I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

On December 19, 2022, Stockton University notified the Coast Guard that it will be hosting a collegiate rowing regatta amongst six universities on April 1, 2023, and April 2, 2023. The rowing regatta will be held in Bonita Tideway in Brigantine, NJ, between 34th Street and Brigantine Boulevard and the Brigantine Yacht Club. In response, on January 27, 2023, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Special Local Regulation; Bonita Tideway, Brigantine, NJ (88 FR 5289). There, we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this rowing regatta. We received no comments during the comment period, which ended February 27, 2023.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because the special local regulation needs to be in effect by April 1, 2023 to ensure the safety of participants and waterway users before, during, and after the scheduled rowing regatta.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041. The COTP has determined that the rowing regatta could pose a risk to participants or waterway users if normal vessel traffic were to interfere with the event. Possible hazards include risks of participant injury or death from near or actual collisions with non-participant vessels traversing through the regulated area.

As noted above, we received no comments on our NPRM published January 27, 2023. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a special local regulation from 4 p.m. on April 1, 2023, until 12:30 p.m. on April 2, 2023. The special local regulation will be enforced from 4 p.m. to 6:30 p.m. on April 1, 2023, and from 8:30 a.m. to 12:30 p.m. on April 2, 2023. The regulated area covers all navigable waters of Bonita Tideway in Brigantine, NJ, within a polygon bounded by the following: originating on the northern portion at approximate position latitude 39°24′33″ N., longitude 074°22′28″ W.; thence southwest across the Bonita Tideway to the shoreline to latitude 39°24′22″ N., longitude 074°22′49″ W.; thence southwest along the shoreline to latititude 39°23′49″ N., longitude 074°23′33″ W.; thence across the Bonita Tideway to the shoreline at latitude 39°23′43″ N., longitude 074°23′33″W.; thence north along the shoreline to the point of origin. The duration of the zone is intended to ensure the safety of participants and waterway users before, during, and after the scheduled rowing regatta. No vessel or person will be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 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. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size and duration of the regulated area, which would impact a small designated area of the Bonita Tideway. Vessels will be able to transit the regulated area during the enforcement period as directed by the Event Patrol Commander (PATCOM) or official patrol vessel.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received 0 comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation lasting only 7 hours over 2 days that will prohibit or restrict entry within the regulated area during a rowing regatta. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

Table of Contents I. Executive Summary A. Purpose of the Regulatory Action B. Summary of Legal Authority C. Summary of the Final Rule Provisions II. Background A. DOJ and DHS Legal Authority B. Overview of the Safe Third Country Agreement in the Context of Asylum, Expedited Removal Proceedings, and Removal Proceedings 1. Asylum 2. Expedited Removal Proceedings and Removal Proceedings 3. Safe Third Country Agreement C. Updates to the Safe Third Country Agreement Through the Additional Protocol of 2022 III. Discussion of Final Rule A. General Discussion of Changes B. Determinations Regarding Crossing Between POEs and Whether 14 Days Have Elapsed C. Considerations Relating to the Preponderance-of-the-Evidence Standard D. Return to the Country of Last Presence IV. Detailed Summary of Regulatory Changes A. New 8 CFR 208.30(e)(6) and (7) B. New 8 CFR 1003.42(h)(1) and (2) and 8 CFR 1240.11(g) (Heading), (g)(1) Through (4), (h)(1) V. Statutory and Regulatory Requirements A. Administrative Procedure Act B. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act of 1995 E. Congressional Review Act F. Executive Order 13132 (Federalism) G. Executive Order 12988 (Civil Justice Reform) H. Family Assessment I. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) J. National Environmental Policy Act K. Paperwork Reduction Act I. Executive Summary A. Purpose of the Regulatory Action

The Departments are amending their respective regulations to implement the Additional Protocol of 2022 to the STCA. 1 Under the STCA and its existing implementing regulations, third country nationals seeking asylum or other protection from persecution or torture must make a claim in the first country they arrive in (United States or Canada), unless they qualify for an exception to the STCA. 2 Therefore, asylum seekers  3 arriving from Canada at a land border POE  4 in the United States, or in transit through the United States during removal by Canada, are generally barred from pursuing their asylum or other protection claim relating to fear of persecution or torture  5 in the United States unless they meet an exception under the STCA. Those who do not meet an exception under the STCA may be returned to Canada to pursue their claim. Similarly, third country nationals arriving from the United States at a Canadian land border POE, or in transit through Canada during removal by the United States, who are seeking asylum or other protection relating to fear of persecution or torture in Canada may be returned to the United States under the STCA to pursue their asylum or other protection claim relating to fear of persecution or torture under United States immigration law, unless they qualify for an exception under the STCA.

The Additional Protocol of 2022 supplements the STCA. 6 The United and Canada have agreed to the Additional Protocol of 2022, but amendments to the existing regulations of the United States are necessary to extend the STCA's application under the Additional Protocol of 2022 to individuals who cross between the official POEs along the U.S.-Canada shared border, including certain bodies of water as determined by the United States and Canada, and make an asylum or other protection claim relating to fear of persecution or torture within 14 days after such crossing.

The authority for the Attorney General and the Secretary of Homeland Security (“Secretary”) to issue this final rule is found in section 208(a)(2)(A) of the Immigration and Nationality Act (“INA” or “the Act”), 8 U.S.C. 1158(a)(2)(A), which governs an individual's eligibility to apply for asylum if the Attorney General or the Secretary determines that the noncitizen may be removed, pursuant to a bilateral or multilateral agreement, to a safe third country. Under sections 103(a)(1) and (3) of the INA, 8 U.S.C. 1103(a)(1), (3), the Secretary is authorized to establish such regulations as the Secretary deems necessary for carrying out the Secretary's authority under the INA. Under section 103(g) of the INA, 8 U.S.C. 1103(g), the Attorney General is authorized to establish such regulations as the Attorney General deems necessary in immigration proceedings.

This rule does not alter the procedures applied to expedited removal proceedings, credible fear screenings, or threshold screening interviews as provided in the current regulations. The STCA is implemented within the existing framework that authorizes the removal of noncitizens  7 from the United States, including expedited removal proceedings under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), and ordinary removal proceedings before an immigration judge under section 240 of the INA, 8 U.S.C. 1229a.

This final rule amends 8 CFR 208.30(e)(6) of the DHS regulations to authorize an asylum officer to conduct a threshold screening interview. This interview will determine whether a noncitizen is ineligible to apply for asylum by claiming a fear of persecution or torture (pursuant to section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A)), when such a claim is made within 14 days after crossing the U.S.-Canada land border between POEs, including crossing the border in bodies of water mutually designated by the United States and Canada. This final rule revises 8 CFR 208.30(e)(6)(i) to clarify that persons who are subject to the Additional Protocol of 2022 and who do not qualify for an exception under the STCA are ineligible to apply for asylum in the United States. This rule also revises 8 CFR 208.30(e)(6)(ii) by adding a reference to the Additional Protocol of 2022 to clarify that a noncitizen must establish, by a preponderance of the evidence, that an exception applies before an asylum officer may proceed with the credible fear determination. This rule also amends 8 CFR 208.30(e)(6)(iii) by clarifying that the STCA includes the Additional Protocol of 2022. This rule also revises 8 CFR 208.30(e)(7) by adding a reference to the Additional Protocol of 2022 to clarify that the procedures outlined in 8 CFR 208.30(e)(7) apply to noncitizens who are subject to an agreement under section 208(a)(2)(A) of the Act, 8 U.S.C. 1158(a)(2)(A), other than the U.S.-Canada STCA, which includes the Additional Protocol of 2022.

Further, this rule revises 8 CFR 1003.42(h)(1) of the regulations of the Department of Justice's Executive Office for Immigration Review (“EOIR”), which establishes that an asylum officer's determination relating to the application of the STCA is not subject to an immigration judge's review. This final rule clarifies that this provision also extends to determinations made pursuant to the Additional Protocol of 2022. This rule also revises 8 CFR 1003.42(h)(2) to clarify that the existing provisions, which establish that any determination by DHS that a noncitizen being removed from Canada in transit through the United States should be returned to Canada to pursue asylum claims under Canadian law is not subject to an immigration judge's review, also extend to a determination made pursuant to the Additional Protocol of 2022.

Next, because the STCA, as supplemented by the Additional Protocol of 2022, also applies to individuals in removal proceedings, this final rule makes corresponding amendments to 8 CFR 1240.11(g) (heading) and (g)(1) through (4) of the EOIR regulations to require an immigration judge to consider the Additional Protocol of 2022 to the STCA in determining whether a noncitizen should be returned to Canada for adjudication of their protection claim or whether the noncitizen should be permitted to apply for asylum or seek other protection relating to fear of persecution or torture in the United States. Last, this rule revises 8 CFR 1240.11(h)(1) by adding a reference to the Additional Protocol of 2022 to clarify that the procedures outlined in 8 CFR 1240.11(h)(1) apply to noncitizens who are subject to agreements under section 208(a)(2)(A) of the Act, 8 U.S.C. 1158(a)(2)(A), other than the U.S.-Canada STCA, which includes the Additional Protocol of 2022.

The Attorney General and the Secretary publish this joint rule pursuant to their respective authorities concerning asylum, withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3) (“statutory withholding of removal”), and protection under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment  8 (“Convention Against Torture” or “CAT”) determinations. The Homeland Security Act of 2002 (“HSA”), Public Law 107-296, 116 Stat. 2135, as amended, created DHS and transferred to it many functions related to the administration and enforcement of Federal immigration law.

The INA, as amended by the HSA, charges the Secretary “with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of [noncitizens],” and it grants the Secretary the power to take all actions “necessary for carrying out” his authority under the immigration laws. See INA 103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3); see also 6 U.S.C. 112, 202. The Secretary's authority also includes the authority to publish regulations governing the apprehension, inspection and admission, detention, removal, withholding of removal, and release of noncitizens encountered in the interior of the United States or at or between the U.S. POEs. See INA 235, 236, 241, 8 U.S.C. 1225, 1226, 1231.

In addition, under the HSA, the Attorney General retained authority over conduct of removal proceedings pursuant to section 240 of the INA, 8 U.S.C. 1229a (“section 240 removal proceedings”). EOIR's immigration judges conduct these adjudications. See INA 103(g), 8 U.S.C. 1103(g), 6 U.S.C. 521; see also 8 CFR 1001.1(l). This immigration judge authority includes adjudication of certain asylum applications, as well as requests for statutory withholding of removal and protection under the CAT. Additionally, the INA provides that “determination and ruling by the Attorney General with respect to all questions of law shall be controlling.” INA 103(a)(1), 8 U.S.C. 1103(a)(1).

The INA authorizes the Attorney General and Secretary to set “requirements and procedures” for implementing the asylum provisions in section 208(b)(1)(A) of the INA, 8 U.S.C. 1158(b)(1)(A), and to establish by regulation, consistent with section 208 of the INA, 8 U.S.C. 1158, “other conditions or limitations on the consideration of an application for asylum,” INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B).

The HSA grants to DHS concurrent authority to adjudicate affirmative asylum applications— i.e., applications for asylum filed with DHS for individuals not in removal proceedings—and authority to conduct credible fear interviews, make credible fear determinations in the context of expedited removal, and establish procedures for further consideration of asylum applications after an individual is found to have a credible fear. See 6 U.S.C. 271(b)(3); INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B). By operation of the HSA, the references to the “Attorney General” in the INA are understood also to encompass the Secretary, either solely or additionally, with respect to statutory authorities vested in the Secretary in the HSA or subsequent legislation, including in relation to immigration proceedings before DHS. See 6 U.S.C. 557. Some of those authorities have been delegated within DHS to the Director of U.S. Citizenship and Immigration Services (“USCIS”), and USCIS asylum officers conduct threshold screening interviews, conduct credible fear interviews, make credible fear determinations, and determine whether a noncitizen's asylum application should be granted. 9 See 8 CFR 208.2(a), 208.9, 208.30.

With limited exceptions, immigration judges within DOJ adjudicate asylum, statutory withholding of removal, and CAT protection applications filed by noncitizens during the pendency of section 240 removal proceedings, and immigration judges adjudicate applications of asylum-seekers in cases USCIS refers to the immigration court. 8 CFR 1208.2(b), 1240.1(a); see INA 101(b)(4), 240(a)(1), 241(b)(3), 8 U.S.C. 1101(b)(4), 1229a(a)(1), 1231(b)(3).

The United States is a party to the 1967 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268 (“Refugee Protocol”), which incorporates Articles 2 through 34 of the 1951 Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (“Refugee Convention”). Article 33 of the Refugee Convention generally provides that parties to the Convention cannot expel or return (“refouler”) “a refugee in any manner whatsoever to the frontiers of territories where [their] life or freedom would be threatened on account of [their] race, religion, nationality, membership of a particular social group or political opinion.” See 19 U.S.T. at 6276. The United States implements its non-refoulement obligations under Article 33 of the Refugee Convention (via the 1967 Protocol) through the statutory withholding of removal provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), which provides that noncitizens may not be removed to a country where their life or freedom would be threatened on account of one of the protected grounds listed in Article 33 of the Refugee Convention. See 8 CFR 208.16, 1208.16; Regulations Concerning the Convention Against Torture, 64 FR 8478, 8478 (Feb. 19, 1999) (effective Mar. 22, 1999), as corrected by 64 FR 13881 (Mar. 23, 1999).

Similarly, “[u]nder Article 3 [of the CAT], the United States has agreed not to `expel, return (“refouler”) or extradite' a person to another state where [they] would be tortured.” 64 FR at 8478. Regulations to implement the United States' obligations under Article 3 of the CAT are located primarily at 8 CFR 208.16(c) through 208.18 (DHS regulations) and 1208.16(c) through 1208.18 (EOIR regulations). 10

Asylum is a discretionary benefit that can be granted by the Attorney General or the Secretary if a noncitizen establishes, among other things, that they have experienced past persecution or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See INA 101(a)(42), 208, 240(c)(4)(A), 8 U.S.C. 1101(a)(42), 1158, 1229a(c)(4)(A); 8 CFR 208.13, 1208.13. Under section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1), any person who arrives or is physically present in the United States is generally permitted to apply for asylum. For an asylum officer or immigration judge to grant asylum, however, they must determine that no bars to applying for asylum  11 under section 208(a)(2) of the INA, 8 U.S.C. 1158(a)(2), nor any bars to eligibility for asylum under section 208(b)(2)(A) of the INA, 8 U.S.C. 1158(b)(2)(A), apply to an individual's case. 12 One of these bars provides that a noncitizen does not have the right to apply for asylum in the United States if the Attorney General or the Secretary  13 determines that the noncitizen “may be removed, pursuant to a bilateral or multilateral agreement, to a country where the [noncitizen]'s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the [noncitizen] would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection[.]” INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). The statute also preserves the Departments' discretion not to apply the bar in section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), in a given case if DHS “finds that it is in the public interest for the [noncitizen] to receive asylum in the United States.” Id. The INA further provides that “[n]o court shall have jurisdiction” to review any determination made under any of the provisions within section 208(a)(2) of the Act, 8 U.S.C. 1158(a)(2), including the safe third country provision at INA section 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). See INA 208(a)(3), 8 U.S.C. 1158(a)(3).

The STCA is implemented within the framework of existing proceedings that authorize the removal of noncitizens from the United States, including expedited removal proceedings under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), and removal proceedings before an immigration judge under section 240 of the INA, 8 U.S.C. 1229a.

An applicant for admission must be inspected by an immigration officer  14 to determine whether the individual is admissible to the United States. See INA 235(a), (b), 8 U.S.C. 1225(a), (b). If a noncitizen cannot “clearly and beyond a doubt” establish that they are entitled to be admitted, then an immigration officer will determine, as a matter of discretion, whether the individual will be placed in expedited removal proceedings, where applicable, under section 235 of the INA, 8 U.S.C. 1225, or in removal proceedings under section 240 of the INA, 8 U.S.C. 1229a. 15

Under expedited removal proceedings, individuals arriving in the United States, also referred to as “arriving aliens”  16 or “certain other [noncitizens]” as designated by the Secretary who are found to be inadmissible under either section 212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C), for misrepresentation, or section 212(a)(7) of the INA, 8 U.S.C. 1182(a)(7), for failure to meet documentation requirements for admission, may be “removed from the United States without further hearing or review unless the [noncitizen] indicates either an intention to apply for asylum under [section 208 of the INA, 8 U.S.C. 1158] or a fear of persecution.” INA 235(b)(1)(A)(i), (iii), 8 U.S.C. 1225(b)(1)(A)(i), (iii); 8 CFR 235.3(b). In addition to the foregoing classes of noncitizens subject to expedited removal, the Secretary has designated other noncitizens subject to expedited removal, including noncitizens who are present in the United States without having been inspected at a POE, who are encountered by an immigration officer within 100 air miles of a U.S. land border, “who have not established to the satisfaction of an immigration officer that they have been physically present in the U.S. continuously for the fourteen-day (14-day) period immediately prior to the date of encounter,” and who otherwise meet certain criteria for expedited removal. 17

Generally, if a noncitizen is placed into expedited removal proceedings, and the noncitizen indicates an intention to apply for asylum or expresses a fear of persecution or torture or a fear of return to their country, 18 the examining immigration officer will refer the noncitizen for an interview with an asylum officer. The purpose of the interview with an asylum officer is to screen for potential eligibility for asylum and other related protection claims relating to fear of persecution or torture. See 8 CFR 208.30(e)(2) and (3). Under the STCA, however, for noncitizens arriving from Canada at a land border POE, the asylum officer will conduct a threshold screening, prior to any credible fear screening, to determine whether a noncitizen is subject to the STCA and barred from applying for asylum or seeking other protection relating to fear of persecution or torture. See 8 CFR 208.30(e)(6), 8 CFR 1240.11(g)(4). An immigration judge does not have jurisdiction to review an asylum officer's determination that the STCA applies. See 8 CFR 1003.42(h)(1) and (2). Under 8 CFR 208.30(e)(7) or 8 CFR 1240.11(h), if a noncitizen is subject to an agreement other than the U.S.-Canada STCA, the procedures outlined in 8 CFR 208.30(e)(7) or 1240.11(h) apply. See 8 CFR 208.30(e)(7), 1240.11(h).

If DHS does not make an STCA determination and refers the noncitizen to an immigration judge for section 240 removal proceedings, the immigration judge determines whether the noncitizen is eligible to apply for asylum or other protection claims relating to fear of persecution or torture, including whether the STCA applies to render the noncitizen ineligible to apply for asylum under section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), and subject to removal to Canada under the terms of the STCA. See INA 235(b)(1)(A)(i), (b)(2)(A), 8 U.S.C. 1225(b)(1)(A)(i), (b)(2)(A); 8 CFR 235.1(f)(2), 1240.11(g).

On December 5, 2002, the Governments of Canada and the United States signed the STCA to effectively manage the flow of asylum and other protection claimants between the two countries. The STCA allocates responsibility between the United States and Canada whereby one country or the other (but not both) assumes responsibility for processing the claims of certain third country national  19 asylum seekers who are traveling from Canada into the United States or from the United States into Canada. The STCA provides for a threshold determination concerning which country will consider the merits of a noncitizen's asylum and other protection claims relating to persecution or torture. This process enhances the two nations' ability to manage, in an orderly fashion, asylum and other protection claims brought by persons crossing the U.S.-Canada common border. 20

Consistent with section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), the STCA provides for the return of certain asylum seekers to the “country of last presence,” the country in which the noncitizen was physically present immediately prior to making the asylum or protection claim, 21 following the crossing of the land border at a POE, 22 or in transit from the country of last presence during the course of deportation or removal. Accordingly, under the STCA, noncitizens arriving in the United States from Canada at a POE, or in transit, must seek asylum or protection in Canada, unless they meet an exception under the STCA. 23

The Attorney General and the Secretary promulgated final rules implementing the STCA, adding, among other provisions, 8 CFR 208.30(e) (DHS regulations) and 8 CFR 1003.42(h) and 1240.11(g) (EOIR regulations) on November 29, 2004. 24

The DHS regulations implementing the STCA under 8 CFR 208.30(e)(6) provide a mechanism within the expedited removal process for determining whether the STCA or its exceptions apply. 25 Prior to making a determination whether a noncitizen who is arriving in the United States (at a U.S.-Canada land border POE or in transit through the United States during removal by Canada) and placed into expedited removal proceedings has a credible fear of persecution or torture, the asylum officer conducts the threshold screening interview to determine whether the noncitizen is ineligible to apply for asylum or other protection relating to persecution or torture and subject to removal to Canada. 26 In doing so, the asylum officer follows the same non-adversarial interview procedures as generally used in the expedited removal credible fear context. 27 Additionally, the asylum officer advises the noncitizen of the STCA's exceptions and questions the noncitizen as to whether any of the exceptions apply to the noncitizen's case. 28 If the asylum officer, with concurrence from a supervisory asylum officer, determines that the STCA applies and that the noncitizen does not qualify for an exception under the STCA, the noncitizen is not eligible to apply for asylum or other protection relating to persecution or torture in the United States. The noncitizen is advised that the noncitizen will be removed to pursue their protection claim(s) in Canada. See 8 CFR 208.30(e)(6)(i).

If the noncitizen establishes by a preponderance of the evidence that the noncitizen qualifies for an exception under the terms of the STCA, the asylum officer will make a written notation of the basis for the STCA exception and conduct a credible fear interview to determine whether the noncitizen has a credible fear of persecution or torture. 29

For individuals arriving from Canada at a land border POE or in transit during removal by the Canadian government who are issued a Notice to Appear placing them directly in section 240 removal proceedings (instead of being processed through expedited removal proceedings  30 ), the immigration judge makes the STCA determination, as authorized by 8 CFR 1240.11(g) of the EOIR regulations. The immigration judge makes this determination during the course of section 240 removal proceedings and in accordance with the procedures set forth in 8 CFR 1240.1 et seq. If the immigration judge determines that the STCA applies and the noncitizen does not qualify for an exception to STCA, the noncitizen is ineligible to apply for asylum or other protection. 31 The noncitizen may apply for any other relief from removal for which the noncitizen may be eligible, but if the noncitizen is ordered removed, the noncitizen shall be ordered removed to Canada. 32 The immigration judge may not review, consider, or decide any discretionary public interest exception because such determinations are reserved to DHS. However, if DHS files a written notice in the proceedings before the immigration judge that DHS has decided in the public interest to allow the noncitizen to pursue claims for asylum or other related protection in the United States, the noncitizen may apply for asylum and or other related protection. 33

Under 8 CFR 208.30(e)(6)(ii), or under 8 CFR 1240.11(g)(2) (if the noncitizen is in section 240 removal proceedings), noncitizens must establish by a preponderance of the evidence that they qualify for an exception under the terms of the STCA in order to establish eligibility to apply for asylum.

Canada and the United States negotiated the Additional Protocol of 2022 to allow both governments to extend the application of the STCA to individuals who cross the U.S.-Canada land border between POEs, including certain bodies of water, and who make an asylum or other protection claim relating to fear of persecution or torture within 14 days after such crossing.

On February 23, 2021, President Biden released a statement with Prime Minister Justin Trudeau of Canada: Roadmap for a Renewed U.S.-Canada Partnership. 34 The leaders declared a shared interest in revitalizing and expanding the two countries' “historic alliance and steadfast friendship.”  35 The leaders expressed their common concern about the global migration crisis, commitment to providing haven to refugees and asylum seekers, and determination to work together to strengthen efforts in these areas, including refugee resettlement. 36

On November 18, 2021, the two leaders (also joined by President Andrés Manuel López Obrador of Mexico) issued a joint statement following the North American Leaders' Summit (“NALS”), underscoring the need for bold regional cooperation due to “[t]he complex factors causing an extraordinary increase in irregular migration throughout the hemisphere.”  37 They also affirmed their commitment to adopt an ambitious and comprehensive approach to safe, orderly, and humane migration management, based on shared responsibility. 38

The Canadian Minister of Immigration, Refugees, and Citizenship and the Secretary finalized the Additional Protocol of 2022, signed in Ottawa, Ontario, Canada, on March 29, 2022, and in Washington, DC, United States, on April 15, 2022, respectively.

The Additional Protocol of 2022 does not change the existing provisions of the STCA or the processes associated with the determinations on whether the STCA applies. However, it extends the application of the STCA so that it applies not only to noncitizens who are encountered at a POE or in transit, but now also to noncitizens who enter in areas located between POEs on the U.S.-Canada land border, including certain bodies of water as mutually determined by the Governments of the United States and Canada, and who make an asylum or other protection claim relating to fear of persecution or torture within 14 days after such crossing. 39 The Additional Protocol of 2022 also stipulates that the country of last presence will not be required to accept the return of an asylum seeker if it determines that the asylum seeker did not make a claim relating to fear of persecution or torture within 14 days after crossing the land border between the POEs. 40 To assist the country of last presence in making this determination, the Additional Protocol of 2022 provides that the receiving country shall provide the country of last presence any relevant information, including information regarding the apprehension or entry of the noncitizen, if available. 41

The Additional Protocol of 2022 is expected to support orderly migration, ensure the integrity of the asylum process and processes related to other protection claims, encourage individuals to seek asylum in the country of last presence, and discourage dangerous and illegal crossings between POEs.

With this final rule, the Departments are implementing the terms of the Additional Protocol of 2022 to the STCA and amending their respective regulations at 8 CFR 208.30(e)(6) and (7), 42 8 CFR 1003.42(h)(1) and (2), and 8 CFR 1240.11(g) and (h)(1)  43 governing the threshold screening process and the eligibility of noncitizens to apply for asylum. Because the Additional Protocol of 2022 only expands the application of the STCA, but otherwise does not make any changes that would affect existing policies, procedures, and safeguards in and associated with the STCA determinations, the existing policies, procedures, and safeguards, as outlined in current regulations, also apply to the terms of the Additional Protocol of 2022. 44

Under the amended final regulations, the terms of the STCA as supplemented by the Additional Protocol of 2022 will also apply to those individuals who cross the U.S.-Canada land border between the POEs on or after 12:01 a.m. on Saturday, March 25, 2023, and make a claim for asylum or other protection claim relating to a fear of persecution or torture within 14 days after such crossing. See 8 CFR 208.30(e)(6) and (7) and (e)(6)(i) through (iii), 1003.42(h)(1) and (2), 1240.11(g)(1) through (4) (as revised by this rule). Correspondingly, the Departments are adding references to the Additional Protocol of 2022 to these provisions where necessary to incorporate the Additional Protocol of 2022 within the regulatory framework.

Moreover, under the STCA, as supplemented by the Additional Protocol of 2022 and this rule, other noncitizens who are not defined as “arriving aliens” but who are subject to expedited removal proceedings will be subject to the same threshold screening to determine whether such noncitizens are barred from applying for asylum in the United States under the STCA, as supplemented by the Additional Protocol of 2022. These other individuals, who are subject to expedited removal proceedings with DHS, include noncitizens encountered within 100 miles of the land border and within 14 days of crossing the U.S.-Canada border. 45 In this context, a noncitizen is not eligible to apply for asylum or other related protection in the United States when DHS determines, during the threshold screening interview, that the noncitizen may be removed to Canada because the STCA, as supplemented by the Additional Protocol of 2022, is applicable and none of the exceptions apply to the noncitizen. See INA 208(a)(2), 8 U.S.C. 1158(a)(2); 8 CFR 208.30(e)(6)(i) through (iii) (revised). However, if DHS determines that the noncitizen has established by a preponderance of the evidence that an exception to the STCA, as supplemented by the Additional Protocol of 2022, does apply, then the asylum officer will make a written notation of the inapplicability of the STCA, which includes the Additional Protocol of 2022, and immediately proceed with the credible fear determination. See 8 CFR 208.30(e)(6)(ii) (revised). As provided in the existing EOIR regulations, immigration judges do not have jurisdiction to review an asylum officer's STCA determination. 46 The new regulatory text will continue to provide that an immigration judge does not have jurisdiction to review an asylum officer's STCA determination under the STCA, as supplemented by the Additional Protocol of 2022. See 8 CFR 1003.42(h)(1) (revised) (for applicants for admission), 8 CFR 1003.42(h)(2) (revised) (for noncitizens in transit).

DOJ is also amending the regulatory text of 8 CFR 1003.42(h)(1) by removing the term “arriving alien” and replacing it with “applicants for admission” to clarify that an asylum officer's determinations regarding applicants for admissions are not subject to review by the immigration judge. See 8 CFR 1003.F42(h)(1) (revised). However, where an asylum officer has made a negative credible fear finding, the new regulatory text continues to provide that an immigration judge will continue to have jurisdiction to review this finding. See id.

DOJ is further amending the EOIR regulations to add references to the Additional Protocol of 2022 throughout 8 CFR 1240.11(g) and (h)(1), where appropriate, and to reflect that if a noncitizen is placed into section 240 removal proceedings, the immigration judge will make the determination whether the STCA, as supplemented by the Additional Protocol of 2022, applies. See 8 CFR 1240.11(g)(1) and (g)(2)(i) (revised).

DOJ is also amending 8 CFR 1240.11(g)(2)(ii) and (g)(3) by adding references to the Additional Protocol of 2022 to clarify that individuals who are subject to the STCA, as supplemented by the Additional Protocol of 2022, may establish exceptions. See 8 CFR 1240.11(g)(2)(ii) and (g)(3) (revised). Furthermore, DOJ is amending 8 CFR 1240.11(g)(3) to clarify that an immigration judge does not have jurisdiction to review, consider, or decide any issues pertaining to any discretionary determination of whether the noncitizen should be permitted to pursue an asylum claim notwithstanding the STCA, as supplemented by the Additional Protocol of 2022, because, under current STCA procedures, discretionary public interest determinations are reserved to DHS. See 8 CFR 1240.11(g)(3) (revised).

As is the case under current STCA procedures, a noncitizen in section 240 removal proceedings otherwise ineligible to apply for asylum under the STCA, as supplemented by the Additional Protocol of 2022, may apply for asylum with an immigration judge if DHS files a written notice in the proceedings before the immigration judge that DHS has decided in the public interest to allow the noncitizen to pursue claims for asylum or other related protection. See 8 CFR 1240.11(g)(3) (revised). In addition, DOJ is amending 8 CFR 1240.11(g)(4), which provides that a noncitizen who is found to be ineligible to apply for asylum because of a safe third country agreement, 47 such as the STCA, is also ineligible to apply for statutory withholding of removal  48 or protection under the CAT. See 8 CFR 1240.11(g)(4). Because the Additional Protocol of 2022 supplements the STCA without changing this procedure, those noncitizens subject to the STCA, as supplemented by the Additional Protocol of 2022, will continue to be ineligible for withholding of removal or protection under the CAT. See 8 CFR 1240.11(g)(4) (revised). However, the noncitizen may apply for any relief from removal for which the noncitizen may be otherwise eligible, as is currently the case before the Additional Protocol of 2022 becomes effective. See 8 CFR 1240.11(g)(4) (current); 8 CFR 1240.11(g)(4) (revised).

Finally, DHS is amending the last sentence of 8 CFR 1240.11(g)(4) by adding a reference to the Additional Protocol of 2022. Adding a reference to the Additional Protocol of 2022 does not change procedures that have been in place under the STCA. The provision continues to state that, where an immigration judge determines that a noncitizen in removal proceedings is subject to the STCA and no exceptions apply, the noncitizen will be ordered removed to Canada, where the noncitizen will be able to pursue their protection claim under the laws of Canada, but the provision now clarifies that the STCA includes the Additional Protocol of 2022. See 8 CFR 1240.11(g)(4) (revised).

The Additional Protocol of 2022 supplements the STCA to provide that the STCA not only applies to individuals encountered at a POE or in transit while being removed or deported to a third country, but also to individuals who have crossed the U.S.-Canada land border between POEs, including via mutually designated bodies of water along or across the U.S.-Canada land border, and who seek asylum or other protection relating to persecution or torture within 14 days after such crossing. 49 As explained throughout this preamble, the Departments have existing procedures in place in the expedited removal context and the section 240 removal proceedings context relating to individuals crossing the U.S. border at designated POEs, in transit, or between POEs, as well as for the assessment of a 14-day time frame. The STCA is embedded within this process. See Part II of this preamble. Hence, the determinations concerning applicability of the STCA, as supplemented by the Additional Protocol of 2022, including the location and time of a noncitizen's crossing, as well as the calculation of the 14 days, will be made within that existing framework. 50 Consistent with existing practice, the noncitizen may not challenge an asylum officer's determination regarding whether the STCA, as supplemented by the Additional Protocol of 2022, applies to the noncitizen. See 8 CFR 208.30(e)(6) (current); 8 CFR 208.30(e)(6) (revised); see also 8 CFR 1003.42(h); INA 208(a)(3), 8 U.S.C. 1158(a)(3).

Under the STCA, a noncitizen must establish by a preponderance of the evidence that an exception to the STCA applies. See 8 CFR 208.30(e)(6)(ii) (DHS regulation), 1240.11(g)(2) (EOIR regulation). Because the implementation of the Additional Protocol of 2022 does not alter the procedural aspects of the administration of the STCA, a noncitizen—to establish eligibility to apply for asylum or other protection relating to a fear of persecution or torture—must continue to establish by a preponderance of the evidence that an exception to the STCA (now, as supplemented by the Additional Protocol of 2022), applies to the noncitizen. See 8 CFR 208.30(e)(6)(ii), 1240.11(g)(2)(i) (revised).

The Additional Protocol of 2022 requires information-sharing steps that do not result in additional regulatory amendments. These steps will be included in the standard operating procedures of the United States and Canada related to information sharing and will help each country to address and resolve any differences regarding operational implementation.

Under the STCA as originally signed, neither the United States nor Canada is required to accept the return of an asylum seeker automatically; both countries review each case individually in making those decisions. 51 Either country may choose to allow an asylum seeker who is encountered at a POE, or in transit, from the other country to pursue an asylum or other protection claim relating to fear of persecution or torture if circumstances warrant in accordance with its own laws and policies. 52

Similarly, under the terms of the Additional Protocol of 2022, the country of last presence is not required to accept the return of the asylum seeker if it determines that the noncitizen did not make a claim for asylum or other protection claim relating to fear of persecution or torture within 14 days after crossing the land border in between the POEs. 53

Under the Additional Protocol of 2022, the receiving country is responsible for providing the country of last presence sufficient information relevant to the determination of the noncitizen's crossing of the land border between the POEs and the noncitizen's claim, including a copy of the record of apprehension between the POEs, if available, to assist the country of last presence in making the necessary determinations. 54 Therefore, before a noncitizen can be returned to Canada, DHS will provide relevant information, including a copy of the record of apprehension if available, to the Canadian Government. 55

DHS is amending 8 CFR 208.30(e)(6) in the introductory text by adding references to the Additional Protocol of 2022. DHS is further amending the provision by adding that, prior to any determination concerning whether a noncitizen who, on or after 12:01 a.m. on Saturday, March 25, 2023, entered the United States by crossing the U.S.-Canada land border between POEs, including a crossing of the border in those waters as mutually designated by the United States and Canada, and who made an asylum or other protection claim relating to fear of persecution or torture within 14 days after such crossing, the asylum officer shall conduct a threshold screening interview to determine whether the noncitizen is ineligible to apply for asylum under section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), and subject to removal to Canada by operation of the STCA, which includes the Additional Protocol of 2022. DHS is further amending the third sentence of 8 CFR 208.30(e)(6) by adding a reference to the Additional Protocol of 2022 and rewording the provision, so that, under the amended provision, the asylum officer shall advise the noncitizen of the exceptions in the STCA, which includes the Additional Protocol of 2022, and question the noncitizen as to the applicability of any of these exceptions to the noncitizen's case.

DHS is amending 8 CFR 208.30(e)(6)(i) by adding references to the Additional Protocol of 2022 to clarify that, if the asylum officer, with concurrence from a supervisory asylum officer, determines from the threshold screening interview that the noncitizen is subject to the STCA, which includes the Additional Protocol of 2022, and that the noncitizen does not qualify for an exception under the STCA, which includes the Additional Protocol of 2022, then the noncitizen is ineligible to apply in the United States for asylum or other forms of protection relating to a fear of persecution or torture.

Next, DHS is amending 8 CFR 208.30(e)(6)(ii) by adding references to the Additional Protocol of 2022, where appropriate, to clarify that if a noncitizen establishes by a preponderance of the evidence that they qualify for an exception under the terms of the STCA, which includes the Additional Protocol of 2022, then the asylum officer shall make a written notation of the basis of the exception, and then proceed immediately to determine whether the noncitizen has a credible fear of persecution or torture under 8 CFR 208.30(d). DHS is amending 8 CFR 208.30(e)(6)(iii) by adding a reference to the Additional Protocol of 2022 to clarify that a noncitizen qualifies for an exception to the STCA, which includes the Additional Protocol of 2022, if the noncitizen is not being removed from Canada in transit through the United States and meets the requirements of the exceptions otherwise listed.

Last, DHS is amending 8 CFR 208.30(e)(7) to clarify that the STCA referenced in that paragraph includes the Additional Protocol of 2022. This amendment does not change the substance of that paragraph.

The amendments to 8 CFR 208.30(e)(6) and (7) are effective at 12:01 a.m. on Saturday, March 25, 2023. The Department of State (“DOS”) will publish the Additional Protocol of 2022 on its website, 56 once effective, and noncitizens should refer to the DOS web page.

This rule does not otherwise alter the procedures applied to expedited removal proceedings, credible fear screenings, or threshold screening interviews as provided in the current regulations.

DOJ is revising 8 CFR 1003.42(h)(1) in the paragraph heading, and throughout the text of the paragraph, by replacing “arriving alien” with “applicant for admission” and adding references to the Additional Protocol of 2022 to clarify that an immigration judge has no jurisdiction to review an asylum officer's determination that an applicant for admission is ineligible to apply for asylum pursuant to the STCA, which includes the Additional Protocol of 2022, formed under section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), and that the noncitizen should be returned to Canada to pursue the noncitizen's claim for asylum or other protection under the laws of Canada. DOJ is further amending the third sentence of the same paragraph by adding references to the Additional Protocol of 2022 and replacing “arriving alien” with “applicant for admission” to clarify that, in any case where an asylum officer has found that an applicant for admission qualifies for an exception to the STCA, which includes the Additional Protocol of 2022, or that the STCA, which includes the Additional Protocol of 2022, does not apply, an immigration judge has jurisdiction to review a negative credible fear finding made thereafter by the asylum officer. DOJ, in addition, is amending 8 CFR 1003.42(h)(2) to add a reference to the Additional Protocol of 2022. This amendment does not affect the substance of that paragraph. Under the amended provision, an immigration judge has no jurisdiction to review any determination by DHS that an alien being removed from Canada in transit through the United States should be returned to Canada to pursue asylum claims under Canadian law, under the terms of the STCA, which includes the Additional Protocol of 2022.

Next, DOJ is amending 8 CFR 1240.11(g) (heading) and (g)(1) by adding references to the Additional Protocol of 2022, with the effect that the STCA, which includes the Additional Protocol of 2022, will apply to noncitizens who are placed in section 240 removal proceedings, provided that they, on or after 12:01 a.m. on Saturday, March 25, 2023, enter the United States by crossing the U.S.-Canada land border between the POEs and claim a fear of persecution or torture within 14 days after such crossing. In appropriate cases, the immigration judge will determine whether, under that Agreement, which includes the Additional Protocol of 2022, the noncitizen should be returned to Canada, or whether the noncitizen should be permitted to pursue asylum or other protection claims in the United States.

DOJ is also amending 8 CFR 1240.11(g)(2)(i) and (ii) by adding references to the Additional Protocol of 2022, where appropriate, and to clarify that a noncitizen is ineligible to apply for asylum pursuant to section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), unless the immigration judge determines by a preponderance of the evidence that (1) the STCA, which includes the Additional Protocol of 2022, does not apply to the noncitizen or does not preclude the noncitizen from applying for asylum or other forms of protection in the United States; or (2) the noncitizen qualifies for an exception to the STCA, which includes the Additional Protocol of 2022, as set forth in 8 CFR 1240.11(g)(3).

DOJ is also amending 8 CFR 1240.11(g)(3) by adding references to the Additional Protocol of 2022, where appropriate, to clarify that the immigration judge shall apply the relevant regulations in deciding whether the noncitizen qualifies for any exception that would permit the United States to exercise authority over the noncitizen's asylum claim. The amendments further clarify that related exceptions are codified at 8 CFR 208.30(e)(6)(iii). The regulation continues to provide that the immigration judge shall not review, consider, or decide any issues pertaining to any discretionary determination of whether the noncitizen should be permitted to pursue an asylum claim in the United States because such discretionary public interest determinations are reserved to DHS. The amendments further clarify that a noncitizen in removal proceedings who is otherwise ineligible to apply for asylum under the STCA, which includes the Additional Protocol of 2022, may apply for asylum if DHS files a written notice in the proceedings before the immigration judge that it has decided in the public interest to allow the noncitizen to pursue claims for asylum or other related protection.

Next, DOJ is amending 8 CFR 1240.11(g)(4) by adding references to the Additional Protocol of 2022, where appropriate, to clarify the following provisions: first, a noncitizen who is found to be ineligible to apply for asylum under section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), is ineligible to apply for statutory withholding of removal and seek protection under the CAT; second, the noncitizen in this scenario may apply for any other relief from removal for which the noncitizen may be eligible; and third, if a noncitizen who is subject to the STCA, which includes the Additional Protocol of 2022, and section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), is ordered removed, the noncitizen shall be ordered removed to Canada, in which case the noncitizen will be able to pursue their protection claim under the laws of Canada.

Finally, DOJ is amending 8 CFR 1240.11(h)(1) to add a reference to the Additional Protocol of 2022. This amendment does not affect the substance of that paragraph.

The amendments to 8 CFR 1003.42(h)(1) and (2) and 8 CFR 1240.11(g) (heading), and paragraphs (g)(1), (g)(2)(i) and (ii), (g)(3) and (4), and (h)(1) are effective at 12:01 a.m. on Saturday, March 25, 2023.

This rule does not otherwise alter the procedures applied to noncitizens in section 240 removal proceedings as provided in current regulations.

The Administrative Procedure Act (“APA”) generally requires agencies to publish notice of a proposed rulemaking in the Federal Register and allow for a period of public comment. 5 U.S.C. 553(b). The APA also generally requires publication of a substantive rule not less than 30 days before its effective date. 5 U.S.C. 553(d). Agencies may forgo notice-and-comment rulemaking and a delayed effective date when the rulemaking involves “a military or foreign affairs function of the United States.”  57

The Departments are bypassing notice-and-comment procedures and a delay in the effective date of the regulation because this rule involves a “foreign affairs function of the United States.”  58 The purpose of the foreign affairs exemption is to allow more cautious and sensitive consideration of those matters that affect relations with other Governments. 59 Courts have held that this exemption applies when the rule in question “is clearly and directly involved in a foreign affairs function.”  60 In addition, although the text of the APA does not expressly require an agency invoking this exemption to show that such procedures may result in “definitely undesirable international consequences,” some courts have required such a showing. 61 Under either formulation, a rule is covered by the foreign affairs exemption if, among other things, it directly involves activities or actions characteristic to the conduct of international relations. 62 Cooperative agreements regulating migration and immigration with other nations, such as the STCA and the Additional Protocol of 2022, are similar to the executive agreements that have previously been recognized as part of the executive powers that bear the characteristics of the conduct of international relations. 63 The use of the foreign affairs exemption is well established and has long been recognized by courts as applicable when a rule itself—as is the case with this rulemaking—implements an international agreement between the United States and another sovereign state. 64

This rule falls under the foreign affairs exemption because it puts into effect the negotiated-and-signed Additional Protocol of 2022, which is supplementing the existing agreement between the Governments of the United States and Canada regarding migration issues and border management and, in particular, the management of the flow of asylum seekers. Furthermore, the Additional Protocol of 2022 implements United States foreign policy and fosters diplomatic relations with the Government of Canada by mutually supporting the integrity of each country's immigration system and aspects of the system specific to the U.S.-Canada border and regional migration management. 65

In cases other than those involving the implementation of international agreements, certain courts have found that immigration matters typically implicate foreign affairs, but that not all immigration matters meet the APA's foreign affairs exemption. 66 In those cases, courts have evaluated not only whether agency action implicates foreign affairs broadly, but also whether the use of notice-and-comment procedures and a 30-day delay in the effective date would “provoke definitely undesirable international consequences.”  67 Here, a delay in implementation of the Additional Protocol of 2022 created by notice-and-comment rulemaking and a delayed effective date would lead to undesirable international consequences by jeopardizing not only the goals of the Additional Protocol of 2022, but also the United States diplomatic relationship with Canada and the credibility of the United States as a negotiating partner on migration issues.

The Additional Protocol of 2022 and these implementing regulations further the United States foreign policy goal of collaborating with one of our closest allies, partners, and neighbors, as demonstrated by the joint public statements made by the Governments of Canada and the United States in the Roadmap for a Renewed U.S.-Canada Partnership  68 and the 2021 and 2023 NALS. 69 Implementing these regulations without delay supports international cooperation and reaffirms the United States commitment, as reflected in the Additional Protocol of 2022, to manage migration by deterring migration through irregular pathways and promoting the orderly handling of asylum seekers. 70 Because each government under the Additional Protocol of 2022 can expeditiously return an asylum applicant who crosses between POEs, just as occurs now at POEs under existing regulations, implementing the Additional Protocol of 2022 through these regulations furthers the shared United States and Canadian policy goal of reducing incentives for individuals to cross the shared border between POEs and to circumvent legal pathways, including existing legal channels for humanitarian protection. Through the Additional Protocol of 2022 and its implementation, both countries proactively and preventatively address situations that may lead to significant draws of asylum seekers between POEs to either the United States or Canada. Thus, the Additional Protocol of 2022 is an important element of both countries' ability to manage their shared border and maintain the integrity of their respective legal immigration and refugee and asylum protection policies.

In light of the expressed commitment and acknowledgement of shared responsibility by the United States Government to adopt an ambitious and comprehensive approach to safe, orderly, and humane migration management, as evidenced in joint public statements, 71 it is critical that the United States Government act upon its commitment. Delaying the implementation of this rulemaking to pursue notice and comment could create doubt in Canada, and potentially other future partners, about whether the United States has sufficient flexibility and capacity to carry out agreements in accordance with its declared commitments. 72 Therefore, this agreement should be implemented rapidly by amending the regulatory framework through this rule, in light of the President's renewed foreign policy commitment and the longstanding U.S.-Canada relationship. 73

In sum, the importance of promptly and faithfully implementing an international agreement requires publishing this final rule without notice and comment and without delaying the effective date of the rule. Any delay in implementing the Additional Protocol of 2022 caused by notice-and-comment procedures or by a delayed effective date could have a detrimental impact on meeting United States foreign policy objectives, on diplomatic relations with Canada, and on the credibility of the United States as a migration partner overall. 74

Although this rule pertains to a foreign affairs function of the United States and therefore falls outside the scope of Executive Order 12866, the Departments voluntarily submitted the rule to the Office of Information and Regulatory Affairs of the Office of Management and Budget (“OMB”) for review, and OMB reviewed the rule on an expedited basis as though it were a significant regulatory action under section 3(f)(4) of that Executive Order.

The Regulatory Flexibility Act, Public Law 96-354, 94 Stat. 1164 (1980), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, 110 Stat. 857, 864 (1996) (codified at 5 U.S.C. 601 et seq. ), requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions). A regulatory flexibility analysis is not required when a rule is not subject to notice-and-comment rulemaking.

This final 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 were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, 109 Stat. 48; see also 2 U.S.C. 1532(a).

This final rule is not a major rule as defined by section 804 of the legislation commonly known as the Congressional Review Act (“CRA”), see Public Law 104-121, sec. 251, 110 Stat. 847, 868 (1996) (codified in relevant part at 5 U.S.C. 804). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. DHS and DOJ have complied with the CRA's reporting requirements and have sent this rule to Congress and to the Comptroller General as required by 5 U.S.C. 801(a)(1). Because of this submission; because this rule is not a major rule; and because the foreign affairs exemption in the APA applies to this rule, this rule does not have a delayed effective date. See 5 U.S.C. 801(a)(4).

This final 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, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This final rule was drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform. This rule was written to provide a clear legal standard for affected conduct and was reviewed carefully to eliminate drafting errors and ambiguities so as to minimize litigation and undue burden on the Federal court system. The Departments have determined that this proposed rule meets the applicable standards provided in section 3 of Executive Order 12988.

The Departments have reviewed this rule in line with the requirements of section 654 of the Treasury and General Government Appropriations Act, 1999, 75 enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999. 76 The Departments have systematically reviewed the criteria specified in section 654(c)(1), by evaluating whether this regulatory action: (1) impacts the stability or safety of the family, particularly in terms of marital commitment; (2) impacts the authority of parents in the education, nurture, and supervision of their children; (3) helps the family perform its functions; (4) affects disposable income or poverty of families and children; (5) has a sufficient justification for any financial impact on families; (6) may be carried out by State or local government or by the family; or (7) establishes an implicit or explicit policy concerning the relationship between the behavior and personal responsibility of youth and the norms of society. If an agency determines a regulation may negatively affect family wellbeing, then the agency must provide an adequate rationale for its implementation.

The Additional Protocol of 2022 expands the applicability of the STCA, but otherwise leaves in place all existing policies, procedures, and safeguards provided by the current regulations implementing the STCA. The Departments have therefore determined that the implementation of this rule will not negatively affect family wellbeing and will not have any impact on the autonomy or integrity of the family as an institution.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

DHS and its components analyze actions to determine whether the National Environmental Policy Act, Public Law 91-190, 83 Stat. 852 (1970) (codified at 42 U.S.C. 4321 et seq. ) (“NEPA”), applies to them and, if so, what degree of analysis and documentation is required. DHS Directive 023-01 Rev. 01  77 and Instruction Manual 023-01-001-01 Rev. 01 (“Instruction Manual”)  78 establish the policies and procedures that DHS and its components use to comply with the NEPA and the Council on Environmental Quality (“CEQ”) regulations for implementing the procedural requirements of NEPA. The CEQ regulations allow Federal agencies to establish, in their NEPA implementing procedures, with CEQ review and concurrence, categories of actions (“categorical exclusions”) that experience has shown normally do not, individually and cumulatively, have a significant effect on the human environment and, therefore, do not require preparation of an environmental assessment or environmental impact statement. 79 Appendix A of the Instruction Manual lists the DHS categorical exclusions.

Under DHS NEPA implementing procedures, for an action to be categorically excluded it must satisfy each of the following three conditions: (1) the entire action clearly fits within one or more of the categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect. 80

This final rule amends existing DHS and DOJ regulations at 8 CFR 208.30(e)(6) and (7), 8 CFR 1003.42(h)(l1) and (2), and 8 CFR 1240.11(g) by incorporating modifications recently negotiated by the Government of the United States and the Government of Canada to specific terms of the STCA in the Additional Protocol of 2022. The STCA permits the respective governments to manage which government decides certain noncitizens' requests for protection from persecution or torture; correspondingly, under section 208(a)(2)(A) of the INA, 8 U.S.C. 1182(a)(2)(A), and section 240 of the INA, 8 U.S.C. 1229a, the Departments apply the threshold screening requirement outlined in 8 CFR 208.30(e)(6), 8 CFR 1003.42(h) and 8 CFR 1240.11(g)(1) through (4) and pursuant to domestic implementation of this international treaty obligation to determine whether they should adjudicate a noncitizen's claim for asylum or other protection claim relating to persecution or torture. The STCA, as originally negotiated, did not include those noncitizens seeking entry into the United States between the official POEs (to include certain bodies of waters as mutually designated by the United States and Canada) and who make an asylum or other protection claim within 14 days after such crossing. Upon implementation of the Additional Protocol of 2022 in each respective country, and upon the effective date of this rule at 12:01 a.m. on Saturday, March 25, 2023, the threshold screening requirement will also apply to noncitizens who cross the U.S.-Canada land border between the official POEs and make an asylum or other protection claim relating to persecution or torture within 14 days after such crossing.

The Departments are not aware of any significant impact on the environment, or any change in environmental effect that will result from the amendments being promulgated in this Final Rule. Furthermore, the Departments have determined that this rule clearly fits within categorical exclusion A3 in the Instruction Manual. The rule is applied prospectively.

This final rule addresses specific threshold screening requirements as negotiated in the Additional Protocol of 2022 and is not part of a larger action. In accordance with its NEPA implementing procedures, the Departments find no extraordinary circumstances associated with this final rule that may give rise to significant environmental effects requiring further analysis and documentation. Therefore, this action is categorically excluded, and no further NEPA analysis or documentation is required.

This rule does not propose new, or revisions to existing, “collection[s] of information” as that term is defined under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (codified at 44 U.S.C. chapter 35), and its implementing regulations, 5 CFR part 1320.

Accordingly, for the reasons set forth in this preamble, DHS amends part 208 of chapter I of the title 8 of the Code of Federal Regulations as follows:

Accordingly, for the reasons set forth in this preamble, the Attorney General amends parts 1003 and 1240 of chapter V of title 8 of the Code of Federal Regulations as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it amends airspace in Greenville, Spartanburg, and Greer, SC, to support IFR operations in the area.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2022-1161 in the Federal Register (87 FR 66636, November 4, 2022) to amend Class D airspace, Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface in the Greenville, Spartanburg, and Greer, SC areas, as well as updating the airport's name and geographic coordinates. Additionally, Greenville Spartanburg International Airport, Greenville Downtown Airport, and Donaldson Field Airport each require name and geographic coordinate updates, as well as airspace updates. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D airspace designations are published in paragraph 5000, and Class E airspace designations are published in paragraphs 6002 and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of the document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by amending Class D airspace, Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface in the Greenville, Spartanburg, and Greer, SC area due to the decommissioning of the Fairmont NDB and cancellation of associated approaches into Spartanburg Downtown Memorial Airport/Simpson Field (formerly Spartanburg Downtown Memorial Airport). The Class D airspace for Greenville Spartanburg International Airport is increased to 4.5 miles (previously 4.4 miles), and the geographic coordinates are updated to coincide with the FAA's database. This action also removes the southwest extension of the Class E surface airspace for Spartanburg Downtown Memorial Airport/Simpson Field due to the cancellation of the NDB approaches and updates the airport's name and geographic coordinates to coincide with the FAA's database, and removes the city name from airspace header per order FAA 7400.2. Additionally, this action also updates the airport names of the following airports: Greenville Spartanburg International Airport (formerly Greenville-Spartanburg Airport) and Donaldson Field Airport (formerly Donaldson Center Airport), as well as the geographic coordinates of both airports. Finally, this action replaces the outdated terms Airport/Facility Directory with the term Chart Supplement and Notice to Airmen with the term Notice to Air Missions in the airspace descriptions.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a.

This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

Background

This rule makes changes to the Schedule of Fees, found at 22 CFR 22.1. The Department generally sets and collects fees for consular services based on the concept of full cost recovery to the U.S. Government. The Department's CoSM uses an Activity-Based Costing (ABC) methodology to calculate annually the direct and indirect costs to the U.S. Government associated with each consular good and service the Department provides. The CoSM provides a comprehensive and detailed look at all consular services as well as all services that the Department performs for other agencies in connection with its consular operations. Fees are based on these cost estimates and the Department aims to update the Schedule of Fees biennially unless a significant change in costs warrants an immediate recommendation to amend the Schedule.

The most recently approved update to the CoSM indicated that fee increases were needed to fully recover the costs of providing several categories of NIV services. As a result, the Department published an NPRM in the Federal Register on December 29, 2021 (86 FR 74018), for a 60-day public comment period that ended on February 28, 2022. The NPRM proposed the following increases:

• The application processing fee for non-petition-based nonimmigrant visas (except E category), from $160 to $245;

• The application processing fee for H, L, O, P, Q, and R category nonimmigrant visas, from $190 to $310;

• The application processing fee for E category nonimmigrant visas, from $205 to $485;

• The processing fee for BCCs for Mexican citizens age 15 and over from $160 to $245: and

• The fee for waiver of the two-year residency requirement for exchange visitors, from $120 to $510.

As discussed in more depth in the NPRM, the unit costs that inform the recommended fees for each NIV service were calculated by taking the total cost of each service and dividing by the 10-year average number of receipts ( i.e., demand) for that service.

The fee increases that will be implemented as a result of this final rule are smaller than those proposed in the NPRM due to revised projections for fiscal year (FY) 2022-2024 demand. The CoSM uses historical workloads as well as projected future workloads to calculate demand for each service. Projecting future demand is extremely difficult because travel for both U.S. citizens and foreign nationals can change quickly and dramatically, as demonstrated by the COVID-19 pandemic. Therefore, the current model update applied a 10-year average for workload volumes for NIVs, using historic workload actuals from FYs 2015-2019 and projected workload volumes for FYs 2020-2024. Using a 10-year average helped minimize the impact of demand volatility on unit cost calculations. Recognizing that actual demand will always vary, this practical approach helped to stabilize fees at an amount sufficient to recover costs with only a modest increase to the consumer. See 86 FR 74018, 74020-21.

The fee increases proposed in the NPRM were based on a 10-year average of 7.7 million NIVs of all classes per year. After the NPRM was issued, however, it became apparent that demand for NIVs was rebounding significantly faster than previously anticipated and that actual demand would exceed the projected volume in the NPRM. The Department therefore decided to recalculate demand before moving forward with the final rule to ensure that it did not implement fees in excess of its actual costs. In its revised analysis, the Department included historic actual workload amounts for FY2015-2021 (rather than FY2015-2019 as in the original recommendations) and revised projected workload amounts for FY2022-2024. As with the original calculations, the Department divided the total actual and projected demand by 10, which resulted in a revised 10-year average of 9.5 million NIVs of all classes per year.

Because actual costs and level of effort for most categories of NIVs have been relatively stable over this period, the significant increase in average demand generates a corresponding decrease in the unit costs of providing these services. As a result, the Department will implement smaller fee increases than originally proposed for all categories of NIVs.

The Department is also postponing the fee increase for the exchange visitor waiver of two-year residency requirement (“J-Waiver”) fee. Unlike machine-readable visa (MRV) fees, which must be set at the cost of providing nonimmigrant visa application processing and border crossing card processing services, see 8 U.S.C. 1713(b); 8 U.S.C. 1351 (note), the Department has discretion to take factors other than cost into account when setting the J-Waiver fee. See 31 U.S.C. 9701 (permitting the Government to consider “other relevant facts” in addition to costs when setting fees); Office of Management and Budget (OMB) Circular A-25, Section 6(c)(2)(b) (recognizing exceptions to the general policy of full cost recovery when conditions exist that justify an exception); see also 22 U.S.C. 1475e (authorizing the Department to retain fees related to Exchange Visitor Program services “to such extent as may be provided in advance in appropriations acts” and expend such fees for “authorized purposes” without specifying the amount at which the fees much be set). Although the costs of providing the J-Waiver service have increased as indicated in the NPRM, the Department has assessed that currently available retained revenue from this fee is sufficient to permit the Department to sustain the J-Waiver service in the near term without raising the fee at this time.

Below are the adjustments to the fee recommendations in the NPRM that the Department will implement in this final rule:

• The application processing fee for non-petition based NIVs (except E category), will be raised from $160 to $185. This represents a 15.6 percent increase over the current fee, but is $60 or 24.5 percent below the original proposal of $245.

• The application processing fee for H, L, O, P, Q, and R category NIVs, will be raised from $190 to $205. This represents a 7.9 percent increase over the current fee, but is $105 or 33.9 percent below the original proposal of $310.

• The processing fee for the BCCs for Mexican citizens age 15 and over will be raised from $160 to $185. This represents a 15.6 percent increase over the current fee, but is $60 or 24.5 percent below the original proposal of $245.

• The fee for E category NIVs will be raised from $205 to $315. This represents a 53.7 percent increase over the current fee, but is $170 or 35 percent below the original proposal of $485.

• The fee for the exchange visitor waiver of two-year residency requirement will be maintained at $120, instead of the proposed $510.

As discussed above, the Department applied the same methodology to calculate the revised fees and the relevant authorities found in the NPRM apply to these revised fee recommendations. This rule also addresses public comments received by the Department on the originally proposed fee recommendations found in the NPRM.

In the 60-day period following publication of the NPRM, the Department received a total of 328 comments, 94 of which were duplicates. The comments are categorized into the following general topics.

The Department received many comments related to the proposed increase from $160 to $245 for non-petition based nonimmigrant visas (except E category), which include all types of student visas. Sixty-one commenters expressed concerns about the impact of the fee increases on international education, including the following sub-topics: 10 comments on how the COVID-19 pandemic affects international students and institutions of higher education in the United States; 11 comments on how the English as a Second Language (ESL) community might be affected; 6 comments on the Biden Administration's policies for attracting international students; and 15 comments on the possibility that an increase of this kind might drive international students to seek educational opportunities in other countries. As discussed above, this final rule implements only a $25 increase for non-petition-based NIV fees, from $160 to $185. The Department believes this modification largely addresses the issues raised by the commenters, which appeared to be driven by financial impact on visa applicants.

The Department received 19 comments from commenters who accepted the proposed fee increases but requested that the Department delay the increases to sometime in the future or make them more gradual. The Department's decision to increase the non-petition-based NIV (except E category) fee by only $25 rather than $85 and to increase the NIV fee for H, L, O, P, Q, and R category visas by only $15 rather than $120 for the reasons discussed above addresses the concerns raised by these commenters.

The Department received 80 comments regarding the H-2 visa programs. These comments were in response to the Department's original proposal that would have increased the fee from $190 to $310, and generally asserted that agricultural businesses cannot absorb a 63 percent increase to H-2 visa fees. The comments also asserted that with rising prices across the board ( e.g., increases in the Adverse Effect Wage Rate (AEWR)), the fee increase would put them out of business. As discussed in the NPRM, the impact of the proposed fee increases on the overall cost of bringing over an H-2 worker would have been minimal. If implemented, the proposed fee would have raised the total cost by just over one percent, from $10,367 ($10,177 + $190) to $10,487 ($10,177 + $310). See 86 FR 74023. This final rule implements only a $15 increase in petition-based NIV fees, from $190 to $205. Assuming the costs of bringing over an H-2 worker have not increased since the NPRM was issued, the total cost is now increasing by only .15 percent (from $10,367 to $10,382). This is significantly less than originally proposed, which should largely address the concerns of the commenters.

One commenter requested that if the fees are increased, then the “AEWR should be removed, frozen, or replaced with a charge that isn't constantly increased.” The AEWR, which is determined by the U.S. Department of Labor's Office of Foreign Labor Certification Administrator for the purpose of preventing the employment of H-2A workers from adversely affecting the wages of U.S. workers similarly employed, see 8 U.S.C. 1188(a)(1)(B), is “[t]he annual weighted average hourly wage for field and livestock workers (combined) in the States or regions as published annually by the U.S. Department of Agriculture (USDA) based on its quarterly wage survey.” 20 CFR 655.103(c). An employer whose Application for Temporary Employment Certification in the H-2A program has been certified by the Department of Labor must offer, advertise in its recruitment, and pay a wage that is at least the highest of the AEWR, a prevailing wage rate, an agreed-upon collective bargaining wage, the Federal minimum wage, or the State minimum wage. 20 CFR 655.120(a). The Department recognizes that an AEWR or other minimum wage under the H-2A program may impose a financial burden on agricultural employers; however, it is a requirement imposed by the Immigration and Naturalization Act, as implemented by the Department of Labor's H-2A regulations, which is outside the scope of this rulemaking.

The Department received one comment that specifically discussed the impact the proposed fee increases could have on tourism demand. The NPRM examined the costs associated with tourist visits to the United States and the potential impact of the original proposed fee increase on demand for tourism. Our analysis showed that even with the originally proposed $85 increase, from $160 to $245, the impact on tourism likely would have been minimal.

Due to the revised demand projections, the Department is now implementing only a $25 increase to the fee for non-petition based NIVs (except E category). Assuming the average costs of travel to the United States ($4,834) have not increased since the publication of the NPRM, then the adjustment to the fee will increase the total cost of a trip from $4,994 ($4,834 + $160) (current rate) to $5,019 ($4,834 + $185), which is less than one-half of one percent. Thus, the impact on tourism almost certainly will be negligible.

The commenter also mentioned that by increasing the tourist visa fee, the Department risks increased reciprocity fees imposed by other countries, which will negatively impact Americans who wish to travel internationally. The Department acknowledges this risk but must set MRV fees to recover the costs of providing these services. See 8 U.S.C. 1713(b).

The Department received six comments requesting additional evidence to help commenters understand the reasons for the increases. As detailed in the NPRM, while costs for non-petition-based nonimmigrant visas (except E category) and the petition-based nonimmigrant visa services have increased modestly but steadily since the last adjustment to these fees in 2012, demand for these visa categories has fluctuated more dramatically from year to year. See 86 FR 74021 . Because MRV fees must be set at the cost of providing these services, 8 U.S.C. 1713(b), the unprecedented, significant decrease in demand due to the COVID-19 pandemic had a substantial impact on the fee increases proposed in the NPRM. Subsequently, the Department observed a considerable, unexpected recovery in NIV demand and made the decision to reanalyze the proposed fees in light of this rebound.

The Department cannot be certain why NIV demand has recovered more quickly than expected. The recovery in demand may be attributable to a variety of factors, including the increase in global vaccination rates, relaxation of travel restrictions and reopening of international borders, and gradual resumption of the Department's visa operations at overseas posts. When the initial projected demand for 2021-2024 was calculated, it was uncertain whether effective COVID-19 vaccines would be globally available and what impact vaccination would have on demand for NIVs. The relatively quick proliferation of COVID-19 vaccines worldwide and the corresponding reductions in the risk of serious illness and death due to COVID-19 may have increased individuals' willingness to travel and the easing of restrictions made it increasingly possible to do so. Regardless, because the CoSM assumed a negative outlook for a longer period, the original demand projections ultimately were too low.

The revised fee recommendation for E category NIVs reflects a decrease of $170 from the original proposal, from $205 to $315 rather than $485. As with the other categories of NIVs, the originally proposed fee increase for E NIVs accounted for very low demand for this service during the COVID-19 pandemic. As discussed in the NPRM, however, the proposed increase also reflected an increased level of effort on the part of the adjudicator. The most recent CoSM demonstrated that consular staff spend significantly more time providing this service than was captured previously. See 86 FR 74018, 74022. The fee that will be implemented includes NIV adjudication efforts that were not previously captured in the current fee (as discussed in the NRPM), and accounts for the improved outlook for E visa demand.

The Department received two comments related to its Activity-Based Costing (ABC) methodology and calculations. One commenter pointed out the “vast majority of the cost of processing visa applications is directly proportional to the number of applications” and that CA should consider fixed costs of services to be minimal in unit cost calculations. The cost of processing visa applications is not directly proportional to the number of applications. A significant portion of costs are fixed, including costs for rent and utilities as well as bureau, directorate, and post management. As discussed above, these costs have increased steadily due primarily to inflation since the last adjustments to these fees. Although the considerable fluctuations in demand due to the COVID-19 pandemic had a greater impact on the proposed fee increases, the rise in actual costs had an impact on the fees as well.

One commenter mentioned that the Department's ABC model should consider visa validity when calculating the fees for services. The Department does not set NIV application processing fees based on the number of years a visa is valid, because the costs associated with visa processing do not vary significantly whether the length of validity is one year or ten years, or whether a visa is for a single entry or multiple entries.

The Department received four comments stating that the commenter would gladly pay an increased fee for faster service ( i.e., decreased wait times), but did not support fee increases to obtain the same level of service currently provided. The Department understands the concerns regarding visa processing times. The COVID-19 pandemic resulted in profound reductions in the Department's visa processing capacity, and many embassies and consulates were able to provide only limited visa services. As worldwide restrictions due to the COVID-19 pandemic ease, the Department is focused on reducing wait times for all consular services at our embassies and consulates overseas while also protecting the health and safety of our staff and applicants when they come to embassy or consular premises. Although local conditions and restrictions at individual consular posts may continue to fluctuate, embassies and consulates have broad discretion to determine how to prioritize visa appointments among the ranges of visa classes as safely as possible, subject to local conditions and restrictions. The Department sets MRV fees at the cost of providing the service, see 8 U.S.C. 1713(b), and these fees are used to cover the costs of the service, including the materials, office space, equipment, etc. needed to process and produce NIVs.

The Department received 75 comments suggesting and requesting that the Department resume domestic visa renewals for individuals who were previously approved to receive certain visa classes ( e.g., H-1B, H-4, Green Cards) and previously provided biometrics. These commenters assert that such renewals would eliminate the requirement for these individuals to travel to their home country to renew their visas, where they may need to remain for uncertain periods of time before they can obtain interview appointments at the embassy or consulate.

The State Department provided domestic renewals until the 2002 Enhanced Border Security and Visa Entry Reform Act required that U.S. visas issued after October 26, 2004, include biometric identifiers. This, in turn, required visa holders to renew their visas outside the United States, because domestic fingerprint collection was not feasible at the time. The possibility of relying on previously collected fingerprints would overcome one obstacle to resuming domestic renewal. As part of the Department's ongoing commitment to exploring options to make visa processing more efficient and accessible for all applicants, the Department is assessing numerous logistical challenges that need to be addressed in implementing such an initiative. The Department continues to explore options to make visa processing more efficient and accessible for all applicants.

The Department will adjust application processing fees for NIVs and adult BCC fees in light of the Cost of Service Model's findings that the U.S. Government is not fully recovering the costs of processing applications for several categories of NIVs and the adult BCC. The Department is postponing the fee increase for the J-Waiver fee, which will remain at $120. In accordance with its statutory authorities and consistent with OMB guidance, the Department sets user fees at a level sufficient to recover the cost of providing services that provide special benefits to an identifiable recipient beyond those that accrue to the general public. See 31 U.S.C. 9701; OMB Circular A-25, sec. 6(a)(1), (a)(2)(a); see also 8 U.S.C. 1713(b). For this reason, the Department will adjust the Schedule of Fees.

The Department published this rulemaking as a proposed rule and provided 60 days for public comment. This final rule will be effective 60 days after publication, in accordance with 5 U.S.C. 801(a)(3).

The Department has reviewed this rule and, by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities as defined in 5 U.S.C. 601(6). This rule adjusts the application processing fees for H, L, O, P, Q and R category visas, which will account for approximately eleven percent of the total nonimmigrant visa workload expected in FY2023. Although the issuance of some of these visas is contingent upon approval by DHS of a petition filed by a United States company with DHS, and these companies pay a fee to DHS to cover the processing of the petition, the visa itself is sought and paid for by an individual foreign national overseas who seeks to come to the United States or, in some cases, an employer applying on their behalf. The amount of the petition fees that are paid by small entities to DHS is not impacted by the amount of the visa fees paid by individuals to the Department of State. While small entities may cover or reimburse employees for application processing fees, the exact number of such entities that do so is unknown. Whether or not small entities choose to reimburse the applicant for their employment-based NIV fees, the $15 increase is not likely to have a significant economic impact.

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 year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501-1504.

This rule is a major rule as defined by 5 U.S.C. 804(2).

The Department has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in E.O. 12866 and E.O. 13563. OMB has determined that this rule is economically significant under Executive Order 12866.

This final rule is necessary in light of the CoSM's findings that costs associated with NIV application processing have increased since the last update to these fees. The Department sets NIV application fees commensurate with the costs of providing these services in accordance with 8 U.S.C. 1713(b) and OMB Circular A-25. The increase in costs therefore justify these adjustments through the rulemaking process.

The following table summarizes the impact of this final rule:

As explained above, the results of the most recent CoSM indicate that the costs of providing nonimmigrant visa services have increased and therefore the current fees are not set at a level sufficient to permit the Department to fully recover the costs of providing these services. The Department relies exclusively on retained revenue from consular fee collections to fund ongoing consular operations. The NIV fees proposed by the Department are set to recover costs necessary to support NIV operations, in accordance with 8 U.S.C. 1713(b) and OMB Circular A-25. If any of these fees are set below costs, the Department's Bureau of Consular Affairs would be operating at a deficit. Such a situation could impact the Department's ability to provide consular services to those who seek to travel to the United States for tourism, education, or work-related reasons, by limiting access to resources needed to adjudicate and produce visas. That consequence, in turn, could have a negative effect on those aspects of the U.S. economy that depends on these visitors and workers.

The Department's CoSM is updated annually, and the Department aims to update the Schedule of Fees biennially unless a significant change in costs warrants an immediate recommendation to amend the Schedule. If the results of the CoSM indicate a change in the cost (increase/decrease) of providing a service, then adjustments to the relevant fees will be made to ensure full cost recovery. Any future changes to the fees, however, will not impact NIV holders during the period of their visa's validity (generally 5-10 years).

Due to the requirements of 8 U.S.C. 1713(b), there are no alternatives to raising MRV fees. However, as discussed in the preamble, the Department is finalizing lower increases than those proposed in the NPRM due to the rebound in demand for NIVs. As in the NPRM, the Department utilized 10-year average for demand to account for pandemic-related volatility and the fact that demand for NIVs is still in the process of recovering. The fees included in this rule are set at the cost of providing the relevant nonimmigrant visa services and are used to cover the costs of those services, including the materials, offices, equipment, etc. needed to process and produce NIVs.

Therefore, the Department has no alternative to this rulemaking; if the Department does not recover costs for these NIV services, the Department will be operating at a deficit and its consular operations could be impeded.

The NPRM includes a section titled, “Economic Impact” that demonstrated that the proposed fee increases resulted in minimal increases in the totality of overall costs to both travelers and those seeking work visas. The economic impact of these fee increases is also discussed in the sections of this final rule responding to public comments. For the reasons discussed, the Department does not believe that the increased NIV application processing costs will deter non-U.S. citizens from applying for visas, because these fee increases do not significantly impact the costs of an applicant's travel to the United States.

Although economic impact on individual applicants is minimal, these fee increases will generate revenue that will be used to cover the costs of providing consular services. This revenue will help guarantee the continued functioning of the Department's consular operations, which will provide a direct benefit to U.S. citizens. The fees set through this rulemaking will not change unless and until the results of a future CoSM indicate that they need to be adjusted. As noted above, the Department does not anticipate any change in demand for visas services because of this rulemaking. The cost of an NIV remains minor in comparison with other costs associated with travel, education, or hiring a worker from abroad, as detailed in the NPRM.

This regulation 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 E.O. 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation.

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the requirements of E.O. 13175 do not apply to this rulemaking.

This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act.

Accordingly, for the reasons stated in the preamble, 22 CFR part 22 is amended as follows:

The Department of State published a notice of proposed rulemaking (NPRM) for subpart A of 22 CFR part 62 in the Federal Register on September 22, 2009 (74 FR 48177). Subpart A sets forth the general provisions for eligibility and continuing requirements for all designated sponsors that conduct exchange visitor programs. After considering the comments that more than 100 parties submitted in response to the NPRM, the Department of State published a final rule on October 6, 2014 (79 FR 60294), at which time it requested additional comments (2014 final rule).

The sponsor community has long sought the ability to digitally sign and electronically transmit ( e.g., via email) Forms DS-2019, i.e., the Student and Exchange Visitor Information System- (SEVIS-) generated documents that prospective exchange visitors and their spouses and dependents, if any, must present at U.S. embassies or consulates to apply for J-visas. This Interim Final Rule permits sponsors to sign Forms DS-2019 using digital signatures, defined as follows: An application of technology for cryptographically derived signatures that ensures meaningful authentication of the identity of the signer and integrity of the document. Digital signatures are a subset of electronic signatures, but unlike other electronic signatures, digital signatures employ cryptography, i.e., are backed by a process such as a public key infrastructure. Commonly used digital signature software packages include, but are not limited to, DocuSign, Adobe Sign, and Global Sign. For sponsors that are unable or do not wish to apply digital signatures, the Interim Final Rule retains the current option of printing and hand signing Forms DS-2019 in ink.

With the implementation of this rule, sponsors may transmit Forms DS-2019 electronically, including directly to exchange visitors. Sponsors without digital signature capacity may print and sign forms in ink (as they do now, except that blue ink is no longer required), scan the forms ( e.g., into portable document format (PDF) files), and then transmit them electronically. The Department of State notes that these regulatory changes will have no impact on SEVIS functionality or the number of Forms DS-2019 allotted to sponsors.

The Department of State believes that many sponsors already have digital signature software, and that the elimination of the requirement that sponsors mail paper forms worldwide will result in significant cost-savings. Accordingly, it anticipates that most sponsors will recognize the benefits of digital signatures and, if they have not already done so, will invest in digital signature software.

In this interim final rule, the Department of State also clarifies, corrects, and/or deletes ambiguous, obsolete, or technically inaccurate language and requirements, some of which were adopted before SEVIS-generated Forms DS-2019 replaced paper Forms IAP-66. The following two changes are also made by this rulemaking: adoption of the plural forms of nouns ( e.g., sponsors, exchange visitors); and replacement of the term “original” with the term “paper” when describing the physical Forms DS-2019.

The reasons for the regulatory changes, including comments about such changes, follow for each provision of 22 CFR 62.12 that the Department of State modifies herein. The following bolded citations represent current regulatory text in 22 CFR part 62.

22 CFR 62.12(a)(1). The Department of State adds the language “to SEVIS” to clarify that it is access to SEVIS that is restricted to Responsible Officers and Alternate Responsible Officers (collectively, Officers).

22 CFR 62.12(a)(3). The Department of State incorporates into this paragraph the requirement that sponsors may issue Forms DS-2019 for the enumerated purposes only if the regulations permit, and if necessary, the Department of State authorizes the action. This change updates this specific regulatory language to clarify requirements for sponsors.

22 CFR 62.12(a)(3)(ii). The Department of State eliminates the phrase “when permitted by the regulations and authorized by the Department of State” because these general requirements are now present in 22 CFR 62.12(a)(3).

22 CFR 62.12(a)(3)(iii). For the same reason, the Department of State eliminates the phrase “when permitted by the regulations and/or authorized in writing by the Department of State.”

22 CFR 62.12(a)(3)(iv). The Department of State makes no changes to this paragraph. The Department of State confirms the need to use the reprint function in SEVIS when replacing Forms DS-2019 that have been lost, stolen, or damaged. When nonimmigrants traveling on J-visas lose their Forms DS-2019, sponsors historically would reprint the previously issued forms and send them to the exchange visitors who requested a copy. With electronic transmission, sponsors should still use the reprint function in SEVIS to appropriately record the action before electronically transmitting replacement forms to exchange visitors.

22 CFR 62.12(a)(3)(v). Commenting parties opined that re-entry into the United States is not a reason that sponsors initially issue Forms DS-2019. The Department of State notes, however, there are instances when all travel signature lines on Forms DS-2019 are filled, and Officers must issue new forms. Accordingly, the Department of State retains this provision.

22 CFR 62.12(a)(3)(vi). The Department of State eliminates the phrase “when requested in SEVIS and authorized by the Department of State.” The phrase “when requested in SEVIS” describes the method of requesting category changes and is unnecessary in a rule that enumerates the reasons for issuing Forms DS-2019.

22 CFR 62.12(a)(3)(vii). The Department of State eliminates the phrase “or a change in actual and current U.S. address” in response to numerous comments that explained that this was not a valid example of reasons to issue Forms DS-2019 since this SEVIS field is not printed on Forms DS-2019.

22 CFR 62.1(b)(2)(ii). The Department of State eliminates the requirement that Officers sign paper Forms DS-2019 using only blue ink to permit greater flexibility for sponsors.

22 CFR 62.12(b)(2)(iii). In response to numerous requests from sponsors to be able to sign Forms DS-2019 electronically, the Department of State adds a new paragraph to permit digital signatures, defined as an application of technology for cryptographically derived signatures that ensures meaningful authentication of the identity of the signer and integrity of the document. Digital signatures are a subset of electronic signatures, but unlike other electronic signatures, digital signatures employ cryptography, i.e., are backed by a process such as a public key infrastructure. Sponsors may also continue to sign paper Forms DS-2019 forms in ink. The Department removes the requirement that the DS-2019 be signed in blue ink to allow greater flexibility for sponsors. The Department of State also recommends that sponsors remind applicants and their accompanying spouses and dependents, if any, that they must take a paper form to their visa interviews to be stamped and signed by a consular officer. They must also present a paper copy of their Forms DS-2019 at their ports of entry into the United States.

Several commenting parties also sought the flexibility to allow any Officer to sign Forms DS-2019 that they submit via batch processing, when Officers whose names were printed on forms are not present to sign paper forms. However, when Officers print or reprint Forms DS-2019, SEVIS automatically populates Field #7 with the name of the Officer who initially submitted the action, making it necessary for that Officer to sign the paper form. In the electronic environment, digital signatures are embedded in documents, allowing Officers to sign forms as they create them, thereby mitigating this concern.

Several commenting parties also asked whether different Officers could sign Forms DS-2019 when they are reprinted for travel purposes. As noted above, SEVIS prints in Field #7 the name of the Officer who initiated the print/reprint function. Since a signature must match the name of the Officer printed on each form, sponsors should ensure that Officers whose names appear on forms are available to sign them. The Officer that signs the original Form DS-2019 may be different than the Officer that reprints the form from SEVIS. The Department of State will explore the capability of enhancing SEVIS to allow users to select the names of Officers that will print on forms.

The Department of State changes the heading of paragraph (c) to “Transmission of Forms DS-2019” and clarifies to whom sponsors may transmit Forms DS-2019. Many commenting parties read the current regulatory language to limit sponsors' transmission of Forms DS-2019 to only “authorized parties,” meaning the Department of State and the Department of Homeland Security. Many commenters requested the Department of State expand the definition of “authorized parties.” To clarify this provision, the Department of State now specifically enumerates the parties to whom sponsors may transmit Forms DS-2019 electronically ( e.g., via email) or by mail ( e.g., via postal or delivery service): exchange visitors; accompanying spouses and dependents; legal guardians of minor exchange visitors; sponsor staff; Fulbright commissions and their staff; and Federal, State, and local government agencies or departments. The Fulbright commissions (and their staff) referenced above are authorized and established pursuant to section 103 of the Mutual Educational and Cultural Exchange Act of 1961 (commonly known as the Fulbright-Hays Act) (22 U.S.C. 2453). The Department of State notes that sponsors' Officers must ensure that Forms DS-2019 are secured; and they may transmit them electronically to other sponsor staff only on a shared network.

The Department of State clarifies that sponsors may continue to transmit paper Forms DS-2019 via mail to foreign third parties acting on their behalf to facilitate their gathering necessary paperwork for multiple applicants to take to their visa interviews. Sponsors may not transmit Forms DS-2019 electronically to foreign third parties, however, as the ability to transmit forms electronically to the parties enumerated above eliminates the need for foreign third parties to have access to electronic forms.

The Department of State makes case corrections and clarifying edits in this paragraph. It also eliminates the language establishing four weeks as the estimated time for responding to allotment requests since conditions outside the control of the Department of State may delay meeting any specific deadline. It also clarifies that sponsors should refer to the most recent version of the User Manual for Exchange Visitor Program Sponsor Users (RO/ARO) of SEVIS Volume I, Forms DS-3036 and DS-3037 on the j1visa.state.gov website to determine whether the Department of State has modified or updated the “other information” that the regulation states it may require. Otherwise, it maintains the current regulatory language.

22 CFR 62.12(e)(1). The Department of State replaces the term “SEVIS logon identification Numbers (IDs)” with the technically accurate term “SEVIS User Names.”

22 CFR 62.12(e)(2). The Department of State modifies this section to prohibit transmission of Forms DS-2019 to any parties other than those listed in paragraph (c).

22 CFR 62.12(e)(3). The Department of State adds the word “damaged” to be consistent with 22 CFR 62.12(a)(3)(iv). It reminds sponsors to use the reprint function in SEVIS to sign and transmit reprinted Forms DS-2019.

22 CFR 62.12(e)(4). The Department of State makes no changes to this section.

The Department of State is issuing this rulemaking as an interim final rule for the following reasons. In the 2014 rulemaking, the Department of State stated its view that the Exchange Visitor Program is a foreign affairs function of the U.S. Government and that rules implementing this function are exempt from sections 553 (Rulemaking) and 554 (Adjudications) of the Administrative Procedure Act (APA). It also asserts that this rulemaking is exempt from notice and comment for two separate reasons. First, the rule responds to relevant comments submitted in response to the 2014 final rule, and as such, is a logical outgrowth of the 2014 final rule. The changes included in this rulemaking constitute rules of “agency organization, procedure, or practice” (5 U.S.C. 553(b)(3)(A)). Also, the Department of State has “good cause” to find that notice and comment is “impracticable, unnecessary, or contrary to the public interest” (5 U.S.C. 553(b)(3)(B)). In the 2014 Final Rule, the Department of State sought comments on 22 CFR 62.12, the control of Forms DS-2019. This interim final rule responds to those commenters and adopts some changes that were recommended at that time. With respect to the procedural rule exception (5 U.S.C. 553(b)(3)(A)), the Department is expanding options for signing and transmitting Forms DS-2019, without eliminating the current method. Although there may be de minimis costs for sponsors to obtain digital signature software to avail themselves of the new digital signature provision (if they choose to do so), those sponsors who elect to continue the current procedure will not incur that cost. Accordingly, the Department of State believes that additional prior notice and public comment on this provision are not necessary.

This regulation is not a major rule as defined by 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based companies to compete with foreign-based companies in domestic and export markets.

This regulation will not result in the expenditure by State, local or Tribal governments, in the aggregate, or by the private sector, of $100 million in any year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq. ).

The Department of State has determined that this regulation will not have Tribal implications; will not impose substantial direct compliance costs on Indian Tribal governments; and will not preempt Tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

Since this rule is exempt from section 553 (Rulemaking) and section 554 (Adjudications) of the APA, this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. (1980)).

The Department of State has submitted this rule to the Office of Information and Regulatory Affairs, pursuant to its longstanding practice. 1 The Department of State certifies that the benefits of this rulemaking outweigh any costs, since sponsors and exchange visitors will more likely experience cost savings from the options presented herein, and sponsors have in fact requested the changes. The Office of Information and Regulatory Affairs has designated this rule as non-significant, as defined by Executive Order 12866.

The Department of State has reviewed this rulemaking considering sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burdens.

The Department of State finds that this regulation does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.

This rulemaking does not create or modify any information collection that is subject to 44 U.S.C. chapter 35.

For the reasons stated in the preamble, the Department of State amends 22 CFR part 62 as follows:

I. Background

Applicants for immigrant visas subject to numerical limitations prescribed in sections 201-203 of the INA, 8 U.S.C. 1151-1153, are generally chargeable to their country of birth. INA 203(e), 8 U.S.C. 1153(e), governs the order in which immigrant visas in the family-sponsored and employment-based preference categories under INA 203(a)-(b), 8 U.S.C. 1153(a)-(b), respectively, are allocated, and requires that visas in these categories be made available in the order in which the associated petition is filed.

INA 202(a)(2), 8 U.S.C. 1152(a)(2), imposes a “per country” limit of seven (7) percent of the total number of available family-sponsored and employment-based preference immigrant visas each fiscal year to nationals of individual foreign states. If the Department determines that preference visa issuances to nationals of a particular country will exceed the per-country limit, that country is identified in the Visa Bulletin as “oversubscribed” and INA 202(e), 8 U.S.C. 1152(e), requires that visas in each preference category must be pro-rated to ensure distribution across all preference categories. Individual family-sponsored and employment-based preference categories are also deemed “oversubscribed” when worldwide demand exceeds the number of immigrant visas available in those categories. Final action dates are listed in the Visa Bulletin when countries and visa categories are oversubscribed, and immigrant visas in categories with final action dates are available only to applicants with priority dates earlier than the listed final action date.

The EB-4 category consists of special immigrants as defined in the INA, including certain religious workers, certain current and former U.S. Government employees abroad, certain officers and employees of international organizations, and certain special immigrant juveniles (SIJs). See sections 203(b)(4) and 101(a)(27) of the INA, 8 U.S.C. 1153(b)(4), 1101(a)(27).

The Department seeks to clarify that the INA permits prorated allocation of available visas within an employment-based preference category to nationals from an individual country only when family-sponsored and employment-based preference visa demand from that country will exceed its per-country limit under INA section 202(a)(2), 8 U.S.C. 1152(a)(2). Consistent with this interpretation, the Department is no longer assigning separate final action and filing dates for individuals chargeable to any of the NCA Countries in the EB-4 category and individuals chargeable to these three countries are now subject to the dates in the column headed “All Chargeability Areas Except Those Listed” (referred to herein as “ROW,” meaning the rest of the world). The Department is required to make this change to bring Department practice, as reflected in the Visa Bulletin, into compliance with these INA provisions. As a result of this change, there is no longer a need for a separate column for the NCA Countries in the employment-based preference “Final Action Dates” and “Dates for Filing” charts in the Visa Bulletin.

Specifically, INA 202(a), 8 U.S.C. 1152(a), makes clear that the per-country limit, which is implemented by setting final action dates for a country in the Visa Bulletin, is triggered only when preference immigrant visa demand from a country will exceed seven percent of the total number of preference visas made available in INA section 203(a)-(b), 8 U.S.C. 1153(a)-(b); that is, seven percent of the total number available for all family-sponsored and employment-based preference immigrant visas available worldwide.

This change corrects misapplication of the law in prior Visa Bulletins, beginning with the May 2016 Visa Bulletin, which added a separate column to the “Final Action Dates for Employment-Based Preference Cases” table, showing that EB-4 applicants chargeable to the NCA Countries were assigned an EB-4 final action date separate from the ROW column and these three countries were listed as “oversubscribed” and subject to the pro-rating provision at INA 202(e)(3), 8 U.S.C. 1152(e)(3). The May 2016 Visa Bulletin explained that “extremely high demand” in the EB-4 category (including the EB-4 subcategory for Certain Religious Workers (SR)) for applicants from the NCA Countries required implementation of final action dates in the EB-4 category for these countries. EB-4 final action dates were thus established for these three countries since May 2016 based on their high demand for EB-4 visas. The same approach was reflected in subsequent Visa Bulletins and in the corresponding table with “Dates for Filing of Employment-Based Visa Applications,” beginning with the October 2017 Visa Bulletin. However, that contravenes the Department's current interpretation of the statutory prerequisite for when a country can be deemed oversubscribed and allocation of preference visas can be pro-rated: that the INA provision on pro-rating is based on a country's demand for more than seven percent of all preference visas, not one subcategory.

As none of the NCA Countries are expected to exceed the per-country limit under INA 202(a)(2), 8 U.S.C. 1152(a)(2), there is no basis under the INA to set final action dates and dates for filing for employment-based preference visas that are specific to those countries.

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of The Port Sector Upper Mississippi River DHS Department of Homeland Security FR Federal Register MM Mile marker NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this temporary safety zone immediately to protect personnel, vessels, and the marine environment from potential hazards created by the electrical work and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying this rule would be contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with the ongoing construction work.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with electrical line work will be a safety concern for anyone operating or transiting within the Missouri River from MM 175.5-176.5. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while electrical line work is being conducted.

Electrical line work will be occurring near MM 175.5-176.5 beginning March 24, 2023. The safety zone is designed to protect waterway users until work is complete.

No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of USCG Sector Upper Mississippi River. To seek permission to enter, contact the COTP or a designated representative via VHF-FM channel 16, or through USCG Sector Upper Mississippi River at 314-269-2332. Persons and vessels permitted to enter the safety zone must comply with all lawful orders or directions issued by the COTP or designated representative. The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement, as well as reductions in the size of the safety zone as conditions improve, through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Safety Marine Information Broadcast (SMIB), as appropriate.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 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. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on a safety zone located on the Missouri River at MM 175.5-176.5, near Jefferson City, MO. The Safety Zone is expected to be active only during the hours of 9 a.m. through 4 p.m., or only when work is being conducted, every day until April 21, 2023.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator because the zone will be enforced only when work is being conducted.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone encompassing the width of the Missouri River at MM 175.5-176.5. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

On October 28, 2022, the Department published in the Federal Register final regulations that, among other things, establish requirements for postsecondary educational institutions to offer PEPs (87 FR 65426), effective July 1, 2023. The approval process for new PEPs under § 668.237(b) requires review by the postsecondary educational institution's accrediting agency. Specifically, under § 668.237(b)(4), the accrediting agency must have reviewed and approved the methodology for how the institution, in collaboration with the oversight entity, made the determination that the prison education program meets the same standards as substantially similar programs that are not prison education programs at the institution. Under § 668.236(a)(3), however, the oversight entity is not required to make this determination until two years after the initial PEP is approved to operate by the Department.

We are correcting § 668.237(b)(4) by adding the words “If the requirements of § 668.236(a)(3) are satisfied,” to make clear that, as part of its review of new PEPs, the accrediting agency reviews the referenced methodology only after the two-year period set forth in § 668.236(a)(3).

On January 27, 2023, NMFS published a final rule on in-season action announcement procedures for PBF (88 FR 5273). Due to an error on the deadline for comment submissions, NMFS did not see, and therefore did not respond, to a public comment submitted during the public comment period of the proposed rule. Upon learning of this error, NMFS immediately took steps to issue this correction to the final rule that addresses the comment.

The NMFS Assistant Administrator has determined that this final rule is consistent with the Tuna Conventions Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

Section 553(b)(B) of the Administrative Procedure Act (APA) authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” The Assistant Administrator for Fisheries determined that there is good cause to waive prior notice and an opportunity for public comment on this action because this action is simply to correct an inadvertent error in the January 27 final rule (88 FR 5273) that would not change the final action. Immediate correction of the error is necessary to adequately respond to public comments received during the proposed rulemaking stage in accordance with the APA.

Under section 553(d) of the APA, an agency must delay the effective date of regulations for 30 days after the date of publication, unless the agency finds good cause to make the regulations effective sooner. For the same reasons stated above, the Assistant Administrator for Fisheries has determined good cause exists to waive the 30-day delay in the date of effectiveness. This correction only addresses a public comment but does not change the action in the January 27 final rule, which became effective on February 27, 2023, and NMFS does not anticipate in-season action on PBF until spring 2023 at the earliest. Delaying effectiveness of the January 27 final rule due to this correction would result in confusion among fishery participants and increase the risk of exceeding PBF catch limits, and would therefore be contrary to public interest.

The Regulatory Flexibility Act, 5 U.S.C. 603 and 604, requires an agency to prepare an initial and a final regulatory flexibility analysis whenever an agency is required by section 553 of the APA or any other law to publish a general notice of proposed rulemaking. Because NMFS found good cause under section 553(b)(3)(B) of the APA to forgo publication of a notice of proposed rulemaking, the regulatory flexibility analyses described in 5 U.S.C. 603 and 604 are not required for this rulemaking.

This final rule contains no collection of information requirements under the Paperwork Reduction Act of 1995.

In FR Rule Doc. 2023-01447 (88 FR 5273), appearing in the Federal Register on Friday, January 27, 2023, the following corrections are made:

1. On page 5273, in the second column, in the second paragraph, the last sentence is revised to read, “NMFS received two public comments on the proposed rule, which are addressed later in this preamble.”

2. On page 5273, in the third column, above the Classification section, a new section is added to read as follows:

NMFS received two public comments on the proposed rule. One comment, from an individual commenter, voiced general support for management actions to conserve Pacific bluefin tuna (PBF). The other comment, from the Center for Biological Diversity, asserted that NMFS has failed to consider the impacts to protected species of the proposed rule and asked NMFS to delay publication of the final rule until an updated Endangered Species Act (ESA) consultation on the impacts of the drift gillnet fleet on humpback whales is “complete.” NMFS has considered the comment and will not change the final rule to implement the previously described revision in regulations. The comment included two main components, and NMFS' response to each component is below.

Component 1: The commenter asserts that, because drift gillnet catches of PBF have increased, NMFS mischaracterized these catches as “incidental.” The commenter also states that this is illustrated by NMFS characterizing the purse seine fleet as targeting PBF when the majority of the purse seine-caught landings, or tuna landings, are not PBF.

NMFS Response to Component 1: NMFS acknowledges the drift gillnet fleet off of the West Coast catches and retains various marketable species, including PBF. Drift gillnet has a long history of catching PBF incidentally, and it has always been a marketable species that contributes to drift gillnet revenues (see Pacific Fisheries Information Network [PacFIN] Apex Reports Highly Migratory Species SAFE Reports 003 and 009 at https://pacfin.psmfc.org/ ). PBF have become more abundant in U.S. waters in recent years and, therefore, are more likely to be caught. Additionally, this coincides with a reduction in landings (PacFIN) in recent years and anecdotal evidence from fishermen that swordfish were locally less abundant off California in 2021 and 2022, which may be the cause for the landings composition presented in the comment.

The final rule had two parts: (1) amend the in-season action announcement procedures to allow for quicker in-season action that would improve NMFS' ability to remain within the internationally-agreed PBF catch limit, and (2) disincentivize regulatory discards by allowing fish already on board to be landed within 24 hours of any in-season actions to reduce trip limits.

Regarding the second part, only the purse seine fleet is likely to be affected. The existing trip limit scheme in accordance with a final rule published on August 5, 2022 (87 FR 47939) that is applicable to 2022-2024 reduces the trip limit as cumulative catches in the year reach thresholds. The lowest trip limit in 2023-2024 will be 3 metric tons, after which the next threshold reached would result in the fishery closing. In recent years, no drift gillnet (DGN) vessel has caught more than 3 mt of PBF in a single trip. Therefore, the component allowing 24 hours to land fish after in-season actions to reduce trip limits would not apply to DGN because that fleet would only be impacted by the in-season action to close the fishery. Furthermore, as noted in the proposed rule, allowing vessels to land or transship fish on board for 24 hours after the in-season action notice is consistent with the policy in the event of a fishery closure, which has been in place since 2014, and reduces the likelihood of regulatory discards. NMFS will consider using a different term other than “incidental” to describe the DGN PBF fishing activities in future rulemakings; however, any changes in the use of the term will not impact implementation of the final rule.

Regarding the catch composition of the coastal purse seine fleet, NMFS notes that catches of PBF have been restricted due to an international rebuilding plan, whereas there are no international catch limits for yellowfin tuna. There are periods where the coastal purse seine fleet chooses to target species other than PBF ( e.g., yellowfin tuna, market squid) to make a larger profit, and it is not uncommon for a purse seine vessel to catch more yellowfin tuna than PBF on a single trip because NMFS has imposed restrictive trip limits for PBF. Ultimately, the impacts of the rule will not change whether a fleet targets PBF or catches and retains PBF incidentally because the trip limits and in-season action procedures apply regardless of intention when PBF was caught.

Component 2: The commenter argues that an ESA consultation is necessary because the proposed rule “could increase the time that humpback whales co-occur with the California drift gillnet fishery, and thus increase entanglement risk.” The commenter notes that “[t]he proposed rule states that the intent behind the revised announcement procedures is efficiency: `to allow for quicker in-season action in part because the Pacific bluefin tuna fishery may catch a lot of the catch limit in a short period of time.' ” The commenter goes on to assert: “A more efficient fishery—one that is managed to allow a lot of Pacific bluefin tuna caught in a short period—is not necessarily good for conservation. Specifically, indiscriminate fishing increases the risk of entanglement for humpback whales. NMFS could reduce the risk of entanglement of humpback whales by limiting the fishery well before the vessels approach the bluefin tuna catch limits.”

NMFS response to Component 2: Contrary to the commenter's suggestion, taking quicker in-season action will neither result in a more efficient fishery in which a lot of PBF can be caught in a short period, nor will it result in “indiscriminate fishing” that increases the risk of entanglement for humpback whales. This final rule simply increases NMFS' ability to take in-season action quickly to reduce trip limits or close the fishery in a manner that aids the United States in adhering to international catch limits while avoiding regulatory discards.

With respect to the commenter's suggestion that NMFS could reduce the risk of entanglement of humpback whales by limiting the fishery well before vessels approach the catch limits, NMFS views this comment as in part directed to the existing trip limit scheme applicable to 2022-2024 (87 FR 47939, August 5, 2022), as well as the announcement procedures in the proposed rule (87 FR 70766, November 21, 2022). The trip limit scheme was modeled on the management approach in 2021 ( e.g., trip limits, quicker in-season action announcement, electronic landing receipts). This was recommended by the Pacific Fishery Management Council (PFMC) at its November 2021 meeting.

The PFMC recommendation and original proposed rule for 2022-2024 regulations intended to have quicker in-season action announcement procedures to support operational flexibility and reduce the risk of exceeding the internationally-agreed catch limits. NMFS proposed the new in-season action procedures to adhere to the intent behind the Council recommendation (87 FR 70766, November 21, 2022). Additional history on the more recent approaches to managing PBF may be found in the proposed rule for the 2021 regulations (86 FR 279, January 5, 2021) and the proposed rule for the 2022-2024 regulations (87 FR 12409, March 4, 2022) for PBF. Among other things, these proposed rules explain that relying solely on the Federal Register notice for in-season action contributed to the United States exceeding its internationally-agreed catch limit in 2017. Since then, NMFS implemented reduced trip limits and, more recently, trip limits that reduce as cumulative catches for the calendar year, quicker in-season action procedures, and a requirement for PBF buyers to submit electronic landing receipts within 24 hours of a landing. Reducing trip limits or closing a fishery earlier is outside the scope of this proposed rule because the thresholds to take in-season action have already been implemented with the August 5, 2022, final rule (87 FR 47939). While it is uncertain whether the current characteristics of the PBF fishery will continue, it is imperative we manage the fishery in a manner that improves NMFS' ability to adhere to international catch limits.

3. On page 5273, in the third column, in the Classification section, the paragraph under the header Economic Analyses is corrected to read:

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that, for purposes of the Regulatory Flexibility Act, this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No information received during the public comment period changes the action from the proposed rule or NMFS' analysis. The Center for Biological Diversity suggested that drift gillnet vessels are incorrectly characterized as catching Pacific bluefin tuna incidentally, however, whether characterized as incidentally catching or targeting Pacific bluefin tuna in relatively small quantities does not change the factual basis for the certification published. Therefore, the initial certification published with the proposed rule—that this rule is not expected to have a significant economic impact on a substantial number of small entities—remains unchanged. As a result, a regulatory flexibility analysis was not required and none was prepared.

There are no other corrections to the final rule published on January 27, 2023.