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



[[Page 41867]]

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 212

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


Waiver of Passport and Visa Requirements Due to an Unforeseen 
Emergency

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

ACTION: Final rule.

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

DATES: This rule is effective October 5, 2017.

FOR FURTHER INFORMATION CONTACT: Joseph O'Donnell, Fines, Penalties and 
Forfeitures, Office of Field Operations, U.S. Customs and Border 
Protection, telephone number (202) 344-1691, or by email at 
<a href="/cdn-cgi/l/email-protection#f79d988492879fd985d99893989999929b9bb7949587d9939f84d9909881"><span class="__cf_email__" data-cfemail="8de7e2fee8fde5a3ffa3e2e9e2e3e3e8e1e1cdeeeffda3e9e5fea3eae2fb">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

Background

    The Secretary of Homeland Security and the Secretary of State, 
acting jointly, in specified situations, may waive certain documentary 
requirements (i.e., an unexpired passport and, if required, a valid 
unexpired visa) for individuals seeking admission to the United States 
as nonimmigrants.\1\ See section 212(d)(4) of the Immigration and 
Nationality Act (INA), as amended (8 U.S.C. 1182(d)(4)); see also 
section 212(a)(7)(B)(i) of the INA (8 U.S.C. 1182(a)(7)(B)(i)) 
(describing documentary requirements for nonimmigrants). One of these 
situations is where the agencies determine in individual cases that the 
nonimmigrant is unable to present the required documents due to an 
unforeseen emergency. See section 212(d)(4)(A) of the INA (8 U.S.C. 
1182(d)(4)(A)). Regulations governing issuance of unforeseen emergency 
waivers are set forth at 8 CFR 212.1(g). DOS has similar implementing 
regulations. See 22 CFR 41.2(i).
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    \1\ Previously, the Attorney General acting jointly with the 
Secretary of State was authorized to waive the documentary 
requirements due to an unforeseen emergency. However, pursuant to 
the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 
2135 (HSA), as of March 1, 2003, functions of the legacy Immigration 
and Naturalization Service (INS) of the Department of Justice and 
the legacy U.S. Customs Service of the Department of the Treasury 
were transferred to DHS. Specifically, pursuant to sections 102(a), 
441, 1512(d) and 1517 of the HSA and 8 CFR 2.1, the authorities of 
the Attorney General, as described in section 212 of the INA (8 
U.S.C. 1182), were transferred to the Secretary of Homeland 
Security, and the reference to the Attorney General in the statute 
is deemed to refer to the Secretary. Thus, the waiver authority in 
section 212(d)(4) of the INA now resides with the Secretary of 
Homeland Security acting jointly with the Secretary of State.
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    On March 8, 2016, U.S. Customs and Border Protection (CBP) 
published a notice of proposed rulemaking (NPRM) in the Federal 
Register (81 FR 12032) proposing to amend 8 CFR 212.1(g). The NPRM 
provided a 60-day public comment period. In the NPRM, CBP proposed to 
reinstate a 1996 amendment to 8 CFR 212.1(g) that was invalidated by 
court order in United Airlines, Inc. v. Brien, 588 F.3d 158 (2d Cir. 
2009). The court invalidated the 1996 amendment on procedural grounds 
because the legacy Immigration and Naturalization Service (INS) did not 
coordinate with DOS in amending the regulation in violation of the 
joint action requirement under section 212(d)(4)(A) of the INA (8 
U.S.C. 1182(d)(4)(A)). United Airlines, 588 F.3d at 179.
    Among other things, the 1996 amendment would have removed certain 
language from 8 CFR 212.1(g) that precluded DHS from assessing carrier 
fines under section 273 of the INA (8 U.S.C. 1323) when an ``unforeseen 
emergency'' waiver had been granted under section 212(d)(4)(A) of the 
INA and 8 CFR 212.1(g). Section 273 of the INA makes it unlawful for a 
carrier to bring to the United States any alien who does not have a 
valid passport and an unexpired visa, if a visa was required under the 
INA or the regulations issued thereunder, and subjects the carrier to a 
fine for violating this provision. The 1996 amendment of 8 CFR 212.1(g) 
would have removed the phrase that a visa and passport ``are not 
required'' if legacy INS (now CBP) concluded that the nonimmigrant was 
unable to present the required documents because of an unforeseen 
emergency.
    The NPRM proposed to reinstate the 1996 amendment by removing the 
phrase ``are not required'' so that CBP could assess carrier fines 
under section 273 of the INA in appropriate cases notwithstanding that 
an ``unforeseen emergency'' waiver has been granted under section 
212(d)(4)(A) of the Act and 8 CFR 212.1(g).\2\ The NPRM also proposed 
to amend 8 CFR 212.1(g) by reinstating 2002 and 2007 amendments to 8 
CFR 212.1(g) that were also invalidated as a result of the court order 
in United Airlines.\3\
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    \2\ CBP would not apply a fine if CBP granted the waiver and did 
not revoke it prior to the nonimmigrant alien's boarding.
    \3\ The INS amended the regulation in 2002 to update documentary 
requirements, and DHS amended the regulation in 2007 to include U 
nonimmigrants among those who could seek a waiver. See 67 FR 71443 
(Dec. 2, 2002) and 72 FR 53014 (Sept. 17, 2007).
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    Further background information is provided in the NPRM. On March 8, 
2016, DOS published a parallel NPRM proposing amendment of 22 CFR 
41.2(i). See 81 FR 12050.

Discussion of Comments

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

Comment

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

[[Page 41868]]

CBP Response

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

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

CBP Response

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

Comment

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

CBP Response

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

Conclusion

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

[[Page 41869]]

Regulatory Analyses

A. Executive Order 13563 and Executive Order 12866

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') direct agencies 
to assess the costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. Executive Order 13771 (``Reducing Regulation and 
Controlling Regulatory Costs'') directs agencies to reduce regulation 
and control regulatory costs and provides that ``for every one new 
regulation issued, at least two prior regulations be identified for 
elimination, and that the cost of planned regulations be prudently 
managed and controlled through a budgeting process.''
    The Office of Management and Budget (OMB) has not designated this 
rule a significant regulatory action under section 3(f) of Executive 
Order 12866. Accordingly, the Office of Management and Budget (OMB) has 
not reviewed it. As this rule is not a significant regulatory action, 
this rule is exempt from the requirements of Executive Order 13771. See 
OMB's Memorandum titled ``Interim Guidance Implementing Section 2 of 
the Executive Order of January 30, 2017 titled `Reducing Regulation and 
Controlling Regulatory Costs' '' (February 2, 2017).
    In 1996, the legacy INS published a final rule (61 FR 11717) 
amending 8 CFR 212.1(g) which allowed for the waiver of required 
passport and visa documents for a nonimmigrant in an unforeseen 
emergency while still retaining the ability to fine the carrier for 
transporting an alien to the United States without the required 
documents. In 2009, the U.S. Court of Appeals for the Second Circuit 
issued an opinion in United Airlines, Inc. v. Brien, 588 F.3d 158 (2d 
Cir. 2009), which held that the regulation amending 8 CFR 212.1(g) was 
improperly promulgated because DOS and the legacy INS did not jointly 
promulgate the rule. In its ruling, the court upheld legacy INS's 
decision to parole aliens arriving in the United States without proper 
documents rather than granting them a waiver, thereby preserving INS's 
authority to fine the carrier under section 273 of the INA.\7\ See 
United Airlines, 588 F.3d at 174. This has led to a situation in which 
carriers are being penalized inconsistently when they transport aliens 
to the United States without proper documentation. If an alien 
qualifies for parole, the carrier nonetheless is subject to a fine. If 
an alien does not qualify for parole but receives a waiver, the carrier 
is not subject to a fine. Since the carriers' underlying conduct is the 
same in both cases, i.e., transporting an alien to the United States 
without proper documentation, CBP believes the penalties should be the 
same.
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    \7\ An alien applying for admission may be paroled into the 
United States for urgent humanitarian reasons or significant public 
benefit. Parole does not constitute an admission to the United 
States and is to be terminated when, inter alia, the purpose of 
parole is accomplished or neither humanitarian reasons nor public 
benefit warrants the continued presence of the alien in the United 
States. See INA sections 212(d)(5), 101(a)(13)(B) (8 U.S.C. 
1182(d)(5), 1101(a)(13)(B)); see also 8 CFR 212.5(c)-(e); http://www.dhs.gov/definition-terms for information on various types of 
parole.
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    As such, DHS and DOS are now jointly promulgating final rules to 
allow CBP to waive the requirement to present entry documents for 
nonimmigrants under an unforeseen emergency while still retaining the 
ability to fine the carrier for transporting an alien to the United 
States without proper entry documentation.\8\
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    \8\ The maximum penalty amount under section 273 has increased 
from $4,300 to $5,432 as a result of multiple adjustments to account 
for inflation. See supra note 7.
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    From FY 2010-2016,\9\ if this rule had been in effect, carriers 
would have been subject to penalties averaging $1.4 million per year 
for 786 violations of section 273. This $1.4 million represents a 
transfer from violative carriers to the United States government. To 
avoid the penalties imposed by this rule and existing penalties, 
carriers may adopt further oversight. In the NPRM, CBP requested 
comment on any additional oversight costs that could result from this 
rule but no such comments were received.
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    \9\ Note that in the NPRM we used data from FY 2010-2015. Now 
that FY 2016 data is available, we have included it in the analysis.
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    CBP currently assesses penalties under this provision against any 
carriers that transport aliens without proper documents who are 
inadmissible, including when these aliens qualify for parole. 
Therefore, CBP will not have to set up a new process to fine carriers 
as a result of this rule. A penalty under this provision takes CBP 
approximately 2.5 hours to process. Therefore, on average this rule 
would take approximately 1,965 hours (2.5 hours per violation * 786 
violations per year) a year for CBP to administer.
    Currently, carriers are penalized for violations of section 273 
inconsistently. When a carrier transports an alien without proper 
documentation, whether it is penalized depends not on the nature of the 
carrier's violation, but on whether the alien it transported qualifies 
for a waiver. CBP believes it is more equitable to penalize carriers 
who violate section 273 equally. Additionally, CBP believes that the 
language of 8 CFR 212.1(g), as amended in the final rule, which allows 
CBP to assess a section 273 penalty when a waiver is granted, provides 
an economic incentive for carriers to comply with the statutory 
requirements of section 273. Finally, we received three comments that 
were supportive of the rule on the basis that the rule would create an 
economic incentive for carriers to comply with section 273.
    For additional analysis on the impacts of this rule on small 
entities and a discussion of alternatives, see section B, Regulatory 
Flexibility Act.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996, 
requires agencies to assess the impact of regulations on small 
entities. A small entity may be a small business (defined as any 
independently owned and operated business not dominant in its field 
that qualifies as a small business per the Small Business Act); a small 
not-for-profit organization; or a small governmental jurisdiction 
(locality with fewer than 50,000 people).
    As discussed above, DHS and DOS are finalizing parallel and 
simultaneous amendments to 8 CFR 212.1(g) and 22 CFR 41.2(i) 
respectively, that would allow CBP to waive the passport and/or visa 
requirements for nonimmigrants due to an unforeseen emergency while 
retaining the authority to impose a maximum penalty of $5,432 on a 
carrier for transporting an alien to the United States without proper 
documentation.
    The Regulatory Flexibility Act does not specify thresholds for 
economic significance but instead gives agencies flexibility to 
determine the appropriate threshold for a particular rule. CBP believes 
that a maximum penalty of $5,432 may be considered a significant 
economic impact given the wide range of companies subject to the 
requirements of this rule and that it is possible that a specific small 
entity may receive more than one penalty in a year. Therefore, CBP is 
preparing this Final Regulatory Flexibility Analysis under

[[Page 41870]]

section 604 of the Regulatory Flexibility Act.
    It is unlawful under section 273 of the INA for any person or 
company to transport an alien to the United States (other than from a 
foreign contiguous territory) who does not have a valid passport and an 
unexpired visa (if a visa is required). 8 U.S.C. 1323. As such, it is 
possible that any person or company engaged in the transportation of 
aliens may be affected by this rule. Below, Table 1 presents data on 
the industries CBP has identified that could be affected by this rule. 
While CBP finds that only 19 small entities have violated section 273 
from FY 2011 to FY 2016, CBP is unable to certify that a substantial 
number of small entities will not be affected by the final rule in the 
future.\10\ Accordingly, CBP has conducted the following Final 
Regulatory Flexibility Analysis.
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    \10\ Since November 20, 2009, CBP has been unable to impose a 
penalty when a section 212(d)(4)(A) waiver has been granted to an 
alien without proper documentation. Nevertheless, the small entities 
listed in Table 1 transported aliens who received such waivers. The 
small entities responsible for transporting the aliens were not 
assessed a penalty.
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    1. A statement of the need for, and objectives of, the rule.
    In 1996, the legacy INS published a final rule (61 FR 11717) 
amending 8 CFR 212.1(g). The amended regulation allowed for the waiver 
of required passport and visa documents for a nonimmigrant in an 
unforeseen emergency while still retaining the authority to fine the 
carrier for transporting an alien to the United States without the 
required documents. In 2009, the U.S. Court of Appeals for the Second 
Circuit issued an opinion in United Airlines, Inc. v. Brien, 588 F.3d 
158 (2d Cir. 2009), holding that the regulation amending 8 CFR 212.1(g) 
was improperly promulgated because DOS and the legacy INS did not 
jointly promulgate the rule. As such, DHS and DOS are now jointly 
promulgating rules to allow CBP to waive the requirement to present 
entry documents for nonimmigrants under an unforeseen emergency while 
still retaining the ability to fine the carrier for transporting an 
alien to the United States without proper entry documentation. CBP has 
concluded that the language of 8 CFR 212.1(g), as amended in the final 
rule, which allows CBP to assess a section 273 penalty when a waiver is 
granted, provides the necessary economic incentive for carriers to 
comply with the statutory requirements of section 273.
    The objective of this regulation is to allow CBP to retain its 
ability to fine a carrier for transporting an alien to the United 
States without proper entry documentation in the event it grants the 
alien a waiver for an unforeseen emergency. In general, nonimmigrant 
aliens must present an unexpired passport and, if required, a valid 
unexpired visa in order to be admitted to the United States. See 
section 212(a)(7)(B)(i) of the INA (8 U.S.C. 1182(a)(7)(B)(i)). The 
Secretary of Homeland Security and the Secretary of State, acting 
jointly, in specified situations may waive either or both of these 
requirements. See sections 212(a)(7)(B)(ii) and 212(d)(4) of the INA (8 
U.S.C. 1182(a)(7)(B)(ii), 1182(d)(4)). One of these situations is when 
the nonimmigrant is unable to present the required documents due to an 
unforeseen emergency.
    2. A statement of the significant issues raised by the public 
comments in response to the initial regulatory flexibility analysis, a 
statement of the assessment of the agency of such issues, and a 
statement of any changes made in the proposed rule as a result of such 
comments.
    CBP received three comments on the Initial Regulatory Flexibility 
Analysis, published with the NPRM. Two of the commenters were 
supportive of both the rule and the analysis and one commenter was not. 
The two commenters that were supportive of the rule and the analysis 
agreed with CBP that this rule would encourage and incentivize carriers 
to confirm that every alien has the proper documentation prior to 
arrival in the United States. The one comment we received that was not 
supportive of the analysis was in favor of alternative 3, which was for 
CBP to take no regulatory action. We disagree with this comment because 
this alternative would continue the current inconsistency regarding the 
assessment of fines when a carrier violates section 273 for 
transporting an alien without proper documents based on whether the 
alien qualifies for parole. Under the commenter's proposed alternative, 
carriers who transport an alien without proper documents would be 
subject to a fine if the alien qualifies for parole, but would not be 
subject to a fine if the alien does not qualify for parole. Since CBP 
wants to eliminate this inconsistency, we did not make any changes to 
the rule as a result of the comments.
    3. The response of the agency to any comments filed by the Chief 
Counsel for Advocacy of the Small Business Administration in response 
to the proposed rule, and a detailed statement of any change made to 
the proposed rule in the final rule as a result of the comments.
    CBP did not receive any comments from the Chief Counsel for 
Advocacy of the Small Business Administration.
    4. A description of and an estimate of the number of small entities 
to which the rule will apply or an explanation of why no such estimate 
is available.
    It is unlawful under section 273 for any person or company to 
transport an alien to the United States (other than from a foreign 
contiguous territory) who does not have a valid passport and an 
unexpired visa (if a visa is required). As such, it is possible that 
any person or company engaged in the transportation of aliens may be 
affected by this rule. Below, Table 1 presents data on the industries 
that CBP estimates could be affected by this rule. The data include the 
NAICS codes of an industry, a description of the industry, and the 
Small Business Administration's (SBA) guidance on what qualifies an 
entity to be considered small in the respective industry.\11\ 
Additionally, Table 1 includes the number small entities in the 
respective industry that have violated section 273 from FY 2011 through 
FY 2016.\12\ Of the industries that could be affected, only six 
industries have had small entities that have violated section 273 from 
FY 2011 through FY 2016.\13\
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    \11\ SBA Table of Small Business Size Standards Matched to small 
business North American Industry Classification System Codes, 
effective February 26, 2016, can be found here: https://www.sba.gov/contracting/getting-started-contractor/make-sure-you-meet-sba-size-standards.
    \12\ Since November 20, 2009, CBP has been unable to impose a 
penalty when a 212.1(g) waiver has been granted to an alien without 
proper documentation. Nevertheless, the small entities listed in 
Table 1 transported aliens who received 212.1(g) waivers. The small 
entities responsible for transporting the aliens were not assessed a 
penalty.
    \13\ We received data on which companies between FY 2011 and FY 
2016 violated section 273 from CBP's Office of Field Operations, 
which assesses the penalties. We then looked up each of the 
violating companies on Hoovers to determine how many were small and 
in what industry each violating company belonged. Hoovers is a 
business research company that provides information on companies and 
industries on its Web site, www.hoovers.com.

[[Page 41871]]



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

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

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

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

    \15\ http://transtats.bts.gov/Employment/.
---------------------------------------------------------------------------

    Although CBP can use the Census and DOT data to provide an estimate 
of the number of small entities that have the potential to be affected 
by this rule, CBP cannot use the Census data to determine the number of 
small entities that are, or will be, engaged in the transportation of 
aliens within a reasonable degree of accuracy.\16\ As shown in both 
Tables 1 and 2, however, CBP's internal records show that only 19 small 
entities from FY 2011 to FY 2016 violated section 273 and thus would 
have been subject to a penalty if this rule were in effect.\17\
---------------------------------------------------------------------------

    \16\ For instance, CBP cannot tell which scheduled passenger air 
transportation entities do, or will, transport aliens and which do, 
or will, not transport aliens.
    \17\ Note that in the IRFA we used data from FY 2008-2012. We 
have updated the analysis to use more recent data.

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

[[Page 41872]]

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

    5. A description of the projected reporting, recordkeeping and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record.
    The regulation does not include changes to any required reporting, 
recordkeeping, or compliance requirements. The objective of the rule is 
to allow CBP in an unforeseen emergency to waive the requirement that a 
nonimmigrant present proper entry documents in order to be admitted 
into the United States while retaining the ability to fine the carrier 
that did not comply with the requirements pertaining to the proper 
transportation of an alien to the United States. When the nonimmigrant 
without proper documentation is not admitted, including when he or she 
is granted parole, CBP already has the authority to fine the carrier 
that did not comply with the requirements. This rule only affects the 
carriers transporting aliens for whom CBP waives the document 
requirement due to an unforeseen emergency. As discussed above, the 
rule could affect any small entity that transports an alien without 
proper entry documentation.
    6. A description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each one of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected.
    Alternative 1 (chosen alternative): Allows CBP to waive the 
requirement for nonimmigrants to present valid documentation for entry 
into the United States in an unforeseen emergency while retaining the 
ability to enforce the statutory requirement imposing a maximum penalty 
of $5,432 on a carrier, regardless of size, for transporting an alien 
to the United States without proper documentation. When the 
nonimmigrant without proper documentation is not admitted, including 
when he or she is granted parole, CBP already has the authority to fine 
the carrier that did not comply with the requirements.
    Alternative 2: Same as Alternative 1, but waive the penalty in 
Alternative 1 for small entities.
    Alternative 3: No regulatory action (i.e. the situation as it is 
now).
    CBP has chosen to implement Alternative 1. CBP believes that a 
penalty mechanism is necessary in order to enforce the statutory 
prohibition on transporting aliens into the United States without 
proper documentation. In addition, this rule would end the current 
inconsistency in the issuance of fines for violations of section 273. 
CBP believes that the language of 8 CFR 212.1(g), as amended in the 
final rule, which allows CBP to assess a section 273 penalty when a 
waiver is granted, provides an economic incentive for carriers to 
comply with the requirements of section 273. Finally, those who 
commented on the proposed rule were supportive of the chosen 
alternative.
    Alternative 2 would eliminate the economic impact of the proposed 
rule on noncompliant small entities. CBP believes that it would also 
eliminate the economic incentive for carriers to comply with the 
statutory requirements of section 273 for small entities. Furthermore, 
8 CFR 273.5 sets forth the

[[Page 41873]]

mitigation criteria for the mitigation of fines under section 273(e) 
and incorporates the administrative procedures provided for in 8 CFR 
280.12 and 280.51. In determining the amount of the mitigation, CBP may 
take into account the effectiveness of the carrier's screening 
procedures, the carrier's history of fines, and the existence of 
extenuating circumstances. This mitigation is available to any carrier, 
including small entities.
    Alternative 3 would eliminate the economic impact of the proposed 
rule for all noncompliant carriers, regardless of size. In addition, 
the current inconsistency in fines for violations of section 273 would 
continue. Carriers who transport aliens who qualify for parole would be 
subject to a fine if they do not adhere to the requirements of section 
273, but those who transport aliens who qualify for unforeseen 
emergency waivers would not be subject to a fine.

C. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1501 et seq., requires agencies to assess the effects of their 
regulatory actions on State, local, and tribal governments and the 
private sector. This rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year (adjusted for 
inflation), and it will not significantly or uniquely affect small 
governments. Therefore, no actions are necessary under the provisions 
of the Unfunded Mandates Reform Act of 1995.

D. Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, this rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

E. Paperwork Reduction Act

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

List of Subjects in 8 CFR Part 212

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

Amendments to the Regulations

    For the reasons stated in the preamble, DHS amends part 212 of 
title 8 of the Code of Federal Regulations (8 CFR part 212), as set 
forth below.

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

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

    Authority:  6 U.S.C. 111, 202, 236 and 271; 8 U.S.C. 1101 and 
note, 1102, 1103, 1182 and note, 1184, 1185, 1187, 1223, 1225, 1226, 
1227, 1255, 1359; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-
458); 8 CFR part 2.
* * * * *

0
2. Amend Sec.  212.1 by revising paragraph (g) to read as follows:


Sec.  212.1  Documentary requirements for nonimmigrants.

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

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


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