Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64213 

DEPARTMENT OF HOMELAND 

SECURITY (DHS) 

Statement of Regulatory Priorities 

The Department of Homeland 

Security (DHS) was created in 2003 

pursuant to the Homeland Security Act 

of 2002, Pub. L. 107-296. DHS has a 

vital mission: to secure the nation from 

the many threats we face. This requires 

the dedication of more than 225,000 

employees in jobs that range from 

aviation and border security to 

emergency response, from cybersecurity 

analyst to chemical facility inspector. 

Our duties are wide-ranging, but our 

goal is clear — keeping America safe. 

Our mission gives us five main areas 

of responsibility: 

1. Guarding against Terrorism, 

2. Securing our Borders, 

3. Enforcing our Immigration Laws, 

4. Improving our Readiness for, 

Response to and Recovery from 

Disasters, and 

5. Maturing and Unifying the 

Department. 

In achieving these goals, we are 

continually strengthening our 

partnerships with communities, first 

responders, law enforcement, and 

government agencies — at the State, 

local, tribal, Federal and international 

levels. We are accelerating the 

deployment of science, technology, and 

innovation in order to make America 

more secure. And we are becoming 

leaner, smarter, and more efficient, 

ensuring that every security resource is 

used as effectively as possible. For a 

further discussion of our five main areas 

of responsibility, see the DHS website at 

http://www.dhs.gov/xabout/ 

responsibilities.shtm. 

The regulations we have summarized 

below in the Department’s Fall 2009 

Regulatory Plan and in the Unified 

Agenda support the Department’s five 

responsibility areas listed above. These 

regulations will improve the 

Department’s ability to accomplish its 

mission. 

The regulations we have identified in 

the this year’s Fall Regulatory Plan 

continue to address recent legislative 

initiatives including, but not limited to, 

the following acts: the Implementing 

Recommendations of the 9/11 

Commission Act of 2008 (9/11 Act), 

Pub. L. 110-53 (Aug. 3, 2007); the PostKatrina Emergency Management Reform 

Act of 2006 (PKEMRA), Pub. L. 109-295 

(Oct. 4, 2006); the Consolidated Natural 

Resources Act of 2008 (CNRA), Pub. L. 

No. 110-220 (May 7, 2008); the Security 

and Accountability for Every Port Act of 

2006 (SAFE Port Act), Pub. L. 109-347 

(Oct. 13, 2006); and the Consolidated 

Security, Disaster Assistance, and 

Continuing Appropriations Act, 2009, 

Pub. L. 110-329 (Sept. 30, 2008). 

DHS strives for organizational 

excellence and uses a centralized and 

unified approach in managing its 

regulatory resources. The Office of the 

General Counsel manages the 

Department’s regulatory program, 

including the Unified Regulatory 

Agenda and Regulatory Plan. In 

addition, DHS senior leadership reviews 

each significant regulatory project to 

ensure that the project fosters and 

supports the Department’s mission. 

DHS is committed to ensuring that all 

of its regulatory initiatives are aligned 

with its guiding principles to protect 

civil rights and civil liberties, integrate 

our actions, build coalitions and 

partnerships, develop human resources, 

innovate, and be accountable to the 

American public. DHS is also 

committed to the principles described 

in Executive Order 12,866, as amended, 

such as promulgating regulations that 

are cost-effective and maximizing the 

net benefits of regulations. The 

Department values public involvement 

in the development of its Regulatory 

Plan, Unified Agenda, and regulations, 

and takes particular concern with the 

impact its rules have on small 

businesses. DHS and each of its 

components continue to emphasize the 

use of plain language in our notices and 

rulemaking documents to promote a 

better understanding of regulations and 

increased public participation in the 

Department’s rulemakings. 

The Fall 2009 Regulatory Plan for 

DHS includes regulations from the 

Department’s major offices and 

directorates such as the National 

Protection and Programs Directorate 

(NPPD). In addition, it includes 

regulations from DHS components — 

including U.S. Citizenship and 

Immigration Services (USCIS), the U.S. 

Coast Guard (Coast Guard), U.S. 

Customs and Border Protection (CBP), 

the Federal Emergency Management 

Agency (FEMA), the U.S. Immigration 

and Customs Enforcement (ICE), and the 

Transportation Security Administration 

(TSA) — that have active regulatory 

programs. Below is a discussion of the 

Fall 2009 Regulatory Plan for DHS 

offices and directorates as well as DHS 

regulatory components. 

United States Citizenship and 

Immigration Services 

U.S. Citizenship and Immigration 

Services (USCIS) administers 

immigration services and benefits 

through the rule of law while ensuring 

that no one is admitted to the United 

States who is a threat to public safety or 

national security. As a nation of 

immigrants, the United States has a 

strong commitment to welcoming those 

individuals who seek legal entry 

through our immigration system, and to 

also assist those in need of 

humanitarian protection against harm. 

USCIS seeks to welcome lawful 

immigrants while preventing 

exploitation of the immigration system 

and to create and maintain a highperforming, integrated, public service 

organization. 

Based on a comprehensive review of 

the USCIS planned regulatory agenda, 

USCIS will promulgate several 

rulemakings to directly support these 

commitments and goals. 

Regulations Related to the 

Commonwealth of Northern Mariana 

Islands 

During 2009, USCIS issued a series of 

regulations to implement the transition 

of U.S. immigration law to the 

Commonwealth of Northern Mariana 

Islands (CNMI) as required under title 

VII of the Consolidated Natural 

Resources Act of 2008. USCIS will be 

issuing the following CNMI final rules 

during Fiscal Year 2010: ‘‘CNMI 

Transitional Worker Classification,’’ E-2 

Nonimmigrant Status for Aliens of the 

CNMI with Long-Term Investor Status, 

and the joint USCIS/Department of 

Justice regulation ‘‘Application of 

Immigration Regulations to the CNMI.’’ 

Improvements to the Immigration 

System 

USCIS strives to provide efficient, 

courteous, accurate, and responsive 

services to those who seek and qualify 

to come to our country, as well as to 

provide seamless, transparent, and 

dedicated customer support services. To 

improve our customer service goals, 

USCIS is pursuing a regulatory initiative 

that will provide for visa number lottery 

selection of H-1B petitions based on 

electronic registration. 

Registration Requirements for 

Employment-Based Categories Subject 

to Numerical Limitations. USCIS is 

considering proposing a revised 

registration process for cap-subject H-1B 

petitioners. The rule would propose to 

create a process by which USCIS would 

randomly select a sufficient number of 


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timely filed registrations to meet the 

applicable cap. Only those petitioners 

whose registrations are randomly 

selected would be eligible to file an H1B petition for a cap-subject prospective 

worker. Enhancing customer service, the 

rule would eliminate the need for 

petitioning employers to prepare and 

file complete H-1B petitions before 

knowing whether a prospective worker 

has ‘‘won’’ the H-1B lottery. The rule 

would also reduce the burden on USCIS 

of entering data and subsequently 

returning non-selected petitions to 

employers once the cap is reached. 

Regulatory Changes Involving 

Humanitarian Benefits 

USCIS offers protection to individuals 

who face persecution by adjudicating 

applications for refugees and asylees. 

Other humanitarian benefits are 

available to individuals who have been 

victims of severe forms of trafficking or 

criminal activity. 

Asylum and Withholding Definitions. 

USCIS plans a regulatory effort to 

amend the regulations that govern 

asylum eligibility. The amendments are 

expected to focus on portions of the 

regulations that deal with 

determinations of whether persecution 

is inflicted on account of a protected 

ground, the requirements for 

establishing the failure of State 

protection, and the parameters for 

defining membership in a particular 

social group. This effort should provide 

greater stability and clarity in this 

important area of the law. 

‘‘T’’ and ‘‘U’’ Nonimmigrants. USCIS 

plans additional regulatory initiatives 

related to T nonimmigrants (victims of 

trafficking), U nonimmigrants (victims 

of criminal activity), and Adjustment of 

Status for T and U status holders. By 

promulgating additional regulations 

related to these victims of specified 

crimes or severe forms of trafficking in 

persons, USCIS hopes to provide greater 

stability for these vulnerable groups, 

their advocates, and the community. 

These rulemakings will contain 

provisions that seek to ease 

documentary requirements for this 

vulnerable population and provisions 

that provide clarification to the law 

enforcement community. As well, 

publication of these rules will inform 

the community on how their petitions 

are adjudicated. 

United States Coast Guard 

The U.S. Coast Guard (Coast Guard) is 

a military, multi-mission, maritime 

service of the United States and the only 

military organization within DHS. It is 

the principal federal agency responsible 

for maritime safety, security, and 

stewardship and delivers daily value to 

the Nation through multi-mission 

resources, authorities, and capabilities. 

Effective governance in the maritime 

domain hinges upon an integrated 

approach to safety, security, and 

stewardship. The Coast Guard’s policies 

and capabilities are integrated and 

interdependent, delivering results 

through a network of enduring 

partnerships. The Coast Guard’s ability 

to field versatile capabilities and highlytrained personnel is the U.S. 

Government’s most significant and 

important strength in the maritime 

environment. 

America is a maritime nation, and our 

security, resilience, and economic 

prosperity are intrinsically linked to the 

oceans. Safety, efficient waterways, and 

freedom of transit on the high seas are 

essential to our well-being. The Coast 

Guard is leaning forward, poised to 

meet the demands of the new 

millennium. The Coast Guard creates 

value for the public through solid 

prevention and response efforts. 

Activities involving oversight and 

regulation, enforcement, maritime 

presence, and public and private 

partnership foster increased maritime 

safety, security, and stewardship. 

The statutory responsibilities of the 

Coast Guard include ensuring marine 

safety and security, preserving maritime 

mobility, protecting the marine 

environment, enforcing U.S. laws and 

international treaties, and performing 

search and rescue. The Coast Guard 

supports the Department’s overarching 

goals of mobilizing and organizing our 

Nation to secure the homeland from 

terrorist attacks, natural disasters, and 

other emergencies. In performing its 

duties, the Coast Guard fulfills its three 

broad roles and responsibilities - 

maritime safety, maritime security, and 

maritime stewardship. 

The rulemaking projects identified for 

the Coast Guard in the Unified Agenda, 

and the two rules appearing in the Fall 

2009 Regulatory Plan below, contribute 

to the fulfillment of those 

responsibilities and reflect our 

regulatory policies. The Coast Guard has 

issued many rules supporting maritime 

safety, security and environmental 

protection as indicated by the wide 

range of topics covered in its 

rulemaking projects in this Unified 

Agenda. 

Inspection of Towing Vessels. In 2004, 

Congress amended U.S. law by adding 

towing vessels to the types of 

commercial vessels that must be 

inspected by the Coast Guard. Congress 

also provided guidance relevant to the 

use of a safety management system as 

part of the inspection regime. The intent 

of the proposed rule is to promote safer 

work practices and reduce casualties on 

towing vessels by ensuring that towing 

vessels adhere to prescribed safety 

standards and safety management 

systems. The proposed rule was 

developed in cooperation with the 

Towing Vessel Safety Advisory 

Committee (TSAC). It would establish a 

new subchapter dedicated to towing 

vessels and covering vessel equipment, 

systems, operational standards, and 

inspection requirements. To implement 

this change, the Coast Guard is 

developing regulations to prescribe 

standards, procedures, tests, and 

inspections for towing vessels. This 

rulemaking supports maritime safety 

and maritime stewardship. 

Standards for Living Organisms in 

Ships’ Ballast Water Discharged in U.S. 

Waters. This rule would set 

performance standards for the quality of 

ballast water discharged in U.S. waters 

and require that all vessels that operate 

in U.S. waters, are bound for ports or 

places in the U.S., and are equipped 

with ballast tanks, install and operate a 

Coast Guard approved Ballast Water 

Management System (BWMS) before 

discharging ballast water into U.S. 

waters. This would include vessels 

bound for offshore ports or places. As 

the effectiveness of ballast water 

exchange varies from vessel to vessel, 

the Coast Guard believes that setting 

performance standards would be the 

most effective way for approving BWMS 

that are environmentally protective and 

scientifically sound. Ultimately, the 

approval of BWMS would require 

procedures similar to those located in 

title 46, subchapter Q, of the Code of 

Federal Regulations, to ensure that the 

BWMS works not only in the laboratory 

but under shipboard conditions. These 

would include: pre-approval 

requirements, application requirements, 

land-based/shipboard testing 

requirements, design and construction 

requirements, electrical requirements, 

engineering requirements, and piping 

requirements. This requirement is 

intended to meet the directive from the 

National Invasive Species Act (NISA) 

requiring the Coast Guard to ensure to 

the maximum extent practicable that 

nonindigenous species (NIS) are not 

discharged into U.S. waters. This 

rulemaking supports maritime 

stewardship. As well, this rulemaking 

provides additional benefits. Ballast 

water discharged from ships is a 


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significant pathway for the introduction 

and spread of non-indigenous aquatic 

nuisance species. These organisms, 

which may be plants, animals, bacteria 

or pathogens, have the potential to 

displace native species, degrade native 

habitats, spread disease and disrupt 

human economic and social activities 

that depend on water resources. 

The Coast Guard has supported the erulemaking initiative and, starting on 

the day of the first Federal Register 

publication in a rulemaking project, the 

public can submit comments 

electronically and view agency 

documents and public comments on the 

Federal Register’s Document 

Management System, which is available 

online at 

http://www.regulations.gov/search/ 

Regs/home.html#home. The Coast 

Guard endeavors to reduce the 

paperwork burden it places on the 

public and strives to issue only 

necessary regulations that are tailored to 

impose the least burden on society. 

United States Customs and Border 

Protection 

U.S. Customs and Border Protection 

(CBP) is the federal agency principally 

responsible for the security of our 

Nation’s borders, both at and between 

the ports of entry and at official 

crossings into the United States. CBP 

must accomplish its border security and 

enforcement mission without stifling 

the flow of legitimate trade and travel. 

The primary mission of CBP is its 

homeland security mission, that is, to 

prevent terrorists and terrorist weapons 

from entering the United States. An 

important aspect of this priority mission 

involves improving security at our 

borders and ports of entry, but it also 

means extending our zone of security 

beyond our physical borders. 

CBP also is responsible for 

administering laws concerning the 

importation into the United States of 

goods, and enforcing the laws 

concerning the entry of persons into the 

United States. This includes regulating 

and facilitating international trade; 

collecting import duties; enforcing U.S. 

trade, immigration and other laws of the 

United States at our borders; inspecting 

imports, overseeing the activities of 

persons and businesses engaged in 

importing; enforcing the laws 

concerning smuggling and trafficking in 

contraband; apprehending individuals 

attempting to enter the United States 

illegally; protecting our agriculture and 

economic interests from harmful pests 

and diseases; servicing all people, 

vehicles and cargo entering the U.S.; 

maintaining export controls; and 

protecting American businesses from 

theft of their intellectual property. 

In carrying out its priority mission, 

CBP’s goal is to facilitate the processing 

of legitimate trade and people efficiently 

without compromising security. 

Consistent with its primary mission of 

homeland security, CBP published 

several final and proposed rules during 

the last fiscal year and intends to 

propose and finalize others during the 

next fiscal year that are intended to 

improve security at our borders and 

ports of entry. We have highlighted 

some of these rules below. 

Electronic System for Travel 

Authorization. On June 9, 2008, CBP 

published an interim final rule 

amending DHS regulations to 

implement the Electronic System for 

Travel Authorization (ESTA) for aliens 

who wish to enter the United States 

under the Visa Waiver Program (VWP) 

at air or sea ports of entry. This rule is 

intended to fulfill the requirements of 

section 711 of the Implementing 

Recommendations of the 9/11 

Commission Act of 2007 (9/11 Act). The 

rule establishes ESTA and delineates 

the data fields DHS has determined will 

be collected by the system. The rule 

requires that each alien traveling to the 

United States under the VWP must 

obtain electronic travel authorization 

via the ESTA System in advance of such 

travel. VWP travelers may obtain the 

required ESTA authorization by 

electronically submitting to CBP 

biographic and other information as 

currently required by the I-94W 

Nonimmigrant Alien Arrival/Departure 

Form (I-94W). By Federal Register 

notice dated November 13, 2008, the 

Secretary of Homeland Security 

informed the public that ESTA would 

become mandatory beginning January 

12, 2009. This means that all VWP 

travelers must either obtain travel 

authorization in advance of travel under 

ESTA or obtain a visa prior to traveling 

to the United States. 

By shifting from a paper to an 

electronic form and requiring the data in 

advance of travel, CBP will be able to 

determine before the alien departs for 

the U.S., the eligibility of nationals from 

VWP countries to travel to the United 

States and to determine whether such 

travel poses a law enforcement or 

security risk. By modernizing the VWP, 

the ESTA is intended to increase 

national security and provide for greater 

efficiencies in the screening of 

international travelers by allowing for 

vetting of subjects of potential interest 

well before boarding, thereby reducing 

traveler delays based on lengthy 

processes at ports of entry. CBP intends 

to issue a final rule during the next 

fiscal year. 

Importer Security Filing and 

Additional Carrier Requirements. The 

Security and Accountability for Every 

Port Act of 2006 (SAFE Port Act), calls 

for CBP to promulgate regulations to 

require the electronic transmission of 

additional data elements for improved 

high-risk targeting. See Pub. L. No. 109- 

347, § 203 (Oct. 13, 2006). This includes 

appropriate security elements of entry 

data for cargo destined for the United 

States by vessel prior to loading of such 

cargo on vessels at foreign seaports. Id. 

The SAFE Port Act requires that the 

information collected reasonably 

improve CBP’s ability to identify highrisk shipments to prevent smuggling 

and ensure cargo safety and security. Id. 

On November 25, 2008, CBP 

published an interim final rule 

‘‘Importer Security Filing and 

Additional Carrier Requirements,’’ 

amending CBP Regulations to require 

carriers and importers to provide to 

CBP, via a CBP approved electronic data 

interchange system, information 

necessary to enable CBP to identify 

high-risk shipments to prevent 

smuggling and ensure cargo safety and 

security. This rule, which became 

effective on January 26, 2009, improves 

CBP’s risk assessment and targeting 

capabilities, facilitates the prompt 

release of legitimate cargo following its 

arrival in the United States, and assists 

CBP in increasing the security of the 

global trading system. The comment 

period for the interim final rule 

concluded on June 1, 2009. CBP is 

analyzing comments and conducting a 

structured review of certain flexibilities 

provided in the interim final rule. CBP 

intends to publish a final rule during 

the next fiscal year. 

Implementation of the Guam-CNMI 

Visa Waiver Program. CBP published an 

interim final rule in November 2008 

amending the DHS Regulations to 

replace the current Guam Visa Waiver 

Program with a new Guam-CNMI Visa 

Waiver program. This rule implements 

portions of the Natural Resources Act of 

2008 (CNRA), which extends the 

immigration laws of the United States to 

the Commonwealth of the Northern 

Mariana Islands (CNMI) and among 

other things, provides for a visa waiver 

program for travel to Guam and the 

CNMI. The amended regulations set 

forth the requirements for nonimmigrant 

visitors who seek admission for 

business or pleasure and solely for entry 

into and stay on Guam or the CNMI 


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without a visa. The rule also establishes 

six ports of entry in the CNMI for 

purposes of administering and enforcing 

the Guam-CNMI Visa Waiver program. 

Global Entry Program. Pursuant to 

section 7208(k) of the Intelligence 

Reform and Terrorism Prevention Act of 

2004, as amended, in the fall of 2009, 

CBP issued a notice of proposed 

rulemaking (NPRM), proposing to 

establish an international trusted 

traveler program, called Global Entry. 

This voluntary program would allow 

CBP to expedite clearance of preapproved, low-risk air travelers into the 

United States. CBP has been operating 

the Global Entry program as a pilot at 

several airports since June 6, 2008. 

Based on the successful operation of the 

pilot, CBP now proposes to establish 

Global Entry as a permanent voluntary 

regulatory program. CBP will evaluate 

the public comments received in 

response to the NPRM, in order to 

develop a final rule. 

The rules discussed above foster 

DHS’s mission. Under section 403(1) of 

the Homeland Security Act of 2002, the 

former-U.S. Customs Service, including 

functions of the Secretary of the 

Treasury relating thereto, transferred to 

the Secretary of Homeland Security. As 

part of the initial organization of DHS, 

the Customs Service inspection and 

trade functions were combined with the 

immigration and agricultural inspection 

functions and the Border Patrol and 

transferred into CBP. It is noted that 

certain regulatory authority of the 

United States Customs Service relating 

to customs revenue functions was 

retained by the Department of the 

Treasury (see the Department of the 

Treasury Regulatory Plan). In addition 

to its plans to continue issuing 

regulations to enhance border security, 

CBP, during fiscal year 2010, expects to 

continue to issue regulatory documents 

that will facilitate legitimate trade and 

implement trade benefit programs. CBP 

regulations regarding the customs 

revenue function are discussed in the 

Regulatory Plan of the Department of 

the Treasury. 

Federal Emergency Management 

Agency 

FEMA’s mission is to support our 

citizens and first responders to ensure 

that as a nation we work together to 

build, sustain, and improve our 

capability to prepare for, protect against, 

respond to, recover from, and mitigate 

all hazards. In fiscal year 2010, FEMA 

will continue to serve that mission and 

promote the Department of Homeland 

Security’s goals. In furtherance of the 

Department and agency’s goals, in the 

upcoming fiscal year, FEMA will be 

working on regulations to implement 

provisions of the Post-Katrina 

Emergency Management Reform Act of 

2006 (PKEMRA) (Public Law 109-295, 

Oct. 4, 2006), the U.S. Troop Readiness, 

Veterans’ Care, Katrina Recovery, and 

Iraq Accountability Appropriations Act, 

2007 (Public Law 110-28, May 25, 

2007), and to implement lessons learned 

from past events. 

Disaster Assistance; Federal 

Assistance to Individuals and 

Households. FEMA intends to update 

the current interim rule titled ‘‘Disaster 

Assistance; Federal Assistance to 

Individuals and Households.’’ This 

rulemaking would implement section 

408 of the Robert T. Stafford Disaster 

Relief and Emergency Assistance Act 

(the Stafford Act) (42 U.S.C. 5121-5207). 

It would also make further revisions to 

44 CFR part 206, subparts D (the 

Individuals and Households Program 

(IHP)) and remove subpart E (Individual 

and Family Grant Programs). Among 

other things, it would implement 

section 686 of PKEMRA to remove the 

IHP subcaps; implement section 685 

regarding semi-permanent and 

permanent housing construction 

eligibility; revise FEMA’s regulations 

related to individuals with disabilities 

pursuant to PKEMRA section 689; and 

revise FEMA’s regulations to allow for 

the payment of security deposits and the 

costs of utilities, excluding telephone 

service, in accordance with section 689d 

of PKEMRA. This regulation also would 

propose to implement section 689f of 

PKEMRA by authorizing assistance to 

relocate individuals displaced from 

their predisaster primary residence, to 

and from alternate locations for short-or 

long-term accommodations. 

Public Assistance Program 

regulations. FEMA will also work to 

revise the Public Assistance Program 

regulations in 44 CFR part 206 to reflect 

changes made to the Stafford Act by 

PKEMRA, the Pets Evacuation and 

Transportation Standards Act of 2006 

(PETS Act) (Public Law 109-308, Oct., 

2006), the Local Community Recovery 

Act of 2006 (Public Law 109-218, Apr. 

20, 2006), and the Security and 

Accountability for Every Port Act of 

2006 (SAFE Port Act) (Public Law 109- 

347, Oct. 13, 2006), and to make other 

substantive and nonsubstantive 

clarifications and corrections to the 

Public Assistance regulations. The 

proposed changes would expand 

eligibility to include performing arts 

facilities and community arts centers 

pursuant to section 688 of PKEMRA; 

include education in the list of critical 

services pursuant to section 689h of 

PKEMRA, thus allowing private 

nonprofit educational facilities to be 

eligible for restoration funding; add 

accelerated Federal assistance to 

available assistance and precautionary 

evacuations to activities eligible for 

reimbursement pursuant to section 681 

of PKEMRA; include household pets 

and service animals in essential 

assistance pursuant to section 689 of 

PKEMRA and section 4 of the PETS Act; 

provide for expedited payments of grant 

assistance for the removal of debris 

pursuant to section 610 of the SAFE 

Port Act; and allow for a contract to be 

set aside for award based on a specific 

geographic area pursuant to section 2 of 

the Local Community Recovery Act of 

2006. Other changes would include 

adding or changing requirements to 

improve and streamline the Public 

Assistance grant application process. 

Special Community Disaster Loans. In 

addition, FEMA intends to address 

public comments and publish a final 

rule that would implement loan 

cancellation provisions for Special 

Community Disaster Loans (SCDLs). 

FEMA provided SCDLs to local 

governments in the Gulf region 

following Hurricanes Katrina and Rita. 

This rule would not result in the 

automatic cancellation of all SCDLs. It 

would finalize the procedures and 

requirements for governments who 

received SCDLs to apply for 

cancellation of loan obligations as 

authorized by section 4502 of the U.S. 

Troop Readiness, Veterans’ Care, 

Katrina Recovery, and Iraq 

Accountability Appropriations Act, 

2007. The final rule would establish the 

procedures by which loan holders 

would provide FEMA with information 

that would then be used to determine 

when cancelation of a SCDL, in whole 

or in part, is warranted. The final rule 

would not apply to any loans made 

under FEMA’s traditional Community 

Disaster Loans Program which is 

governed under separate regulations. 

Federal Law Enforcement Training 

Center 

The Federal Law Enforcement 

Training Center (FLETC) does not have 

any significant regulatory actions 

planned for fiscal year 2010. 

United States Immigration and Customs 

Enforcement 

The mission of the U.S. Immigration 

and Customs Enforcement (ICE) is to 

protect national security by enforcing 

our nation’s customs and immigration 

laws. During fiscal year 2010, ICE will 


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pursue rulemaking actions that improve 

three critical subject areas: the processes 

for the Student and Exchange Visitor 

Program (SEVP); the detention of aliens 

who are subject to final orders of 

removal; and the electronic signature 

and storage of Form I-9, Employment 

Eligibility Verification. 

Processes for the Student and 

Exchange Visitor Program. ICE will 

improve SEVP processes by publishing 

the Optional Practical Training (OPT) 

final rule, which will respond to 

comments on the OPT interim final rule 

(IFR). The IFR increased the maximum 

period of OPT from 12 months to 29 

months for nonimmigrant students who 

have completed a science, technology, 

engineering, or mathematics (STEM) 

degree and who accept employment 

with employers who participate in the 

U.S. Citizenship and Immigration 

Services E-Verify employment 

verification program. 

In addition, ICE will publish 

proposed revisions of 8 CFR 214.1-4 in 

a regulation that will clarify the criteria 

for F, M and J nonimmigrant status and 

for schools certified by SEVP, update 

policy and procedure for SEVP, remove 

obsolete provisions, and support the 

implementation of a major 

reprogramming of the Student and 

Exchange Visitor Information System 

(SEVIS), known as ‘‘SEVIS II.’’ 

Detention of Aliens Subject to Final 

Orders of Removal. ICE will also 

improve the post order custody review 

process in the final rule related to the 

Continued Detention of Aliens Subject 

to Final Orders of Removal in light of 

the Supreme Court’s decisions in 

Zadvydas v. Davis, 533 U.S. 678 (2001), 

Clark v. Martinez, 543 U.S. 371 (2005). 

ICE will also make conforming changes 

as required by the Homeland Security 

Act of 2002. 

Electronic Signature and Storage of 

Form I-9, Employment Eligibility 

Verification. A final rule on the 

Electronic Signature and Storage of 

Form I-9, Employment Eligibility 

Verification will respond to comments 

and make minor changes to the IFR that 

was published in 2006. 

National Protection and Programs 

Directorate 

The goal of the National Protection 

and Programs Directorate (NPPD) is to 

advance the Department’s risk-reduction 

mission. Reducing risk requires an 

integrated approach that encompasses 

both physical and virtual threats and 

their associated human elements. 

Secure Handling of Ammonium Nitrate 

Program 

The Secure Handling of Ammonium 

Nitrate Act, section 563 of the Fiscal 

Year 2008 Department of Homeland 

Security Appropriations Act, P.L. 110- 

161, amended the Homeland Security 

Act of 2002 to provide DHS with the 

authority to ‘‘regulate the sale and 

transfer of ammonium nitrate by an 

ammonium nitrate facility . . . to prevent 

the misappropriation or use of 

ammonium nitrate in an act of 

terrorism.’’ 

The Secure Handling of Ammonium 

Nitrate Act directs DHS to promulgate 

regulations requiring potential buyers 

and sellers of ammonium nitrate to 

register with DHS. As part of the 

registration process, the statute directs 

DHS to screen registration applicants 

against the Federal Government’s 

Terrorist Screening Database. The 

statute also requires sellers of 

ammonium nitrate to verify the 

identities of those seeking to purchase 

it; to record certain information about 

each sale or transfer of ammonium 

nitrate; and to report thefts and losses of 

ammonium nitrate to DHS. 

The rule would aid the Federal 

Government in its efforts to prevent the 

misappropriation of ammonium nitrate 

for use in acts of terrorism. By 

preventing such misappropriation, this 

rule will limit terrorists’ abilities to 

threaten the public and to threaten the 

Nation’s critical infrastructure and key 

resources. By securing the nation’s 

supply of ammonium nitrate, it will be 

more difficult for terrorists to obtain 

ammonium nitrate materials for use in 

terrorist acts. 

DHS published an advance notice of 

proposed rulemaking (ANPRM) for the 

Secure Handling of Ammonium Nitrate 

Program on October 29, 2008, and has 

received a number of public comments 

on that ANPRM. DHS is presently 

reviewing those comments and is in the 

process of developing a notice of 

proposed rulemaking (NPRM), which 

the Department hopes to issue in Spring 

2010. 

US-VISIT 

The U.S. Visitor and Immigrant Status 

Indicator Technology (US-VISIT) is an 

integrated, automated entry-exit system 

that records the arrival and departure of 

aliens, verifies aliens’ identities, and 

verifies aliens’ travel documents by 

comparison of biometric identifiers. The 

goals of US-VISIT are to enhance the 

security of U.S. citizens and visitors to 

the United States, facilitate legitimate 

travel and trade, ensure the integrity of 

the U.S. immigration system, and 

protect the privacy of visitors to the 

United States. 

The US-VISIT program, through CBP 

officers or Department of State (DOS) 

consular offices, collects biometrics 

(digital fingerprints and photographs) 

from aliens seeking to enter the United 

States. DHS checks that information 

against government databases to identify 

suspected terrorists, known criminals, 

or individuals who have previously 

violated U.S. immigration laws. This 

system assists DHS and DOS in 

determining whether an alien seeking to 

enter the United States is, in fact, 

admissible to the United States under 

existing law. No biometric exit system 

currently exists, however, to assist DHS 

or DOS in determining whether an alien 

has overstayed the terms of his or her 

visa or other authorization to be present 

in the United States. 

NPPD published an NPRM on April 

24, 2008, proposing to establish an exit 

program at all air and sea ports of 

departure in the United States. Congress 

subsequently enacted the Consolidated 

Security, Disaster Assistance, and 

Continuing Appropriations Act of 2009, 

Public Law 110-329, 122 Stat. 3574, 

3669 – 70 (Sept. 30, 2008), requiring 

DHS to delay issuance of a final rule 

until the conclusion of pilot tests to 

analyze the collection of biometrics 

from at least two air exit scenarios. DHS 

currently is reviewing the results of 

those tests. DHS continues to work to 

ensure that the final air/sea exit rule 

will be issued during fiscal year 2010. 

Transportation Security Administration 

The Transportation Security 

Administration (TSA) protects the 

Nation’s transportation systems to 

ensure freedom of movement for people 

and commerce. TSA is committed to 

continuously setting the standard for 

excellence in transportation security 

through its people, processes, and 

technology as we work to meet the 

immediate and long-term needs of the 

transportation sector. 

In fiscal year 2010, TSA will promote 

the DHS mission by emphasizing 

regulatory efforts that allow TSA to 

better identify, detect, and protect 

against threats against various modes of 

the transportation system, while 

facilitating the efficient movement of 

the traveling public, transportation 

workers, and cargo. 

Screening of Air Cargo. TSA will 

finalize an interim final rule that 

codifies a statutory requirement of 

Implementing Recommendations of the 

9/11 Commission Act of 2008 (9/11 Act) 


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that TSA establish a system to screen 

100 percent of cargo transported on 

passenger aircraft by August 3, 2010. 

TSA is working to finalize the interim 

rule by November 2010. To assist in 

carrying out this mandate, TSA is 

establishing a voluntary program under 

which it will certify cargo screening 

facilities to screen cargo according to 

TSA standards prior to its being 

tendered to aircraft operators for 

carriage on passenger aircraft. 

Large Aircraft Security Program 

(General Aviation). TSA plans to issue 

a supplemental notice of proposed 

rulemaking (SNPRM) to propose 

amendments to current aviation 

transportation security regulations to 

enhance the security of general aviation 

by expanding the scope of current 

requirements and by adding new 

requirements for certain General 

Aviation (GA) aircraft operators. To 

date, the government’s focus with regard 

to aviation security generally has been 

on air carriers and commercial 

operators. As vulnerabilities and risks 

associated with air carriers and 

commercial operators have been 

reduced or mitigated, terrorists may 

perceive that GA aircraft are more 

vulnerable and may view them as 

attractive targets. This rule would yield 

benefits in the areas of security and 

quality governance by expanding the 

mandatory use of security measures to 

certain operators of large aircraft that are 

not currently required to have a security 

plan. TSA published a notice of 

proposed rulemaking on October 30, 

2008, and received over 7,000 public 

comments, generally urging significant 

changes to the proposal. The SNPRM 

will respond to the comments and 

contain proposals on addressing 

security in the GA sector. 

Security Training for Non-Aviation 

Modes. TSA will propose regulations to 

enhance the security of several nonaviation modes of transportation, in 

accordance with the requirements of the 

9/11 Act. In particular, TSA will 

propose regulations requiring freight 

railroads, passenger railroads, public 

transportation system operators, overthe-road bus operators, and motor 

carriers transporting certain hazardous 

materials to conduct security training 

for certain of their employees. Requiring 

security training programs of these 

employees is important, because it will 

prepare these employees, including 

frontline employees, for potential 

security threats and conditions. 

Aircraft Repair Station Security. TSA 

will propose regulations to require 

repair stations that are certificated by 

the Federal Aviation Administration 

(FAA) under 14 CFR part 145 to adopt 

and implement standard security 

programs and to comply with security 

directives issued by TSA. The rule will 

also propose to codify the scope of 

TSA’s existing inspection program and 

to require regulated parties to allow 

DHS officials to enter, inspect, and test 

property, facilities, and records relevant 

to repair stations. This rulemaking 

action implements section 1616 of the 

9/11 Act. 

Vetting, Adjudication, and Redress 

Process and Fees. TSA is developing a 

proposed rule to revise and standardize 

the procedures, adjudication criteria, 

and fees for most of the security threat 

assessments (STA) of individuals for 

which TSA is responsible. The scope of 

the rulemaking will include 

transportation workers from all modes 

of transportation who are required to 

undergo an STA in other regulatory 

programs. In addition, TSA will propose 

fees to cover the cost of the STAs, and 

credentials for some personnel. TSA 

plans to improve efficiencies in 

processing STAs and streamline existing 

regulations by simplifying language and 

removing redundancies. Standardized 

procedures and adjudication criteria 

will allow TSA to reduce the need for 

certain individuals to undergo multiple 

STAs; streamlined processes are 

intended to reduce the time needed for 

TSA to complete the adjudication of 

STAs. 

United States Secret Service 

The United States Secret Service does 

not have any significant regulatory 

actions planned for fiscal year 2010. 

DHS Regulatory Plan for Fiscal Year 

2010 

A more detailed description of the 

priority regulations that comprise DHS’s 

Fall 2009 Regulatory Plan follows. 

DHS—Office of the Secretary (OS) 

PROPOSED RULE STAGE 

56. SECURE HANDLING OF 

AMMONIUM NITRATE PROGRAM 

Priority: 

Other Significant. Major status under 5 

USC 801 is undetermined. 

Legal Authority: 

Sec 563 of the 2008 Consolidated 

Appropriations Act, Subtitle J—Secure 

Handling of Ammonium Nitrate, PL 

110–161 

CFR Citation: 

6 CFR 31 

Legal Deadline: 

NPRM, Statutory, May 26, 2008, 

Publication of Notice of Proposed 

Rulemaking. 

Abstract: 

This rulemaking will implement the 

December 2007 amendment to the 

Homeland Security Act entitled the 

Secure Handling of Ammonium Nitrate. 

The amendment requires the 

Department of Homeland Security to 

‘‘regulate the sale and transfer of 

ammonium nitrate by an ammonium 

nitrate facility . . .to prevent the 

misappropriation or use of ammonium 

nitrate in an act of terrorism.’’ 

Statement of Need: 

Pursuant to section 563 of the 2008 

Consolidated Appropriations Act, the 

Secure Handling of Ammonium Nitrate 

Act, P.L. 110-161, the Department of 

Homeland Security is required to 

promulgate a rulemaking to create a 

registration regime for certain buyers 

and sellers of ammonium nitrate. The 

rule, as proposed by this NPRM, would 

create that regime, and will aid the 

Federal Government in its efforts to 

prevent the misappropriation of 

ammonium nitrate for use in acts of 

terrorism. By preventing such 

misappropriation, this rule will limit 

terrorists’ abilities to threaten the 

public and to threaten the Nation’s 

critical infrastructure and key 

resources. By securing the nation’s 

supply of ammonium nitrate, it will be 

much more difficult for terrorists to 

obtain ammonium nitrate materials for 

use in improvised explosive devices 

(IEDs). As a result, there is a direct 

value in the deterrence of a 

catastrophic terrorist attack using 

ammonium nitrate such as the 

Oklahoma City attack that killed over 

160, injured 853 people, and is 

estimated to have caused $652 million 

in damages ($921 million in $2009). 

Summary of Legal Basis: 

Section 563 of the 2008 Consolidated 

Appropriations Act, Subtitle J — Secure 

Handling of Ammonium Nitrate, PL 

110-161, authorizes and requires this 

rulemaking. 

Alternatives: 

The Department of Homeland Security 

is required by statute to publish 

regulations implementing the Secure 


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Handling of Ammonium Nitrate Act. As 

part of its notice of proposed 

rulemaking, the Department will seek 

public comment on the numerous 

alternative ways in which the final 

Secure Handling of Ammonium Nitrate 

Program could carry out the 

requirements of the Secure Handling of 

Ammonium Nitrate Act. 

Anticipated Cost and Benefits: 

There will be costs to ammonium 

nitrate (AN) purchasers, including 

farms, fertilizer mixers, farm supply 

wholesalers and coops, golf courses, 

landscaping services, explosives 

distributors, mines, retail garden 

centers, and lab supply wholesalers. 

There will also be costs to AN sellers, 

such as ammonium nitrate fertilizer 

and explosive manufacturers, fertilizer 

mixers, farm supply wholesalers and 

coops, retail garden center, explosives 

distributors, fertilizer applicator 

services, and lab supply wholesalers. 

Costs will relate to the point of sale 

requirements, registration activities, 

recordkeeping, inspections/audits, and 

reporting of theft or loss. DHS plans 

to provide an initial regulatory 

flexibility analysis, which covers the 

populations and cost impacts on small 

business. 

Because the value of the benefits of 

reducing risk of a terrorist attack is a 

function of both the probability of an 

attack and the value of the 

consequence, it is difficult to identify 

the particular risk reduction associated 

with the implementation of this rule. 

When the proposed rule is published, 

DHS will provide a break even analysis. 

The program elements that would help 

achieve the risk reductions will be 

discussed in the break even analysis. 

These elements and related qualitative 

benefits include point of sale 

identification requirements and 

requiring individuals to be screened 

against the TSDB resulting in known 

bad actors being denied the ability to 

purchase ammonium nitrate. 

Risks: 

Explosives containing ammonium 

nitrate are commonly used in terrorist 

attacks. Such attacks have been carried 

out both domestically and 

internationally. The 1995 Murrah 

Federal Building attack in Oklahoma 

City claimed the lives of 167 

individuals and demonstrated firsthand 

to America how ammonium nitrate 

could be misused by terrorists. In 

addition to the Murrah Building attack, 

the Provisional Irish Republican Army 

used ammonium nitrate as part of its 

London, England bombing campaign in 

the early 1980s. More recently, 

ammonium nitrate was used in the 

1998 East African Embassy bombings 

and in November 2003 bombings in 

Istanbul, Turkey. Additionally, since 

the events of 9/11, stores of ammonium 

nitrate have been confiscated during 

raids on terrorist sites around the 

world, including sites in Canada, 

England, India, and the Philippines. 

The Department of Homeland Security 

aims to prevent terrorist attacks within 

the United States and to reduce the 

vulnerability of the United States to 

terrorism. By preventing the 

misappropriation or use of ammonium 

nitrate in acts of terrorism, this 

rulemaking will support the 

Department’s efforts to prevent terrorist 

attacks and to reduce the Nation’s 

vulnerability to terrorist attacks. This 

rulemaking is complementary to other 

Department programs seeking to reduce 

the risks posed by terrorism, including 

the Chemical Facility Anti-terrorism 

Standards program (which seeks in part 

to prevent terrorists from gaining access 

to dangerous chemicals) and the 

Transportation Worker Identification 

Credential program (which seeks in 

part to prevent terrorists from gaining 

access to certain critical infrastructure), 

among other programs. 

Timetable: 

Action Date FR Cite 

ANPRM 10/29/08 73 FR 64280 

Correction 11/05/08 73 FR 65783 

ANPRM Comment 

Period End 

12/29/08 

NPRM 04/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Government Levels Affected: 

Federal, Local, State, Tribal 

Federalism: 

This action may have federalism 

implications as defined in EO 13132. 

URL For More Information: 

www.regulations.gov 

URL For Public Comments: 

www.regulations.gov 

Agency Contact: 

Dennis Deziel 

Infrastructure Security Compliance 

Division 

Department of Homeland Security 

Washington, DC 20528 

Phone: 703 235–5263 

Email: dennis.deziel@dhs.gov 

RIN: 1601–AA52 

DHS—OS 

FINAL RULE STAGE 

57. COLLECTION OF ALIEN 

BIOMETRIC DATA UPON EXIT FROM 

THE UNITED STATES AT AIR AND 

SEA PORTS OF DEPARTURE; UNITED 

STATES VISITOR AND IMMIGRANT 

STATUS INDICATOR TECHNOLOGY 

PROGRAM (US–VISIT) 

Priority: 

Economically Significant. Major under 

5 USC 801. 

Unfunded Mandates: 

This action may affect the private 

sector under PL 104-4. 

Legal Authority: 

8 USC 1101 to 1104; 8 USC 1182; 8 

USC 1184 to 1185 (pursuant to EO 

13323); 8 USC 1221; 8 USC 1365a, 

1365b; 8 USC 1379; 8 USC 1731 to 

1732 

CFR Citation: 

8 CFR 215.1; 8 CFR 231.4 

Legal Deadline: 

None 

Abstract: 

DHS established the United States 

Visitor and Immigrant Status Indicator 

Technology Program (US-VISIT) in 

accordance with a series of legislative 

mandates requiring that DHS create an 

integrated automated entry-exit system 

that records the arrival and departure 

of aliens; verifies aliens’ identities; and 

authenticates travel documents. This 

rule requires aliens to provide 

biometric identifiers at entry and upon 

departure at any air and sea port of 

entry at which facilities exist to collect 

such information. 

Statement of Need: 

This rule establishes an exit system at 

all air and sea ports of departure in 

the United States. This rule requires 

aliens subject to United States Visitor 

and Immigrant Status Indicator 

Technology Program biometric 

requirements upon entering the United 

States to also provide biometric 

identifiers prior to departing the United 

States from air or sea ports of 

departure. 

Alternatives: 

The proposed rule would require aliens 

who are subject to US-VISIT biometric 

requirements upon entering the United 


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States to provide biometric information 

before departing from the United States 

at air and sea ports of entry. The rule 

proposed a performance standard for 

commercial air and vessel carriers to 

collect the biometric information and 

to submit this information to DHS no 

later than 24 hours after air carrier staff 

secure the aircraft doors on an 

international departure, or for sea 

travel, no later than 24 hours after the 

vessel’s departure from a U.S. port. 

DHS is considering numerous 

alternatives based upon public 

comment on the alternatives in the 

NPRM. Alternatives included various 

points in the process, kiosks, and 

varying levels of responsibility for the 

carriers and government. DHS may 

select another variation between the 

outer bounds of the alternatives 

presented or another alternative if 

subsequent analysis warrants. 

Anticipated Cost and Benefits: 

The proposed rule expenditure and 

delay costs for a ten-year period are 

estimated at $3.5 billion. Alternative 

costs range from $3.1 billion to $6.4 

billion. US-VISIT assessed seven 

categories of economic impacts other 

than direct expenditures. Of these two 

are economic costs: social costs 

resulting from increased traveler queue 

and processing time; and social costs 

resulting from increased flight delays. 

Ten-year benefits are estimated at $1.1 

billion. US-VISIT assessed seven 

categories of economic impacts other 

than direct expenditures. Of these five 

are benefits, which include costs that 

could be avoided, for each alternative: 

cost avoidance resulting from improved 

detection of aliens overstaying visas; 

cost avoidance resulting from improved 

U.S. Immigrations and Customs 

Enforcement (ICE) efficiency attempting 

apprehension of overstays; cost 

avoidance resulting from improved 

efficiency processing Exit/Entry data; 

improved compliance with NSEERS 

requirements due to the improvement 

in ease of compliance; and improved 

National Security Environment. These 

benefits are measured quantitatively or 

qualitatively. 

Timetable: 

Action Date FR Cite 

NPRM 04/24/08 73 FR 22065 

NPRM Comment 

Period End 

06/23/08 

Final Rule 07/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Small Entities Affected: 

No 

Government Levels Affected: 

None 

URL For More Information: 

www.regulations.gov 

URL For Public Comments: 

www.regulations.gov 

Agency Contact: 

Helen DeThomas 

Management and Program Analyst 

Department of Homeland Security 

1616 N. Fort Myer Drive 

Arlington, VA 22203 

Phone: 202 298–5173 

Email: helen.dethomas@dhs.gov 

Related RIN: Previously reported as 

1650–AA04 

RIN: 1601–AA34 

DHS—U.S. Citizenship and 

Immigration Services (USCIS) 

PROPOSED RULE STAGE 

58. ASYLUM AND WITHHOLDING 

DEFINITIONS 

Priority: 

Other Significant 

Legal Authority: 

8 USC 1103; 8 USC 1158; 8 USC 1226; 

8 USC 1252; 8 USC 1282; 8 CFR 2 

CFR Citation: 

8 CFR 208 

Legal Deadline: 

None 

Abstract: 

This rule proposes to amend 

Department of Homeland Security 

regulations that govern asylum 

eligibility. The amendments focus on 

portions of the regulations that deal 

with the definitions of membership in 

a particular social group, the 

requirements for failure of State 

protection, and determinations about 

whether persecution is inflicted on 

account of a protected ground. This 

rule codifies long-standing concepts of 

the definitions. It clarifies that gender 

can be a basis for membership in a 

particular social group. It also clarifies 

that a person who has suffered or fears 

domestic violence may under certain 

circumstances be eligible for asylum on 

that basis. After the Board of 

Immigration Appeals published a 

decision on this issue in 1999, Matter 

of R-A-, Int. Dec. 3403 (BIA 1999), it 

became clear that the governing 

regulatory standards required 

clarification. The Department of Justice 

began this regulatory initiative by 

publishing a proposed rule addressing 

these issues in 2000. 

Statement of Need: 

This rule provides guidance on a 

number of key interpretive issues of the 

refugee definition used by adjudicators 

deciding asylum and withholding of 

removal (withholding) claims. The 

interpretive issues include whether 

persecution is inflicted on account of 

a protected ground, the requirements 

for establishing the failure of State 

protection, and the parameters for 

defining membership in a particular 

social group. This rule will aid in the 

adjudication of claims made by 

applicants whose claims fall outside of 

the rubric of the protected grounds of 

race, religion, nationality, or political 

opinion. One example of such claims 

which often fall within the particular 

social group ground concerns people 

who have suffered or fear domestic 

violence. This rule is expected to 

consolidate issues raised in a proposed 

rule in 2000 and to address issues that 

have developed since the publication 

of the proposed rule. This should 

provide greater stability and clarity in 

this important area of the law. 

Summary of Legal Basis: 

The purpose of this rule is to provide 

guidance on certain issues that have 

arisen in the context of asylum and 

withholding adjudications. The 1951 

Geneva Convention relating to the 

Status of Refugees (1951 Convention) 

contains the internationally accepted 

definition of a refugee. United States 

immigration law incorporates an almost 

identical definition of a refugee as a 

person outside his or her country of 

origin ‘‘who is unable or unwilling to 

return to, and is unable or unwilling 

to avail himself or herself of the 

protection of, that country because of 

persecution or a well-founded fear of 

persecution on account of race, 

religion, nationality, membership in a 

particular social group, or political 

opinion.’’ Section 101(a)(42) of the 

Immigration and Nationality Act. 

Alternatives: 

A sizable body of interpretive case law 

has developed around the meaning of 

the refugee definition. Historically, 

much of this case law has addressed 


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more traditional asylum and 

withholding claims based on the 

protected grounds of race, religion, 

nationality, or political opinion. In 

recent years, however, the United 

States increasingly has encountered 

asylum and withholding applications 

with more varied bases, related, for 

example, to an applicant’s gender or 

sexual orientation. Many of these new 

types of claims are based on the ground 

of ‘‘membership in a particular social 

group,’’ which is the least well-defined 

of the five protected grounds within the 

refugee definition. 

On December 7, 2000, a proposed rule 

was published in the Federal Register 

providing guidance on the definitions 

of ‘‘persecution’’ and ‘‘membership in 

a particular social group.’’ Prior to 

publishing a final rule, the Department 

will be considering how the nexus 

between persecution and a protected 

ground might be further 

conceptualized; how membership in a 

particular social group might be 

defined and evaluated; and what 

constitutes a State’s inability or 

unwillingness to protect the applicant 

where the persecution arises from a 

non-State actor. This rule will provide 

guidance to the following adjudicators: 

USCIS asylum officers, Department of 

Justice Executive Office for Immigration 

Review (EOIR) immigration judges, and 

members of the EOIR Board of 

Immigration Appeals. The alternative to 

publishing this rule would be to allow 

the standards governing this area of law 

to continue to develop piecemeal 

through administrative and judicial 

precedent. This approach has resulted 

in inconsistent and confusing standards 

and the Department has therefore 

determined that promulgation of the 

final rule is necessary. 

Anticipated Cost and Benefits: 

By providing a clear framework for key 

asylum and withholding issues, we 

anticipate that adjudicators will have 

clear guidance, increasing 

administrative efficiency and 

consistency in adjudicating these cases. 

The rule will also promote a more 

consistent and predictable body of 

administrative and judicial precedent 

governing these types of cases. We 

anticipate that this will enable 

applicants to better assess their 

potential eligibility for asylum and to 

present their claims more efficiently 

when they believe that they may 

qualify, thus reducing the resources 

spent on adjudicating claims that do 

not qualify. In addition, a more 

consistent and predictable body of law 

on these issues will likely result in 

fewer appeals, both administrative and 

judicial, and reduce the associated 

litigation costs. The Department has no 

way of accurately predicting how this 

rule will impact the number of asylum 

applications filed in the US. Based on 

anecdotal evidence and on the reported 

experience of other nations that have 

adopted standards under which the 

results are similar to those we 

anticipate from this rule, we do not 

believe this rule will cause a large 

change in the number of asylum 

applications filed. 

Risks: 

The failure to promulgate a final rule 

in this area presents significant risks 

of further inconsistency and confusion 

in the law. The government’s interests 

in fair, efficient and consistent 

adjudications would be compromised. 

Timetable: 

Action Date FR Cite 

NPRM 12/07/00 65 FR 76588 

NPRM 09/00/10 

NPRM Comment 

Period End 

11/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Small Entities Affected: 

No 

Government Levels Affected: 

None 

Additional Information: 

CIS No. 2092-00 

Transferred from RIN 1115-AF92 

Agency Contact: 

Jedidah Hussey 

Deputy Chief, Asylum Division 

Department of Homeland Security 

U.S. Citizenship and Immigration 

Services 

20 Massachusetts Avenue NW. 

Suite 3300 

Washington, DC 20529 

Phone: 202 272–1663 

Email: jedidah.m.hussey@dhs.gov 

RIN: 1615–AA41 

DHS—USCIS 

59. REGISTRATION REQUIREMENTS 

FOR EMPLOYMENT–BASED 

CATEGORIES SUBJECT TO 

NUMERICAL LIMITATIONS 

Priority: 

Other Significant 

Legal Authority: 

8 USC 1184(g) 

CFR Citation: 

8 CFR 103; 8 CFR 299 

Legal Deadline: 

None 

Abstract: 

The Department of Homeland Security 

is proposing to amend its regulations 

governing petitions filed on behalf of 

alien workers subject to annual 

numerical limitations. This rule 

proposes an electronic registration 

program for petitions subject to 

numerical limitations contained in the 

Immigration and Nationality Act (the 

Act). Initially, the program would be 

for the H-1B nonimmigrant 

classification; however, other 

nonimmigrant classifications will be 

added as needed. This action is 

necessary because the demand for H1B specialty occupation workers by 

U.S. companies generally exceeds the 

numerical limitation. This rule is 

intended to allow USCIS to more 

efficiently manage the intake and 

lottery process for these H-1B petitions. 

Statement of Need: 

U.S. Citizenship and Immigration 

Services (USCIS) proposes to establish 

a mandatory Internet-based electronic 

registration process for U.S. employers 

seeking to file H-1B petitions for alien 

workers subject to either the 65,000 or 

20,000 caps. This registration process 

would allow U.S. employers to 

electronically register for consideration 

of available H-1B cap numbers. The 

mandatory proposed registration 

process will alleviate administrative 

burdens on USCIS service centers and 

eliminate the need for U.S. employers 

to needlessly prepare and file H-1B 

petitions without any certainty that an 

H-1B cap number will ultimately be 

allocated to the beneficiary named on 

that petition. 

Summary of Legal Basis: 

Section 214(g) of the Immigration and 

Nationality Act provides limits on the 

number of alien temporary workers 

who may be granted H-1B 

nonimmigrant status each fiscal year 

(commonly known as the ‘‘cap’’). 

USCIS has responsibility for monitoring 

the requests for H-1B workers and 

administers the distribution of available 

H-1B cap numbers in light of these 

limits. 


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Alternatives: 

To ensure a fair and orderly 

distribution of H-1B cap numbers, 

USCIS evaluated its current random 

selection process, and has found that 

when it receives a significant number 

of H-1B petitions within the first few 

days of the H-1B filing period, it is 

extremely difficult to handle the 

volume of petitions received in advance 

of the H-1B random selection process. 

Further, the current petition process of 

preparing and mailing H-1B petitions, 

with the required filing fee, can be 

burdensome and costly for employers, 

if the petition is returned because the 

cap was reached and the petition was 

not selected in the random selection 

process. 

Accordingly, this rule proposes to 

implement a new process to allow U.S. 

employers to electronically register for 

consideration of available H-1B cap 

numbers without having to first prepare 

and submit the petition. 

Risks: 

There is a risk that a petitioner will 

submit multiple petitions for the same 

H-1B beneficiary so that the U.S. 

employer will have a better chance of 

his or her petition being selected. 

Accordingly, should USCIS receive 

multiple petitions for the same H-1B 

beneficiary by the same petitioner, the 

system will only accept the first 

petition and reject the duplicate 

petitions. 

Timetable: 

Action Date FR Cite 

NPRM 03/00/10 

NPRM Comment 

Period End 

05/00/10 

Regulatory Flexibility Analysis 

Required: 

Yes 

Small Entities Affected: 

Businesses 

Government Levels Affected: 

None 

Additional Information: 

2443-08 

Agency Contact: 

Greg Richardson 

Department of Homeland Security 

U.S. Citizenship and Immigration 

Services 

20 Massachusetts Avenue NW. 

2nd Floor 

Washington, DC 20529 

Phone: 202 272–8465 

Email: gregory.richardson@dhs.gov 

RIN: 1615–AB71 

DHS—USCIS 

FINAL RULE STAGE 

60. NEW CLASSIFICATION FOR 

VICTIMS OF SEVERE FORMS OF 

TRAFFICKING IN PERSONS ELIGIBLE 

FOR THE T NONIMMIGRANT STATUS 

Priority: 

Other Significant 

Legal Authority: 

5 USC 552; 5 USC 552a; 8 USC 1101 

to 1104; 8 USC 1182; 8 USC 1184; 8 

USC 1187; 8 USC 1201; 8 USC 1224 

to 1227; 8 USC 1252 to 1252a; 22 USC 

7101; 22 USC 7105; . . . 

CFR Citation: 

8 CFR 103; 8 CFR 212; 8 CFR 214; 8 

CFR 274a; 8 CFR 299 

Legal Deadline: 

None 

Abstract: 

T classification was created by 107(e) 

of the Victims of Trafficking and 

Violence Protection Act of 2000 

(VTVPA), Public Law 106-386. The T 

nonimmigrant classification was 

designed for eligible victims of severe 

forms of trafficking in persons who aid 

the Government with their case against 

the traffickers and who can establish 

that they would suffer extreme 

hardship involving unusual and severe 

harm if they were removed from the 

United States after having completed 

their assistance to law enforcement. 

The rule establishes application 

procedures and responsibilities for the 

Department of Homeland Security and 

provides guidance to the public on how 

to meet certain requirements to obtain 

T nonimmigrant status. The Trafficking 

Victims Protection Reauthorization Act 

of 2008, Public Law 110-457, made 

amendments to the T nonimmigrant 

status provisions of the Immigration 

and Naturalization Act. The 

Department will issue another interim 

final rule to make the changes required 

by recent legislation and to provide the 

opportunity for notice and comment. 

Statement of Need: 

T nonimmigrant status is available to 

eligible victims of severe forms of 

trafficking in persons who have 

complied with any reasonable request 

for assistance in the investigation or 

prosecution of acts of trafficking in 

persons, and who can demonstrate that 

they would suffer extreme hardship 

involving unusual and severe harm if 

removed from the United States. This 

rule addresses the essential elements 

that must be demonstrated for 

classification as a T nonimmigrant 

alien; the procedures to be followed by 

applicants to apply for T nonimmigrant 

status; and evidentiary guidance to 

assist in the application process. 

Summary of Legal Basis: 

Section 107(e) of the Trafficking 

Victims Protection Act (TVPA), Public 

Law 106-386, established the T 

classification to create a safe haven for 

certain eligible victims of severe forms 

of trafficking in persons, who assist law 

enforcement authorities in investigating 

and prosecuting the perpetrators of 

these crimes. 

Alternatives: 

To develop a comprehensive Federal 

approach to identifying victims of 

severe forms of trafficking in persons, 

to provide them with benefits and 

services, and to enhance the 

Department of Justice’s ability to 

prosecute traffickers and prevent 

trafficking in persons in the first place, 

a series of meetings with stakeholders 

were conducted with representatives 

from key Federal agencies; national, 

state, and local law enforcement 

associations; non-profit, communitybased victim rights organizations; and 

other groups. Suggestions from these 

stakeholders were used in the drafting 

of this regulation. 

Anticipated Cost and Benefits: 

There is no cost associated with this 

regulation. Applicants for T 

nonimmigrant status do not pay 

application or biometric fees. 

The anticipated benefits of these 

expenditures include: Assistance to 

trafficked victims and their families, 

prosecution of traffickers in persons, 

and the elimination of abuses caused 

by trafficking activities. 

Benefits which may be attributed to the 

implementation of this rule are 

expected to be: 


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1. An increase in the number of cases 

brought forward for investigation 

and/or prosecution; 

2. Heightened awareness by the law 

enforcement community of trafficking 

in persons; 

3. Enhanced ability to develop and 

work cases in trafficking in persons 

cross-organizationally and multijurisdictionally, which may begin to 

influence changes in trafficking 

patterns. 

Risks: 

There is a 5,000-person limit to the 

number of individuals who can be 

granted T-1 status per fiscal year. 

Eligible applicants who are not granted 

T-1 status due solely to the numerical 

limit will be placed on a waiting list 

to be maintained by U.S. Citizenship 

and Immigration Services (USCIS). 

To protect T-1 applicants and their 

families, USCIS will use various means 

to prevent the removal of T-1 

applicants on the waiting list, and their 

family members who are eligible for 

derivative T status, including its 

existing authority to grant deferred 

action, parole, and stays of removal. 

Timetable: 

Action Date FR Cite 

Interim Final Rule 01/31/02 67 FR 4784 

Interim Final Rule 

Effective 

03/04/02 

Interim Final Rule 

Comment Period 

End 

04/01/02 

Interim Final Rule 09/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Small Entities Affected: 

No 

Government Levels Affected: 

Federal, State 

Additional Information: 

CIS No. 2132-01; AG Order No. 2554- 

2002 

There is a related rulemaking, CIS No. 

2170-01, the new U nonimmigrant 

status (RIN 1615-AA67). 

Transferred from RIN 1115-AG19 

Agency Contact: 

Laura M. Dawkins 

Chief, Family Immigration and Victim 

Protection Division 

Department of Homeland Security 

U.S. Citizenship and Immigration 

Services 

20 Massachusetts Avenue NW. 

Suite 2304 

Washington, DC 20529 

Phone: 202 272–8398 

Email: laura.dawkins@dhs.gov 

RIN: 1615–AA59 

DHS—USCIS 

61. ADJUSTMENT OF STATUS TO 

LAWFUL PERMANENT RESIDENT 

FOR ALIENS IN T AND U 

NONIMMIGRANT STATUS 

Priority: 

Other Significant 

Legal Authority: 

5 USC 552; 5 USC 552a; 8 USC 1101 

to 1104; 8 USC 1182; 8 USC 1184; 8 

USC 1187; 8 USC 1201; 8 USC 1224 

to 1227; 8 USC 1252 to 1252a; 8 USC 

1255; 22 USC 7101; 22 USC 7105 

CFR Citation: 

8 CFR 204; 8 CFR 214; 8 CFR 245 

Legal Deadline: 

None 

Abstract: 

This rule sets forth measures by which 

certain victims of severe forms of 

trafficking who have been granted T 

nonimmigrant status and victims of 

certain criminal activity who have been 

granted U nonimmigrant status may 

apply for adjustment to permanent 

resident status in accordance with 

Public Law 106-386, Victims of 

Trafficking and Violence Protection Act 

of 2000, and Public Law 109-162, 

Violence Against Women and 

Department of Justice Reauthorization 

Act of 2005. The Trafficking Victims 

Protection Reauthorization Act of 2008, 

Public Law 110-457, made amendments 

to the T nonimmigrant status 

provisions of the Immigration and 

Naturalization Act. The Department 

will issue another interim final rule to 

make the changes required by recent 

legislation and to provide the 

opportunity for notice and comment. 

Statement of Need: 

This regulation is necessary to permit 

aliens in lawful T or U nonimmigrant 

status to apply for adjustment of status 

to that of lawful permanent residents. 

T nonimmigrant status is available to 

aliens who are victims of a severe form 

of trafficking in persons and who are 

assisting law enforcement in the 

investigation or prosecution of the acts 

of trafficking. U nonimmigrant status is 

available to aliens who are victims of 

certain crimes and are being helpful to 

the investigation or prosecution of 

those crimes. 

Summary of Legal Basis: 

This rule implements the Victims of 

Trafficking and Violence Protection Act 

of 2000 (VTVPA), Public Law 106-386, 

114 Stat. 1464 (Oct. 28, 2000), as 

amended, to permit aliens in lawful T 

or U nonimmigrant status to apply for 

adjustment of status to that of lawful 

permanent residents. 

Alternatives: 

USCIS did not consider alternatives to 

managing T and U applications for 

adjustment of status. Ease of 

administration dictates that adjustment 

of status applications from T and U 

nonimmigrants would be best handled 

on a first in, first out basis, because 

that is the way applications for T and 

U status are currently handled. 

Anticipated Cost and Benefits: 

USCIS uses fees to fund the cost of 

processing applications and associated 

support benefits. The fees to be 

collected resulting from this rule will 

be approximately $3 million dollars in 

the first year, $1.9 million dollars in 

the second year, and an average about 

$32 million dollars in the third and 

subsequent years. To estimate the new 

fee collections to be generated by this 

rule, USCIS estimated the fees to be 

collected for new applications for 

adjustment of status from T and U 

nonimmigrants and their eligible family 

members. After that, USCIS estimated 

fees from associated applications that 

are required such as biometrics, and 

others that are likely to occur in direct 

connection with applications for 

adjustment, such as employment 

authorization or travel authorization. 

The anticipated benefits of these 

expenditures include: Continued 

assistance to trafficked victims and 

their families, increased investigation 

and prosecution of traffickers in 

persons, and the elimination of abuses 

caused by trafficking activities. 

Benefits that may be attributed to the 

implementation of this rule are 

expected to be: 

1. An increase in the number of cases 

brought forward for investigation 

and/or prosecution; 


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2. Heightened awareness of traffickingin-persons issues by the law 

enforcement community; and 

3. Enhanced ability to develop and 

work cases in trafficking in persons 

cross-organizationally and multijurisdictionally, which may begin to 

influence changes in trafficking 

patterns. 

Risks: 

Congress created the U nonimmigrant 

status (‘‘U visa’’) to provide 

immigration protection to crime victims 

who assist in the investigation and 

prosecution of those crimes. Although 

there are no specific data on alien 

crime victims, statistics maintained by 

the Department of Justice have shown 

that aliens, especially those aliens 

without legal status, are often reluctant 

to help in the investigation or 

prosecution of crimes. U visas are 

intended to help overcome this 

reluctance and aid law enforcement 

accordingly. 

Timetable: 

Action Date FR Cite 

Interim Final Rule 12/12/08 73 FR 75540 

Interim Final Rule 

Effective 

01/12/09 

Interim Final Rule 

Comment Period 

End 

02/10/09 

Interim Final Rule 09/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Small Entities Affected: 

No 

Government Levels Affected: 

None 

Additional Information: 

CIS No. 2134-01 

Transferred from RIN 1115-AG21 

Agency Contact: 

Laura M. Dawkins 

Chief, Family Immigration and Victim 

Protection Division 

Department of Homeland Security 

U.S. Citizenship and Immigration 

Services 

20 Massachusetts Avenue NW. 

Suite 2304 

Washington, DC 20529 

Phone: 202 272–8398 

Email: laura.dawkins@dhs.gov 

RIN: 1615–AA60 

DHS—USCIS 

62. NEW CLASSIFICATION FOR 

VICTIMS OF CERTAIN CRIMINAL 

ACTIVITY; ELIGIBILITY FOR THE U 

NONIMMIGRANT STATUS 

Priority: 

Other Significant 

Legal Authority: 

5 USC 552; 5 USC 552a; 8 USC 1101; 

8 USC 1101 note; 8 USC 1102; . . . 

CFR Citation: 

8 CFR 103; 8 CFR 204; 8 CFR 212; 8 

CFR 214; 8 CFR 299 

Legal Deadline: 

Other, Statutory, January 5, 2006, 

Regulations need to be promulgated by 

July 5, 2006. 

Public Law 109-162, Violence Against 

Women and Department of Justice 

Reauthorization Act of 2005. 

Abstract: 

This rule sets forth application 

requirements for a new nonimmigrant 

status. The U classification is for nonU.S. Citizen/Lawful Permanent 

Resident victims of certain crimes who 

cooperate with an investigation or 

prosecution of those crimes. There is 

a limit of 10,000 principals per year. 

This rule establishes the procedures to 

be followed in order to petition for the 

U nonimmigrant classifications. 

Specifically, the rule addresses the 

essential elements that must be 

demonstrated to receive the 

nonimmigrant classification; procedures 

that must be followed to make an 

application and evidentiary guidance to 

assist in the petitioning process. 

Eligible victims will be allowed to 

remain in the United States.The 

Trafficking Victims Protection 

Reauthorization Act of 2008, Public 

Law 110-457, made amendments to the 

T nonimmigrant status provisions of 

the Immigration and Naturalization Act. 

The Department will issue another 

interim final rule to make the changes 

required by recent legislation and to 

provide the opportunity for notice and 

comment. 

Statement of Need: 

This rule provides requirements and 

procedures for aliens seeking U 

nonimmigrant status. U nonimmigrant 

classification is available to alien 

victims of certain criminal activity who 

assist government officials in the 

investigation or prosecution of that 

criminal activity. The purpose of the 

U nonimmigrant classification is to 

strengthen the ability of law 

enforcement agencies to investigate and 

prosecute such crimes as domestic 

violence, sexual assault, and trafficking 

in persons, while offering protection to 

alien crime victims in keeping with the 

humanitarian interests of the United 

States 

Summary of Legal Basis: 

Congress created the U nonimmigrant 

classification in the Battered Immigrant 

Women Protection Act of 2000 

(BIWPA). Congress intended to 

strengthen the ability of law 

enforcement agencies to investigate and 

prosecute cases of domestic violence, 

sexual assault, trafficking of aliens, and 

other crimes, while offering protection 

to victims of such crimes. Congress also 

sought to encourage law enforcement 

officials to better serve immigrant crime 

victims. 

Alternatives: 

USCIS has identified four alternatives, 

the first being chosen for the rule: 

1. USCIS would adjudicate petitions on 

a first in, first out basis. Petitions 

received after the limit has been 

reached would be reviewed to 

determine whether or not they are 

approvable but for the numerical cap. 

Approvable petitions that are reviewed 

after the numerical cap has been 

reached would be placed on a waiting 

list and written notice sent to the 

petitioner. Priority on the waiting list 

would be based upon the date on 

which the petition is filed. USCIS 

would provide petitioners on the 

waiting list with interim relief until the 

start of the next fiscal year in the form 

of deferred action, parole, or a stays 

of removal. 

2. USCIS would adjudicate petitions on 

a first in, first out basis, establishing 

a waiting list for petitions that are 

pending or received after the numerical 

cap has been reached. Priority on the 

waiting list would be based upon the 

date on which the petition was filed. 

USCIS would not provide interim relief 

to petitioners whose petitions are 

placed on the waiting list. 

3. USCIS would adjudicate petitions on 

a first in, first out basis. However, new 

filings would be reviewed to identify 

particularly compelling cases for 

adjudication. New filings would be 

rejected once the numerical cap is 

reached. No official waiting list would 

be established; however, interim relief 

until the start of the next fiscal year 

would be provided for some compelling 

cases. If a case was not particularly 


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compelling, the filing would be denied 

or rejected. 

4. USCIS would adjudicate petitions on 

a first in, first out basis. However, new 

filings would be rejected once the 

numerical cap is reached. No waiting 

list would be established, nor would 

interim relief be granted. 

Anticipated Cost and Benefits: 

USCIS estimates the total annual cost 

of this interim rule to be $6.2 million. 

This cost includes the biometric 

services fee that petitioners must pay 

to USCIS, the opportunity cost of time 

needed to submit the required forms, 

the opportunity cost of time required 

for a visit to an Application Support 

Center, and the cost of traveling to an 

Application Support Center. 

This rule will strengthen the ability of 

law enforcement agencies to investigate 

and prosecute such crimes as domestic 

violence, sexual assault, and trafficking 

in persons, while offering protection to 

alien crime victims in keeping with the 

humanitarian interests of the United 

States. 

Risks: 

In the case of witness tampering, 

obstruction of justice, or perjury, the 

interpretive challenge for USCIS was to 

determine whom the BIWPA was meant 

to protect, given that these criminal 

activities are not targeted against a 

person. Accordingly it was determined 

that a victim of witness tampering, 

obstruction of justice, or perjury is an 

alien who has been directly and 

proximately harmed by the perpetrator 

of one of these three crimes, where 

there are reasonable grounds to 

conclude that the perpetrator 

principally committed the offense as a 

means: (1) to avoid or frustrate efforts 

to investigate, arrest, prosecute, or 

otherwise bring him or her to justice 

for other criminal activity; or (2) to 

further his or her abuse or exploitation 

of, or undue control over, the alien 

through manipulation of the legal 

system. 

Timetable: 

Action Date FR Cite 

Interim Final Rule 09/17/07 72 FR 53013 

Interim Final Rule 

Effective 

10/17/07 

Interim Final Rule 

Comment Period 

End 

11/17/07 

Interim Final Rule 09/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Small Entities Affected: 

No 

Government Levels Affected: 

Federal, Local, State 

Additional Information: 

Transferred from RIN 1115-AG39 

Agency Contact: 

Laura M. Dawkins 

Chief, Family Immigration and Victim 

Protection Division 

Department of Homeland Security 

U.S. Citizenship and Immigration 

Services 

20 Massachusetts Avenue NW. 

Suite 2304 

Washington, DC 20529 

Phone: 202 272–8398 

Email: laura.dawkins@dhs.gov 

RIN: 1615–AA67 

DHS—USCIS 

63. COMMONWEALTH OF THE 

NORTHERN MARIANA ISLANDS 

TRANSITIONAL NONIMMIGRANT 

INVESTOR CLASSIFICATION 

Priority: 

Other Significant 

Legal Authority: 

8 USC 1101 to 1103; 8 USC 1182; 8 

USC 1184; 8 USC 1186a 

CFR Citation: 

8 CFR 214 

Legal Deadline: 

None 

Abstract: 

On May 8, 2008, Public Law 110-229, 

Commonwealth Natural Resources Act, 

established a transitional period for the 

application of the Immigration and 

Nationality Act (INA) to the 

Commonwealth of the Northern 

Mariana Islands (CNMI). Although the 

CNMI is subject to most U.S. laws, the 

CNMI has administered its own 

immigration system under the terms of 

its 1976 covenant with the United 

States. The Department of Homeland 

Security is proposing to amend its 

regulations by creating a new E2 CNMI 

Investor classification for the duration 

of the transition period. These 

temporary provisions are necessary to 

reduce the potential harm to the CNMI 

economy before these foreign workers 

and investors are required to convert 

into U.S. immigrant or nonimmigrant 

visa classifications. 

Statement of Need: 

This final rule responds to a 

Congressional mandate that requires the 

Federal Government to assume 

responsibility for visas for entry to 

CNMI by foreign investors. 

Anticipated Cost and Benefits: 

Public Costs: This rule reduces the 

employer’s annual cost by $200 per 

year ($500 - $300), plus any further 

reduction caused by eliminating the 

paperwork burden associated with the 

CNMI’s process. In 2006 - 2007, there 

were 464 long-term business entry 

permit holders and 20 perpetual foreign 

investor entry permit holders and 

retiree investor permit holders, totaling 

484, or approximately 500 foreign 

registered investors. The total savings 

to employers from this rule is thus 

expected to be $100,000 per year ($500 

x $200). Cost to the Federal 

Government: The yearly Federal 

Government cost is estimated at 

$42,310. 

Benefits: The potential abuse of the visa 

system by those seeking to illegally 

emigrate from the CNMI to Guam or 

elsewhere in the United States reduces 

the integrity of the United States 

immigration system by increasing the 

ease by which aliens may unlawfully 

enter the United States through the 

CNMI. Federal oversight and 

regulations of CNMI foreign investors 

should help reduce abuse by foreign 

employees in the CNMI, and should 

help reduce the opportunity for aliens 

to use the CNMI as an entry point into 

the United States. 

Timetable: 

Action Date FR Cite 

NPRM 09/14/09 74 FR 46938 

NPRM Comment 

Period End 

10/14/09 

Final Action 03/00/10 

Regulatory Flexibility Analysis 

Required: 

Yes 

Small Entities Affected: 

Businesses 

Government Levels Affected: 

Local, State 

Additional Information: 

CIS No. 2458-08 


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Agency Contact: 

Steven Viger 

Department of Homeland Security 

U.S. Citizenship and Immigration 

Services 

20 Massachusetts Avenue NW. 

Washington, DC 20529 

Phone: 202 272–1470 

Email: steven.w.viger@dhs.gov 

RIN: 1615–AB75 

DHS—USCIS 

64. COMMONWEALTH OF THE 

NORTHERN MARIANA ISLANDS 

TRANSITIONAL WORKERS 

CLASSIFICATION 

Priority: 

Other Significant 

Legal Authority: 

PL 110–229 

CFR Citation: 

8 CFR 214.2 

Legal Deadline: 

None 

Abstract: 

The Department of Homeland Security 

(DHS) is creating a new, temporary, 

Commonwealth of the Northern 

Mariana Islands (CNMI)-only 

transitional worker classification (CW 

classification) in accordance with title 

VII of the Consolidated Natural 

Resources Act of 2008 (CNRA). The 

transitional worker program is intended 

to provide for an orderly transition 

from the CNMI permit system to the 

U.S. federal immigration system under 

the Immigration and Nationality Act 

(INA). A CW transitional worker is an 

alien worker who is ineligible for 

another classification under the INA 

and who performs services or labor for 

an employer in the CNMI. The CNRA 

imposes a five-year transition period 

before the INA requirements become 

fully applicable in the CNMI. The new 

CW classification will be in effect for 

the duration of that transition period, 

unless extended by the Secretary of 

Labor. The rule also establishes 

employment authorization incident to 

CW status. 

Statement of Need: 

Title VII of the Consolidated Natural 

Resources Act of 2008 (CNRA) created 

a new, temporary, Commonwealth of 

the Northern Mariana Islands (CNMI)- 

only transitional worker classification. 

The transitional worker program is 

intended to provide for an orderly 

transition from the CNMI permit system 

to the U.S. federal immigration system 

under the Immigration and Nationality 

Act. 

Anticipated Cost and Benefits: 

Each of the estimated 22,000 CNMI 

transitional workers will be required to 

pay a $320 fee per year, for an 

annualized cost to the affected public 

of $7 million. However, since these 

workers will not have to pay CNMI 

fees, the total present value costs of this 

rule are a net cost savings ranging from 

$9.8 million to $13.4 million depending 

on the validity period of CW status (1 

or 2 years), whether out-of-status aliens 

present in the CNMI are eligible for CW 

status, and the discount rate applied. 

The intended benefits of the rule 

include improvements in national and 

homeland security and protection of 

human rights. 

Timetable: 

Action Date FR Cite 

Interim Final Rule 10/27/09 74 FR 55094 

Interim Final Rule 

Comment Period 

End 

11/27/09 

Final Action 05/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Government Levels Affected: 

State 

Agency Contact: 

Greg Richardson 

Department of Homeland Security 

U.S. Citizenship and Immigration 

Services 

20 Massachusetts Avenue NW. 

2nd Floor 

Washington, DC 20529 

Phone: 202 272–8465 

Email: gregory.richardson@dhs.gov 

RIN: 1615–AB76 

DHS—USCIS 

65. REVISIONS TO FEDERAL 

IMMIGRATION REGULATIONS FOR 

THE COMMONWEALTH OF THE 

NORTHERN MARIANA ISLANDS; 

CONFORMING REGULATIONS 

Priority: 

Other Significant 

Legal Authority: 

PL 110–229 

CFR Citation: 

8 CFR 208 and 209; 8 CFR 214 and 

215; 8 CFR 217; 8 CFR 235; 8 CFR 248; 

8 CFR 264; 8 CFR 274a 

Legal Deadline: 

Final, Statutory, November 28, 2009, 

Consolidated Natural Resources Act 

(CNRA) of 2008. 

Abstract: 

The Department of Homeland Security 

(DHS) and the Department of Justice 

(DOJ) are implementing conforming 

amendments to their respective 

regulations to comply with the 

Consolidated Natural Resources Act 

(CNRA) of 2008. The CNRA extends the 

immigration laws of the United States 

to the Commonwealth of the Northern 

Mariana Islands (CNMI). This rule 

amends the regulations governing 

asylum and credible fear of persecution 

determinations; references to the 

geographical ‘‘United States’’ and its 

territories and possessions; alien 

classifications authorized for 

employment; documentation acceptable 

for Form I-9, Employment Eligibility 

Verification (Form I-9); employment of 

unauthorized aliens; and adjustment of 

status of immediate relatives admitted 

under the Guam-CNMI Visa Waiver 

Program. Additionally, this rule makes 

a technical change to correct a citation 

error in the regulations governing the 

Visa Waiver Program and the 

regulations governing asylum and 

withholding of removal. The purpose 

of this rule is to ensure that the 

regulations apply to persons and 

entities arriving in or physically 

present in the CNMI to the extent 

authorized by the CNRA. 

Statement of Need: 

The Department of Homeland Security 

(DHS) and the Department of Justice 

(DOJ) are implementing conforming 

amendments to their respective 

regulations to comply with the 

Consolidated Natural Resources Act of 

2008 (CNRA). The CNRA extends the 

immigration laws of the United States 

to the Commonwealth of the Northern 

Mariana Islands (CNMI). This rule 

amends the regulations governing: 

asylum and credible fear of persecution 

determinations; references to the 

geographical ‘‘United States’’ and its 

territories and possessions; alien 

classifications authorized for 

employment; documentation acceptable 

for Employment Eligibility Verification; 

employment of unauthorized aliens; 

and adjustment of status of immediate 

relatives admitted under the GuamCNMI Visa Waiver Program. 


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Additionally, this rule makes a 

technical change to correct a citation 

error in the regulations governing the 

Visa Waiver Program and the 

regulations governing asylum and 

withholding of removal. 

Anticipated Cost and Benefits: 

The stated goals of the CNRA are to 

ensure effective border control 

procedures, to properly address 

national security and homeland 

security concerns by extending U.S. 

immigration law to the CNMI, and to 

maximize the CNMI’s potential for 

future economic and business growth. 

While those goals are expected to be 

partly facilitated by the changes made 

in this rule, they are general and 

qualitative in nature. There are no 

specific changes made by this rule with 

sufficiently identifiable direct or 

indirect economic impacts so as to be 

quantified. 

Timetable: 

Action Date FR Cite 

Interim Final Rule 10/28/09 74 FR 55725 

Interim Final Rule 

Comment Period 

End 

11/27/09 

Final Action 10/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Government Levels Affected: 

None 

Additional Information: 

CIS 2460-08 

Agency Contact: 

Evelyn Sahli 

Chief, Policy and Regulation Management 

Division 

Department of Homeland Security 

U.S. Citizenship and Immigration 

Services 

20 Massachusetts Avenue NW. 

Washington, DC 20529 

Phone: 202 272–1722 

RIN: 1615–AB77 

DHS—U.S. Coast Guard (USCG) 

PROPOSED RULE STAGE 

66. STANDARDS FOR LIVING 

ORGANISMS IN SHIPS’ BALLAST 

WATER DISCHARGED IN U.S. 

WATERS (USCG–2001–10486) 

Priority: 

Economically Significant. Major under 

5 USC 801. 

Unfunded Mandates: 

This action may affect the private 

sector under PL 104-4. 

Legal Authority: 

16 USC 4711 

CFR Citation: 

33 CFR 151 

Legal Deadline: 

None 

Abstract: 

This rulemaking would propose to add 

performance standards to 33 CFR part 

151, subparts C and D, for all 

discharges of ballast water. It supports 

the Coast Guard’s broad roles and 

responsibilities of maritime safety and 

maritime stewardship. This project is 

significant due to high interest from 

Congress and several Federal and State 

agencies, as well as costs imposed on 

industry. 

Statement of Need: 

The unintentional introductions of 

nonindigenous species into U.S. waters 

via the discharge of vessels’ ballast 

water has had significant impacts to the 

nation’s aquatic resources, biological 

diversity, and coastal infrastructures. 

This rulemaking would amend the 

ballast water management requirements 

(33 CFR part 151 subparts C and D) 

and establish standards that specify the 

level of biological treatment that must 

be achieved by a ballast water 

treatment system before ballast water 

can be discharged into U.S. waters. 

This would increase the Coast Guard’s 

ability to protect U.S. waters against the 

introduction of nonindigenous species 

via ballast water discharges. 

Summary of Legal Basis: 

Congress has directed the Coast Guard 

to develop ballast water regulations to 

prevent the introduction of 

nonindigenous species into U.S. waters 

under the Nonindigenous Aquatic 

Nuisance Prevention and Control Act 

of 1990 and reauthorized and amended 

it with the National Invasive Species 

Act of 1996. This rulemaking does not 

have a statutory deadline. 

Alternatives: 

We would use the standard rulemaking 

process to develop regulations for 

ballast water discharge standards. 

Nonregulatory alternatives such as 

navigation and vessel inspection 

circulars and the Marine Safety Manual 

have been considered and may be used 

for the development of policy and 

directives to provide the maritime 

industry and our field offices 

guidelines for implementation of the 

regulations. Nonregulatory alternatives 

cannot be substituted for the standards 

we would develop with this rule. 

Congress has directed the Coast Guard 

to review and revise its BWM 

regulations not less than every three 

years based on the best scientific 

information available to the Coast 

Guard at the time of that review. 

This proposed rule includes a phasein schedule (Phase-one and Phase-two) 

for the implementation of ballast water 

discharge standards based on vessel’s 

ballast water capacity and build date. 

The proposed phase-one standard is the 

same standard adopted by the 

International Maritime Organization 

(IMO) for concentration of living 

organisms in ballast water discharges. 

For phase-two, we propose 

incorporating a practicability review to 

determine whether technology to 

achieve a more stringent standard than 

the IMO can practicably be 

implemented. 

Anticipated Cost and Benefits: 

This proposed rule would affect vessels 

operating in U.S. waters that are 

equipped with ballast tanks. Owners 

and operators of these vessels would 

be required to install and operate Coast 

Guard approved ballast water 

management systems before discharging 

ballast water into U.S. waters. Cost 

estimates for individual vessels vary 

due to the vessel class, type and size, 

and the particular technology of the 

ballast water management system 

installed. We expect the highest annual 

costs of this rulemaking during the 

periods of installation as the bulk of 

the existing fleet of vessels must meet 

the standards according to proposed 

phase-in schedules. The primary cost 

driver of this rulemaking is the 

installation costs for all existing 

vessels. Operating and maintenance 

costs are substantially less than the 

installation costs. 


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We evaluated the benefits of this 

rulemaking by researching the impact 

of aquatic nonindigenous species (NIS) 

invasions in the U.S. waters, since 

ballast water discharge is one of the 

main vectors of NIS introductions in 

the marine environment. The primary 

benefit of this rulemaking would be the 

economic and environmental damages 

avoided from the reduction in the 

number of new invasions as a result 

of the reduction in concentration of 

organisms in discharged ballast water. 

We expect that the benefits of this 

rulemaking would increase as the 

technology is developed to achieve 

more stringent ballast water discharge 

standards. 

At this time, we estimate that this 

rulemaking would have annual impacts 

that exceed $100 million and result in 

an economically significant regulatory 

action. 

Risks: 

Ballast water discharged from ships is 

a significant pathway for the 

introduction and spread of nonindigenous aquatic nuisance species. 

These organisms, which may be plants, 

animals, bacteria or pathogens, have the 

potential to displace native species, 

degrade native habitats, spread disease 

and disrupt human economic and 

social activities that depend on water 

resources. It is estimated that for areas 

such as the Great Lakes, San Francisco 

Bay, and Chesapeake Bay, one 

nonindigenous species becomes 

established per year. At this time, it 

is difficult to estimate the reduction of 

risk that would be accomplished by 

promulgating this rulemaking; however, 

it is expected a major reduction will 

occur. We are currently requesting 

information on costs and benefits of 

more stringent ballast water discharge 

standards. 

Timetable: 

Action Date FR Cite 

ANPRM 03/04/02 67 FR 9632 

ANPRM Comment 

Period End 

06/03/02 

NPRM 08/28/09 74 FR 44632 

Public Meeting 09/14/09 74 FR 46964 

Public Meeting 09/22/09 74 FR 48190 

Public Meeting 09/28/09 74 FR 49355 

Notice—Extension of 

Comment Period 

10/15/09 74 FR 52941 

Public Meeting 10/22/09 74 FR 54533 

Public Meeting 

Correction 

10/26/09 74 FR 54944 

NPRM Comment 

Period End 

12/04/09 74 FR 52941 

Final Rule 12/00/10 

Regulatory Flexibility Analysis 

Required: 

Yes 

Small Entities Affected: 

Businesses 

Government Levels Affected: 

Undetermined 

URL For More Information: 

www.regulations.gov 

URL For Public Comments: 

www.regulations.gov 

Agency Contact: 

Mr. John C Morris 

Project Manager 

Department of Homeland Security 

U.S. Coast Guard 

2100 2nd Street, SW, STOP 7126 

Washington, DC 20593–7126 

Phone: 202 372–1433 

Email: john.c.morris@uscg.mil 

RIN: 1625–AA32 

DHS—USCG 

67. INSPECTION OF TOWING 

VESSELS (USCG–2006–24412) 

Priority: 

Other Significant. Major status under 5 

USC 801 is undetermined. 

Legal Authority: 

46 USC 3301, 46 USC 3305, 46 USC 

3306, and 46 USC 3103; 46 USC 3703 

[DHS Delegation No 0170.1] 

CFR Citation: 

33 CFR 156 and 157; 33 CFR 163 and 

164; 46 CFR 135 to 146 

Legal Deadline: 

None 

Abstract: 

This rulemaking would implement a 

program of inspection for certification 

of towing vessels, which were 

previously uninspected. It would 

prescribe standards for safety 

management systems and third-party 

entities along with standards for 

construction, operation, vessel systems, 

safety equipment, and recordkeeping. 

Due to the costs imposed on an entire 

uninspected segment of the marine 

industry, the Coast Guard projects that 

this will be a significant rulemaking, 

especially for small entities. 

Statement of Need: 

This rulemaking would implement 

sections 409 and 415 of the Coast 

Guard and Maritime Transportation Act 

of 2004. The intent of the proposed rule 

is to promote safer work practices and 

reduce casualties on towing vessels by 

ensuring that towing vessels adhere to 

prescribed safety standards and safety 

management systems. This proposed 

rule was developed in cooperation with 

the Towing Vessel Safety Advisory 

Committee. It would establish a new 

subchapter dedicated to towing vessels 

and covering vessel equipment, 

systems, operational standards and 

inspection requirements. 

Summary of Legal Basis: 

Proposed new Subchapter Authority: 46 

U.S.C. 3103, 3301, 3306, 3308, 3316, 

8104, 8904; 33 CFR 1.05; DHS 

Delegation 0170.1. 

The Coast Guard and Maritime 

Transportation Act of 2004 (CGMTA 

2004), Pub. L. 108-293, 118 Stat. 1028, 

(Aug. 9, 2004), established new 

authorities for towing vessels as 

follows: 

Section 415 added towing vessels, as 

defined in section 2101 of title 46, 

United States Code (U.S.C.), as a class 

of vessels that are subject to safety 

inspections under chapter 33 of that 

title (Id. at 1047). 

Section 415 also added new section 

3306(j) of title 46, authorizing the 

Secretary of Homeland Security to 

establish, by regulation, a safety 

management system appropriate for the 

characteristics, methods of operation, 

and nature of service of towing vessels 

(Id.). 

Section 409 added new section 

8904(c)of title 46, U.S.C., authorizing 

the Secretary to establish, by regulation, 

‘‘maximum hours of service (including 

recording and recordkeeping of that 

service) of individuals engaged on a 

towing vessel that is at least 26 feet 

in length measured from end to end 

over the deck (excluding the sheer).’’ 

(Id. at 1044-45). 

Alternatives: 

We considered the following 

alternatives for the notice of proposed 

rulemaking (NPRM): 

One regulatory alternative would be the 

addition of towing vessels to one or 

more existing subchapters that deal 

with other inspected vessels, such as 

cargo and miscellaneous vessels 

(subchapter I), offshore supply vessels 

(subchapter L), or small passenger 

vessels (subchapter T). This option 

would involve very minimal regulatory 

work. We do not believe, however, that 

this approach would recognize the 


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often ‘‘unique’’ nature and 

characteristics of the towing industry in 

general and towing vessels in 

particular. 

In addition to inclusion in a particular 

existing subchapter (or subchapters) for 

equipment-related concerns, the same 

approach could be adopted for use of 

a safety management system by merely 

requiring compliance with Title 33, 

Code of Federal Regulations, part 96 

(Rules for the Safe Operation of Vessels 

and Safety Management Systems). 

Adoption of these requirements, 

without an alternative safety 

management system, would also not 

be‘‘appropriate for the characteristics, 

methods of operation, and nature of 

service of towing vessels.’’ 

The Coast Guard has had extensive 

public involvement (four public 

meetings, over 100 separate comments 

submitted to the docket, as well as 

extensive ongoing dialogue with 

members of the Towing Safety 

Advisory Committee (TSAC)) regarding 

development of these regulations. 

Adoption of one of the alternatives 

discussed above would likely receive 

little public or industry support, 

especially considering the TSAC efforts 

toward development of standards to be 

incorporated into a separate subchapter 

dealing specifically with the inspection 

of towing vessels. 

An approach that would seem to be 

more in keeping with the intent of 

Congress would be the adoption of 

certain existing standards from those 

applied to other inspected vessels. In 

some cases, these existing standards 

would be appropriately modified and 

tailored to the nature and operation of 

certain categories of towing vessels. 

The adopted standards would come 

from inspected vessels that have 

demonstrated ‘‘good marine practice’’ 

within the maritime community. These 

regulations would be incorporated into 

a subchapter specifically addressing the 

inspection for certification of towing 

vessels. The law requiring the 

inspection for certification of towing 

vessels is a statutory mandate, 

compelling the Coast Guard to develop 

regulations appropriate for the nature 

of towing vessels and their specific 

industry. 

Anticipated Cost and Benefits: 

We estimate that 1,059 owners and 

operators (companies) would incur 

additional costs from this rulemaking. 

The rulemaking would affect a total of 

5,208 vessels owned and operated by 

these companies. We estimate that 232 

of the companies, operating 2,941 

vessels, already use some type of safety 

management system. We estimate that 

827 of the companies, operating 2,267 

vessels, do not currently use a safety 

management system. Our cost 

assessment includes existing and new 

vessels. We are currently developing 

cost estimates for the proposed rule. 

The Coast Guard developed the 

requirements in the proposed rule by 

researching both the human factors and 

equipment failures that caused towing 

vessel accidents. We believe that the 

proposed rule would address a wide 

range of causes of towing vessel 

accidents and supports the main goal 

of improving safety in the towing 

industry. The primary benefit of the 

proposed rule is an increase in vessel 

safety and a resulting decrease in the 

risk of towing vessel accidents and 

their consequences. 

Risks: 

This regulatory action would reduce 

the risk of towing vessel accidents and 

their consequences. Towing vessels 

accidents result in fatalities, injuries, 

property damage, pollution, and delays. 

Timetable: 

Action Date FR Cite 

NPRM 02/00/10 

Regulatory Flexibility Analysis 

Required: 

Yes 

Small Entities Affected: 

Businesses, Governmental Jurisdictions, 

Organizations 

Government Levels Affected: 

State 

URL For More Information: 

www.regulations.gov 

URL For Public Comments: 

www.regulations.gov 

Agency Contact: 

Dave Dolloff 

Program Manager, CG–5222 

Department of Homeland Security 

U.S. Coast Guard 

2100 Second Street SW. STOP 7126 

Washington, DC 20593–7126 

Phone: 202 372–1415 

RIN: 1625–AB06 

DHS—U.S. Customs and Border 

Protection (USCBP) 

PROPOSED RULE STAGE 

68. ESTABLISHMENT OF GLOBAL 

ENTRY PROGRAM 

Priority: 

Other Significant 

Legal Authority: 

8 USC 1365b(k)(1); 8 USC 1365b(k)(3); 

8 USC 1225; 8 USC 1185(b) 

CFR Citation: 

8 CFR 235; 8 CFR 103 

Legal Deadline: 

None 

Abstract: 

CBP already operates several regulatory 

and non-regulatory international 

registered traveler programs, also 

known as trusted traveler programs. In 

order to comply with the Intelligence 

Reform Terrorism Prevention Act of 

2004 (IRPTA), CBP is proposing to 

amend its regulations to establish 

another international registered traveler 

program called Global Entry. The 

Global Entry program would expedite 

the movement of low-risk, frequent 

international air travelers by providing 

an expedited inspection process for 

pre-approved, pre-screened travelers. 

These travelers would proceed directly 

to automated Global Entry kiosks upon 

their arrival in the United States. This 

Global Entry Program, along with the 

other programs that have already been 

established, are consistent with CBP’s 

strategic goal of facilitating legitimate 

trade and travel while securing the 

homeland. A pilot of Global Entry has 

been operating since June 6, 2008. 

Statement of Need: 

CBP has been operating the Global 

Entry program as a pilot at several 

airports since June 6, 2008, and the 

pilot has been very successful. As a 

result, there is a desire on the part of 

the public that the program be 

established as a permanent program, 

and expanded, if possible. By 

establishing this program, CBP will 

make great strides toward facilitating 

the movement of people in a more 

efficient manner, thereby 

accomplishing our strategic goal of 

balancing legitimate travel with 

security. Through the use of biometric 

and record-keeping technologies, the 

risk of terrorists entering the United 


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States would be reduced. Improving 

security and facilitating travel at the 

border, both of which are accomplished 

by Global Entry, are primary concerns 

within CBP jurisdiction. 

Anticipated Cost and Benefits: 

Global Entry is a voluntary program 

that provides a benefit to the public 

by speeding the CBP processing time 

for participating travelers. Travelers 

who are otherwise admissible to the 

United States will be able to enter or 

exit the country regardless of whether 

they participate in Global Entry. CBP 

estimates that over a five year period, 

250,000 enrollees will be processed (an 

annual average of 50,000 individuals). 

CBP will charge a fee of $100 per 

applicant and estimates that each 

application will require 40 minutes 

(0.67 hours) of the enrollee’s time to 

search existing data resources, gather 

the data needed, and complete and 

review the application form. 

Additionally, an enrollee will 

experience an ‘‘opportunity cost of 

time’’ to travel to an Enrollment Center 

upon acceptance of the initial 

application. We assume that one hour 

will be required for this time spent at 

the Enrollment Center and travel to and 

from the Center, though we note that 

during the pilot program, many 

applicants coordinated their trip to an 

Enrollment Center with their travel at 

the airport. We have used one hour of 

travel time so as not to underestimate 

potential opportunity costs for enrolling 

in the program. We use a value of 

$28.60 for the opportunity cost for this 

time, which is taken from the Federal 

Aviation Administration’s ‘‘Economic 

Values for FAA Investment and 

Regulatory Decisions, A Guide.’’ (July 

3, 2007). This value is the weighted 

average for U.S. business and leisure 

travelers. For this evaluation, we 

assume that all enrollees will be U.S. 

citizens, U.S. nationals, or Lawful 

Permanent Residents. 

Timetable: 

Action Date FR Cite 

NPRM 11/19/09 74 FR 59932 

NPRM Comment 

Period End 

01/19/10 

Final Rule 11/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Small Entities Affected: 

No 

Government Levels Affected: 

None 

URL For More Information: 

www.globalentry.gov 

Agency Contact: 

John P. Wagner 

Director, Trusted Traveler Programs 

Department of Homeland Security 

U.S. Customs and Border Protection 

Office of Field Operations 

1300 Pennsylvania Avenue NW. 

Washington, DC 20229 

Phone: 202 344–2118 

RIN: 1651–AA73 

DHS—USCBP 

FINAL RULE STAGE 

69. IMPORTER SECURITY FILING AND 

ADDITIONAL CARRIER 

REQUIREMENTS 

Priority: 

Economically Significant. Major under 

5 USC 801. 

Unfunded Mandates: 

This action may affect the private 

sector under PL 104-4. 

Legal Authority: 

PL 109–347, sec 203; 5 USC 301; 19 

USC 66; 19 USC 1431; 19 USC 1433 

to 1434; 19 USC 1624; 19 USC 2071 

note; 46 USC 60105 

CFR Citation: 

19 CFR 4; 19 CFR 12.3; 19 CFR 18.5; 

19 CFR 103.31a; 19 CFR 113; 19 CFR 

123.92; 19 CFR 141.113; 19 CFR 146.32; 

19 CFR 149; 19 CFR 192.14 

Legal Deadline: 

None 

Abstract: 

This interim final rule implements the 

provisions of section 203 of the 

Security and Accountability for Every 

Port Act of 2006. It amends CBP 

Regulations to require carriers and 

importers to provide to CBP, via a CBP 

approved electronic data interchange 

system, information necessary to enable 

CBP to identify high-risk shipments to 

prevent smuggling and insure cargo 

safety and security. Under the rule, 

importers and carriers must submit 

specified information to CBP before the 

cargo is brought into the United States 

by vessel. This advance information 

will improve CBP’s risk assessment and 

targeting capabilities, assist CBP in 

increasing the security of the global 

trading system, and facilitate the 

prompt release of legitimate cargo 

following its arrival in the United 

States. 

Statement of Need: 

Vessel carriers are currently required to 

transmit certain manifest information 

by way of the CBP Vessel Automated 

Manifest System (AMS) 24 hours prior 

to lading of containerized and nonexempt break bulk cargo at a foreign 

port. For the most part, this is the 

ocean carrier’s or non-vessel operating 

common carrier (NVOCC)’s cargo 

declaration. CBP analyzes this 

information to generate its risk 

assessment for targeting purposes. 

Internal and external government 

reviews have concluded that more 

complete advance shipment data would 

produce even more effective and more 

vigorous cargo risk assessments. In 

addition, pursuant to section 203 of the 

Security and Accountability for Every 

Port Act of 2006 (Pub. L. 109-347, 6 

U.S.C. 943) (SAFE Port Act), the 

Secretary of Homeland Security, acting 

through the Commissioner of CBP, 

must promulgate regulations to require 

the electronic transmission of 

additional data elements for improved 

high-risk targeting, including 

appropriate security elements of entry 

data for cargo destined to the United 

States by vessel prior to loading of such 

cargo on vessels at foreign seaports. 

Based upon its analysis, as well as the 

requirements under the SAFE Port Act, 

CBP is requiring the electronic 

transmission of additional data for 

improved high-risk targeting. Some of 

these data elements are being required 

from carriers (Container Status 

Messages and Vessel Stow Plan) and 

others are being required from 

‘‘importers,’’ as that term is defined for 

purposes of the regulations. 

This rule improves CBP’s risk 

assessment and targeting capabilities 

and enables the agency to facilitate the 

prompt release of legitimate cargo 

following its arrival in the United 

States. The information will assist CBP 

in increasing the security of the global 

trading system and, thereby, reducing 

the threat to the United States and 

world economy. 

Summary of Legal Basis: 

Pursuant to section 203 of the Security 

and Accountability for Every Port Act 

of 2006 (Pub. L. 109-347, 6 U.S.C. 943) 

(SAFE Port Act), the Secretary of 

Homeland Security, acting through the 

Commissioner of CBP, must promulgate 

regulations to require the electronic 

transmission of additional data 


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elements for improved high-risk 

targeting, including appropriate 

security elements of entry data for 

cargo destined to the United States by 

vessel prior to loading of such cargo 

on vessels at foreign seaports. 

Alternatives: 

CBP considered and evaluated the 

following four alternatives: 

Alternative 1 (the chosen alternative): 

Importer Security Filings and 

Additional Carrier Requirements are 

required. Bulk cargo is exempt from the 

Importer Security Filing requirements; 

Alternative 2: Importer Security Filings 

and Additional Carrier Requirements 

are required. Bulk cargo is not exempt 

from the Importer Security Filing 

requirements; 

Alternative 3: Only Importer Security 

Filings are required. Bulk cargo is 

exempt from the Importer Security 

Filing requirements; and 

Alternative 4: Only the Additional 

Carrier Requirements are required. 

Anticipated Cost and Benefits: 

When the NPRM was published, CBP 

estimated that approximately 11 

million import shipments conveyed by 

1,000 different carrier companies 

operating 37,000 unique voyages or 

vessel-trips to the United States will be 

subject to the rule. Annualized costs 

range from $890 million to $7.0 billion 

(7 percent discount rate over 10 years). 

The annualized cost range results from 

varying assumptions about the 

estimated security filing transaction 

costs or fees charged to the importers 

by the filing parties, the potential for 

supply chain delays, and the estimated 

costs to carriers for transmitting 

additional data to CBP. 

Ideally, the quantification and 

monetization of the benefits of this 

regulation would involve estimating the 

current level of risk of a successful 

terrorist attack, absent this regulation, 

and the incremental reduction in risk 

resulting from implementation of the 

regulation. CBP would then multiply 

the change by an estimate of the value 

individuals place on such a risk 

reduction to produce a monetary 

estimate of direct benefits. However, 

existing data limitations and a lack of 

complete understanding of the true 

risks posed by terrorists prevent us 

from establishing the incremental risk 

reduction attributable to this rule. As 

a result, CBP has undertaken a ‘‘breakeven’’ analysis to inform decisionmakers of the necessary incremental 

change in the probability of such an 

event occurring that would result in 

direct benefits equal to the costs of the 

proposed rule. CBP’s analysis finds that 

the incremental costs of this regulation 

are relatively small compared to the 

median value of a shipment of goods 

despite the rather large absolute 

estimate of present value cost. 

The regulation may increase the time 

shipments are in transit, particularly for 

shipments consolidated in containers. 

For such shipments, the supply chain 

is generally more complex and the 

importer has less control of the flow 

of goods and associated security filing 

information. Foreign cargo 

consolidators may be consolidating 

multiple shipments from one or more 

shippers in a container destined for one 

or more buyers or consignees. In order 

to ensure that the security filing data 

is provided by the shippers to the 

importers (or their designated agents) 

and is then transmitted to and accepted 

by CBP in advance of the 24-hour 

deadline, consolidators may advance 

their cut-off times for receipt of 

shipments and associated security filing 

data. 

These advanced cut-off times would 

help prevent a consolidator or carrier 

from having to unpack or unload a 

container in the event the security 

filing for one of the shipments 

contained in the container is 

inadequate or not accepted by CBP. For 

example, consolidators may require 

shippers to submit, transmit, or obtain 

CBP approval of their security filing 

data before their shipments are stuffed 

in the container, before the container 

is sealed, or before the container is 

delivered to the port for lading. In such 

cases, importers would likely have to 

increase the times they hold their goods 

as inventory and thus incur additional 

inventory carrying costs to sufficiently 

meet these advanced cut-off times 

imposed by their foreign consolidators. 

The high end of the cost ranges 

presented assumes an initial supply 

chain delay of 2 days for the first year 

of implementation (2008) and a delay 

of 1 day for years 2 through 10 (2009 

to 2017). 

The benefit of this rule is the 

improvement of CBP’s risk assessment 

and targeting capabilities, while at the 

same time, enabling CBP to facilitate 

the prompt release of legitimate cargo 

following its arrival in the United 

States. The information will assist CBP 

in increasing the security of the global 

trading system, and thereby reducing 

the threat to the United States and the 

world economy. 

Timetable: 

Action Date FR Cite 

NPRM 01/02/08 73 FR 90 

NPRM Comment 

Period End 

03/03/08 

NPRM Comment 

Period Extended 

02/01/08 73 FR 6061 

NPRM Comment 

Period End 

03/18/08 

Interim Final Rule 11/25/08 73 FR 71730 

Interim Final Rule 

Effective 

01/26/09 

Interim Final Rule 

Comment Period 

End 

06/01/09 

Final Action 02/00/10 

Regulatory Flexibility Analysis 

Required: 

Yes 

Small Entities Affected: 

Businesses 

Government Levels Affected: 

None 

International Impacts: 

This regulatory action will be likely to 

have international trade and investment 

effects, or otherwise be of international 

interest. 

URL For More Information: 

www.regulations.gov 

URL For Public Comments: 

www.regulations.gov 

Agency Contact: 

Richard DiNucci 

Department of Homeland Security 

U.S. Customs and Border Protection 

Office of Field Operations 

1300 Pennsylvania Avenue, NW. 

Washington, DC 20229 

Phone: 202 344–2513 

Email: richard.dinucci@dhs.gov 

RIN: 1651–AA70 

DHS—USCBP 

70. CHANGES TO THE VISA WAIVER 

PROGRAM TO IMPLEMENT THE 

ELECTRONIC SYSTEM FOR TRAVEL 

AUTHORIZATION (ESTA) PROGRAM 

Priority: 

Economically Significant. Major under 

5 USC 801. 

Legal Authority: 

8 USC 1103; 8 USC 1187; 8 CFR 2 

CFR Citation: 

8 CFR 217.5 

Legal Deadline: 

None 


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Abstract: 

This rule implements the Electronic 

System for Travel Authorization (ESTA) 

for aliens who travel to the United 

States under the Visa Waiver Program 

(VWP) at air or sea ports of entry. 

Under the rule, VWP travelers are 

required to provide certain biographical 

information to CBP electronically 

before departing for the United States. 

This allows CBP to determine before 

their departure, whether these travelers 

are eligible to travel to the United 

States under the VWP and whether 

such travel poses a security risk. The 

rule is intended to fulfill the 

requirements of section 711 of the 

Implementing recommendations of the 

9/11 Commission Act of 2007 (9/11 

Act). In addition to fulfilling a statutory 

mandate, the rule serves the twin goals 

of promoting border security and 

legitimate travel to the United States. 

By modernizing the VWP, the ESTA is 

intended to increase national security 

and to provide for greater efficiencies 

in the screening of international 

travelers by allowing for vetting of 

subjects of potential interest well before 

boarding, thereby reducing traveler 

delays at the ports of entry. 

Statement of Need: 

Section 711 of the 9/11 Act requires 

the Secretary of Homeland Security, in 

consultation with the Secretary of State, 

to develop and implement a fully 

automated electronic travel 

authorization system that will collect 

biographical and other information in 

advance of travel to determine the 

eligibility of the alien to travel to the 

United States and to determine whether 

such travel poses a law enforcement or 

security risk. ESTA is intended to 

fulfill these statutory requirements. 

Under this rule, VWP travelers provide 

certain information to CBP 

electronically before departing for the 

United States. VWP travelers who 

receive travel authorization under 

ESTA are not required to complete the 

paper Form I-94W when arriving on a 

carrier that is capable of receiving and 

validating messages pertaining to the 

traveler’s ESTA status as part of the 

traveler’s boarding status. By 

automating the I-94W process and 

establishing a system to provide VWP 

traveler data in advance of travel, CBP 

is able to determine the eligibility of 

citizens and eligible nationals from 

VWP countries to travel to the United 

States and to determine whether such 

travel poses a law enforcement or 

security risk, before such individuals 

begin travel to the United States. ESTA 

provides for greater efficiencies in the 

screening of international travelers by 

allowing CBP to identify subjects of 

potential interest before they depart for 

the United States, thereby increasing 

security and reducing traveler delays 

upon arrival at U.S. ports of entry. 

Summary of Legal Basis: 

The ESTA program is based on 

congressional authority provided under 

section 711 of the Implementing 

Recommendations of the 9/11 

Commission Act of 2007 and section 

217 of the Immigration and Nationality 

Act (INA). 

Alternatives: 

CBP considered three alternatives to 

this rule: 

1. The ESTA requirements in the rule, 

but with a $1.50 fee per each travel 

authorization (more costly) 

2. The ESTA requirements in the rule, 

but with only the name of the 

passenger and the admissibility 

questions on the I-94W form (less 

burdensome) 

3. The ESTA requirements in the rule, 

but only for the countries entering the 

VWP after 2009 (no new requirements 

for VWP, reduced burden for newly 

entering countries) 

CBP determined that the rule provides 

the greatest level of enhanced security 

and efficiency at an acceptable cost to 

traveling public and potentially affected 

air carriers. 

Anticipated Cost and Benefits: 

The purpose of ESTA is to allow DHS 

and CBP to establish the eligibility of 

certain foreign travelers to travel to the 

United States under the VWP, and 

whether the alien’s proposed travel to 

the United States poses a law 

enforcement or security risk. Upon 

review of such information, DHS will 

determine whether the alien is eligible 

to travel to the United States under the 

VWP. 

Impacts to Air & Sea Carriers 

CBP estimated that eight U.S.-based air 

carriers and eleven sea carriers will be 

affected by the rule. An additional 35 

foreign-based air carriers and five sea 

carriers will be affected. CBP concluded 

that costs to air and sea carriers to 

support the requirements of the ESTA 

program could cost $137 million to 

$1.1 billion over the next 10 years 

depending on the level of effort 

required to integrate their systems with 

ESTA, how many passengers they need 

to assist in applying for travel 

authorizations, and the discount rate 

applied to annual costs. 

Impacts to Travelers 

ESTA will present new costs and 

burdens to travelers in VWP countries 

who were not previously required to 

submit any information to the U.S. 

Government in advance of travel to the 

United States. Travelers from Roadmap 

countries who become VWP countries 

will also incur costs and burdens, 

though these are much less than 

obtaining a nonimmigrant visa 

(category B1/B2), which is currently 

required for short-term pleasure or 

business to travel to the United States. 

CBP estimated that the total quantified 

costs to travelers will range from $1.1 

billion to $3.5 billion depending on the 

number of travelers, the value of time, 

and the discount rate. Annualized costs 

are estimated to range from $133 

million to $366 million. 

Benefits 

As set forth in section 711 of the 9/11 

Act, it was the intent of Congress to 

modernize and strengthen the security 

of the Visa Waiver Program under 

section 217 of the Immigration and 

Nationality Act (INA, 8 USC 1187) by 

simultaneously enhancing program 

security requirements and extending 

visa-free travel privileges to citizens 

and eligible nationals of eligible foreign 

countries that are partners in the war 

on terrorism. 

By requiring passenger data in advance 

of travel, CBP may be able to 

determine, before the alien departs for 

the United States, the eligibility of 

citizens and eligible nationals from 

VWP countries to travel to the United 

States under the VWP, and whether 

such travel poses a law enforcement or 

security risk. In addition to fulfilling 

a statutory mandate, the rule serves the 

twin goals of promoting border security 

and legitimate travel to the United 

States. By modernizing the VWP, ESTA 

is intended to both increase national 

security and provide for greater 

efficiencies in the screening of 

international travelers by allowing for 

the screening of subjects of potential 

interest well before boarding, thereby 

reducing traveler delays based on 

potentially lengthy processes at U.S. 

ports of entry. 

CBP concluded that the total benefits 

to travelers could total $1.1 billion to 

$3.3 billion over the period of analysis. 

Annualized benefits could range from 

$134 million to $345 million. 

In addition to these benefits to 

travelers, CBP and the carriers should 


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Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64233 

also experience the benefit of not 

having to administer the I-94W except 

in limited situations. While CBP has 

not conducted an analysis of the 

potential savings, it should accrue 

benefits from not having to produce, 

ship, and store blank forms. CBP 

should also be able to accrue savings 

related to data entry and archiving. 

Carriers should realize some savings as 

well, though carriers will still have to 

administer the I-94 for those passengers 

not traveling under the VWP and the 

Customs Declaration forms for all 

passengers aboard the aircraft and 

vessel. 

Timetable: 

Action Date FR Cite 

Interim Final Action 06/09/08 73 FR 32440 

Interim Final Rule 

Effective 

08/08/08 

Interim Final Rule 

Comment Period 

End 

08/08/08 

Notice – Announcing 

Date Rule Becomes 

Mandatory 

11/13/08 73 FR 67354 

Final Action 01/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Government Levels Affected: 

None 

Additional Information: 

http://www.cbp.gov/xp/cgov/travel/ 

idlvisa/esta/ 

URL For More Information: 

www.regulations.gov 

URL For Public Comments: 

www.regulations.gov 

Agency Contact: 

Suzanne Shepherd 

Director, Electronic System for Travel 

Authorization 

Department of Homeland Security 

U.S. Customs and Border Protection 

1300 Pennsylvania Avenue NW 

Washington, DC 20229 

Phone: 202 344–2073 

Email: cbp.esta@dhs.gov 

RIN: 1651–AA72 

DHS—USCBP 

71. IMPLEMENTATION OF THE 

GUAM–CNMI VISA WAIVER 

PROGRAM 

Priority: 

Other Significant. Major under 5 USC 

801. 

Legal Authority: 

PL 110–229, sec 702 

CFR Citation: 

8 CFR 100.4; 8 CFR 212.1; 8 CFR 233.5; 

8 CFR 235.5; 19 CFR 4.7b; 19 CFR 

122.49a 

Legal Deadline: 

Final, Statutory, November 4, 2008, 

Public Law 110–229. 

Abstract: 

This rule amends Department of 

Homeland Security (DHS) regulations 

to implement section 702 of the 

Consolidated Natural Resources Act of 

2008 (CNRA). This law extends the 

immigration laws of the United States 

to the Commonwealth of the Northern 

Mariana Islands (CNMI) and provides 

for a joint visa waiver program for 

travel to Guam and the CNMI. This rule 

implements section 702 of the CNRA 

by amending the regulations to replace 

the current Guam Visa Waiver Program 

with a new Guam-CNMI Visa Waiver 

Program. The amended regulations set 

forth the requirements for 

nonimmigrant visitors who seek 

admission for business or pleasure and 

solely for entry into and stay on Guam 

or the CNMI without a visa. This rule 

also establishes six ports of entry in 

the CNMI for purposes of administering 

and enforcing the Guam-CNMI Visa 

Waiver Program. 

Statement of Need: 

Currently, aliens who are citizens of 

eligible countries may apply for 

admission to Guam at a Guam port of 

entry as nonimmigrant visitors for a 

period of fifteen (15) days or less, for 

business or pleasure, without first 

obtaining a nonimmigrant visa, 

provided that they are otherwise 

eligible for admission. Section 702(b) of 

the Consolidated Natural Resources Act 

of 2008 (CNRA), supersedes the Guam 

visa waiver program by providing for 

a visa waiver program for Guam and 

the Commonwealth of the Northern 

Mariana Islands (Guam-CNMI Visa 

Waiver Program). Section 702(b) 

requires DHS to promulgate regulations 

within 180 days of enactment of the 

CNRA to allow nonimmigrant visitors 

from eligible countries to apply for 

admission into Guam and the CNMI, 

for business or pleasure, without a visa, 

for a period of authorized stay of no 

longer than forty-five (45) days. 

Summary of Legal Basis: 

The Guam-CNMI Visa Waiver Program 

is based on congressional authority 

provided under 702(b) of the 

Consolidated Natural Resources Act of 

2008 (CNRA). 

Alternatives: 

None 

Anticipated Cost and Benefits: 

The most significant change for 

admission to the CNMI as a result of 

the rule will be for visitors from those 

countries who are not included in 

either the existing U.S. Visa Waiver 

Program or the Guam-CNMI Visa 

Waiver Program established by the rule. 

These visitors must apply for U.S. 

visas, which require in-person 

interviews at U.S. embassies or 

consulates and higher fees than the 

CNMI currently assesses for its visitor 

entry permits. CBP anticipates that the 

annual cost to the CNMI will be $6 

million. These are losses associated 

with the reduced visits from foreign 

travelers who may no longer visit the 

CNMI upon implementation of this 

rule. 

The anticipated benefits of the rule are 

enhanced security that will result from 

the federalization of the immigration 

functions in the CNMI. 

Timetable: 

Action Date FR Cite 

Interim Final Rule 01/16/09 74 FR 2824 

Interim Final Rule 

Effective 

01/16/09 

Interim Final Rule 

Comment Period 

End 

03/17/09 

Final Action 06/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Government Levels Affected: 

None 

International Impacts: 

This regulatory action will be likely to 

have international trade and investment 

effects, or otherwise be of international 

interest. 

Agency Contact: 

Cheryl C. Peters 

Department of Homeland Security 

U.S. Customs and Border Protection 

1300 Pennsylvania Avenue NW. 

Washington, DC 20229 

Phone: 202 344–1707 

Email: cheryl.c.peters@dhs.gov 

RIN: 1651–AA77 


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64234 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 

DHS—Transportation Security 

Administration (TSA) 

PROPOSED RULE STAGE 

72. AIRCRAFT REPAIR STATION 

SECURITY 

Priority: 

Other Significant. Major under 5 USC 

801. 

Legal Authority: 

49 USC 114; 49 USC 44924 

CFR Citation: 

49 CFR 1554 

Legal Deadline: 

Final, Statutory, August 8, 2004, Rule 

within 240 days of the date of 

enactment of Vision 100. 

Final, Statutory, August 3, 2008, Rule 

within 1 year after the date of 

enactment of 9/11 Commission Act. 

Section 611(b)(1) of Vision 100— 

Century of Aviation Reauthorization 

Act (Pub. L. 108-176; Dec. 12, 2003; 

117 Stat. 2490), codified at 49 U.S.C. 

44924, requires TSA issue ‘‘final 

regulations to ensure the security of 

foreign and domestic aircraft repair 

stations.’’ Section 1616 of the 

Implementing Recommendations of the 

9/11 Commission Act of 2007 (Pub. L. 

110—531; Aug. 3, 2007; 21 Stat. 266) 

requires TSA issue a final rule on 

foreign repair station security. 

Abstract: 

The Transportation Security 

Administration (TSA) will propose to 

add a new regulation to improve the 

security of domestic and foreign aircraft 

repair stations, as required by the 

section 611 of Vision 100—Century of 

Aviation Reauthorization Act and 

section 1616 of the 9/11 Commission 

Act of 2007. The regulation will 

propose general requirements for 

security programs to be adopted and 

implemented by repair stations 

certificated by the Federal Aviation 

Administration (FAA). Regulations 

originally were to be promulgated by 

August 8, 2004. A Report to Congress 

was sent August 24, 2004, explaining 

the delay. The delay in publication of 

the notice of proposed rulemaking has 

been due to TSA scoping out the 

project, including making site visits to 

repair stations in different locations 

around the world. 

Statement of Need: 

The Transportation Security 

Administration (TSA) is proposing 

regulations to improve the security of 

domestic and foreign aircraft repair 

stations. The proposed regulations will 

require repair stations that are 

certificated by the Federal Aviation 

Administration to adopt and carry out 

a security program. The proposal will 

codify the scope of TSA’s existing 

inspection program. The proposal also 

will provide procedures for repair 

stations to seek review of any TSA 

determination that security measures 

are deficient. 

Summary of Legal Basis: 

Section 611(b)(1) of Vision 100— 

Century of Aviation Reauthorization 

Act (Pub. L. 108-176; 12/12/2003; 117 

Stat. 2490), codified at 49 U.S.C. 44924, 

requires TSA to issue ‘‘final regulations 

to ensure the security of foreign and 

domestic aircraft repair stations’’ within 

240 days from date of enactment of 

Vision 100. Section 1616 of Public Law 

110-53, Implementing 

Recommendations of the 9/11 

Commission Act of 2007 (Aug. 3, 2007; 

121 Stat. 266) requires that the FAA 

may not certify any foreign repair 

stations if the regulations are not issued 

within one year after the date of 

enactment of the 9/11 Commission Act 

unless the repair station was previously 

certificated or is in the process of 

certification. 

Alternatives: 

TSA is required by statute to publish 

regulations requiring security programs 

for aircraft repair stations. As part of 

its notice of proposed rulemaking, TSA 

will seek public comment on the 

numerous alternative ways in which 

the final rule could carry out the 

requirements of the statute. 

Anticipated Cost and Benefits: 

TSA anticipates costs to aircraft repair 

stations mainly related to the 

establishment of security programs, 

which may include adding such 

measures as access controls, a 

personnel identification system, 

security awareness training, the 

designation of a security coordinator, 

employee background verification, and 

a contingency plan. 

It is difficult to identify the particular 

risk reduction associated with the 

implementation of this rule because the 

nature of value of the benefits of 

reducing risk of a terrorist attack is a 

function of both the probability of an 

attack and the value of the 

consequence. When the proposed rule 

is published, DHS will provide a break 

even analysis discussing the program 

elements that would help achieve risk 

reductions. These elements and related 

qualitative benefits include a reduction 

in the risk of an aircraft being 

sabotaged, resulting in potential injury 

or loss of life for the passengers and 

crew, or reduction in the risk of being 

hijacked, resulting in the additional 

potential for the aircraft being used as 

a weapon of mass destruction. 

Risks: 

The Department of Homeland Security 

aims to prevent terrorist attacks within 

the United States and to reduce the 

vulnerability of the United States to 

terrorism. By requiring security 

programs for aircraft repair stations, 

TSA will focus on preventing 

unauthorized access to repair work and 

to aircraft to prevent sabotage or 

hijacking. 

Timetable: 

Action Date FR Cite 

Notice—Public 

Meeting; Request 

for Comments 

02/24/04 69 FR 8357 

Report to Congress 08/24/04 

NPRM 11/18/09 74 FR 59873 

NPRM Comment 

Period End 

01/19/10 

Final Rule 11/00/10 

Regulatory Flexibility Analysis 

Required: 

Yes 

Small Entities Affected: 

Businesses 

Government Levels Affected: 

None 

URL For More Information: 

www.regulations.gov 

URL For Public Comments: 

www.regulations.gov 


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Agency Contact: 

Celio Young 

Program Manager, Repair Stations 

Department of Homeland Security 

Transportation Security Administration 

Office of Transportation Sector Network 

Management, General Aviation Division 

TSA–28, HQ, E5 

601 South 12th Street 

Arlington, VA 20598–6028 

Phone: 571 227–3580 

Fax: 571 227–1362 

Email: celio.young@dhs.gov 

Thomas (Tom) Philson 

Manager, Economic Analysis 

Department of Homeland Security 

Transportation Security Administration 

Office of Transportation Sector Network 

Management 

TSA–28, HQ, E10–411N 

601 South 12th Street 

Arlington, VA 20598–6028 

Phone: 571 227–3236 

Fax: 571 227–1362 

Email: thomas.philson@dhs.gov 

Linda L. Kent 

Assistant Chief Counsel, Regulations and 

Security Standards Division 

Department of Homeland Security 

Transportation Security Administration 

Office of the Chief Counsel 

TSA–2, HQ, E12–126S 

601 South 12th Street 

Arlington, VA 20598–6002 

Phone: 571 227–2675 

Fax: 571 227–1381 

Email: linda.kent@dhs.gov 

RIN: 1652–AA38 

DHS—TSA 

73. LARGE AIRCRAFT SECURITY 

PROGRAM, OTHER AIRCRAFT 

OPERATOR SECURITY PROGRAM, 

AND AIRPORT OPERATOR SECURITY 

PROGRAM 

Priority: 

Economically Significant. Major under 

5 USC 801. 

Unfunded Mandates: 

This action may affect the private 

sector under PL 104-4. 

Legal Authority: 

6 USC 469; 18 USC 842; 18 USC 845; 

46 USC 70102 to 70106; 46 USC 70117; 

49 USC 114; 49 USC114(f)(3); 49 USC 

5103; 49 USC 5103a; 49 USC 40113; 

49 USC 44901 to 44907; 49 USC 44913 

to 44914; 49 USC 44916 to 44918; 49 

USC 44932; 49 USC 44935 to 44936; 

49 USC 44942; 49 USC 46105 

CFR Citation: 

49 CFR 1515; 49 CFR 1520; 49 CFR 

1522; 49 CFR 1540; 49 CFR 1542; 49 

CFR 1544; 49 CFR 1550 

Legal Deadline: 

None 

Abstract: 

On October 30, 2008, the 

Transportation Security Administration 

(TSA) issued a Notice of Proposed 

Rulemaking, proposing to amend 

current aviation transportation security 

regulations to enhance the security of 

general aviation by expanding the 

scope of current requirements, and by 

adding new requirements for certain 

large aircraft operators and airports 

serving those aircraft. TSA also 

proposed that all aircraft operations, 

including corporate and private charter 

operations, with aircraft having a 

maximum certificated takeoff weight 

(MTOW) above 12,500 pounds (‘‘large 

aircraft’’) be required to adopt a large 

aircraft security program. TSA also 

proposed to require certain airports that 

serve large aircraft to adopt security 

programs. TSA is preparing a 

supplemental NPRM (SNPRM), which 

will include a comment period for 

public comments. 

After considering comments received 

on the NPRM and meeting with 

stakeholders, TSA decided to revise the 

original proposal to tailor security 

requirements to the general aviation 

industry. TSA is considering 

alternatives to the following proposed 

provisions in the SNPRM: (1) the 

weight threshold for aircraft subject to 

TSA regulation; (2) compliance 

oversight; (3) watch list matching of 

passengers; (4) prohibited items; (5) 

scope of the background check 

requirements and the procedures used 

to implement the requirement; and (6) 

other issues. 

Statement of Need: 

This rule would enhance current 

security measures, and would apply 

security measures currently in place for 

operators of certain types of aircraft, to 

operators of other aircraft. While the 

focus of TSA’s existing aviation 

security programs has been on air 

carriers and commercial operators, TSA 

is aware that general aviation aircraft 

of sufficient size and weight may inflict 

significant damage and loss of lives if 

they are hijacked and used as missiles. 

TSA has current regulations that apply 

to large aircraft operated by air carriers 

and commercial operators, including 

the twelve five program, the partial 

program, and the private charter 

program. However, the current 

regulations do not cover all general 

aviation operations, such as those 

operated by corporations and 

individuals, and such operations do not 

have the features that are necessary to 

enhance security. 

Alternatives: 

DHS considered continuing to use 

voluntary guidance to secure general 

aviation, but determined that to ensure 

that each aircraft operator maintains an 

appropriate level of security, these 

security measures would need to be 

mandatory requirements. 

Anticipated Cost and Benefits: 

This proposed rule would yield 

benefits in the areas of security and 

quality governance. The rule would 

enhance security by expanding the 

mandatory use of security measures to 

certain operators of large aircraft that 

are not currently required to have a 

security plan. These measures would 

deter malicious individuals from 

perpetrating acts that might 

compromise transportation or national 

security by using large aircraft for these 

purposes. 

In the NPRM, TSA estimated the total 

10-year cost of the program would be 

$1.3 billion, discounted at 7 percent. 

Aircraft operators, airport operators, 

and TSA would incur costs to comply 

with the requirements of the proposed 

Large Aircraft Security Program rule. 

Aircraft operator costs comprise 85 

percent of all estimated expenses. TSA 

estimated approximately 9,000 general 

aviation aircraft operators use aircraft 

with a maximum takeoff weight 

exceeding 12,500 pounds, and would 

be newly subjected to the proposed 

rule. 

Risks: 

This rulemaking addresses the national 

security risk of general aviation aircraft 

being used as a weapon or as a means 

to transport persons or weapons that 

could pose a threat to the United 

States. 

Timetable: 

Action Date FR Cite 

NPRM 10/30/08 73 FR 64790 

NPRM Comment 

Period End 

12/29/08 

Notice—NPRM 

Comment Period 

Extended 

11/25/08 73 FR 71590 

NPRM Extended 

Comment Period 

End 

02/27/09 


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Action Date FR Cite 

Notice—Public 

Meetings; Requests 

for Comments 

12/28/08 73 FR 77045 

Supplemental NPRM 10/00/10 

Regulatory Flexibility Analysis 

Required: 

Undetermined 

Government Levels Affected: 

Local 

Additional Information: 

Public Meetings held on: Jan. 6, 2009 

at White Plains, NY; Jan. 8, 2009, at 

Atlanta, GA; Jan 16, 2009, at Chicago, 

IL; Jan. 23, 2009, at Burbank, CA; and 

Jan. 28, 2009, at Houston, TX. 

Additional Comment Sessions held in 

Arlington, VA, on April 16, 2009, May 

6, 2009, and June 15, 2009. 

URL For More Information: 

www.regulations.gov 

URL For Public Comments: 

www.regulations.gov 

Agency Contact: 

Erik Jensen 

Assistant General Manager, General 

Aviation Security 

Department of Homeland Security 

Transportation Security Administration 

Office of Transportation Sector Network 

Management 

TSA–28, HQ, E10–132S 

601 South 12th Street 

Arlington, VA 20598–6028 

Phone: 571 227–2154 

Fax: 571 227–1923 

Email: erik.jensen@dhs.gov 

Holly Merwin 

Economist, Regulatory Development and 

Economic Analysis 

Department of Homeland Security 

Transportation Security Administration 

Office of Transportation Sector Network 

Management 

TSA–28, HQ, E10–343N 

601 South 12th Street 

Arlington, VA 20598–6028 

Phone: 571 227–4656 

Fax: 571 227–1362 

Email: holly.merwin@dhs.gov 

Mai Dinh 

Assistant Chief Counsel, Regulations and 

Security Standards Division 

Department of Homeland Security 

Transportation Security Administration 

Office of the Chief Counsel 

TSA–2, HQ, E12–309N 

601 South 12th Street 

Arlington, VA 20598–6002 

Phone: 571 227–2725 

Fax: 571 227–1378 

Email: mai.dinh@dhs.gov 

Kiersten Ols 

Attorney, Regulations and Security 

Standards Division 

Department of Homeland Security 

Transportation Security Administration 

Office of the Chief Counsel 

TSA–2, HQ, E12–316N 

601 South 12th Street 

Arlington, VA 20598–6002 

Phone: 571 227–2403 

Fax: 571 227–1378 

Email: kiersten.ols@dhs.gov 

Related RIN: Related to 1652–AA03, 

Related to 1652–AA04 

RIN: 1652–AA53 

DHS—TSA 

74. PUBLIC TRANSPORTATION AND 

PASSENGER RAILROADS—SECURITY 

TRAINING OF EMPLOYEES 

Priority: 

Other Significant. Major under 5 USC 

801. 

Unfunded Mandates: 

Undetermined 

Legal Authority: 

49 USC 114; PL 110–53, secs 1408 and 

1517 

CFR Citation: 

Not Yet Determined 

Legal Deadline: 

Final, Statutory, November 1, 2007, 

Interim Rule for public transportation 

agencies is due 90 days after date of 

enactment. 

Final, Statutory, February 3, 2008, Rule 

for railroads is due 6 months after date 

of enactment. 

Final, Statutory, August 3, 2008, Rule 

for public transportation agencies is 

due 1 year after date of enactment. 

According to section 1408 of Public 

Law 110-53, Implementing 

Recommendations of the 9/11 

Commission Act of 2007 (Aug. 3, 2007; 

121 Stat. 266), interim final regulations 

for public transportation agencies are 

due 90 days after the date of enactment 

(Nov. 1, 2007), and final regulations are 

due 1 year after the date of enactment 

of this Act.According to section 1517 

of the same Act, final regulations for 

railroads are due no later than 6 

months after the date of enactment of 

this Act. 

Abstract: 

The Transportation Security 

Administration (TSA) will propose a 

new regulation to improve the security 

of public transportation and passenger 

railroads in accordance with the 

Implementing Recommendations of the 

9/11 Commission Act of 2007. This 

rulemaking will propose general 

requirements for a public transportation 

security training program and a 

passenger railroad training program to 

prepare public transportation and 

passenger railroad employees, 

including frontline employees, for 

potential security threats and 

conditions. 

Statement of Need: 

A security training program for public 

transportation agencies and for 

passenger railroads is proposed to 

prepare public transportation and 

passenger railroad employees, 

including frontline employees, for 

potential security threats and 

conditions. 

Summary of Legal Basis: 

49 U.S.C. 114; sections 1408 and 1517 

of Public Law 110-53, Implementing 


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Recommendations of the 9/11 

Commission Act of 2007 (Aug. 3, 2007; 

121 Stat. 266). 

Alternatives: 

TSA is required by statute to publish 

regulations requiring security programs 

for these operators. As part of its notice 

of proposed rulemaking, TSA will seek 

public comment on the numerous ways 

in which the final rule could carry out 

the requirements of the statute. 

Anticipated Cost and Benefits: 

Economic analysis under development. 

Risks: 

The Department of Homeland Security 

aims to prevent terrorist attacks within 

the United States and to reduce the 

vulnerability of the United States to 

terrorism. By providing for security 

training for personnel, TSA intends in 

this rulemaking to reduce the risk of 

a terrorist attack on this transportation 

sector. 

Timetable: 

Action Date FR Cite 

NPRM 04/00/10 

Regulatory Flexibility Analysis 

Required: 

Undetermined 

Government Levels Affected: 

Undetermined 

Federalism: 

Undetermined 

Agency Contact: 

Thomas L. Farmer 

Deputy General Manager–Mass Transit 

Department of Homeland Security 

Transportation Security Administration 

Office of Transportation Sector Network 

Management 

TSA–28, E10–219S 

601 South 12th Street 

Arlington, VA 20598–6028 

Phone: 571 227–3552 

Email: tom.farmer@dhs.gov 

Shaina Pereira 

Economist, Regulatory Development and 

Economic Analysis 

Department of Homeland Security 

Transportation Security Administration 

Office of Transportation Sector Network 

Management 

TSA–28, HQ, E10–339N 

601 South 12th Street 

Arlington, VA 20598–6028 

Phone: 571 227–5138 

Fax: 571 227–1362 

Email: shaina.pereira@dhs.gov 

David Kasminoff 

Sr. Counsel, Regulations and Security 

Standards Division 

Department of Homeland Security 

Transportation Security Administration 

Office of the Chief Counsel 

TSA–2, HQ, E12–310N 

601 South 12th Street 

Arlington, VA 20598–6002 

Phone: 571 227–3583 

Fax: 571 227–1378 

Email: david.kasminoff@dhs.gov 

Related RIN: Related to 1652–AA57, 

Related to 1652–AA59 

RIN: 1652–AA55 

DHS—TSA 

75. FREIGHT RAILROADS—SECURITY 

TRAINING OF EMPLOYEES 

Priority: 

Other Significant. Major status under 5 

USC 801 is undetermined. 

Unfunded Mandates: 

Undetermined 

Legal Authority: 

49 USC 114; PL 110–53, sec 1517 

CFR Citation: 

Not Yet Determined 

Legal Deadline: 

Final, Statutory, February 3, 2008, Rule 

is due 6 months after date of 

enactment. 

According to section 1517 of Public 

Law 110-53, Implementing 

Recommendations of the 9/11 

Commission Act of 2007 (Aug. 3, 2007; 

121 Stat. 266), TSA must issue a 

regulation no later than 6 months after 

the date of enactment of this Act. 

Abstract: 

The Transportation Security 

Administration (TSA) will propose new 

regulations to improve the security of 

freight railroads in accordance with the 

Implementing Recommendations of the 

9/11 Commission Act of 2007. The 

rulemaking will propose general 

requirements for a security training 

program to prepare freight railroad 

employees, including frontline 

employees, for potential security threats 

and conditions. The regulations will 

take into consideration any current 

security training requirements or best 

practices. 

Statement of Need: 

The rulemaking will propose general 

requirements for a security training 

program to prepare freight railroad 

employees, including frontline 

employees, for potential security threats 

and conditions. 

Summary of Legal Basis: 

49 U.S.C. 114; section 1517 of Public 

Law 110-53, Implementing 

Recommendations of the 9/11 

Commission Act of 2007 (Aug. 3, 2007; 

121 Stat. 266). 

Alternatives: 

TSA is required by statute to publish 

regulations requiring security programs 

for these operators. As part of its notice 

of proposed rulemaking, TSA will seek 

public comment on the numerous ways 

in which the final rule could carry out 

the requirements of the statute. 

Anticipated Cost and Benefits: 

Economic analysis under development. 

Risks: 

The Department of Homeland Security 

aims to prevent terrorist attacks within 

the United States and to reduce the 

vulnerability of the United States to 

terrorism. By providing for security 

training for personnel, TSA intends in 

this rulemaking to reduce the risk of 

a terrorist attack on this transportation 

sector. 

Timetable: 

Action Date FR Cite 

NPRM 04/00/10 

Regulatory Flexibility Analysis 

Required: 

Undetermined 


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Government Levels Affected: 

Undetermined 

Federalism: 

Undetermined 

Agency Contact: 

Scott Gorton 

Policy and Plans Branch Chief for Freight 

Rail 

Department of Homeland Security 

Transportation Security Administration 

Office of Transportation Sector Network 

Management 

TSA–28, HQ, E10–423N 

601 South 12th Street 

Arlington, VA 20598–6028 

Phone: 571 227–1251 

Fax: 571 227–2930 

Email: scott.gorton@dhs.gov 

Shaina Pereira 

Economist, Regulatory Development and 

Economic Analysis 

Department of Homeland Security 

Transportation Security Administration 

Office of Transportation Sector Network 

Management 

TSA–28, HQ, E10–339N 

601 South 12th Street 

Arlington, VA 20598–6028 

Phone: 571 227–5138 

Fax: 571 227–1362 

Email: shaina.pereira@dhs.gov 

David Kasminoff 

Sr. Counsel, Regulations and Security 

Standards Division 

Department of Homeland Security 

Transportation Security Administration 

Office of the Chief Counsel 

TSA–2, HQ, E12–310N 

601 South 12th Street 

Arlington, VA 20598–6002 

Phone: 571 227–3583 

Fax: 571 227–1378 

Email: david.kasminoff@dhs.gov 

Related RIN: Related to 1652–AA55, 

Related to 1652–AA59 

RIN: 1652–AA57 

DHS—TSA 

76. OVER–THE–ROAD BUSES— 

SECURITY TRAINING OF EMPLOYEES 

Priority: 

Other Significant. Major status under 5 

USC 801 is undetermined. 

Unfunded Mandates: 

Undetermined 

Legal Authority: 

49 USC 114; PL 110–53, sec 1534 

CFR Citation: 

Not Yet Determined 

Legal Deadline: 

Final, Statutory, February 3, 2008, Rule 

due 6 months after date of enactment. 

According to section 1534 of Public 

Law 110-53, Implementing 

Recommendations of the 9/11 

Commission Act of 2007 (Aug. 3, 2007); 

121 Stat. 266), TSA must issue a 

regulation no later than 6 months after 

date of enactment of this Act. 

Abstract: 

The Transportation Security 

Administration (TSA) will propose new 

regulations to improve the security of 

over-the-road buses in accordance with 

the Implementing Recommendations of 

the 9/11 Commission Act of 2007. The 

rulemaking will propose an over-theroad bus security training program to 

prepare over-the-road bus frontline 

employees for potential security threats 

and conditions. The regulations will 

take into consideration any current 

security training requirements or best 

practices. 

Statement of Need: 

The rulemaking will propose an overthe-road bus security training program 

to prepare over-the-road bus frontline 

employees for potential security threats 

and conditions. 

Summary of Legal Basis: 

49 U.S.C. 114; section 1534 of Public 

Law 110-53, Implementing 

Recommendations of the 9/11 

Commission Act of 2007 (Aug. 3, 2007; 

121 Stat. 266). 

Anticipated Cost and Benefits: 

Economic analysis under development. 

Timetable: 

Action Date FR Cite 

NPRM 04/00/10 

Regulatory Flexibility Analysis 

Required: 

Undetermined 

Government Levels Affected: 

Undetermined 

Federalism: 

Undetermined 

Agency Contact: 

Paul Pitzer 

Policy and Planning Branch Chief; 

Highway and Motor Carrier Programs 

Department of Homeland Security 

Transportation Security Administration 

Office of Transportation Sector Network 

Management 

TSA–28, HQ, E 

601 South 12th Street 

Arlington, VA 20598–6028 

Phone: 571 227–1233 

Email: paul.pitzer@dhs.gov 

Shaina Pereira 

Economist, Regulatory Development and 

Economic Analysis 

Department of Homeland Security 

Transportation Security Administration 

Office of Transportation Sector Network 

Management 

TSA–28, HQ, E10–339N 

601 South 12th Street 

Arlington, VA 20598–6028 

Phone: 571 227–5138 

Fax: 571 227–1362 

Email: shaina.pereira@dhs.gov 

Denise Starr 

Attorney, Regulations and Security 

Standards Division 

Department of Homeland Security 

Transportation Security Administration 

Office of the Chief Counsel 

TSA–2, E12–419N 

601 South 12th Street 

Arlington, VA 20598–6002 

Phone: 571 227–5130 

Email: denise.starr@dhs.gov 

Related RIN: Related to 1652–AA55, 

Related to 1652–AA57 

RIN: 1652–AA59 

DHS—TSA 

77. VETTING, ADJUDICATION, AND 

REDRESS PROCESS AND FEES 

Priority: 

Other Significant. Major status under 5 

USC 801 is undetermined. 

Unfunded Mandates: 

Undetermined 

Legal Authority: 

49 USC 114; PL 110–53, secs 1411, 

1414, 1520, 1522, 1602 

CFR Citation: 

Not Yet Determined 

Legal Deadline: 

None 

Abstract: 

The Transportation Security 

Administration (TSA) will propose new 


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regulations to revise and standardize 

the procedures, adjudication criteria, 

and fees for most of the security threat 

assessments (STA) of individuals for 

which TSA is responsible. In 

accordance with the Implementing 

Recommendations of the 9/11 

Commission Act of 2007, the scope of 

the rulemaking will include 

transportation workers from all modes 

of transportation who are required to 

undergo an STA in other regulatory 

programs, including certain aviation 

workers and frontline employees for 

public transportation agencies, 

railroads, and over-the-road buses. 

In addition, TSA will propose fees to 

cover the cost of the STAs, and 

credentials for some personnel. TSA 

plans to improve efficiencies in 

processing STAs and streamline 

existing regulations by simplifying 

language and removing redundancies. 

Statement of Need: 

Sections of the Implementing 

Recommendation of the 9/11 

Commission Act of 2007 require TSA 

to complete security threat assessments 

and provide a redress process for all 

frontline employees for public 

transportation agencies, railroads, and 

over-the-road buses. There could be a 

further need for threat assessments on 

transportation personnel that could be 

addressed under this rule. 

Summary of Legal Basis: 

49 U.S.C. 114; sections 1411, 1414, 

1520, 1522, and 1602 of Public Law 

110-53, Implementing Recommendation 

of the 9/11 Commission Act of 2007. 

Anticipated Cost and Benefits: 

Economic analysis under development. 

Timetable: 

Action Date FR Cite 

Notice of Proposed 

Rulemaking 

(NPRM) 

02/00/10 

Regulatory Flexibility Analysis 

Required: 

Undetermined 

Government Levels Affected: 

Undetermined 

Federalism: 

Undetermined 

Agency Contact: 

Hao-y Tran Froemling 

Program Manager, Maritime and Surface 

Credentialing 

Department of Homeland Security 

Transportation Security Administration 

Office of Transportation Threat 

Assessment and Credentialing 

TSA–19, HQ, E3–401N 

601 South 12th Street 

Arlington, VA 20598–6019 

Phone: 571 227–2782 

Email: hao-y.froemling@dhs.gov 

Adam Sicking 

Economist, Regulatory Development and 

Economic Analysis 

Department of Homeland Security 

Transportation Security Administration 

Office of Transportation Sector Network 

Management 

TSA–28, HQ, E10–345N 

601 South 12th Street 

Arlington, VA 20598–6028 

Phone: 571 227–2304 

Fax: 571 227–1362 

Email: adam.sicking@dhs.gov 

Christine Beyer 

Assistant Chief Counsel, Regulations and 

Security Standards Division 

Department of Homeland Security 

Transportation Security Administration 

Office of the Chief Counsel 

TSA–2, HQ, E12–336N 

601 South 12th Street 

Arlington, VA 20598–6002 

Phone: 571 227–2657 

Email: christine.beyer@dhs.gov 

RIN: 1652–AA61 

DHS—TSA 

FINAL RULE STAGE 

78. AIR CARGO SCREENING 

Priority: 

Economically Significant. Major under 

5 USC 801. 

Unfunded Mandates: 

This action may affect the private 

sector under PL 104-4. 

Legal Authority: 

PL 110–53, sec 1602; 49 USC 114; 49 

USC 40113; 49 USC 44901 to 44905; 

49 USC 44913 to 44914; 49 USC 44916; 

49 USC 44935 to 44936; 49 USC 46105 

CFR Citation: 

49 CFR 1520; 49 CFR 1522; 49 CFR 

1540; 49 CFR 1544; 49 CFR 1548; 49 

CFR 1549 

Legal Deadline: 

Other, Statutory, February 3, 2009, 

Screen 50 percent of cargo on passenger 

aircraft. 

Final, Statutory, August 3, 2010, Screen 

100 percent of cargo on passenger 

aircraft. 

Section 1602 of the Implementing 

Recommendations of the 9/11 

Commission Act of 2007 (Pub. L. 110- 

53, 121 Stat. 266, 478, Aug. 3, 2007) 

requires that the Secretary of Homeland 

Security establish a system to screen 

50 percent of cargo on passenger 

aircraft not later than 18 months after 

the date of enactment and 100 percent 

of such cargo not later than 3 years 

after the date of enactment. 

Abstract: 

The Transportation Security 

Administration (TSA) is establishing 

the Certified Cargo Screening Program 

that will certify shippers, 

manufacturers, and other entities to 

screen air cargo intended for transport 

on a passenger aircraft. This will be the 

primary means through which TSA will 

meet the requirements of section 1602 

of the Implementing Recommendations 

of the 9/11 Commission Act of 2007 

that mandates that 100 percent of air 

cargo transported on passenger aircraft, 

operated by an air carrier or foreign air 

carrier in air transportation or intrastate 

air transportation, must be screened by 

August 2010, to ensure the security of 

all such passenger aircraft carrying 

cargo. 

Under this rulemaking, each certified 

cargo screening facility (CCSF) and 

their employees and authorized 

representatives that will be screening 

cargo must successfully complete a 

security threat assessment. The CCSF 

must also submit to an audit of their 

security measures by TSA-approved 

auditors, screen cargo using TSAapproved methods, and initiate strict 

chain of custody measures to ensure 

the security of the cargo throughout the 

supply chain prior to tendering it for 

transport on passenger aircraft. 

Statement of Need: 

TSA is establishing a system to screen 

100 percent of cargo transported on 

passenger aircraft operated by an air 

carrier or foreign air carrier in air 

transportation or intrastate air 

transportation to ensure the security of 

all such passenger aircraft carrying 

cargo. 

The system shall require, at a 

minimum, that equipment, technology, 

procedures, personnel, or other 


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methods approved by the Administrator 

of TSA, used to screen cargo carried 

on passenger aircraft, provide a level 

of security commensurate with the 

level of security for the screening of 

passenger checked baggage. 

Summary of Legal Basis: 

49 U.S.C. 114; section 1602 of the 

Implementing Recommendations of the 

9/11 Commission Act of 2007 (Pub. L. 

110-53, 121 Stat. 266, 478, 10/3/2007), 

codified at 49 U.S.C. 44901(g). 

Alternatives: 

The Interim Final Rule (IFR) states that 

as an alternative to establishing the 

CCSP, TSA considered meeting the 

statutory requirements by having 

aircraft operators screen cargo intended 

for transportation on passenger 

aircraft—that is, continuing the current 

cargo screening program but expanding 

it to 85 percent of air cargo on 

passenger aircraft. Under this 

alternative, the cost drivers for this 

alternative are screening equipment, 

personnel for screening, training of 

personnel, and delays. Delays are the 

largest cost component, totaling $7.0 

billion over 10 years, undiscounted. In 

summary, the undiscounted 10 year 

cost of the alternative is $11.1 billion, 

and discounted at 7 percent, the cost 

is 7.7 billion. 

Anticipated Cost and Benefits: 

TSA estimates the cost of the rule will 

be $1.9 billion (discounted at 7 percent) 

over 10 years. TSA analyzed the 

alternative of not establishing the 

Certified Cargo Screening Program 

(CCSP) and, instead, having aircraft 

operators and air carriers perform 

screening of all cargo transported on 

passenger aircraft. Absent the CCSP, the 

estimated cost to aircraft operators and 

air carriers is $7.7 billion (discounted 

at seven percent) over ten years. The 

bulk of the costs for both the CCSP and 

the alternative are attributed to 

personnel and the impact of cargo 

delays resulting from the addition of 

a new operational process. 

The benefits of the IFR are four fold. 

First, passenger air carriers will be 

more firmly protected against an act of 

terrorism or other malicious behaviors 

by the screening of 100 percent of cargo 

shipped on passenger aircraft. Second, 

allowing the screening process to occur 

throughout the supply chain via the 

Certified Cargo Screening Program will 

reduce potential bottlenecks and delays 

at the airports. Third, the IFR will 

allow market forces to identify the most 

efficient venue for screening along the 

supply chain, as entities upstream from 

the aircraft operator may apply to 

become CCSFs and screen cargo. 

Finally, validation firms will perform 

assessments of the entities that become 

CCSFs, allowing TSA to set priorities 

for compliance inspections. 

Timetable: 

Action Date FR Cite 

Interim Final Rule 09/16/09 74 FR 47672 

Interim Final Rule 

Comment Period 

End 

11/16/09 

Interim Final Rule 

Effective 

11/16/09 

Final Rule 11/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Government Levels Affected: 

Federal 

Agency Contact: 

Robert S. Hyde 

Branch Chief, Air Cargo Policy & Plans 

Department of Homeland Security 

Transportation Security Administration 

Office of Transportation Sector Network 

Management 

TSA–28, HQ, E4–417N 

601 South 12th Street 

Arlington, VA 20598–6028 

Phone: 571 227–3943 

Fax: 571 227–1923 

Email: rsh@dhs.gov 

Adam Sicking 

Economist, Regulatory Development and 

Economic Analysis 

Department of Homeland Security 

Transportation Security Administration 

Office of Transportation Sector Network 

Management 

TSA–28, HQ, E10–345N 

601 South 12th Street 

Arlington, VA 20598–6028 

Phone: 571 227–2304 

Fax: 571 227–1362 

Email: adam.sicking@dhs.gov 

Alice Crowe 

Sr. Attorney, Regulations and Security 

Standards Division 

Department of Homeland Security 

Transportation Security Administration 

Office of the Chief Counsel 

TSA–2, HQ, E12–320N 

601 South 12th Street 

Arlington, VA 20598–6002 

Phone: 571 227–2652 

Fax: 571 227–1379 

Email: alice.crowe@dhs.gov 

RIN: 1652–AA64 

DHS—U.S. Immigration and Customs 

Enforcement (USICE) 

PROPOSED RULE STAGE 

79. CLARIFICATION OF CRITERIA 

FOR CERTIFICATION, OVERSIGHT, 

AND RECERTIFICATION OF SCHOOLS 

BY THE STUDENT AND EXCHANGE 

VISITOR PROGRAM (SEVP) TO 

ENROLL F OR M NONIMMIGRANT 

STUDENTS 

Priority: 

Other Significant 

Legal Authority: 

8 USC 1356(m); PL 107–56; PL 107–173 

CFR Citation: 

8 CFR 103; 8 CFR 214.3; 8 CFR 214.4 

Legal Deadline: 

None 

Abstract: 

This proposed rule would clarify the 

criteria for nonimmigrant academic (F 

visa) and vocational (M visa) students 

and exchange aliens (J visa) to maintain 

visa status, and for the schools certified 

by the Student and Exchange Visitor 

Program (SEVP) to enroll F or M 

nonimmigrant students to fulfill their 

recordkeeping, retention, and reporting 

requirements to SEVP. The proposed 

rule would incorporate significant 

refinements in policy and procedures 

that have evolved since the last major 

regulatory update in 2002 and since the 

establishment of SEVP nearly 6 years 

ago. The proposed rule would remove 

obsolete provisions in the regulations 

used prior to and during 

implementation of the Student and 

Exchange Visitor Information Program 

(SEVIS). In anticipation of the 

implementation of a major 

reprogramming of SEVIS, referred to as 

SEVIS II, that will begin in late 2009, 

the proposed rule would incorporate 

language to support that transition. 

Statement of Need: 

ICE will publish this proposed rule that 

will incorporate significant refinements 

in policy and procedures that have 

evolved since the last major regulatory 

update in 2002, and since the 

establishment of SEVP nearly six years 

ago. These revisions of 8 CFR 214.1- 

4 will clarify the criteria for F, M and 

J nonimmigrant status and for schools 

certified by SEVP, update policy and 

procedure for SEVP, remove obsolete 

provisions and support the 


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implementation of a major 

reprogramming of the Student and 

Exchange Visitor Information System 

(SEVIS), known as ‘‘SEVIS II.’’ 

Anticipated Cost and Benefits: 

Under development. It is difficult to 

quantify monetarily the benefits of the 

Clarification of Criteria for Certification, 

Oversight and Recertification of 

Schools by the Student and Exchange 

Visitor Program (SEVP) To Enroll F or 

M Nonimmigrant Students regulation 

using standard economic accounting 

techniques. Nonimmigrant students, the 

schools that serve them, and the 

communities in which they live will 

benefit from the improvements and 

clarifications to the rules governing the 

certification, oversight, and 

recertification of schools certified by 

SEVP. 

Timetable: 

Action Date FR Cite 

NPRM 05/00/10 

Regulatory Flexibility Analysis 

Required: 

Undetermined 

Small Entities Affected: 

Businesses 

Government Levels Affected: 

None 

Agency Contact: 

Sharon Snyder 

Acting Branch Chief, SEVP Policy, 

Student and Exchange Visitor Program 

Department of Homeland Security 

U.S. Immigration and Customs 

Enforcement 

Potomac Center North 

500 12th Street SW. 

Washington, DC 20024–6121 

Phone: 703 603–3415 

Related RIN: Related to 1653–AA42 

RIN: 1653–AA44 

DHS—USICE 

FINAL RULE STAGE 

80. CONTINUED DETENTION OF 

ALIENS SUBJECT TO FINAL ORDERS 

OF REMOVAL 

Priority: 

Other Significant 

Legal Authority: 

8 USC 1103; 8 USC 1223; 8 USC 1227; 

8 USC 1231; 8 USC 1253; . . . 

CFR Citation: 

8 CFR 241 

Legal Deadline: 

None 

Abstract: 

The U.S. Department of Homeland 

Security is finalizing, with 

amendments, the interim rule that was 

published on November 14, 2001, by 

the former Immigration and 

Naturalization Service (Service). The 

interim rule included procedures for 

conducting custody determinations in 

light of the U.S. Supreme Court’s 

decision in Zadvydas v. Davis, 533 U.S. 

678 (2001), which held that the 

detention period of certain aliens who 

are subject to a final administrative 

order of removal is limited under 

section 241(a)(6) of the Immigration 

and Nationality Act (Act) to the period 

reasonably necessary to effect their 

removal. The interim rule amended 

section 241.4 of title 8, Code of Federal 

Regulations (CFR), in addition to 

creating two new sections: 8 CFR 

241.13 (establishing custody review 

procedures based on the significant 

likelihood of the alien’s removal in the 

reasonably foreseeable future) and 

241.14 (establishing custody review 

procedures for special circumstances 

cases). Subsequently, in the case of 

Clark v. Martinez, 543 U.S. 371 (2005), 

the Supreme Court clarified a question 

left open in Zadvydas, and held that 

section 241(a)(6) of the Act applies 

equally to all aliens described in that 

section. This rule amends the interim 

rule to conform to the requirements of 

Martinez. Further, the procedures for 

custody determinations for postremoval period aliens who are subject 

to an administratively final order of 

removal, and who have not been 

released from detention or repatriated, 

have been revised in response to 

comments received and experience 

gained from administration of the 

interim rule published in 2001. This 

final rule also makes conforming 

changes as required by the enactment 

of the Homeland Security Act of 2002 

(HSA). Additonally, certain portions of 

the Final Rule were determined to 

require public comment and, for this 

reason, have been developed into a 

separate/companion Notice of Proposed 

Rulemaking; RIN 1653-AA60. 

Statement of Need: 

This rule will improve the post order 

custody review process in the Final 

Rule related to the Detention of Aliens 

Subject to Final Orders of Removal in 

light of the U.S. Supreme Court’s 

decisions in Zadvydas v. Davis, 533 

U.S. 678 (2001), Clark v. Martinez, 543 

U.S. 371 (2005) and conforming 

changes as required by the enactment 

of the Homeland Security Act of 2002 

(HSA). A companion Notice of 

Proposed Rulemaking (NPRM) will 

amend 8 CFR 241.1(g) to provide for 

a new 90-day removal period once an 

alien comes into compliance with his 

or her obligation to make timely 

application in good faith for travel or 

other documents and not conspire or 

act to prevent removal. The NPRM adds 

new subparagraph (iii) to 8 CFR 

241.4(g)(1) to provide for a 90-day 

removal period once the alien is taken 

into custody if at liberty or in another 

agency’s custody at the time the 

removal order becomes administratively 

final and amends 8 CFR 241.13(b)(3) 

to clarify that aliens who fall within 

the provisions of 236A of the Act, 8 

U.S.C. 1226a, are not covered by the 

provisions of 8 CFR 241.13(a) (such 

alien covered by the specific provisions 

of section 236A). 

Anticipated Cost and Benefits: 

Under development; this rule is not 

significant for economic reasons. 

Timetable: 

Action Date FR Cite 

Interim Final Rule 11/14/01 66 FR 56967 

Interim Final Rule 

Comment Period 

End 

01/14/02 

Final Action 05/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Small Entities Affected: 

No 

Government Levels Affected: 

None 

Additional Information: 

INS No. 2156-01 

Transferred from RIN 1115-AG29 

Agency Contact: 

Jason Johnsen 

Department of Homeland Security 

U.S. Immigration and Customs 

Enforcement 

500 12th Street SW. 

Washington, DC 20024 

Phone: 202 732–4245 

Email: jason.johnsen@dhs.gov 

RIN: 1653–AA13 


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DHS—USICE 

81. ELECTRONIC SIGNATURE AND 

STORAGE OF FORM I–9, 

EMPLOYMENT ELIGIBILITY 

VERIFICATION 

Priority: 

Other Significant 

Legal Authority: 

8 USC 1101; 8 USC 1103; 8 USC 1324a; 

8 CFR 2 

CFR Citation: 

8 CFR 274a 

Legal Deadline: 

None 

Abstract: 

Department of Homeland Security 

(DHS) regulations provide that 

employers and recruiters or referrers for 

a fee required to complete and retain 

Forms I-9, Employment Eligibility 

Verification, may sign and retain these 

forms electronically. 

Statement of Need: 

This final rule on the Electronic 

Signature and Storage of Form I-9, 

Employment Eligibility Verification 

will respond to comments and make 

minor changes to the IFR that was 

published in 2006. 

Anticipated Cost and Benefits: 

Under development. 

Timetable: 

Action Date FR Cite 

Interim Final Rule 06/15/06 71 FR 34510 

Interim Final Rule 

Effective 

06/15/06 

Interim Final Rule 

Comment Period 

End 

08/14/06 

Final Rule 02/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Government Levels Affected: 

Federal, Local, State, Tribal 

Additional Information: 

ICE 2345-05 

URL For More Information: 

www.regulations.gov 

URL For Public Comments: 

www.regulations.gov 

Agency Contact: 

Allan Vanscoy 

Department of Homeland Security 

U.S. Immigration and Customs 

Enforcement 

500 12th Street SW. 

Washington, DC 20025 

Phone: 202 732–5798 

RIN: 1653–AA47 

DHS—USICE 

82. EXTENDING PERIOD FOR 

OPTIONAL PRACTICAL TRAINING BY 

17 MONTHS FOR F–1 NONIMMIGRANT 

STUDENTS WITH STEM DEGREES 

AND EXPANDING THE CAP–GAP 

RELIEF FOR ALL F–1 STUDENTS 

WITH PENDING H–1B PETITIONS 

Priority: 

Other Significant. Major status under 5 

USC 801 is undetermined. 

Legal Authority: 

8 USC 1101 to 1103; 8 USC 1182; 8 

USC 1184 to 1187; 8 USC 1221; 8 USC 

1281 and 1282; 8 USC 1301 to 1305 

CFR Citation: 

8 CFR 214 

Legal Deadline: 

None 

Abstract: 

Currently, foreign students in F-1 

nonimmigrant status who have been 

enrolled on a full-time basis for at least 

one full academic year in a college, 

university, conservatory, or seminary 

certified by U.S. Immigration and 

Custom Enforcement’s (ICE) Student 

and Exchange Visitor Program (SEVP) 

are eligible for 12 months of optional 

practical training (OPT) to work for a 

U.S. employer in a job directly related 

to the student’s major area of study. 

The maximum period of OPT is 29 

months for F-1 students who have 

completed a science, technology, 

engineering, or mathematics (STEM) 

degree and accept employment with 

employers enrolled in U.S. Citizenship 

and Immigration Services’ (USCIS’) EVerify employment verification 

program. Employers of F-1 students 

with an extension of post-completion 

OPT authorization must report to the 

student’s designated school official 

(DSO) within 48 hours after the OPT 

student has been terminated from, or 

otherwise leaves, his or her 

employment with that employer prior 

to end of the authorized period of OPT. 

The final rule will respond to public 

comments and may make adjustments 

to the regulations. 

Statement of Need: 

ICE will improve SEVP processes by 

publishing the Final Optional Practical 

Training (OPT) rule, which will 

respond to comments on the OPT 

interim final rule (IFR). The IFR 

increased the maximum period of OPT 

from 12 months to 29 months for 

nonimmigrant students who have 

completed a science, technology, 

engineering, or mathematics (STEM) 

degree and who accept employment 

with employers who participate in the 

U.S. Citizenship and Immigration 

Services’ (USCIS’) E-Verify employment 

verification program. 

Alternatives: 

DHS is considering several alternatives 

to the 17-month extension of OPT and 

cap-gap extension, ranging from taking 

no action to further extension for a 

larger populace. The interim final rule 

addressed an immediate competitive 

disadvantage faced by U.S. industries 

and ameliorated some of the adverse 

impacts on the U.S. economy. DHS 

continues to evaluate both quantitative 

and qualitative alternatives. 

Anticipated Cost and Benefits: 

Based on an estimated 12,000 students 

per year that will receive an OPT 

extension and an estimated 5,300 

employers that will need to enroll in 

E-verify, DHS projects that this rule 

will cost students approximately $1.49 

million per year in additional 

information collection burdens, 

$4,080,000 in fees, and cost employers 

$1,240,000 to enroll in E-Verify and 

$168,540 per year thereafter to verify 

the status of new hires. However, this 

rule will increase the availability of 

qualified workers in science, 

technology, engineering, and 

mathematical fields; reduce delays that 

place U.S. employers at a disadvantage 

when recruiting foreign job candidates, 

thereby improving strategic and 

resource planning capabilities; increase 

the quality of life for participating 

students, and increase the integrity of 

the student visa program. 

Timetable: 

Action Date FR Cite 

Interim Final Rule 04/08/08 73 FR 18944 

Interim Final Rule 

Comment Period 

End 

06/09/08 

Final Rule 05/00/10 


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Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64243 

Regulatory Flexibility Analysis 

Required: 

No 

Government Levels Affected: 

None 

URL For More Information: 

www.dhs.gov/sevis/ 

Agency Contact: 

Sharon Snyder 

Acting Branch Chief, SEVP Policy, 

Student and Exchange Visitor Program 

Department of Homeland Security 

U.S. Immigration and Customs 

Enforcement 

Potomac Center North 

500 12th Street SW. 

Washington, DC 20024–6121 

Phone: 703 603–3415 

RIN: 1653–AA56 

DHS—Federal Emergency 

Management Agency (FEMA) 

PROPOSED RULE STAGE 

83. DISASTER ASSISTANCE; 

FEDERAL ASSISTANCE TO 

INDIVIDUALS AND HOUSEHOLDS 

Priority: 

Other Significant 

Legal Authority: 

42 USC 5174 

CFR Citation: 

44 CFR 206 

Legal Deadline: 

Final, Statutory, October 15, 2002. 

Abstract: 

This rulemaking implements section 

408 of the Robert T. Stafford Disaster 

Relief and Emergency Assistance Act. 

In doing so, the notice of proposed 

rulemaking would propose further 

revisions to 44 CFR part 206, subpart 

D (the Individuals and Households 

Program (IHP)) and remove subpart E 

(Individual and Family Grant 

Programs). Among other things, it 

would propose to implement section 

686 of the Post-Katrina Emergency 

Management Reform Act of 2006 

(PKEMRA) to remove the IHP subcaps; 

and PKEMRA section 685 regarding 

semi-permanent and permanent 

housing construction eligibility. It 

would revise FEMA’s regulations 

related to individuals with disabilities 

pursuant to PKEMRA section 689; and 

revise FEMA’s regulations to allow for 

the payment of security deposits and 

the costs of utilities, excluding 

telephone service, in accordance with 

section 689d of PKEMRA. The rule 

would propose to implement section 

689f of PKEMRA by authorizing 

assistance to relocate individuals 

displaced from their predisaster 

primary residence, to and from 

alternate locations for short- or longterm accommodations. 

Statement of Need: 

FEMA needs to revise its IHP 

regulations to reflect lessons learned, 

from Hurricane Katrina and subsequent 

events, to address comments received 

on the interim regulations, and to 

implement recent legislative changes 

(i.e. Post-Katrina Emergency 

Management Reform Act of 2006). 

These changes are intended to provide 

clear information to disaster assistance 

applicants, implement new authorities, 

and help ensure the consistent 

administration of the Individuals and 

Households Program. 

Summary of Legal Basis: 

This rulemaking is authorized by the 

Robert T. Stafford Disaster Relief and 

Emergency Assistance Act as amended 

by the Post-Katrina Emergency 

Management Reform Act of 2006. 

Alternatives: 

The rule is under development. 

Anticipated Cost and Benefits: 

The economic analysis for this rule is 

under development. 

Risks: 

This action does not adversely affect 

public health, safety, or the 

environment. 

Timetable: 

Action Date FR Cite 

NPRM 01/23/02 67 FR 3412 

NPRM Comment 

Period End 

03/11/02 

Interim Final Rule 09/30/02 67 FR 61446 

Corrections 10/09/02 67 FR 62896 

Corrections Effective 10/09/02 

Interim Final Rule 

Effective 

10/15/02 

Interim Final Rule 

Comment Period 

End 

04/15/03 

NPRM 08/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Small Entities Affected: 

No 

Government Levels Affected: 

Federal, State 

Additional Information: 

Transferred from RIN 3067-AD25; 

Docket ID FEMA-2008-0005 

URL For More Information: 

www.regulations.gov 

URL For Public Comments: 

www.regulations.gov 

Agency Contact: 

Julia Chiu 

Disaster Assistance Directorate 

Department of Homeland Security 

Federal Emergency Management Agency 

500 C Street SW. 

Washington, DC 20472–3100 

Phone: 202 212–1100 

Fax: 202 212–1002 

Email: fema-ia-regulations@dhs.gov 

RIN: 1660–AA18 

DHS—FEMA 

84. UPDATE OF FEMA’S PUBLIC 

ASSISTANCE REGULATIONS 

Priority: 

Other Significant 

Legal Authority: 

42 USC 5121–5207 

CFR Citation: 

44 CFR 206 

Legal Deadline: 

None 

Abstract: 

This proposed rule would revise the 

Federal Emergency Management 

Agency’s Public Assistance program 

regulations. Many of these changes 

reflect amendments made to the Robert 

T. Stafford Disaster Relief and 

Emergency Assistance Act by the PostKatrina Emergency Management Reform 

Act of 2006 and the Security and 

Accountability For Every Port Act of 

2006. The proposed rule also proposes 

to reflect lessons learned from recent 

events, and propose further substantive 

and non-substantive clarifications and 

corrections to improve upon the Public 

Assistance regulations. This proposed 

rule is intended to improve the 

efficiency and consistency of the Public 

Assistance program, as well as 

implement new statutory authority by 

expanding Federal assistance, providing 

for precautionary evacuations, 

improving the Project Worksheet 

process, empowering grantees, and 

improving State Administrative Plans. 


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64244 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 

Statement of Need: 

The proposed changes implement new 

statutory authorities and incorporate 

necessary clarifications and corrections 

to streamline and improve the Public 

Assistance program. Portions of 

FEMA’s Public Assistance regulations 

have become out of date and do not 

implement all of FEMA’s available 

statutory authorities. The current 

regulations inhibit FEMA’s ability to 

clearly articulate its regulatory 

requirements, and the Public Assistance 

applicants’ understanding of the 

program. The proposed changes are 

intended to improve the efficiency and 

consistency of the Public Assistance 

program. 

Summary of Legal Basis: 

The legal authority for the changes in 

this proposed rule is contained in the 

Robert T. Stafford Disaster Relief and 

Emergency Assistance Act, 42 U.S.C. 

5121 to 5207, as amended by the PostKatrina Emergency Management Reform 

Act of 2006, 6 U.S.C. 701 et seq., the 

Security and Accountability for Every 

Port Act of 2006, 6 U.S.C. 901 note, 

the Local Community Recovery Act of 

2006, Public Law 109-218, 120 Stat. 

333, and the Pets Evacuation and 

Transportation Standards Act of 2006, 

Public Law 109-308, 120 Stat. 1725. 

Alternatives: 

One alternative is to revise some of the 

current regulatory requirements (such 

as application deadlines) in addition to 

implementing the amendments made to 

the Stafford Act by (1) the Post-Katrina 

Emergency Management Reform Act of 

2006 (PKEMRA) Public law 109-295, 

120 Stat. 1394; 2) the Security and 

Accountability for Every Port Act of 

2006 (SAFE Port Act), Public Law 109- 

347, 120 Stat. 1884, 3) the Local 

Community Recovery Act of 2006, 

Public Law 109-218, 120 Stat. 333; and 

4) the Pets Evacuation and 

Transportation Standards Act of 2006 

(PETS Act), Public Law 109-308, 120 

Stat. Another alternative is to expand 

funding by expanding force account 

labor cost eligibility to Category A 

Projects (debris removal) as well as 

Category B Projects (emergency 

protective measures). 

Anticipated Cost and Benefits: 

The proposed rule is expected to have 

economic impacts on the public, 

grantees, subgrantees, and FEMA. The 

expected benefits are a reduction in 

property damages, societal losses, and 

losses to local businesses, as well as 

improved efficiency and consistency of 

the Public Assistance program. The 

expected cost impact of the proposed 

rule is mainly the costs to FEMA in 

administering the Public Assistance 

program of approximately $60 million 

per year. Less than $1 million per year 

is expected to be attributed to grantees, 

and FEMA estimates the rule will have 

no costs added to subgrantees. These 

costs to FEMA are expected to accrue 

from the inclusion of education to the 

list of eligible private nonprofit critical 

services; expansion of force account 

labor cost eligibility; the inclusion of 

durable medical equipment; the 

evacuation, care, and sheltering of pets; 

as well as providing for precautionary 

evacuation measures. However, most of 

the proposed changes are not expected 

to result in any additional cost to 

FEMA or any changes in the eligibility 

of assistance. For example, the 

proposed rule would provide for 

accelerated Federal assistance and 

expedited payment of Federal share for 

debris removal. These are expected to 

improve the agency’s ability to quickly 

provide funding to grantees and 

subgrantees without affecting Public 

Assistance funding amounts. 

Risks: 

This action does not adversely affect 

public health, safety, or the 

environment. 

Timetable: 

Action Date FR Cite 

NPRM 06/00/10 

Regulatory Flexibility Analysis 

Required: 

Yes 

Small Entities Affected: 

Governmental Jurisdictions 

Government Levels Affected: 

Federal, Local, State 

Federalism: 

This action may have federalism 

implications as defined in EO 13132. 

Agency Contact: 

James A. Walke 

Disaster Assistance Directorate 

Department of Homeland Security 

Federal Emergency Management Agency 

500 C Street SW. 

Washington, DC 20472–3100 

Phone: 202 646–2751 

Fax: 202 646–3304 

Email: james.walke@dhs.gov 

RIN: 1660–AA51 

DHS—FEMA 

FINAL RULE STAGE 

85. SPECIAL COMMUNITY DISASTER 

LOANS PROGRAM 

Priority: 

Economically Significant. Major under 

5 USC 801. 

Legal Authority: 

42 USC 5121 to 5207 

CFR Citation: 

44 CFR 206 

Legal Deadline: 

None 

Abstract: 

This rule amends FEMA’s regulations 

to implement loan cancellation 

provisions for Special Community 

Disaster Loans (Special CDLs), which 

were provided by FEMA to local 

governments in the Gulf region 

following Hurricanes Katrina and Rita. 

This rule would not automatically 

cancel all Special CDLs, but would 

establish the procedures and 

requirements for governments who 

received Special CDLs to apply for 

cancellation of loan obligations as 

authorized by the U.S. Troop 

Readiness, Veterans’ Care, Katrina 

Recovery, and Iraq Accountability 

Appropriations Act, 2007 (Troop Act). 

With the passage of the Troop Act, 

FEMA has the discretionary ability to 

cancel Special CDLs subject to the 

limitations of section 417(c)(1) of the 

Robert T. Stafford Disaster Relief and 

Emergency Assistance Act (Stafford 

Act). Under section 417 of the Stafford 

Act, FEMA is authorized to cancel a 

loan if it determines that the ‘‘revenues 

of the local government during the 

three full fiscal year period following 

the major disaster are insufficient to 

meet the operating budget of the local 

government, including additional 

disaster-related expenses of a municipal 

operation character.’’ Since the 

cancellation provisions of section 417 

of the Stafford Act already exist in the 

Traditional CDL Program regulations at 

44 CFR 206.366, and section 417 of the 

Stafford Act provides the basis for 

cancellation of loans under both the 

Special CDL Program and the 

Traditional CDL Program, FEMA 

proposed to mirror the Traditional CDL 

cancellation provisions for Special 

CDLs. This rule will not affect the 


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Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64245 

cancellation provisions for the 

Traditional CDL Program. 

Statement of Need: 

This rulemaking is needed to address 

the needs of the communities affected 

by Hurricanes Katrina and Rita in 2005. 

This rule would provide for the 

alleviation of financial hardship on 

those communities who can 

demonstrate that in the three full fiscal 

years after the disaster they have not 

recovered to the point that their 

revenues are sufficient to meet their 

operating budget. This rule is needed 

to help those communities recover from 

that catastrophic disaster by offering 

the potential for relief of an additional 

financial burden. 

Summary of Legal Basis: 

This rulemaking is authorized by the 

Community Disaster Loan Act of 2005 

(Pub. L. 109-88), the Emergency 

Supplemental Appropriations Act for 

Defense, the Global War on Terror, and 

Hurricane Recovery, 2006, (Pub. L. 109- 

234), and the U.S. Troop Readiness, 

Veterans’ Care, Katrina Recovery, and 

Iraq Accountability Appropriations Act, 

2007 (Pub. L. 110-28). 

Alternatives: 

FEMA considered creating new and 

different cancellation application 

requirements for these communities but 

decided against that method as the 

cancellation authority is the same as 

the authority for traditional CDLs and 

the regulations currently used to cancel 

traditional CDLs has been in place and 

working for 19 years. New requirements 

may be confusing, additionally 

burdensome, or insufficient. FEMA is 

also considering the alternatives 

proposed by the commenters in drafting 

the final rule. 

Anticipated Cost and Benefits: 

The overall impact of this rule is the 

cost to the applicant to apply for the 

cancellation, as well as the impact on 

the economy of potentially forgiving all 

Special Community Disaster Loans and 

any related interest and costs. As the 

total amount of loans approved in the 

SCDL program reached almost $1.3 

billion, therefore, the maximum total 

economic impact of this rule is 

approximately $1.3 billion. However, 

without knowing which communities 

will apply for cancellation and the 

dollar amount of the loans that will be 

cancelled, it is impossible to predict 

the amount of the economic impact of 

this rule with any precision. Although 

the impact of the rule could be spread 

over multiple years as applications are 

received, processed, and loans 

cancelled, the total economic effect of 

a specific loan cancellation would only 

occur once, rather than annually. 

Risks: 

This action does not adversely affect 

public health, safety, or the 

environment. 

Timetable: 

Action Date FR Cite 

Interim Final Rule 10/18/05 70 FR 60443 

Interim Final Rule 

Effective 

10/18/05 

Action Date FR Cite 

Interim Final Rule 

Comment Period 

End 

12/19/05 

NPRM 04/03/09 74 FR 15228 

NPRM Comment 

Period End 

06/02/09 

Final Rule 01/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Small Entities Affected: 

No 

Government Levels Affected: 

Federal, Local, State, Tribal 

Additional Information: 

Docket ID FEMA-2005-0051 

URL For More Information: 

www.regulations.gov 

URL For Public Comments: 

www.regulations.gov 

Agency Contact: 

James A. Walke 

Disaster Assistance Directorate 

Department of Homeland Security 

Federal Emergency Management Agency 

500 C Street SW. 

Washington, DC 20472–3100 

Phone: 202 646–2751 

Fax: 202 646–3304 

Email: james.walke@dhs.gov 

RIN: 1660–AA44 

BILLING CODE 9110–9B–S 


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