Waiver of Passport and Visa Requirements Due to an Unforeseen Emergency, 41867-41873 [2017-18749]

Download as PDF Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations of the Immigration and Nationality Act (INA), as amended (8 U.S.C. 1182(d)(4)); see also section 212(a)(7)(B)(i) of the 8 CFR Part 212 INA (8 U.S.C. 1182(a)(7)(B)(i)) (describing documentary requirements RIN 1651–AA97 for nonimmigrants). One of these [USCBP–2016–0006; CBP Decision No. 17– situations is where the agencies 10] determine in individual cases that the nonimmigrant is unable to present the Waiver of Passport and Visa required documents due to an Requirements Due to an Unforeseen unforeseen emergency. See section Emergency 212(d)(4)(A) of the INA (8 U.S.C. 1182(d)(4)(A)). Regulations governing AGENCY: U.S. Customs and Border issuance of unforeseen emergency Protection, DHS. waivers are set forth at 8 CFR 212.1(g). ACTION: Final rule. DOS has similar implementing SUMMARY: This rule adopts as final regulations. See 22 CFR 41.2(i). proposed amendments to the On March 8, 2016, U.S. Customs and Department of Homeland Security’s Border Protection (CBP) published a (DHS) regulations describing the notice of proposed rulemaking (NPRM) procedures for issuance of a in the Federal Register (81 FR 12032) discretionary waiver, on the basis of proposing to amend 8 CFR 212.1(g). The unforeseen emergency in individual NPRM provided a 60-day public cases, of certain documentary comment period. In the NPRM, CBP requirements for individuals seeking proposed to reinstate a 1996 amendment admission to the United States as a to 8 CFR 212.1(g) that was invalidated nonimmigrant. The Department of State by court order in United Airlines, Inc. v. (DOS) is issuing a parallel final rule Brien, 588 F.3d 158 (2d Cir. 2009). The amending a similar DOS regulation court invalidated the 1996 amendment published in today’s edition of the on procedural grounds because the Federal Register. DHS and DOS have legacy Immigration and Naturalization acted jointly in this matter. Service (INS) did not coordinate with DOS in amending the regulation in DATES: This rule is effective October 5, violation of the joint action requirement 2017. under section 212(d)(4)(A) of the INA (8 FOR FURTHER INFORMATION CONTACT: U.S.C. 1182(d)(4)(A)). United Airlines, Joseph O’Donnell, Fines, Penalties and 588 F.3d at 179. Forfeitures, Office of Field Operations, Among other things, the 1996 U.S. Customs and Border Protection, amendment would have removed telephone number (202) 344–1691, or by email at joseph.r.odonnell@cbp.dhs.gov. certain language from 8 CFR 212.1(g) that precluded DHS from assessing SUPPLEMENTARY INFORMATION: carrier fines under section 273 of the INA (8 U.S.C. 1323) when an Background ‘‘unforeseen emergency’’ waiver had The Secretary of Homeland Security been granted under section 212(d)(4)(A) and the Secretary of State, acting jointly, of the INA and 8 CFR 212.1(g). Section in specified situations, may waive 273 of the INA makes it unlawful for a certain documentary requirements (i.e., carrier to bring to the United States any an unexpired passport and, if required, alien who does not have a valid a valid unexpired visa) for individuals passport and an unexpired visa, if a visa seeking admission to the United States was required under the INA or the as nonimmigrants.1 See section 212(d)(4) regulations issued thereunder, and subjects the carrier to a fine for violating 1 Previously, the Attorney General acting jointly mstockstill on DSK30JT082PROD with RULES DEPARTMENT OF HOMELAND SECURITY 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 Immigration and Naturalization Service (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 VerDate Sep<11>2014 16:52 Sep 01, 2017 Jkt 241001 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(d)(4) of the INA now resides with the Secretary of Homeland Security acting jointly with the Secretary of State. PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 41867 this provision. The 1996 amendment of 8 CFR 212.1(g) would have removed the phrase that a visa and passport ‘‘are not required’’ if legacy INS (now CBP) concluded that the nonimmigrant was unable to present the required documents because of an unforeseen emergency. The NPRM proposed to reinstate the 1996 amendment by removing the phrase ‘‘are not required’’ so that CBP could assess carrier fines under section 273 of the INA in appropriate cases notwithstanding that an ‘‘unforeseen emergency’’ waiver has been granted under section 212(d)(4)(A) of the Act and 8 CFR 212.1(g).2 The NPRM also proposed to amend 8 CFR 212.1(g) by reinstating 2002 and 2007 amendments to 8 CFR 212.1(g) that were also invalidated as a result of the court order in United Airlines.3 Further background information is provided in the NPRM. On March 8, 2016, DOS published a parallel NPRM proposing amendment of 22 CFR 41.2(i). See 81 FR 12050. Discussion of Comments DHS received eleven comments on this rule. Two comments favored the proposed amendments, and two did not. The remaining comments criticized U.S. immigration policy or aspects of the regulation that were unchanged and are outside the scope of this rulemaking. A summary of the relevant issues raised in the comments and CBP’s responses are set forth below. Comment Two commenters said that the proposed regulation did not clearly specify what constitutes an ‘‘unforeseen emergency’’ under 8 CFR 212.1(g). One of these commenters recommended the addition of more details about the criteria for qualifying for the unforeseen emergency waiver. The other commenter requested an explanation of the phrase ‘‘unforeseen emergency’’ and was concerned about the ‘‘lack of substantial definitions on key terms.’’ 2 CBP would not apply a fine if CBP granted the waiver and did not revoke it prior to the nonimmigrant alien’s boarding. 3 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). E:\FR\FM\05SER1.SGM 05SER1 41868 Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations CBP Response The proposed regulation permits the CBP district director 4 to grant an unforeseen emergency waiver on an individual case-by-case basis in the exercise of his or her discretion based on the circumstances presented. CBP has determined that this discretionary case-by-case approach is preferable to establishing a specific definition of or criteria for establishing an unforeseen emergency because it is impossible to define or forecast all the various circumstances that could arise that might justify an unforeseen emergency waiver. CBP also has concluded that the inclusion of a definition or the criteria for determining an unforeseen emergency in the regulation would be too limiting. Comment One commenter stated that in now proposing parallel amendments to their respective regulations, CBP and DOS have satisfied the joint action requirement. This same commenter indicated that the proposed amendment is inconsistent with the decision in United Airlines to uphold the Board of Immigration Appeals’ (BIA) longstanding rule that a carrier may not be fined under section 273 for having brought an alien to the United States if that alien receives an unforeseen emergency visa waiver. Another commenter stated that it was unclear how the Government could waive passport/visa requirements and yet retain the ability to fine airline carriers for such transport. mstockstill on DSK30JT082PROD with RULES CBP Response CBP agrees that DHS and DOS have satisfied the joint action requirement under section 212(d)(4)(A) of the INA (8 U.S.C. 1182(d)(4)(A)) by proposing and now issuing parallel regulations. CBP disagrees that this rule is inconsistent with the decision in United Airlines. In United Airlines, the court considered the validity of the BIA rule interpreting the pre-1996 version of 8 CFR 212.1(g). See 588 F.3d at 169–70. 4 The DHS regulation at 8 CFR 1.2 defines ‘‘district director’’ broadly. It specifies that to the extent that authority has been delegated to such official, it means asylum office director; director, field operations; district director for interior enforcement; district director for services; field office director; service center director; or special agent in charge. It further specifies that term means such other official, including an official in an acting capacity, within CBP or another DHS component who is delegated the function or authority above for a particular geographic district, region, or area. In determining eligibility for an unforeseen emergency waiver under 8 CFR 212.1(g), the term ‘‘district director’’ would encompass the CBP port director for the port where the nonimmigrant is seeking admission to the United States. VerDate Sep<11>2014 16:52 Sep 01, 2017 Jkt 241001 By way of background, section 273(a)(1) of the INA (8 U.S.C. 1323(a)(1)) makes it unlawful for a carrier to bring to the United States any alien who does not have a valid passport and an unexpired visa, if a visa was required under the INA or the regulations issued thereunder. Because the pre-1996 version of 8 CFR 212.1(g) specified that a visa and a passport are not required if a nonimmigrant demonstrates an unforeseen emergency, the BIA concluded that a carrier could not be fined pursuant to section 273 when an unforeseen emergency waiver was granted under 8 CFR 212.1(g).5 See id. at 163. However, in 1996, legacy INS amended 8 CFR 212.1(g) to remove the language that a passport and visa are not required if a nonimmigrant demonstrates an unforeseen emergency. See 61 FR 11717. Subsequently, the BIA, applying the 1996 version of the regulation, 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 post-arrival waiver of the visa document requirement. See Matter of Finnair Flight AY103, 23 I&N Dec. 140 (BIA 2001). Therefore, this final rule, which allows CBP to waive passport and/or visa requirements for a nonimmigrant due to an unforeseen emergency yet still retain the authority to fine the carrier for transporting an alien to the United States without proper documentation, is consistent with the relevant BIA precedent and United Airlines. In fact, the court in United Airlines explicitly sanctioned the approach taken by this final rule. The court stated that if the INS (now CBP) finds that application of the BIA’s interpretation of section 273 creates a disincentive for airlines to make a reasonable, good faith effort to ensure that every alien has the requisite travel and entry documents prior to arrival in the United States, it may amend the regulations so that a post-arrival waiver does not nullify the documentary requirements of section 212(a)(7)(B) of the INA. See United Airlines, 588 F.3d at 173. section 273. One commenter stated that unless a carrier would receive more than $4,300 to transport an alien into the United States without proper documentation, the carrier would be disincentivized to provide such transportation due to the possibility of a $4,300 fine under section 273.6 This commenter stated that CBP’s authority to assess carrier fines in such cases would force airlines and other small entities to implement more stringent practices regarding whom they transport to the United States. This commenter supported Alternative 1, the chosen proposal, which was described in the NPRM as allowing CBP to waive the requirement for individuals seeking admission as nonimmigrants to present valid documentation for entry into the United States in an unforeseen emergency while retaining the authority to fine carriers under section 273. This commenter indicated that Alternative 2, described in the NPRM as the same as Alternative 1 but with a waiver of the penalty for small entities, would remove the economic incentive to comply with section 273 and create an unnecessary safety risk. Another commenter stated that CBP’s ability to assess carrier fines, regardless of whether the undocumented passenger received a waiver, would provide an economic incentive for carriers to adhere to section 273 and dissuade carriers from attempting to determine on their own whether an undocumented passenger would qualify for an unforeseen emergency waiver. Comment Two commenters expressed the view that the rule would create an economic incentive for carriers to comply with 6 Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public Law 114–74 (Nov. 2, 2015), on July 1, 2016, DHS issued a rule that adjusted the fine from $4,300 to $5,345 to account for inflation. See 81 FR 42987. The adjusted penalty amount became effective for penalties assessed after August 1, 2016 whose associated violation occurred after November 2, 2015. On January 27, 2017, DHS further adjusted the penalty amount for inflation from $5,345 to $5,432 for penalties assessed after January 27, 2017 whose associated violation occurred after November 2, 2015. See 82 FR 8571. Pursuant to this Act, the penalty amount will be adjusted every year. 5 The court also upheld legacy INS’s decision to parole aliens arriving in the United States without proper documents rather than granting them a waiver, thereby preserving INS’s ability to fine the carrier under section 273 of the INA. See United Airlines, 588 F.3d at 174. For further explanation about parole, see infra note 7. PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 CBP Response CBP agrees that this rule will incentivize carriers to make a reasonable, good-faith effort to ensure that every alien has the proper documentation prior to arrival in the United States. Conclusion After review of the comments and further consideration, DHS adopts as final the proposed amendments published in the Federal Register (81 FR 12032) on March 8, 2016. E:\FR\FM\05SER1.SGM 05SER1 Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations Regulatory Analyses mstockstill on DSK30JT082PROD with RULES A. Executive Order 13563 and Executive Order 12866 Executive Orders 12866 (‘‘Regulatory Planning and Review’’) and 13563 (‘‘Improving Regulation and Regulatory Review’’) 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. Executive Order 13771 (‘‘Reducing Regulation and Controlling Regulatory Costs’’) directs agencies to reduce regulation and control regulatory costs and provides that ‘‘for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.’’ The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has not reviewed it. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB’s Memorandum titled ‘‘Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled ‘Reducing Regulation and Controlling Regulatory Costs’ ’’ (February 2, 2017). In 1996, the legacy INS published a final rule (61 FR 11717) amending 8 CFR 212.1(g) which allowed for the waiver of required passport and visa documents 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 the required documents. 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 DOS and the legacy INS did not jointly promulgate the rule. In its ruling, the court upheld legacy INS’s decision to parole aliens arriving in the United States without proper documents rather than granting them a waiver, thereby preserving INS’s authority to fine the carrier under section 273 of the VerDate Sep<11>2014 16:52 Sep 01, 2017 Jkt 241001 INA.7 See United Airlines, 588 F.3d at 174. This has led to a situation in which carriers are being penalized inconsistently when they transport aliens to the United States without proper documentation. If an alien qualifies for parole, the carrier nonetheless is subject to a fine. If an alien does not qualify for parole but receives a waiver, the carrier is not subject to a fine. Since the carriers’ underlying conduct is the same in both cases, i.e., transporting an alien to the United States without proper documentation, CBP believes the penalties should be the same. As such, DHS and DOS are now jointly promulgating final 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 for transporting an alien to the United States without proper entry documentation.8 From FY 2010–2016,9 if this rule had been in effect, carriers would have been subject to penalties averaging $1.4 million per year for 786 violations of section 273. This $1.4 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. In the NPRM, CBP requested comment on any additional oversight costs that could result from this rule but no such comments were received. CBP currently assesses penalties under this provision against 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 1,965 hours (2.5 hours 7 An alien applying for admission may be paroled into the United States for urgent humanitarian reasons or significant public benefit. Parole does not constitute an admission to the United States and is to 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 INA sections 212(d)(5), 101(a)(13)(B) (8 U.S.C. 1182(d)(5), 1101(a)(13)(B)); see also 8 CFR 212.5(c)–(e); https://www.dhs.gov/definition-terms for information on various types of parole. 8 The maximum penalty amount under section 273 has increased from $4,300 to $5,432 as a result of multiple adjustments to account for inflation. See supra note 7. 9 Note that in the NPRM we used data from FY 2010–2015. Now that FY 2016 data is available, we have included it in the analysis. PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 41869 per violation * 786 violations per year) 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 language of 8 CFR 212.1(g), as amended in the final rule, which allows CBP to assess a section 273 penalty when a waiver is granted, provides an economic incentive for carriers to comply with the statutory requirements of section 273. Finally, we received three comments that were supportive of the rule on the basis that the rule would create an economic incentive for carriers to comply with section 273. 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 DOS are finalizing 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 authority to impose a maximum penalty of $5,432 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 $5,432 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 this Final Regulatory Flexibility Analysis under E:\FR\FM\05SER1.SGM 05SER1 41870 Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations mstockstill on DSK30JT082PROD with RULES section 604 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 this rule. Below, Table 1 presents data on the industries CBP has identified that could be affected by this rule. While CBP finds that only 19 small entities have violated section 273 from FY 2011 to FY 2016, CBP is unable to certify that a substantial number of small entities will not be affected by the final rule in the future.10 Accordingly, CBP has conducted the following Final Regulatory Flexibility Analysis. 1. A statement of the need for, and objectives of, the rule. In 1996, the legacy INS published a final rule (61 FR 11717) amending 8 CFR 212.1(g). The amended regulation allowed for the waiver of required passport and visa documents for a nonimmigrant in an unforeseen emergency while still retaining the authority to fine the carrier for transporting an alien to the United States without the required documents. 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), holding that the regulation amending 8 CFR 212.1(g) was improperly promulgated because DOS and the legacy INS did not jointly promulgate the rule. As such, DHS and DOS 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 for transporting an alien to the United States without proper entry documentation. CBP has concluded that the language of 8 CFR 212.1(g), as amended in the final rule, which allows CBP to assess a section 273 penalty when a waiver is granted, provides the necessary economic 10 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. VerDate Sep<11>2014 16:52 Sep 01, 2017 Jkt 241001 incentive for carriers to comply with the statutory requirements of section 273. The objective of this regulation is to allow CBP to retain its ability to fine a carrier for transporting an alien to the United States without proper entry documentation in the event it grants the alien a waiver for an unforeseen emergency. 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 may waive either or both of these requirements. See sections 212(a)(7)(B)(ii) and 212(d)(4) of the INA (8 U.S.C. 1182(a)(7)(B)(ii), 1182(d)(4)). One of these situations is when the nonimmigrant is unable to present the required documents due to an unforeseen emergency. 2. A statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments. CBP received three comments on the Initial Regulatory Flexibility Analysis, published with the NPRM. Two of the commenters were supportive of both the rule and the analysis and one commenter was not. The two commenters that were supportive of the rule and the analysis agreed with CBP that this rule would encourage and incentivize carriers to confirm that every alien has the proper documentation prior to arrival in the United States. The one comment we received that was not supportive of the analysis was in favor of alternative 3, which was for CBP to take no regulatory action. We disagree with this comment because this alternative would continue the current inconsistency regarding the assessment of fines when a carrier violates section 273 for transporting an alien without proper documents based on whether the alien qualifies for parole. Under the commenter’s proposed alternative, carriers who transport an alien without proper documents would be subject to a fine if the alien qualifies for parole, but would not be subject to a fine if the alien does not qualify for parole. Since CBP wants to eliminate this inconsistency, we did PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 not make any changes to the rule as a result of the comments. 3. The response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments. CBP did not receive any comments from the Chief Counsel for Advocacy of the Small Business Administration. 4. A description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available. It is unlawful under section 273 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 that 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.11 Additionally, Table 1 includes the number small entities in the respective industry that have violated section 273 from FY 2011 through FY 2016.12 Of the industries that could be affected, only six industries have had small entities that have violated section 273 from FY 2011 through FY 2016.13 11 SBA Table of Small Business Size Standards Matched to small business North American Industry Classification System Codes, effective February 26, 2016, can be found here: https:// www.sba.gov/contracting/getting-started-contractor/ make-sure-you-meet-sba-size-standards. 12 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. 13 We received data on which companies between FY 2011 and FY 2016 violated section 273 from CBP’s Office of Field Operations, which assesses the penalties. We then looked up each of the violating companies on Hoovers to determine how many were small and in what industry each violating company belonged. Hoovers is a business research company that provides information on companies and industries on its Web site, www.hoovers.com. E:\FR\FM\05SER1.SGM 05SER1 Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations 41871 TABLE 1 NAICS Small entities that have violated Sec. 273 of the INA Industry description 481111 481112 481211 481212 481219 488119 482111 482112 483111 483112 483113 483114 483211 483212 484230 485991 487110 423860 ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... ............... 488330 441228 541614 561520 621910 ............... ............... ............... ............... ............... 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 ................................................. Other Airport Operations ........................................................................ Line-Haul Railroads ................................................................................ Short Line Railroads ............................................................................... Deep Sea Freight Transportation ........................................................... Deep Sea 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 ....................................... Scenic and Sightseeing Transportation, Land Transportation Equipment and Supplies (except Motor Vehicle) Merchant Wholesalers. Navigational Services to Shipping .......................................................... Motorcycle, ATV, and All Other Motor Vehicle Dealers ......................... Process, Physical Distribution and Logistics Consulting Services ........ Tour Operators ....................................................................................... Ambulance Services ............................................................................... <1,500 employees ......................... <1,500 employees ......................... <1,500 employees ......................... <1,500 employees ......................... <$15 million in revenue ................. <$32.5 million in revenue .............. <1,500 employees ......................... <1,500 employees ......................... <500 employees ............................ <1,500 employees ......................... <500 employees ............................ <500 employees ............................ <750 employees ............................ <500 employees ............................ <$27.5 million in revenue .............. <$15 million in revenue ................. <$7.5 million in revenue ................ <500 employees ............................ 12 0 2 0 0 2 0 0 0 0 0 0 0 0 0 0 0 1 <$38.5 million in revenue .............. <500 employees ............................ <$15 million in revenue ................. <$20.5 million in revenue .............. <$15 million in revenue ................. 0 1 0 1 0 Sources: U.S. Census Bureau, Small Business Administration, CBP, and Hoovers Inc. To estimate the number of small entities to which the final 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 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. 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 19 small entities from FY 2011 to FY 2016 violated section 273 and thus would have been subject to a penalty if this rule were in effect.17 TABLE 2 mstockstill on DSK30JT082PROD with RULES NAICS Industry description SBA size standard Total number of entities Total number of small entities Small entities that have violated Sec. 273 of the INA 481111 ..... Scheduled Passenger Air Transportation .............. <1,500 employees ......... 264 .................. 239 .................. 12 14 https://www.census.gov/econ/susb/. 15 https://transtats.bts.gov/Employment/. VerDate Sep<11>2014 16:52 Sep 01, 2017 Jkt 241001 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. PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 17 Note that in the IRFA we used data from FY 2008–2012. We have updated the analysis to use more recent data. E:\FR\FM\05SER1.SGM 05SER1 41872 Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations TABLE 2—Continued NAICS Industry description SBA size standard Total number of entities Total number of small entities Small entities that have violated Sec. 273 of the INA 481112 ..... 481211 ..... Scheduled Freight Air Transportation .................... Nonscheduled Chartered Passenger Air Transportation. Nonscheduled Chartered Freight Air Transportation. Other Nonscheduled Air Transportation ................ Other Airport Operations ........................................ Line-Haul Railroads ................................................ Short Line railroads ................................................ Deep Sea Freight Transportation .......................... Deep Sea 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 ....... Scenic and Sightseeing Transportation, Land Transportation Equipment and Supplies (except Motor Vehicle) Merchant Wholesalers. Navigational Services to Shipping ......................... Motorcycle, ATV, and All Other Motor Vehicle Dealers. Process, Physical Distribution and Logistics Consulting Services. Tour Operators ....................................................... Ambulance Services .............................................. <1,500 employees ......... <1,500 employees ......... 212 .................. 1,479 ............... 20,7227 ........... 1,396 ............... 0 2 <1,500 employees ......... 177 .................. 171 .................. 0 <$15 million in revenue <$32.5 million in revenue <1,500 employees ......... <1,500 employees ......... <500 employees ............ <1,500 employees ......... <500 employees ............ <500 employees ............ 516 .................. 1,149 ............... not available ... not available ... 191 .................. 54 .................... 337 .................. 110 .................. 504 .................. 1,085 ............... not available ... not available ... 177 .................. 47 .................... 307 .................. 108 .................. 0 2 0 0 0 0 0 0 <750 employees ............ <500 employees ............ <$27.5 million in revenue 318 .................. 193 .................. 8,100 ............... 294 .................. 191 .................. 7,927 ............... 0 0 0 <$15 million in revenue <$7.5 million in revenue <500 employees ............ 2,627 ............... 564 .................. 2,149 ............... 2,567 ............... 553 .................. 2,082 ............... 0 0 1 <$38.5 million in revenue <500 employees ............ 718 .................. 6,329 ............... 694 .................. 6,312 ............... 0 1 <$15 million in revenue 6,667 ............... 6,556 ............... 0 <$20.5 million in revenue <$15 million in revenue 2,609 ............... 3,314 ............... 2,586 ............... 3,217 ............... 1 0 481212 ..... 481219 488119 482111 482112 483111 483112 483113 483114 ..... ..... ..... ..... ..... ..... ..... ..... 483211 ..... 483212 ..... 484230 ..... 485991 ..... 487110 ..... 423860 ..... 488330 ..... 441228 ..... 541614 ..... 561520 ..... 621910 ..... mstockstill on DSK30JT082PROD with RULES Sources: U.S. Census Bureau, Small Business Administration, CBP, and Hoovers Inc. 5. A description of the projected reporting, recordkeeping and other compliance requirements of the 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 regulation does not include changes to any required reporting, recordkeeping, or compliance requirements. The objective of the 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 only affects the carriers transporting aliens for whom CBP waives the document requirement due to an unforeseen emergency. As discussed above, the rule could affect any small entity that VerDate Sep<11>2014 16:52 Sep 01, 2017 Jkt 241001 transports an alien without proper entry documentation. 6. A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected. 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 $5,432 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. PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 Alternative 2: Same as Alternative 1, but waive the penalty in Alternative 1 for small entities. Alternative 3: No regulatory action (i.e. the situation 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 the issuance of fines for violations of section 273. CBP believes that the language of 8 CFR 212.1(g), as amended in the final rule, which allows CBP to assess a section 273 penalty when a waiver is granted, provides an economic incentive for carriers to comply with the requirements of section 273. Finally, those who commented on the proposed rule were supportive of the chosen alternative. Alternative 2 would eliminate the economic impact of the proposed rule on noncompliant small entities. CBP believes that it would also eliminate the economic incentive for carriers to comply with the statutory requirements of section 273 for small entities. Furthermore, 8 CFR 273.5 sets forth the E:\FR\FM\05SER1.SGM 05SER1 Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations mitigation criteria for the mitigation of fines under section 273(e) and incorporates 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 subject to a fine 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 subject to a fine. C. Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates 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. mstockstill on DSK30JT082PROD with RULES D. Executive Order 13132 This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, 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 final rule are included in an existing collection for VerDate Sep<11>2014 16:52 Sep 01, 2017 Jkt 241001 DHS Form I–193 (OMB control number 1651–0107). NUCLEAR REGULATORY COMMISSION List of Subjects in 8 CFR Part 212 41873 10 CFR Part 72 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 amends part 212 of title 8 of the Code of Federal Regulations (8 CFR part 212), as set forth below. PART 212—DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE [NRC–2017–0089] RIN 3150–AK03 List of Approved Spent Fuel Storage Casks: Holtec International HI–STORM Flood/Wind Multipurpose Canister Storage System, Certificate of Compliance No. 1032, Amendment No. 3 Nuclear Regulatory Commission. ACTION: Direct final rule; confirmation of effective date. AGENCY: The U.S. Nuclear Regulatory Commission (NRC) is confirming the effective date of September 11, 2017, for the direct final rule that was published in the Federal Register on June 28, 2017. This direct final rule amended NRC’s spent fuel storage regulations by revising the ‘‘List of Approved Spent Fuel Storage Casks’’ to include Amendment No. 3 to Certificate of Compliance (CoC) No. 1032 for the Holtec International (Holtec) HI– STORM Flood/Wind (FW) Multipurpose Canister (MPC) Storage System. DATES: Effective Date: The effective date of September 11, 2017, for the direct final rule published June 28, 2017 (82 FR 29225), is confirmed. ADDRESSES: Please refer to Docket ID NRC–2017–0089 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods: • Federal Rulemaking Web site: Go to https://www.regulations.gov and search for Docket ID NRC–2017–0089. Address questions about NRC dockets to Carol Gallagher; telephone: 301–415–3463; email: Carol.Gallagher@nrc.gov. For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document. • NRC’s Agencywide Documents Access and Management System (ADAMS): You may obtain publiclyavailable documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/ adams.html. To begin the search, select ‘‘ADAMS Public Documents’’ and then select ‘‘Begin Web-based ADAMS Search.’’ For problems with ADAMS, please contact the NRC’s Public Document Room (PDR) reference staff at 1–800–397–4209, 301–415–4737, or by email to pdr.resource@nrc.gov. The SUMMARY: 1. The general authority citation for part 212 is revised to read as follows: ■ Authority: 6 U.S.C. 111, 202, 236 and 271; 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 1185, 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. Amend § 212.1 by revising paragraph (g) 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. * * * * * Elaine C. Duke, Acting Secretary. [FR Doc. 2017–18749 Filed 9–1–17; 8:45 am] BILLING CODE 9111–14–P PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 E:\FR\FM\05SER1.SGM 05SER1

Agencies

DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 82, Number 170 (Tuesday, September 5, 2017)]
[Rules and Regulations]
[Pages 41867-41873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18749]

[[Page 41867]]

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 212

RIN 1651-AA97
[USCBP-2016-0006; CBP Decision No. 17-10]

Waiver of Passport and Visa Requirements Due to an Unforeseen
Emergency

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

ACTION: Final rule.

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SUMMARY: This rule adopts as final proposed amendments to the
Department of Homeland Security's (DHS) regulations describing the
procedures for issuance of a discretionary waiver, on the basis of
unforeseen emergency in individual cases, of certain documentary
requirements for individuals seeking admission to the United States as
a nonimmigrant. The Department of State (DOS) is issuing a parallel
final rule amending a similar DOS regulation published in today's
edition of the Federal Register. DHS and DOS have acted jointly in this
matter.

DATES: This rule is effective October 5, 2017.

FOR FURTHER INFORMATION CONTACT: Joseph O'Donnell, Fines, Penalties and
Forfeitures, Office of Field Operations, U.S. Customs and Border
Protection, telephone number (202) 344-1691, or by email at
joseph.r.odonnell@cbp.dhs.gov.

SUPPLEMENTARY INFORMATION:

Background

The Secretary of Homeland Security and the Secretary of State,
acting jointly, in specified situations, may waive certain documentary
requirements (i.e., an unexpired passport and, if required, a valid
unexpired visa) for individuals seeking admission to the United States
as nonimmigrants.\1\ See section 212(d)(4) of the Immigration and
Nationality Act (INA), as amended (8 U.S.C. 1182(d)(4)); see also
section 212(a)(7)(B)(i) of the INA (8 U.S.C. 1182(a)(7)(B)(i))
(describing documentary requirements for nonimmigrants). One of these
situations is where 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)). Regulations governing issuance of unforeseen emergency
waivers are set forth at 8 CFR 212.1(g). DOS has similar implementing
regulations. See 22 CFR 41.2(i).
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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 Immigration
and Naturalization Service (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(d)(4) of the INA now resides with the Secretary of
Homeland Security acting jointly with the Secretary of State.
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On March 8, 2016, U.S. Customs and Border Protection (CBP)
published a notice of proposed rulemaking (NPRM) in the Federal
Register (81 FR 12032) proposing to amend 8 CFR 212.1(g). The NPRM
provided a 60-day public comment period. In the NPRM, CBP proposed to
reinstate a 1996 amendment to 8 CFR 212.1(g) that was invalidated by
court order in United Airlines, Inc. v. Brien, 588 F.3d 158 (2d Cir.
2009). The court invalidated the 1996 amendment on procedural grounds
because the legacy Immigration and Naturalization Service (INS) did not
coordinate with DOS in amending the regulation in violation of the
joint action requirement under section 212(d)(4)(A) of the INA (8
U.S.C. 1182(d)(4)(A)). United Airlines, 588 F.3d at 179.
Among other things, the 1996 amendment would have removed certain
language from 8 CFR 212.1(g) that precluded DHS from assessing carrier
fines under section 273 of the INA (8 U.S.C. 1323) when an ``unforeseen
emergency'' waiver had been granted under section 212(d)(4)(A) of the
INA and 8 CFR 212.1(g). Section 273 of the INA makes it unlawful for a
carrier to bring to the United States any alien who does not have a
valid passport and an unexpired visa, if a visa was required under the
INA or the regulations issued thereunder, and subjects the carrier to a
fine for violating this provision. The 1996 amendment of 8 CFR 212.1(g)
would have removed the phrase that a visa and passport ``are not
required'' if legacy INS (now CBP) concluded that the nonimmigrant was
unable to present the required documents because of an unforeseen
emergency.
The NPRM proposed to reinstate the 1996 amendment by removing the
phrase ``are not required'' so that CBP could assess carrier fines
under section 273 of the INA in appropriate cases notwithstanding that
an ``unforeseen emergency'' waiver has been granted under section
212(d)(4)(A) of the Act and 8 CFR 212.1(g).\2\ The NPRM also proposed
to amend 8 CFR 212.1(g) by reinstating 2002 and 2007 amendments to 8
CFR 212.1(g) that were also invalidated as a result of the court order
in United Airlines.\3\
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\2\ CBP would not apply a fine if CBP granted the waiver and did
not revoke it prior to the nonimmigrant alien's boarding.
\3\ 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).
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Further background information is provided in the NPRM. On March 8,
2016, DOS published a parallel NPRM proposing amendment of 22 CFR
41.2(i). See 81 FR 12050.

Discussion of Comments

DHS received eleven comments on this rule. Two comments favored the
proposed amendments, and two did not. The remaining comments criticized
U.S. immigration policy or aspects of the regulation that were
unchanged and are outside the scope of this rulemaking. A summary of
the relevant issues raised in the comments and CBP's responses are set
forth below.

Comment

Two commenters said that the proposed regulation did not clearly
specify what constitutes an ``unforeseen emergency'' under 8 CFR
212.1(g). One of these commenters recommended the addition of more
details about the criteria for qualifying for the unforeseen emergency
waiver. The other commenter requested an explanation of the phrase
``unforeseen emergency'' and was concerned about the ``lack of
substantial definitions on key terms.''

[[Page 41868]]

CBP Response

The proposed regulation permits the CBP district director \4\ to
grant an unforeseen emergency waiver on an individual case-by-case
basis in the exercise of his or her discretion based on the
circumstances presented. CBP has determined that this discretionary
case-by-case approach is preferable to establishing a specific
definition of or criteria for establishing an unforeseen emergency
because it is impossible to define or forecast all the various
circumstances that could arise that might justify an unforeseen
emergency waiver. CBP also has concluded that the inclusion of a
definition or the criteria for determining an unforeseen emergency in
the regulation would be too limiting.
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\4\ The DHS regulation at 8 CFR 1.2 defines ``district
director'' broadly. It specifies that to the extent that authority
has been delegated to such official, it means asylum office
director; director, field operations; district director for interior
enforcement; district director for services; field office director;
service center director; or special agent in charge. It further
specifies that term means such other official, including an official
in an acting capacity, within CBP or another DHS component who is
delegated the function or authority above for a particular
geographic district, region, or area. In determining eligibility for
an unforeseen emergency waiver under 8 CFR 212.1(g), the term
``district director'' would encompass the CBP port director for the
port where the nonimmigrant is seeking admission to the United
States.
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Comment

One commenter stated that in now proposing parallel amendments to
their respective regulations, CBP and DOS have satisfied the joint
action requirement. This same commenter indicated that the proposed
amendment is inconsistent with the decision in United Airlines to
uphold the Board of Immigration Appeals' (BIA) longstanding rule that a
carrier may not be fined under section 273 for having brought an alien
to the United States if that alien receives an unforeseen emergency
visa waiver.
Another commenter stated that it was unclear how the Government
could waive passport/visa requirements and yet retain the ability to
fine airline carriers for such transport.

CBP Response

CBP agrees that DHS and DOS have satisfied the joint action
requirement under section 212(d)(4)(A) of the INA (8 U.S.C.
1182(d)(4)(A)) by proposing and now issuing parallel regulations.
CBP disagrees that this rule is inconsistent with the decision in
United Airlines. In United Airlines, the court considered the validity
of the BIA rule interpreting the pre-1996 version of 8 CFR 212.1(g).
See 588 F.3d at 169-70. By way of background, section 273(a)(1) of the
INA (8 U.S.C. 1323(a)(1)) makes it unlawful for a carrier to bring to
the United States any alien who does not have a valid passport and an
unexpired visa, if a visa was required under the INA or the regulations
issued thereunder. Because the pre-1996 version of 8 CFR 212.1(g)
specified that a visa and a passport are not required if a nonimmigrant
demonstrates an unforeseen emergency, the BIA concluded that a carrier
could not be fined pursuant to section 273 when an unforeseen emergency
waiver was granted under 8 CFR 212.1(g).\5\ See id. at 163.
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\5\ The court also upheld legacy INS's decision to parole aliens
arriving in the United States without proper documents rather than
granting them a waiver, thereby preserving INS's ability to fine the
carrier under section 273 of the INA. See United Airlines, 588 F.3d
at 174. For further explanation about parole, see infra note 7.
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However, in 1996, legacy INS amended 8 CFR 212.1(g) to remove the
language that a passport and visa are not required if a nonimmigrant
demonstrates an unforeseen emergency. See 61 FR 11717. Subsequently,
the BIA, applying the 1996 version of the regulation, 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 post-arrival waiver of the visa
document requirement. See Matter of Finnair Flight AY103, 23 I&N Dec.
140 (BIA 2001).
Therefore, this final rule, which allows CBP to waive passport and/
or visa requirements for a nonimmigrant due to an unforeseen emergency
yet still retain the authority to fine the carrier for transporting an
alien to the United States without proper documentation, is consistent
with the relevant BIA precedent and United Airlines.
In fact, the court in United Airlines explicitly sanctioned the
approach taken by this final rule. The court stated that if the INS
(now CBP) finds that application of the BIA's interpretation of section
273 creates a disincentive for airlines to make a reasonable, good
faith effort to ensure that every alien has the requisite travel and
entry documents prior to arrival in the United States, it may amend the
regulations so that a post-arrival waiver does not nullify the
documentary requirements of section 212(a)(7)(B) of the INA. See United
Airlines, 588 F.3d at 173.

Comment

Two commenters expressed the view that the rule would create an
economic incentive for carriers to comply with section 273. One
commenter stated that unless a carrier would receive more than $4,300
to transport an alien into the United States without proper
documentation, the carrier would be disincentivized to provide such
transportation due to the possibility of a $4,300 fine under section
273.\6\ This commenter stated that CBP's authority to assess carrier
fines in such cases would force airlines and other small entities to
implement more stringent practices regarding whom they transport to the
United States. This commenter supported Alternative 1, the chosen
proposal, which was described in the NPRM as allowing CBP to waive the
requirement for individuals seeking admission as nonimmigrants to
present valid documentation for entry into the United States in an
unforeseen emergency while retaining the authority to fine carriers
under section 273. This commenter indicated that Alternative 2,
described in the NPRM as the same as Alternative 1 but with a waiver of
the penalty for small entities, would remove the economic incentive to
comply with section 273 and create an unnecessary safety risk.
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\6\ Pursuant to the Federal Civil Penalties Inflation Adjustment
Act Improvements Act of 2015, Public Law 114-74 (Nov. 2, 2015), on
July 1, 2016, DHS issued a rule that adjusted the fine from $4,300
to $5,345 to account for inflation. See 81 FR 42987. The adjusted
penalty amount became effective for penalties assessed after August
1, 2016 whose associated violation occurred after November 2, 2015.
On January 27, 2017, DHS further adjusted the penalty amount for
inflation from $5,345 to $5,432 for penalties assessed after January
27, 2017 whose associated violation occurred after November 2, 2015.
See 82 FR 8571. Pursuant to this Act, the penalty amount will be
adjusted every year.
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Another commenter stated that CBP's ability to assess carrier
fines, regardless of whether the undocumented passenger received a
waiver, would provide an economic incentive for carriers to adhere to
section 273 and dissuade carriers from attempting to determine on their
own whether an undocumented passenger would qualify for an unforeseen
emergency waiver.

CBP Response

CBP agrees that this rule will incentivize carriers to make a
reasonable, good-faith effort to ensure that every alien has the proper
documentation prior to arrival in the United States.

Conclusion

After review of the comments and further consideration, DHS adopts
as final the proposed amendments published in the Federal Register (81
FR 12032) on March 8, 2016.

[[Page 41869]]

Regulatory Analyses

A. Executive Order 13563 and Executive Order 12866

Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') 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. Executive Order 13771 (``Reducing Regulation and
Controlling Regulatory Costs'') directs agencies to reduce regulation
and control regulatory costs and provides that ``for every one new
regulation issued, at least two prior regulations be identified for
elimination, and that the cost of planned regulations be prudently
managed and controlled through a budgeting process.''
The Office of Management and Budget (OMB) has not designated this
rule a significant regulatory action under section 3(f) of Executive
Order 12866. Accordingly, the Office of Management and Budget (OMB) has
not reviewed it. As this rule is not a significant regulatory action,
this rule is exempt from the requirements of Executive Order 13771. See
OMB's Memorandum titled ``Interim Guidance Implementing Section 2 of
the Executive Order of January 30, 2017 titled `Reducing Regulation and
Controlling Regulatory Costs' '' (February 2, 2017).
In 1996, the legacy INS published a final rule (61 FR 11717)
amending 8 CFR 212.1(g) which allowed for the waiver of required
passport and visa documents 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 the required
documents. 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 DOS and the legacy INS did not jointly
promulgate the rule. In its ruling, the court upheld legacy INS's
decision to parole aliens arriving in the United States without proper
documents rather than granting them a waiver, thereby preserving INS's
authority to fine the carrier under section 273 of the INA.\7\ See
United Airlines, 588 F.3d at 174. This has led to a situation in which
carriers are being penalized inconsistently when they transport aliens
to the United States without proper documentation. If an alien
qualifies for parole, the carrier nonetheless is subject to a fine. If
an alien does not qualify for parole but receives a waiver, the carrier
is not subject to a fine. Since the carriers' underlying conduct is the
same in both cases, i.e., transporting an alien to the United States
without proper documentation, CBP believes the penalties should be the
same.
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\7\ An alien applying for admission may be paroled into the
United States for urgent humanitarian reasons or significant public
benefit. Parole does not constitute an admission to the United
States and is to 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 INA sections 212(d)(5), 101(a)(13)(B) (8 U.S.C.
1182(d)(5), 1101(a)(13)(B)); see also 8 CFR 212.5(c)-(e); https://www.dhs.gov/definition-terms for information on various types of
parole.
---------------------------------------------------------------------------

As such, DHS and DOS are now jointly promulgating final 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 for transporting an alien to the United
States without proper entry documentation.\8\
---------------------------------------------------------------------------

\8\ The maximum penalty amount under section 273 has increased
from $4,300 to $5,432 as a result of multiple adjustments to account
for inflation. See supra note 7.
---------------------------------------------------------------------------

From FY 2010-2016,\9\ if this rule had been in effect, carriers
would have been subject to penalties averaging $1.4 million per year
for 786 violations of section 273. This $1.4 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. In the NPRM, CBP requested
comment on any additional oversight costs that could result from this
rule but no such comments were received.
---------------------------------------------------------------------------

\9\ Note that in the NPRM we used data from FY 2010-2015. Now
that FY 2016 data is available, we have included it in the analysis.
---------------------------------------------------------------------------

CBP currently assesses penalties under this provision against 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 1,965 hours (2.5 hours per violation * 786
violations per year) 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
language of 8 CFR 212.1(g), as amended in the final rule, which allows
CBP to assess a section 273 penalty when a waiver is granted, provides
an economic incentive for carriers to comply with the statutory
requirements of section 273. Finally, we received three comments that
were supportive of the rule on the basis that the rule would create an
economic incentive for carriers to comply with section 273.
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 DOS are finalizing 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 authority to impose a maximum penalty of $5,432 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 $5,432 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 this Final Regulatory Flexibility Analysis under

[[Page 41870]]

section 604 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 this rule. Below, Table 1 presents data on
the industries CBP has identified that could be affected by this rule.
While CBP finds that only 19 small entities have violated section 273
from FY 2011 to FY 2016, CBP is unable to certify that a substantial
number of small entities will not be affected by the final rule in the
future.\10\ Accordingly, CBP has conducted the following Final
Regulatory Flexibility Analysis.
---------------------------------------------------------------------------

\10\ 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.
---------------------------------------------------------------------------

1. A statement of the need for, and objectives of, the rule.
In 1996, the legacy INS published a final rule (61 FR 11717)
amending 8 CFR 212.1(g). The amended regulation allowed for the waiver
of required passport and visa documents for a nonimmigrant in an
unforeseen emergency while still retaining the authority to fine the
carrier for transporting an alien to the United States without the
required documents. 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), holding that the regulation amending 8 CFR 212.1(g)
was improperly promulgated because DOS and the legacy INS did not
jointly promulgate the rule. As such, DHS and DOS 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 for transporting an
alien to the United States without proper entry documentation. CBP has
concluded that the language of 8 CFR 212.1(g), as amended in the final
rule, which allows CBP to assess a section 273 penalty when a waiver is
granted, provides the necessary economic incentive for carriers to
comply with the statutory requirements of section 273.
The objective of this regulation is to allow CBP to retain its
ability to fine a carrier for transporting an alien to the United
States without proper entry documentation in the event it grants the
alien a waiver for an unforeseen emergency. 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 may waive either or both of these
requirements. See sections 212(a)(7)(B)(ii) and 212(d)(4) of the INA (8
U.S.C. 1182(a)(7)(B)(ii), 1182(d)(4)). One of these situations is when
the nonimmigrant is unable to present the required documents due to an
unforeseen emergency.
2. A statement of the significant issues raised by the public
comments in response to the initial regulatory flexibility analysis, a
statement of the assessment of the agency of such issues, and a
statement of any changes made in the proposed rule as a result of such
comments.
CBP received three comments on the Initial Regulatory Flexibility
Analysis, published with the NPRM. Two of the commenters were
supportive of both the rule and the analysis and one commenter was not.
The two commenters that were supportive of the rule and the analysis
agreed with CBP that this rule would encourage and incentivize carriers
to confirm that every alien has the proper documentation prior to
arrival in the United States. The one comment we received that was not
supportive of the analysis was in favor of alternative 3, which was for
CBP to take no regulatory action. We disagree with this comment because
this alternative would continue the current inconsistency regarding the
assessment of fines when a carrier violates section 273 for
transporting an alien without proper documents based on whether the
alien qualifies for parole. Under the commenter's proposed alternative,
carriers who transport an alien without proper documents would be
subject to a fine if the alien qualifies for parole, but would not be
subject to a fine if the alien does not qualify for parole. Since CBP
wants to eliminate this inconsistency, we did not make any changes to
the rule as a result of the comments.
3. The response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration in response
to the proposed rule, and a detailed statement of any change made to
the proposed rule in the final rule as a result of the comments.
CBP did not receive any comments from the Chief Counsel for
Advocacy of the Small Business Administration.
4. A description of and an estimate of the number of small entities
to which the rule will apply or an explanation of why no such estimate
is available.
It is unlawful under section 273 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
that 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.\11\
Additionally, Table 1 includes the number small entities in the
respective industry that have violated section 273 from FY 2011 through
FY 2016.\12\ Of the industries that could be affected, only six
industries have had small entities that have violated section 273 from
FY 2011 through FY 2016.\13\
---------------------------------------------------------------------------

\11\ SBA Table of Small Business Size Standards Matched to small
business North American Industry Classification System Codes,
effective February 26, 2016, can be found here: https://www.sba.gov/contracting/getting-started-contractor/make-sure-you-meet-sba-size-standards.
\12\ 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.
\13\ We received data on which companies between FY 2011 and FY
2016 violated section 273 from CBP's Office of Field Operations,
which assesses the penalties. We then looked up each of the
violating companies on Hoovers to determine how many were small and
in what industry each violating company belonged. Hoovers is a
business research company that provides information on companies and
industries on its Web site, www.hoovers.com.

[[Page 41871]]

Table 1
----------------------------------------------------------------------------------------------------------------
Small entities
that have
NAICS Industry description SBA size standard violated Sec.
273 of the INA
----------------------------------------------------------------------------------------------------------------
481111................................ Scheduled Passenger Air <1,500 employees........ 12
Transportation.
481112................................ Scheduled Freight Air <1,500 employees........ 0
Transportation.
481211................................ Nonscheduled Chartered <1,500 employees........ 2
Passenger Air Transportation.
481212................................ Nonscheduled Chartered Freight <1,500 employees........ 0
Air Transportation.
481219................................ Other Nonscheduled Air <$15 million in revenue. 0
Transportation.
488119................................ Other Airport Operations...... <$32.5 million in 2
revenue.
482111................................ Line-Haul Railroads........... <1,500 employees........ 0
482112................................ Short Line Railroads.......... <1,500 employees........ 0
483111................................ Deep Sea Freight <500 employees.......... 0
Transportation.
483112................................ Deep Sea Passenger <1,500 employees........ 0
Transportation.
483113................................ Coastal and Great Lakes <500 employees.......... 0
Freight Transportation.
483114................................ Coastal and Great Lakes <500 employees.......... 0
Passenger Transportation.
483211................................ Inland Water Freight <750 employees.......... 0
Transportation.
483212................................ Inland Water Passenger <500 employees.......... 0
Transportation.
484230................................ Specialized Freight (except, <$27.5 million in 0
Used Goods) Trucking, Long- revenue.
Distance.
485991................................ Special Needs Transportation.. <$15 million in revenue. 0
487110................................ Scenic and Sightseeing <$7.5 million in revenue 0
Transportation, Land.
423860................................ Scenic and Sightseeing <500 employees.......... 1
Transportation, Land
Transportation Equipment and
Supplies (except Motor
Vehicle) Merchant Wholesalers.
488330................................ Navigational Services to <$38.5 million in 0
Shipping. revenue.
441228................................ Motorcycle, ATV, and All Other <500 employees.......... 1
Motor Vehicle Dealers.
541614................................ Process, Physical Distribution <$15 million in revenue. 0
and Logistics Consulting
Services.
561520................................ Tour Operators................ <$20.5 million in 1
revenue.
621910................................ Ambulance Services............ <$15 million in revenue. 0
----------------------------------------------------------------------------------------------------------------
Sources: U.S. Census Bureau, Small Business Administration, CBP, and Hoovers Inc.

To estimate the number of small entities to which the final 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 than 1,500 employees) and those entities the SBA does not
consider small (entities with more than 1,500 employees).
---------------------------------------------------------------------------

\14\ https://www.census.gov/econ/susb/.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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 19 small
entities from FY 2011 to FY 2016 violated section 273 and thus would
have been subject to a penalty if this rule were in effect.\17\
---------------------------------------------------------------------------

\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.
\17\ Note that in the IRFA we used data from FY 2008-2012. We
have updated the analysis to use more recent data.

Table 2
----------------------------------------------------------------------------------------------------------------
Small entities
SBA size Total number of Total number of that have
NAICS Industry description standard entities small entities violated Sec.
273 of the INA
----------------------------------------------------------------------------------------------------------------
481111........ Scheduled Passenger <1,500 employees 264................ 239............... 12
Air Transportation.

[[Page 41872]]

481112........ Scheduled Freight Air <1,500 employees 212................ 20,7227........... 0
Transportation.
481211........ Nonscheduled <1,500 employees 1,479.............. 1,396............. 2
Chartered Passenger
Air Transportation.
481212........ Nonscheduled <1,500 employees 177................ 171............... 0
Chartered Freight
Air Transportation.
481219........ Other Nonscheduled <$15 million in 516................ 504............... 0
Air Transportation. revenue.
488119........ Other Airport <$32.5 million 1,149.............. 1,085............. 2
Operations. in revenue.
482111........ Line-Haul Railroads.. <1,500 employees not available...... not available..... 0
482112........ Short Line railroads. <1,500 employees not available...... not available..... 0
483111........ Deep Sea Freight <500 employees.. 191................ 177............... 0
Transportation.
483112........ Deep Sea Passenger <1,500 employees 54................. 47................ 0
Transportation.
483113........ Coastal and Great <500 employees.. 337................ 307............... 0
Lakes Freight
Transportation.
483114........ Coastal and Great <500 employees.. 110................ 108............... 0
Lakes Passenger
Transportation.
483211........ Inland Water Freight <750 employees.. 318................ 294............... 0
Transportation.
483212........ Inland Water <500 employees.. 193................ 191............... 0
Passenger
Transportation.
484230........ Specialized Freight <$27.5 million 8,100.............. 7,927............. 0
(except, Used Goods) in revenue.
Trucking, Long-
Distance.
485991........ Special Needs <$15 million in 2,627.............. 2,567............. 0
Transportation. revenue.
487110........ Scenic and <$7.5 million in 564................ 553............... 0
Sightseeing revenue.
Transportation, Land.
423860........ Scenic and <500 employees.. 2,149.............. 2,082............. 1
Sightseeing
Transportation, Land
Transportation
Equipment and
Supplies (except
Motor Vehicle)
Merchant Wholesalers.
488330........ Navigational Services <$38.5 million 718................ 694............... 0
to Shipping. in revenue.
441228........ Motorcycle, ATV, and <500 employees.. 6,329.............. 6,312............. 1
All Other Motor
Vehicle Dealers.
541614........ Process, Physical <$15 million in 6,667.............. 6,556............. 0
Distribution and revenue.
Logistics Consulting
Services.
561520........ Tour Operators....... <$20.5 million 2,609.............. 2,586............. 1
in revenue.
621910........ Ambulance Services... <$15 million in 3,314.............. 3,217............. 0
revenue.
----------------------------------------------------------------------------------------------------------------
Sources: U.S. Census Bureau, Small Business Administration, CBP, and Hoovers Inc.

5. A description of the projected reporting, recordkeeping and
other compliance requirements of the 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 regulation does not include changes to any required reporting,
recordkeeping, or compliance requirements. The objective of the 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 only affects the
carriers transporting aliens for whom CBP waives the document
requirement due to an unforeseen emergency. As discussed above, the
rule could affect any small entity that transports an alien without
proper entry documentation.
6. A description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
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 $5,432 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 situation 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 the issuance of fines for violations of section 273.
CBP believes that the language of 8 CFR 212.1(g), as amended in the
final rule, which allows CBP to assess a section 273 penalty when a
waiver is granted, provides an economic incentive for carriers to
comply with the requirements of section 273. Finally, those who
commented on the proposed rule were supportive of the chosen
alternative.
Alternative 2 would eliminate the economic impact of the proposed
rule on noncompliant small entities. CBP believes that it would also
eliminate the economic incentive for carriers to comply with the
statutory requirements of section 273 for small entities. Furthermore,
8 CFR 273.5 sets forth the

[[Page 41873]]

mitigation criteria for the mitigation of fines under section 273(e)
and incorporates 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
subject to a fine 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 subject to a fine.

C. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates 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

This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, 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 final rule 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 amends part 212 of
title 8 of the Code of Federal Regulations (8 CFR part 212), as set
forth below.

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

0
1. The general authority citation for part 212 is revised to read as
follows:

Authority: 6 U.S.C. 111, 202, 236 and 271; 8 U.S.C. 1101 and
note, 1102, 1103, 1182 and note, 1184, 1185, 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. Amend Sec. 212.1 by revising paragraph (g) 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.
* * * * *

Elaine C. Duke,
Acting Secretary.
[FR Doc. 2017-18749 Filed 9-1-17; 8:45 am]
BILLING CODE 9111-14-P

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