Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations 41867 

1Previously, 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. 

2CBP would not apply a fine if CBP granted the 

waiver and did not revoke it prior to the 

nonimmigrant alien’s boarding. 

3The 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). 

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. 

SUMMARY: This rule adopts as final 

proposed amendments to the 

Department of Homeland Security’s 

(DHS) regulations describing the 

procedures for issuance of a 

discretionary waiver, on the basis of 

unforeseen emergency in individual 

cases, of certain documentary 

requirements for individuals seeking 

admission to the United States as a 

nonimmigrant. The Department of State 

(DOS) is issuing a parallel final rule 

amending a similar DOS regulation 

published in today’s edition of the 

Federal Register. DHS and DOS have 

acted jointly in this matter. 

DATES: This rule is effective October 5, 

2017. 

FOR FURTHER INFORMATION CONTACT: 

Joseph O’Donnell, Fines, Penalties and 

Forfeitures, Office of Field Operations, 

U.S. Customs and Border Protection, 

telephone number (202) 344–1691, or by 

email at joseph.r.odonnell@cbp.dhs.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The Secretary of Homeland Security 

and the Secretary of State, acting jointly, 

in specified situations, may waive 

certain documentary requirements (i.e., 

an unexpired passport and, if required, 

a valid unexpired visa) for individuals 

seeking admission to the United States 

as nonimmigrants.1 See section 212(d)(4) 

of the Immigration and Nationality Act 

(INA), as amended (8 U.S.C. 1182(d)(4)); 

see also section 212(a)(7)(B)(i) of the 

INA (8 U.S.C. 1182(a)(7)(B)(i)) 

(describing documentary requirements 

for nonimmigrants). One of these 

situations is where the agencies 

determine in individual cases that the 

nonimmigrant is unable to present the 

required documents due to an 

unforeseen emergency. See section 

212(d)(4)(A) of the INA (8 U.S.C. 

1182(d)(4)(A)). Regulations governing 

issuance of unforeseen emergency 

waivers are set forth at 8 CFR 212.1(g). 

DOS has similar implementing 

regulations. See 22 CFR 41.2(i). 

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

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.’’ 

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41868 Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations 

4The 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. 

5The 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. 

6Pursuant 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. 

CBP Response 

The proposed regulation permits the 

CBP district director 4 to grant an 

unforeseen emergency waiver on an 

individual case-by-case basis in the 

exercise of his or her discretion based 

on the circumstances presented. CBP 

has determined that this discretionary 

case-by-case approach is preferable to 

establishing a specific definition of or 

criteria for establishing an unforeseen 

emergency because it is impossible to 

define or forecast all the various 

circumstances that could arise that 

might justify an unforeseen emergency 

waiver. CBP also has concluded that the 

inclusion of a definition or the criteria 

for determining an unforeseen 

emergency in the regulation would be 

too limiting. 

Comment 

One commenter stated that in now 

proposing parallel amendments to their 

respective regulations, CBP and DOS 

have satisfied the joint action 

requirement. This same commenter 

indicated that the proposed amendment 

is inconsistent with the decision in 

United Airlines to uphold the Board of 

Immigration Appeals’ (BIA) 

longstanding rule that a carrier may not 

be fined under section 273 for having 

brought an alien to the United States if 

that alien receives an unforeseen 

emergency visa waiver. 

Another commenter stated that it was 

unclear how the Government could 

waive passport/visa requirements and 

yet retain the ability to fine airline 

carriers for such transport. 

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. 

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. 

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. 

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Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations 41869 

7An 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. 

8The 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. 

9Note 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. 

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. 

As such, DHS and DOS are now 

jointly promulgating final rules to allow 

CBP to waive the requirement to present 

entry documents for nonimmigrants 

under an unforeseen emergency while 

still retaining the ability to fine the 

carrier for transporting an alien to the 

United States without proper entry 

documentation.8

From FY 2010–2016,9 if this rule had 

been in effect, carriers would have been 

subject to penalties averaging $1.4 

million per year for 786 violations of 

section 273. This $1.4 million 

represents a transfer from violative 

carriers to the United States 

government. To avoid the penalties 

imposed by this rule and existing 

penalties, carriers may adopt further 

oversight. In the NPRM, CBP requested 

comment on any additional oversight 

costs that could result from this rule but 

no such comments were received. 

CBP currently assesses penalties 

under this provision against any carriers 

that transport aliens without proper 

documents who are inadmissible, 

including when these aliens qualify for 

parole. Therefore, CBP will not have to 

set up a new process to fine carriers as 

a result of this rule. A penalty under 

this provision takes CBP approximately 

2.5 hours to process. Therefore, on 

average this rule would take 

approximately 1,965 hours (2.5 hours 

per violation * 786 violations per year) 

a year for CBP to administer. 

Currently, carriers are penalized for 

violations of section 273 inconsistently. 

When a carrier transports an alien 

without proper documentation, whether 

it is penalized depends not on the 

nature of the carrier’s violation, but on 

whether the alien it transported 

qualifies for a waiver. CBP believes it is 

more equitable to penalize carriers who 

violate section 273 equally. 

Additionally, CBP believes that the 

language of 8 CFR 212.1(g), as amended 

in the final rule, which allows CBP to 

assess a section 273 penalty when a 

waiver is granted, provides an economic 

incentive for carriers to comply with the 

statutory requirements of section 273. 

Finally, we received three comments 

that were supportive of the rule on the 

basis that the rule would create an 

economic incentive for carriers to 

comply with section 273. 

For additional analysis on the impacts 

of this rule on small entities and a 

discussion of alternatives, see section B, 

Regulatory Flexibility Act. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.), as amended by the 

Small Business Regulatory Enforcement 

and Fairness Act of 1996, requires 

agencies to assess the impact of 

regulations on small entities. A small 

entity may be a small business (defined 

as any independently owned and 

operated business not dominant in its 

field that qualifies as a small business 

per the Small Business Act); a small notfor-profit organization; or a small 

governmental jurisdiction (locality with 

fewer than 50,000 people). 

As discussed above, DHS and DOS are 

finalizing parallel and simultaneous 

amendments to 8 CFR 212.1(g) and 22 

CFR 41.2(i) respectively, that would 

allow CBP to waive the passport and/or 

visa requirements for nonimmigrants 

due to an unforeseen emergency while 

retaining the authority to impose a 

maximum penalty of $5,432 on a carrier 

for transporting an alien to the United 

States without proper documentation. 

The Regulatory Flexibility Act does 

not specify thresholds for economic 

significance but instead gives agencies 

flexibility to determine the appropriate 

threshold for a particular rule. CBP 

believes that a maximum penalty of 

$5,432 may be considered a significant 

economic impact given the wide range 

of companies subject to the 

requirements of this rule and that it is 

possible that a specific small entity may 

receive more than one penalty in a year. 

Therefore, CBP is preparing this Final 

Regulatory Flexibility Analysis under 

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41870 Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations 

10Since 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. 

11SBA 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. 

12Since 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. 

13We 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. 

section 604 of the Regulatory Flexibility 

Act. 

It is unlawful under section 273 of the 

INA for any person or company to 

transport an alien to the United States 

(other than from a foreign contiguous 

territory) who does not have a valid 

passport and an unexpired visa (if a visa 

is required). 8 U.S.C. 1323. As such, it 

is possible that any person or company 

engaged in the transportation of aliens 

may be affected by this rule. Below, 

Table 1 presents data on the industries 

CBP has identified that could be 

affected by this rule. While CBP finds 

that only 19 small entities have violated 

section 273 from FY 2011 to FY 2016, 

CBP is unable to certify that a 

substantial number of small entities will 

not be affected by the final rule in the 

future.10 Accordingly, CBP has 

conducted the following Final 

Regulatory Flexibility Analysis. 

1. A statement of the need for, and 

objectives of, the rule. 

In 1996, the legacy INS published a 

final rule (61 FR 11717) amending 8 

CFR 212.1(g). The amended regulation 

allowed for the waiver of required 

passport and visa documents for a 

nonimmigrant in an unforeseen 

emergency while still retaining the 

authority to fine the carrier for 

transporting an alien to the United 

States without the required documents. 

In 2009, the U.S. Court of Appeals for 

the Second Circuit issued an opinion in 

United Airlines, Inc. v. Brien, 588 F.3d 

158 (2d Cir. 2009), holding that the 

regulation amending 8 CFR 212.1(g) was 

improperly promulgated because DOS 

and the legacy INS did not jointly 

promulgate the rule. As such, DHS and 

DOS are now jointly promulgating rules 

to allow CBP to waive the requirement 

to present entry documents for 

nonimmigrants under an unforeseen 

emergency while still retaining the 

ability to fine the carrier for transporting 

an alien to the United States without 

proper entry documentation. CBP has 

concluded that the language of 8 CFR 

212.1(g), as amended in the final rule, 

which allows CBP to assess a section 

273 penalty when a waiver is granted, 

provides the necessary economic 

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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Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations 41871 

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

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

16For instance, CBP cannot tell which scheduled 

passenger air transportation entities do, or will, 

transport aliens and which do, or will, not transport 

aliens. 

17Note that in the IRFA we used data from FY 

2008–2012. We have updated the analysis to use 

more recent data. 

TABLE 1 

NAICS Industry description SBA size standard 

Small entities 

that have 

violated Sec. 

273 of the INA 

481111 ............... Scheduled Passenger Air Transportation .............................................. <1,500 employees ......................... 12 

481112 ............... Scheduled Freight Air Transportation .................................................... <1,500 employees ......................... 0 

481211 ............... Nonscheduled Chartered Passenger Air Transportation ....................... <1,500 employees ......................... 2 

481212 ............... Nonscheduled Chartered Freight Air Transportation ............................. <1,500 employees ......................... 0 

481219 ............... Other Nonscheduled Air Transportation ................................................. <$15 million in revenue ................. 0 

488119 ............... Other Airport Operations ........................................................................ <$32.5 million in revenue .............. 2 

482111 ............... Line-Haul Railroads ................................................................................ <1,500 employees ......................... 0 

482112 ............... Short Line Railroads ............................................................................... <1,500 employees ......................... 0 

483111 ............... Deep Sea Freight Transportation ........................................................... <500 employees ............................ 0 

483112 ............... Deep Sea Passenger Transportation ..................................................... <1,500 employees ......................... 0 

483113 ............... Coastal and Great Lakes Freight Transportation ................................... <500 employees ............................ 0 

483114 ............... Coastal and Great Lakes Passenger Transportation ............................. <500 employees ............................ 0 

483211 ............... Inland Water Freight Transportation ...................................................... <750 employees ............................ 0 

483212 ............... Inland Water Passenger Transportation ................................................ <500 employees ............................ 0 

484230 ............... Specialized Freight (except, Used Goods) Trucking, Long-Distance .... <$27.5 million in revenue .............. 0 

485991 ............... Special Needs Transportation ................................................................ <$15 million in revenue ................. 0 

487110 ............... Scenic and Sightseeing Transportation, Land ....................................... <$7.5 million in revenue ................ 0 

423860 ............... Scenic and Sightseeing Transportation, Land Transportation Equipment and Supplies (except Motor Vehicle) Merchant Wholesalers.<500 employees ............................ 1 

488330 ............... Navigational Services to Shipping .......................................................... <$38.5 million in revenue .............. 0 

441228 ............... Motorcycle, ATV, and All Other Motor Vehicle Dealers ......................... <500 employees ............................ 1 

541614 ............... Process, Physical Distribution and Logistics Consulting Services ........ <$15 million in revenue ................. 0 

561520 ............... Tour Operators ....................................................................................... <$20.5 million in revenue .............. 1 

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). 

We therefore, sought an alternative 

data source to supplement the Census 

data. Any scheduled airline with a 

capacity of carrying over 18,000 pounds 

is required to report employee 

information to the Department of 

Transportation.15 Using this data, we 

were able to identify carriers with over 

1,500 employees, who are not 

considered small entities under the SBA 

size standards. We subtracted these 

airlines from the total small entities in 

each NAICS code to estimate the total 

small entities that could be affected by 

this rule. We note that these estimates 

could include businesses with over 

1,500 employees that have a payload of 

less than 18,000 pounds or that do not 

offer scheduled flights. As there are a 

large number of small businesses with 

over 18,000 pounds of capacity, as 

shown in DOT’s data, we do not believe 

there are many, if any, large carriers that 

are not included in DOT’s data. 

Although CBP can use the Census and 

DOT data to provide an estimate of the 

number of small entities that have the 

potential to be affected by this rule, CBP 

cannot use the Census data to determine 

the number of small entities that are, or 

will be, engaged in the transportation of 

aliens within a reasonable degree of 

accuracy.16 As shown in both Tables 1 

and 2, however, CBP’s internal records 

show that only 19 small entities from 

FY 2011 to FY 2016 violated section 273 

and thus would have been subject to a 

penalty if this rule were in effect.17

TABLE 2 

NAICS Industry description SBA size standard Total number 

of entities 

Total number 

of small entities 

Small entities 

that have 

violated Sec. 

273 of the INA 

481111 ..... Scheduled Passenger Air Transportation .............. <1,500 employees ......... 264 .................. 239 .................. 12 

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41872 Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations 

TABLE 2—Continued 

NAICS Industry description SBA size standard Total number 

of entities 

Total number 

of small entities 

Small entities 

that have 

violated Sec. 

273 of the INA 

481112 ..... Scheduled Freight Air Transportation .................... <1,500 employees ......... 212 .................. 20,7227 ........... 0 

481211 ..... Nonscheduled Chartered Passenger Air Transportation.<1,500 employees ......... 1,479 ............... 1,396 ............... 2 

481212 ..... Nonscheduled Chartered Freight Air Transportation.<1,500 employees ......... 177 .................. 171 .................. 0 

481219 ..... Other Nonscheduled Air Transportation ................ <$15 million in revenue 516 .................. 504 .................. 0 

488119 ..... Other Airport Operations ........................................ <$32.5 million in revenue 1,149 ............... 1,085 ............... 2 

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 Transportation .......................... <500 employees ............ 191 .................. 177 .................. 0 

483112 ..... Deep Sea Passenger Transportation .................... <1,500 employees ......... 54 .................... 47 .................... 0 

483113 ..... Coastal and Great Lakes Freight Transportation .. <500 employees ............ 337 .................. 307 .................. 0 

483114 ..... Coastal and Great Lakes Passenger Transportation.<500 employees ............ 110 .................. 108 .................. 0 

483211 ..... Inland Water Freight Transportation ...................... <750 employees ............ 318 .................. 294 .................. 0 

483212 ..... Inland Water Passenger Transportation ................ <500 employees ............ 193 .................. 191 .................. 0 

484230 ..... Specialized Freight (except, Used Goods) Trucking, Long-Distance.<$27.5 million in revenue 8,100 ............... 7,927 ............... 0 

485991 ..... Special Needs Transportation ................................ <$15 million in revenue 2,627 ............... 2,567 ............... 0 

487110 ..... Scenic and Sightseeing Transportation, Land ....... <$7.5 million in revenue 564 .................. 553 .................. 0 

423860 ..... Scenic and Sightseeing Transportation, Land 

Transportation Equipment and Supplies (except 

Motor Vehicle) Merchant Wholesalers.

<500 employees ............ 2,149 ............... 2,082 ............... 1 

488330 ..... Navigational Services to Shipping ......................... <$38.5 million in revenue 718 .................. 694 .................. 0 

441228 ..... Motorcycle, ATV, and All Other Motor Vehicle 

Dealers.

<500 employees ............ 6,329 ............... 6,312 ............... 1 

541614 ..... Process, Physical Distribution and Logistics Consulting Services.<$15 million in revenue 6,667 ............... 6,556 ............... 0 

561520 ..... Tour Operators ....................................................... <$20.5 million in revenue 2,609 ............... 2,586 ............... 1 

621910 ..... Ambulance Services .............................................. <$15 million in revenue 3,314 ............... 3,217 ............... 0 

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 

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Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Rules and Regulations 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 

■ 1. The general authority citation for 

part 212 is revised to read as follows: 

Authority: 6 U.S.C. 111, 202, 236 and 271; 

8 U.S.C. 1101 and note, 1102, 1103, 1182 and 

note, 1184, 1185, 1187, 1223, 1225, 1226, 

1227, 1255, 1359; 8 U.S.C. 1185 note (section 

7209 of Pub. L. 108–458); 8 CFR part 2. 

* * * * * 

■ 2. Amend § 212.1 by revising 

paragraph (g) to read as follows: 

§ 212.1 Documentary requirements for 

nonimmigrants. 

* * * * * 

(g) Unforeseen emergency. A 

nonimmigrant seeking admission to the 

United States must present an 

unexpired visa and passport valid for 

the amount of time set forth in section 

212(a)(7)(B)(i) of the Act, 8 U.S.C. 

1182(a)(7)(B)(i), or a valid biometric 

border crossing card issued by the DOS 

on Form DSP–150, at the time of 

application for admission, unless the 

nonimmigrant satisfies the requirements 

described in one or more of paragraphs 

(a) through (f) or (i), (o), or (p) of this 

section. Upon a nonimmigrant’s 

application on Form I–193, or successor 

form, ‘‘Application for Waiver of 

Passport and/or Visa,’’ a district director 

may, in the exercise of its discretion, on 

a case-by-case basis, waive either or 

both of the documentary requirements 

of section 212(a)(7)(B)(i) if satisfied that 

the nonimmigrant cannot present the 

required documents because of an 

unforeseen emergency. The district 

director may at any time revoke a 

waiver previously authorized pursuant 

to this paragraph and notify the 

nonimmigrant in writing to that effect. 

* * * * * 

Elaine C. Duke, 

Acting Secretary. 

[FR Doc. 2017–18749 Filed 9–1–17; 8:45 am] 

BILLING CODE 9111–14–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 72 

[NRC–2017–0089] 

RIN 3150–AK03 

List of Approved Spent Fuel Storage 

Casks: Holtec International HI–STORM 

Flood/Wind Multipurpose Canister 

Storage System, Certificate of 

Compliance No. 1032, Amendment No. 

3 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Direct final rule; confirmation of 

effective date. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC) is confirming the 

effective date of September 11, 2017, for 

the direct final rule that was published 

in the Federal Register on June 28, 

2017. This direct final rule amended 

NRC’s spent fuel storage regulations by 

revising the ‘‘List of Approved Spent 

Fuel Storage Casks’’ to include 

Amendment No. 3 to Certificate of 

Compliance (CoC) No. 1032 for the 

Holtec International (Holtec) HI– 

STORM Flood/Wind (FW) Multipurpose 

Canister (MPC) Storage System. 

DATES: Effective Date: The effective date 

of September 11, 2017, for the direct 

final rule published June 28, 2017 (82 

FR 29225), is confirmed. 

ADDRESSES: Please refer to Docket ID 

NRC–2017–0089 when contacting the 

NRC about the availability of 

information for this action. You may 

obtain publicly-available information 

related to this action by any of the 

following methods: 

• Federal Rulemaking Web site: Go to 

http://www.regulations.gov and search 

for Docket ID NRC–2017–0089. Address 

questions about NRC dockets to Carol 

Gallagher; telephone: 301–415–3463; 

email: Carol.Gallagher@nrc.gov. For 

technical questions, contact the 

individual listed in the FOR FURTHER

INFORMATION CONTACT section of this 

document. 

• NRC’s Agencywide Documents 

Access and Management System 

(ADAMS): You may obtain publiclyavailable documents online in the 

ADAMS Public Documents collection at 

http://www.nrc.gov/reading-rm/ 

adams.html. To begin the search, select 

‘‘ADAMS Public Documents’’ and then 

select ‘‘Begin Web-based ADAMS 

Search.’’ For problems with ADAMS, 

please contact the NRC’s Public 

Document Room (PDR) reference staff at 

1–800–397–4209, 301–415–4737, or by 

email to pdr.resource@nrc.gov. The 

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