Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 /Rules and Regulations 39217

(6) The tomatoes must be packed

within 24 hours of harvest. They must

be safeguarded by a fruit fly-proof mesh

screen or plastic tarpaulin while in

transit to the packing house and while

awaiting packing, and packed in fruit

fly-proof containers for transit to the

airport and subsequent shipping to the

United States. The tomatoes must be

pink at the time of packing. Transit

through other fruit fly supporting areas

is prohibited unless the fruit fly-proof

containers are sealed by the Moroccan

Ministry of Agriculture, Fresh Product

Export (EACCE), before shipment and

the official seal number is recorded on

the phytosanitary certificate; and

(7) EACCE is responsible for export

certification inspection and issuance of

phytosanitary certificates. Each

shipment of tomatoes must be

accompanied by a phytosanitary

certificate issued by EACCE and bearing

the declaration, ‘‘These tomatoes were

grown in registered greenhouses in El

Jadida or Safi Province, Morocco, and

were pink at the time of packing’’ or

‘‘These tomatoes were grown in

registered greenhouses in Dahkla

Province, Western Sahara and were pink

at the time of packing.’’

(d) Tomatoes from Chile. Tomatoes

(fruit) (Lycopersicon esculentum) from

Chile, whether green or at any stage of

ripeness, may be imported into the

United States only under the following

conditions:

(1) The tomatoes must be treated in

Chile with methyl bromide in

accordance with the PPQ Treatment

Manual, which is incorporated by

reference at § 300.1 of this chapter. The

treatment must be conducted in

facilities registered with the Servicio

Agricola y Ganadero (SAG) and with

APHIS personnel monitoring the

treatments;

(2) The tomatoes must be treated and

packed within 24 hours of harvest. Once

treated, the tomatoes must be

safeguarded by a fruit fly-proof mesh

screen or plastic tarpaulin while in

transit to the packing house and while

awaiting packing, and be packed in fruit

fly-proof containers under APHIS

monitoring for transit to the airport and

subsequent shipping to the United

States; and

(3) Tomatoes may be imported into

the United States from Chile only if

SAG has entered into a trust fund

agreement with APHIS for that shipping

season. This agreement requires SAG to

pay in advance all costs that APHIS

estimates it will incur in providing the

preclearance services prescribed in this

section for that shipping season. These

costs will include administrative

expenses incurred in conducting the

preclearance services; and all salaries

(including overtime and the Federal

share of employee benefits), travel

expenses (including per diem expenses),

and other incidental expenses incurred

by the inspectors in providing these

services. The agreement requires SAG to

deposit a certified or cashier’s check

with APHIS for the amount of these

costs for the entire shipping season, as

estimated by APHIS based on projected

shipment volumes and cost figures from

previous inspections. The agreement

further requires that, if the initial

deposit is not sufficient to meet all costs

incurred by APHIS, SAG must deposit

with APHIS another certified or

cashier’s check for the amount of the

remaining costs, as determined by

APHIS, before the inspections will be

completed. The agreement also requires

that, in the event of unexpected end-ofseason costs, SAG must deposit with

APHIS a certified cashier’s check

sufficient to meet such costs as

estimated by APHIS, before any further

preclearance services will be provided.

If the amount SAG deposits during a

shipping season exceeds the total cost

incurred by APHIS in providing

preclearance services, the difference

will be returned to SAG by APHIS at the

end of the shipping season.

(Approved by the Office of Management and

Budget under control number 0579–0131)

Done in Washington, DC, this 15th day of

July, 1998.

Charles Schwalbe,

Acting Administrator, Animal and Plant

Health Inspection Service.

[FR Doc. 98–19470 Filed 7–21–98; 8:45 am]

BILLING CODE 3410–34–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 211

[INS No. 1920–98]

RIN 1115–AE47

Waiver of Inadmissibility for Certain

Applicants for Admission as

Permanent Residents

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Final rule.

SUMMARY: This rule makes a technical

correction to the Immigration and

Naturalization Service (Service)

regulations that govern the documentary

requirements for immigrants and

corresponding waivers. The regulations

at 8 CFR 211.1(b)(3) permit District

Directors, in individual cases, to waive

the inadmissibility of aliens seeking

admission for permanent residence or as

returning residents who fail to present

the appropriate travel documents. This

rule will clarify that aliens granted

waivers pursuant to 8 CFR 211.1(b)(3)

are not exempt from the visa

requirement, and that carriers remain

liable for fines imposed under section

273(a) of the Act for bring these aliens

to the United States, even if the District

Director grants a waiver of

inadmissibility to the alien at the time

of admission into the United States as

a returning resident. This change is

necessary to conform the language of the

regulations with the statutory authority

which exists to impose a fine when an

alien is transported to the United States

without the proper documentation.

DATES: This rule is effective July 22,

1998.

FOR FURTHER INFORMATION CONTACT: Una

Brien, Immigration and Naturalization

Service, 1400 Wilson Blvd., Suite 210,

Arlington, Virginia 22209, telephone

(202) 305–7018.

SUPPLEMENTARY INFORMATION: Section

273 of the Immigration and Nationality

Act (the Act) imposes a fine on any

carrier who brings to the United States

any alien who lacks the passport or visa

required by law. Section 211(b) of the

Act permits the Attorney General to

waive the inadmissibility of aliens

seeking admission as returning residents

who lack the necessary travel

documents. Under the jurisprudence

developed by the Board of Immigration

Appeals (BIA), whether granting a

waiver of inadmissibility relieves the

carrier of liability for a fine depends on

how the regulation governing the

exercise of this waiver authority is

written. See e.g., Matter of ‘‘Flight SR–

4’’, 10 I&N Dec. 197 (BIA 1963). The BIA

has treated regulations that provide for

a ‘‘blanket’’ waiver as also relieving the

carrier of fine liability. The carrier

remains liable, however, if the

regulations provide for waivers only in

individual cases. See Matter of Plane

‘‘CUT–604’’, 7 I&N Dec. 701, 702 (BIA

1958) citing Matter of PAA Plane ‘‘Flight

204’’, 6 I&N Dec. 810 (BIA 1955).

On March 22, 1996, the Service

published a final rule in the Federal

Register at 61 FR 11717, which

amended the regulations governing

granting waivers of inadmissibility to

nonimmigrants. The purpose of the

amendment was to ensure that when the

Service grants a waiver of

inadmissibility, the carrier is not

relieved from fine liability. On

September 30, 1996, Congress passed

the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996,
39218 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 /Rules and Regulations

Pub. L. 104–208, which required the

Service to amend major portions of its

regulations. On January 3, 1997, the

Service published a proposed rule in the

Federal Register, at 62 FR 444, and a

subsequent interim rule on March 6,

1997, at 62 FR 10312, implementing the

provisions of Pub. L. 104–208.

In addition, the proposed and interim

rules also restructured major portions of

8 CFR, including part 211 to make it

easier to understand. However, as

contained in the proposed and interim

rule, the exceptions to the visa

documentary requirements referenced

in Section 211.1(a) should have been

limited to those circumstances listed in

‘‘paragraph (b)(1)’’ and not all of

‘‘paragraph (b).’’ The classes of aliens

listed in section 211.1(b)(1), e.g., a child

born after the issuance of an immigrant

visa to the child’s accompanying parent

or a child born during the temporary

visit abroad of a mother who is a lawful

permanent resident or a national of the

United States, are identical to those

specifically excepted from the visa

documentary requirement prior to the

restructuring of the regulation. See 8

CFR 211.1(a) (1997). The erroneous

reference to ‘‘paragraph (b)’’ may

mislead some readers into thinking that

returning lawful permanent residents

who apply for and are granted a waiver

of the visa requirement on a case by case

basis, i.e., the class of aliens described

in 8 CFR 211.1(b)(3), are exempt from

presenting entry documents and, by

extension, that a carrier which

transports such as alien to the United

States no longer incurs liability under

section 273(b) of the Act. This

ambiguity in the meaning of the interim

rule was the result of an administrative

oversight rather than a deliberate policy

decision.

Accordingly, this final rule amends

§ 211.1(a) to revise the reference to

‘‘paragraph (b)’’ to read ‘‘paragraph

(b)(1)’’. This is intended to clarify, once

again, that a waiver of inadmissibility

does not relieve the carrier of fine

liability for carrying an alien passenger

without the required documents.

Good Cause Exception

The amendment made by this rule

corrects an inadvertent error which was

included in a proposed rule published

by the Service in the Federal Register

on January 3, 1997, at 62 FR 444, and

in the subsequent interim rule

published in the Federal Register on

March 6, 1997, at 62 FR 10312. As

stated in the supplemental portion of

the proposed rule, 62 FR 452, the

Service was engaged in a

comprehensive review of all of its

regulations in an effort to reduce them

and make them more readable and

understandable. It was the Service’s

intention to restructure 8 CFR part 211

to make it easier to comprehend. It was

never the Service’s intention to

undermine the Service’s ability to

impose fines for violations under

section 273 of the Act. Although the

Service intended to correct this

technical error when a final rule was

published, the Service believes that

good cause exists to issue a separate

final rule to amend § 211.1(a) to correct

the error immediately. This rule has

been published as a proposed and

interim rule as part of a larger rule with

opportunity for public comment,

therefore, it is unnecessary to issue it

now as a proposed rule.

Regulatory Flexibility Act

In accordance with the Regulatory

Flexibility Act (5 U.S.C. 605(b)), the

Commissioner has reviewed this

regulation, and by approving it, certifies

that the rule will not have a significant

economic impact on a substantial

number of small entities, as defined by

5 U.S.C. 601(6). This rule merely

removes any ambiguity between the

current regulations and section 273 of

the Act by correcting an inadvertent

error in its regulations that is addressed

in the supplemental portion of this final

rule.

Unfunded Mandates Reform Act of

1995

This rule will not result in the

expenditure by State, local, and tribal

governments, or by the private sector, of

$100 million or more, in the aggregate,

in any one year, and it will not

significantly or uniquely affect small

governments. Therefore, the

Commissioner determined that no

actions were necessary under the

provisions of the Unfunded Mandates

Reform Act of 1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is not a major rule as

defined by section 804 of the Small

Business Regulatory Enforcement

Fairness Act of 1996. This rule will not

result in an annual effect on the

economy of $100 million or more; a

major increase in costs or prices; or

significant adverse effects on

competition, employment, investment,

productivity, innovation, or the ability

of United States-based companies to

compete with foreign-based companies

in domestic and export markets.

Executive Order 12866

This rule is not considered by the

Department of Justice, Immigration and

Naturalization Service, to be a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

Regulatory Planning and Review, and

the Office of Management and Budget

has waived its review process under

section 6(a)(3)(A).

Executive Order 12612

The rule adopted herein will not have

substantial direct effects on the States,

on the relationship between the Federal

Government and the States, or on the

distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this rule does not

have sufficient federalism implications

to warrant the preparation of a

Federalism Assessment.

Executive Order 12988 Civil Justice

Reform

This final rule meets the applicable

standards set forth in sections (3)(a) and

3(b)(2) of E.O. 12988.

List of Subjects in 8 CFR Part 211

Aliens, Immigration, Passports and

visas, Reporting and recordkeeping

requirements.

Accordingly, part 211 of chapter I of

title 8 of the Code of Federal

Regulations is amended as follows:

PART 211—DOCUMENTARY

REQUIREMENTS: IMMIGRANTS;

WAIVERS

1. The authority citation for part 211

continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1181, 1182,

1203, 1225, 1257; 8 CFR part 2.

§ 211.1 [Amended]

2. In § 211.1 paragraph (a)

introductory text is amended by revising

the reference to ‘‘paragraph (b)’’ to read

‘‘paragraph (b)(1)’’.

Dated: May 26, 1998.

Doris Meissner,

Commissioner, Immigration and

Naturalization Service.

[FR Doc. 98–19542 Filed 7–21–98; 8:45 am]

BILLING CODE 4410–10–M