Brien, 588 F.3d
158 (2d Cir. 2009) which held that the regulation amending 8 CFR
212.1(g) was improperly promulgated because the State Department and
the legacy INS did not jointly promulgate the rule. As such, DHS
(functions of the legacy INS were transferred to DHS in 2003) and the
State Department are now jointly promulgating rules to allow CBP to
waive the requirement to present entry documents for nonimmigrants
under an unforeseen emergency while still

[[Page 12036]]

retaining the ability to fine the carrier for transporting an alien to
the United States without proper entry documentation. CBP believes that
the penalty provisions in the proposed regulation provide the necessary
economic incentive to enforce the statutory requirements of section 273
of the INA.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
The objective of this regulation is to allow CBP to waive the
requirement of proper entry documents for nonimmigrants in an
unforeseen emergency while still retaining the ability to fine the
carrier for transporting an alien to the United States without proper
entry documentation. In general, nonimmigrant aliens must present an
unexpired passport and, if required, a valid unexpired visa in order to
be admitted to the United States. See section 212(a)(7)(B)(i) of the
INA (8 U.S.C. 1182(a)(7)(B)(i)). The Secretary of Homeland Security and
the Secretary of State, acting jointly, in specified situations, as
provided in section 212(d)(4) of the INA (8 U.S.C. 1182(d)(4)), may
waive either or both of these requirements. One of these situations is
when the nonimmigrant is unable to present the required documents due
to an unforeseen emergency. See section 212(d)(4)(A) of the INA. DHS
regulations list those classes of persons who are not required to
present a visa (or passport, in some cases) in 8 CFR 212.1. The
unforeseen emergency waiver is provided for in 8 CFR 212.1(g). The
State Department has a similar provision in 22 CFR part 41.
3. A Description of and, Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Will Apply
It is unlawful under section 273 of the INA for any person or
company to transport an alien to the United States (other than from a
foreign contiguous territory) who does not have a valid passport and an
unexpired visa (if a visa is required). As such, it is possible that
any person or company engaged in the transportation of aliens may be
affected by this rule. Below, Table 1 presents data on the industries
CBP estimates could be affected by this rule. The data include the
NAICS codes of an industry, a description of the industry, and the
Small Business Administration's (SBA) guidance on what qualifies an
entity to be considered small in the respective industry. Additionally,
Table 1 includes the number small entities in the respective industry
that have violated section 273 of the INA from FY 2008 through FY
2012.\13\ Of the industries that could be affected, only four
industries have had small entities that have violated section 273 of
the INA from FY 2008 through FY 2012.
---------------------------------------------------------------------------

\13\ Since November 20, 2009, CBP has been unable to impose a
penalty when a 212.1(g) waiver has been granted to an alien without
proper documentation. Nevertheless, the small entities listed in
Table 1 transported aliens who received 212.1(g) waivers. The small
entities responsible for transporting the aliens were not assessed a
penalty.

Table 1
----------------------------------------------------------------------------------------------------------------
Small entities
that have
NAICS Industry description SBA size standard violated section
273 of the INA
----------------------------------------------------------------------------------------------------------------
481111.......................... Scheduled Passenger Air <1,500 employees.......... 0
Transportation.
481112.......................... Scheduled Freight Air <1,500 employees.......... 0
Transportation.
481211.......................... Nonscheduled Chartered Passenger <1,500 employees.......... 16
Air Transportation.
481212.......................... Nonscheduled Chartered Freight <1,500 employees.......... 0
Air Transportation.
481219.......................... Other Nonscheduled Air <$14 million in revenue... 0
Transportation.
482111.......................... Line-Haul Railroads............. <1,500 employees.......... 0
482112.......................... Short Line Railroads............ <500 employees............ 0
483111.......................... Deep Sea Freight Transportation. <500 employees............ 1
483112.......................... Deep See Passenger <500 employees............ 0
Transportation.
483113.......................... Coastal and Great Lakes Freight <500 employees............ 0
Transportation.
483114.......................... Coastal and Great Lakes <500 employees............ 0
Passenger Transportation.
483211.......................... Inland Water Freight <500 employees............ 0
Transportation.
483212.......................... Inland Water Passenger <500 employees............ 1
Transportation.
484230.......................... Specialized Freight (except, <$25.5 million in revenue. 0
Used Goods) Trucking, Long-
Distance.
485991.......................... Special Needs Transportation.... <$14 million in revenue... 0
487110.......................... Scenic and Sightseeing <$7 million in revenue.... 0
Transportation, Land.
488330.......................... Navigational Services to <$35.5 million in revenue. 0
Shipping.
541614.......................... Process, Physical Distribution <$14 million in revenue... 23
and Logistics Consulting
Services.
621910.......................... Ambulance Services.............. <$14 million in revenue... 0
----------------------------------------------------------------------------------------------------------------
Sources: U.S. Census Bureau, Small Business Administration, and CBP.

To estimate the number of small entities to which the proposed rule
will apply, CBP needs an estimate of the total number of small entities
within an industry and the number of these small entities that are, or
will be, engaged in the transportation of aliens.
The U.S. Census Bureau (Census) provides estimates of the number of
entities within an industry. The Census organizes an industry by
various intervals of annual revenue and number of employees.\14\ Using
these intervals and the SBA's small entity standards, CBP can estimate
the number of small entities within an industry. However, the Census
intervals do not necessarily correspond exactly with the SBA's small
entity size standards. As an example, as shown in Table 2 below, the
SBA's small entity size standards state that an entity classified under
NAICS code 481211 is small if it has fewer than 1,500 employees. The
Census, however, only has the following intervals of employees: 0-4
employees, 5-9 employees, 10-19 employees, 20-99 employees, 100-499
employees, and 500+ employees. It is not possible to differentiate
between the entities in the 500+ employee interval that would be
considered small under SBA's small entity size standards (entities with
fewer

[[Page 12037]]

than 1,500 employees) and those entities the SBA does not consider
small (entities with more than 1,500 employees). We therefore, sought
an alternative data source to supplement the Census data. Any scheduled
airline with a capacity of carrying over 18,000 pounds is required to
report employee information to the Department of Transportation.\15\
Using this data, we were able to identify carriers with over 1,500
employees, who are not considered small entities under the SBA size
standards. We subtracted these airlines from the total small entities
in each NAICS code to estimate the total small entities that could be
affected by this rule. We note that these estimates could include
businesses with over 1,500 employees that have a payload of less than
18,000 pounds or that do not offer scheduled flights. As there are a
large number of small businesses with over 18,000 pounds of capacity,
as shown in DOT's data, we do not believe there are many, if any, large
carriers that are not included in DOT's data. We request comment on
this matter.
---------------------------------------------------------------------------

\14\ https://www.census.gov/econ/susb/.
\15\ https://transtats.bts.gov/Employment/.
---------------------------------------------------------------------------

Although CBP can use the Census and DOT data to provide an estimate
of the number of small entities that have the potential to be affected
by this rule, CBP cannot use the Census data to determine the number of
small entities that are, or will be, engaged in the transportation of
aliens within a reasonable degree of accuracy.\16\ As shown in both
Tables 1 and 2, however, CBP's internal records show that only 41 small
entities from FY 2008 to FY 2012 violated section 273 of the INA and
thus would have been subject to a penalty if this rule were in effect.
CBP seeks comment on the number of small entities that are, or will be,
engaged in the transportation of aliens.
---------------------------------------------------------------------------

\16\ For instance, CBP cannot tell which scheduled passenger air
transportation entities do, or will, transport aliens and which do,
or will, not transport aliens.

Table 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small entities
Total number of small that have
NAICS Industry description SBA Size Standard Total number of entities entities violated section
273 of the INA
--------------------------------------------------------------------------------------------------------------------------------------------------------
481111...................... Scheduled Passenger <1,500 employees...... 258........................ 233........................ 0
Air Transportation.
481112...................... Scheduled Freight Air <1,500 employees...... 232........................ 227........................ 0
Transportation.
481211...................... Nonscheduled Chartered <1,500 employees...... 1498....................... 1498....................... 16
Passenger Air
Transportation.
481212...................... Nonscheduled Chartered <1,500 employees...... 171........................ 171........................ 0
Freight Air
Transportation.
481219...................... Other Nonscheduled Air $14 million in revenue 476........................ 477........................ 0
Transportation.
482111...................... Line-Haul Railroads... <1,500 employees...... not available.............. not available.............. 0
482112...................... Short Line railroads.. <500 employees........ not available.............. not available.............. 0
483111...................... Deep Sea Freight <500 employees........ 231........................ 213........................ 1
Transportation.
483112...................... Deep See Passenger <500 employees........ 48......................... 41......................... 0
Transportation.
483113...................... Coastal and Great <500 employees........ 376........................ 350........................ 0
Lakes Freight
Transportation.
483114...................... Coastal and Great <500 employees........ 170........................ 170........................ 0
Lakes Passenger
Transportation.
483211...................... Inland Water Freight <500 employees........ 319........................ 294........................ 0
Transportation.
483212...................... Inland Water Passenger <500 employees........ 235........................ 233........................ 1
Transportation.
484230...................... Specialized Freight $25.5 million in 9,839...................... 9,476...................... 0
(except, Used Goods) revenue.
Trucking, Long-
Distance.
485991...................... Special Needs $14 million in revenue 2,130...................... 2,026...................... 0
Transportation.
487110...................... Scenic and Sightseeing $7 million in revenue. 646........................ 121........................ 0
Transportation, Land.
488330...................... Navigational Services $35.5 million in 728........................ 693........................ 0
to Shipping. revenue.
541614...................... Process, Physical $14 million in revenue 6,379...................... 6,058...................... 23
Distribution and
Logistics Consulting
Services.
621910...................... Ambulance Services.... $14 million in revenue 3,150...................... 2,941...................... 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: U.S. Census Bureau, Small Business Administration, and CBP.

4. A Description of the Projected Reporting, Recordkeeping and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities Which Will Be Subject to the Requirement
and the Type of Professional Skills Necessary for Preparation of the
Report or Record
The proposed regulation does not propose changes to any required
reporting, recordkeeping, or compliance requirements. The objective of
the proposed rule is to allow CBP in an unforeseen emergency to waive
the requirement that a nonimmigrant present proper entry documents in
order to be admitted into the United States while retaining the ability
to fine the carrier that did not comply with the requirements
pertaining to the proper transportation of an alien to the United
States. When the nonimmigrant without proper documentation is not
admitted, including when he or she is granted parole, CBP already has
the authority to fine the carrier that did not comply with the
requirements. This rule would only affect the carriers transporting
aliens for whom CBP waives the document requirement. As discussed
above, the proposed rule could affect any small entity that transports
an alien without proper entry documentation.

[[Page 12038]]

5. An Identification, to the Extent Practicable, of All Relevant
Federal Rules Which May Duplicate, Overlap or Conflict With the
Proposed Rule
The State Department is jointly promulgating this rule with DHS.
DHS does not view this as duplicative, overlapping, or in conflict with
this proposed rule as it is a judicial requirement stemming from the
opinion in United Airlines, Inc. v. Brien, 588 F.3d 158 (2d Cir. 2009),
which held that the 8 CFR 212.1(g) was improperly promulgated because
the State Department and the legacy INS did not promulgate the rule
jointly.
6. A Description of Any Significant Alternatives to the Proposed Rule
Which Accomplish the Stated Objectives of Applicable Statutes and Which
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities
Alternative 1 (chosen alternative): Allows CBP to waive the
requirement for nonimmigrants to present valid documentation for entry
into the United States in an unforeseen emergency while retaining the
ability to enforce the statutory requirement imposing a maximum penalty
of $4,300 on a carrier, regardless of size, for transporting an alien
to the United States without proper documentation. When the
nonimmigrant without proper documentation is not admitted, including
when he or she is granted parole, CBP already has the authority to fine
the carrier that did not comply with the requirements.
Alternative 2: Same as Alternative 1, but waive the penalty in
Alternative 1 for small entities.
Alternative 3: No regulatory action (i.e. the world as it is now).
CBP has chosen to implement Alternative 1. CBP believes that a
penalty mechanism is necessary in order to enforce the statutory
prohibition on transporting aliens into the United States without
proper documentation. In addition, this rule would end the current
inconsistency in fines for violations of section 273. Finally, CBP
believes that the penalty provisions in the proposed regulation provide
an economic incentive to enforce the statutory requirements of section
273 of the INA.
Alternative 2 would eliminate the economic impact of the proposed
rule on noncompliant small entities. CBP believes that it would also
eliminate economic incentive to enforce the statutory requirement for
small entities. Furthermore, 8 CFR 273.5 sets forth the mitigation
criteria for the mitigation of fines under Sec. 273(e) of the INA and
applies the administrative procedures provided for in 8 CFR 280.12 and
280.51. In determining the amount of the mitigation, CBP may take into
account the effectiveness of the carrier's screening procedures, the
carrier's history of fines, and the existence of extenuating
circumstances. This mitigation is available to any carrier, including
small entities.
Alternative 3 would eliminate the economic impact of the proposed
rule for all noncompliant carriers, regardless of size. In addition,
the current inconsistency in fines for violations of section 273 would
continue--carriers who transport aliens who qualify for parole would be
fined if they do not adhere to the requirements of section 273, but
those who transport aliens who qualify for unforeseen emergency waivers
would not be fined.

C. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), 2
U.S.C. 1501 et seq., requires agencies to assess the effects of their
regulatory actions on State, local, and tribal governments and the
private sector. 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 (adjusted for
inflation), and it will not significantly or uniquely affect small
governments. Therefore, no actions are necessary under the provisions
of the Unfunded Mandates Reform Act of 1995.

D. Executive Order 13132

The 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, in accordance with section 6 of Executive
Order 13132, this rule does not have sufficient federalism implications
to warrant the preparation of a federalism summary impact statement.

E. Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (Pub. L.
104-13, 44 U.S.C. 3507) an agency may not conduct, and a person is not
required to respond to, a collection of information unless the
collection of information displays a valid control number assigned by
OMB. The collections of information for this NPRM are included in an
existing collection for DHS Form I-193 (OMB control number 1651-0107).

List Of Subjects in 8 CFR Part 212

Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.

Amendments to the Regulations

For the reasons stated in the preamble, DHS proposes to amend part
212 of title 8 of the Code of Federal Regulations (8 CFR part 212), as
set forth below:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANT; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

0
1. The authority citation for part 212 continues to read as follows:

Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 U.S.C. 1185 note
(section 7209 of Pub. L. 108-458); 8 CFR part 2.

0
2. Section 212.1(g) is revised to read as follows:

Sec. 212.1 Documentary Requirements for Nonimmigrants.

* * * * *
(g) Unforeseen emergency. A nonimmigrant seeking admission to the
United States must present an unexpired visa and passport valid for the
amount of time set forth in section 212(a)(7)(B)(i) of the Act, 8
U.S.C. 1182(a)(7)(B)(i), or a valid biometric border crossing card
issued by the DOS on Form DSP-150, at the time of application for
admission, unless the nonimmigrant satisfies the requirements described
in one or more of paragraphs (a) through (f) or (i), (o), or (p) of
this section. Upon a nonimmigrant's application on Form I-193, or
successor form, ``Application for Waiver of Passport and/or Visa,'' a
district director may, in the exercise of its discretion, on a case-by-
case basis, waive either or both of the documentary requirements of
section 212(a)(7)(B)(i) if satisfied that the nonimmigrant cannot
present the required documents because of an unforeseen emergency. The
district director may at any time revoke a waiver previously authorized
pursuant to this paragraph and notify the nonimmigrant in writing to
that effect.
* * * * *

Dated: February 29, 2016.
Jeh Charles Johnson,
Secretary.
[FR Doc. 2016-04741 Filed 3-7-16; 8:45 am]
BILLING CODE 9111-14-P

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