[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]
[Unknown Section]
[Pages 64213-64245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X09-101207]


[[Page 64213]]




DEPARTMENT OF HOMELAND SECURITY (DHS)



Statement of Regulatory Priorities
The Department of Homeland Security (DHS) was created in 2003 pursuant 
to the Homeland Security Act of 2002, Pub. L. 107-296. DHS has a vital 
mission: to secure the nation from the many threats we face. This 
requires the dedication of more than 225,000 employees in jobs that 
range from aviation and border security to emergency response, from 
cybersecurity analyst to chemical facility inspector. Our duties are 
wide-ranging, but our goal is clear -- keeping America safe.
Our mission gives us five main areas of responsibility:
1. Guarding against Terrorism,
2. Securing our Borders,
3. Enforcing our Immigration Laws,
4. Improving our Readiness for, Response to and Recovery from 
            Disasters, and
5. Maturing and Unifying the Department.
In achieving these goals, we are continually strengthening our 
partnerships with communities, first responders, law enforcement, and 
government agencies -- at the State, local, tribal, Federal and 
international levels. We are accelerating the deployment of science, 
technology, and innovation in order to make America more secure. And we 
are becoming leaner, smarter, and more efficient, ensuring that every 
security resource is used as effectively as possible. For a further 
discussion of our five main areas of responsibility, see the DHS 
website at http://www.dhs.gov/xabout/responsibilities.shtm.
The regulations we have summarized below in the Department's Fall 2009 
Regulatory Plan and in the Unified Agenda support the Department's five 
responsibility areas listed above. These regulations will improve the 
Department's ability to accomplish its mission.
The regulations we have identified in the this year's Fall Regulatory 
Plan continue to address recent legislative initiatives including, but 
not limited to, the following acts: the Implementing Recommendations of 
the 9/11 Commission Act of 2008 (9/11 Act), Pub. L. 110-53 (Aug. 3, 
2007); the Post-Katrina Emergency Management Reform Act of 2006 
(PKEMRA), Pub. L. 109-295 (Oct. 4, 2006); the Consolidated Natural 
Resources Act of 2008 (CNRA), Pub. L. No. 110-220 (May 7, 2008); the 
Security and Accountability for Every Port Act of 2006 (SAFE Port Act), 
Pub. L. 109-347 (Oct. 13, 2006); and the Consolidated Security, 
Disaster Assistance, and Continuing Appropriations Act, 2009, Pub. L. 
110-329 (Sept. 30, 2008).
DHS strives for organizational excellence and uses a centralized and 
unified approach in managing its regulatory resources. The Office of 
the General Counsel manages the Department's regulatory program, 
including the Unified Regulatory Agenda and Regulatory Plan. In 
addition, DHS senior leadership reviews each significant regulatory 
project to ensure that the project fosters and supports the 
Department's mission.
DHS is committed to ensuring that all of its regulatory initiatives are 
aligned with its guiding principles to protect civil rights and civil 
liberties, integrate our actions, build coalitions and partnerships, 
develop human resources, innovate, and be accountable to the American 
public. DHS is also committed to the principles described in Executive 
Order 12,866, as amended, such as promulgating regulations that are 
cost-effective and maximizing the net benefits of regulations. The 
Department values public involvement in the development of its 
Regulatory Plan, Unified Agenda, and regulations, and takes particular 
concern with the impact its rules have on small businesses. DHS and 
each of its components continue to emphasize the use of plain language 
in our notices and rulemaking documents to promote a better 
understanding of regulations and increased public participation in the 
Department's rulemakings.
The Fall 2009 Regulatory Plan for DHS includes regulations from the 
Department's major offices and directorates such as the National 
Protection and Programs Directorate (NPPD). In addition, it includes 
regulations from DHS components -- including U.S. Citizenship and 
Immigration Services (USCIS), the U.S. Coast Guard (Coast Guard), U.S. 
Customs and Border Protection (CBP), the Federal Emergency Management 
Agency (FEMA), the U.S. Immigration and Customs Enforcement (ICE), and 
the Transportation Security Administration (TSA) -- that have active 
regulatory programs. Below is a discussion of the Fall 2009 Regulatory 
Plan for DHS offices and directorates as well as DHS regulatory 
components.
United States Citizenship and Immigration Services
U.S. Citizenship and Immigration Services (USCIS) administers 
immigration services and benefits through the rule of law while 
ensuring that no one is admitted to the United States who is a threat 
to public safety or national security. As a nation of immigrants, the 
United States has a strong commitment to welcoming those individuals 
who seek legal entry through our immigration system, and to also assist 
those in need of humanitarian protection against harm. USCIS seeks to 
welcome lawful immigrants while preventing exploitation of the 
immigration system and to create and maintain a high-performing, 
integrated, public service organization.
Based on a comprehensive review of the USCIS planned regulatory agenda, 
USCIS will promulgate several rulemakings to directly support these 
commitments and goals.
Regulations Related to the Commonwealth of Northern Mariana Islands
During 2009, USCIS issued a series of regulations to implement the 
transition of U.S. immigration law to the Commonwealth of Northern 
Mariana Islands (CNMI) as required under title VII of the Consolidated 
Natural Resources Act of 2008. USCIS will be issuing the following CNMI 
final rules during Fiscal Year 2010: ``CNMI Transitional Worker 
Classification,'' E-2 Nonimmigrant Status for Aliens of the CNMI with 
Long-Term Investor Status, and the joint USCIS/Department of Justice 
regulation ``Application of Immigration Regulations to the CNMI.''
Improvements to the Immigration System
USCIS strives to provide efficient, courteous, accurate, and responsive 
services to those who seek and qualify to come to our country, as well 
as to provide seamless, transparent, and dedicated customer support 
services. To improve our customer service goals, USCIS is pursuing a 
regulatory initiative that will provide for visa number lottery 
selection of H-1B petitions based on electronic registration.
Registration Requirements for Employment-Based Categories Subject to 
Numerical Limitations. USCIS is considering proposing a revised 
registration process for cap-subject H-1B petitioners. The rule would 
propose to create a process by which USCIS would randomly select a 
sufficient number of

[[Page 64214]]

timely filed registrations to meet the applicable cap. Only those 
petitioners whose registrations are randomly selected would be eligible 
to file an H-1B petition for a cap-subject prospective worker. 
Enhancing customer service, the rule would eliminate the need for 
petitioning employers to prepare and file complete H-1B petitions 
before knowing whether a prospective worker has ``won'' the H-1B 
lottery. The rule would also reduce the burden on USCIS of entering 
data and subsequently returning non-selected petitions to employers 
once the cap is reached.
Regulatory Changes Involving Humanitarian Benefits
USCIS offers protection to individuals who face persecution by 
adjudicating applications for refugees and asylees. Other humanitarian 
benefits are available to individuals who have been victims of severe 
forms of trafficking or criminal activity.
Asylum and Withholding Definitions. USCIS plans a regulatory effort to 
amend the regulations that govern asylum eligibility. The amendments 
are expected to focus on portions of the regulations that deal with 
determinations of whether persecution is inflicted on account of a 
protected ground, the requirements for establishing the failure of 
State protection, and the parameters for defining membership in a 
particular social group. This effort should provide greater stability 
and clarity in this important area of the law.
``T'' and ``U'' Nonimmigrants. USCIS plans additional regulatory 
initiatives related to T nonimmigrants (victims of trafficking), U 
nonimmigrants (victims of criminal activity), and Adjustment of Status 
for T and U status holders. By promulgating additional regulations 
related to these victims of specified crimes or severe forms of 
trafficking in persons, USCIS hopes to provide greater stability for 
these vulnerable groups, their advocates, and the community. These 
rulemakings will contain provisions that seek to ease documentary 
requirements for this vulnerable population and provisions that provide 
clarification to the law enforcement community. As well, publication of 
these rules will inform the community on how their petitions are 
adjudicated.
United States Coast Guard
The U.S. Coast Guard (Coast Guard) is a military, multi-mission, 
maritime service of the United States and the only military 
organization within DHS. It is the principal federal agency responsible 
for maritime safety, security, and stewardship and delivers daily value 
to the Nation through multi-mission resources, authorities, and 
capabilities.
Effective governance in the maritime domain hinges upon an integrated 
approach to safety, security, and stewardship. The Coast Guard's 
policies and capabilities are integrated and interdependent, delivering 
results through a network of enduring partnerships. The Coast Guard's 
ability to field versatile capabilities and highly-trained personnel is 
the U.S. Government's most significant and important strength in the 
maritime environment.
America is a maritime nation, and our security, resilience, and 
economic prosperity are intrinsically linked to the oceans. Safety, 
efficient waterways, and freedom of transit on the high seas are 
essential to our well-being. The Coast Guard is leaning forward, poised 
to meet the demands of the new millennium. The Coast Guard creates 
value for the public through solid prevention and response efforts. 
Activities involving oversight and regulation, enforcement, maritime 
presence, and public and private partnership foster increased maritime 
safety, security, and stewardship.
The statutory responsibilities of the Coast Guard include ensuring 
marine safety and security, preserving maritime mobility, protecting 
the marine environment, enforcing U.S. laws and international treaties, 
and performing search and rescue. The Coast Guard supports the 
Department's overarching goals of mobilizing and organizing our Nation 
to secure the homeland from terrorist attacks, natural disasters, and 
other emergencies. In performing its duties, the Coast Guard fulfills 
its three broad roles and responsibilities - maritime safety, maritime 
security, and maritime stewardship.
The rulemaking projects identified for the Coast Guard in the Unified 
Agenda, and the two rules appearing in the Fall 2009 Regulatory Plan 
below, contribute to the fulfillment of those responsibilities and 
reflect our regulatory policies. The Coast Guard has issued many rules 
supporting maritime safety, security and environmental protection as 
indicated by the wide range of topics covered in its rulemaking 
projects in this Unified Agenda.
Inspection of Towing Vessels. In 2004, Congress amended U.S. law by 
adding towing vessels to the types of commercial vessels that must be 
inspected by the Coast Guard. Congress also provided guidance relevant 
to the use of a safety management system as part of the inspection 
regime. The intent of the proposed rule is to promote safer work 
practices and reduce casualties on towing vessels by ensuring that 
towing vessels adhere to prescribed safety standards and safety 
management systems. The proposed rule was developed in cooperation with 
the Towing Vessel Safety Advisory Committee (TSAC). It would establish 
a new subchapter dedicated to towing vessels and covering vessel 
equipment, systems, operational standards, and inspection requirements. 
To implement this change, the Coast Guard is developing regulations to 
prescribe standards, procedures, tests, and inspections for towing 
vessels. This rulemaking supports maritime safety and maritime 
stewardship.
Standards for Living Organisms in Ships' Ballast Water Discharged in 
U.S. Waters. This rule would set performance standards for the quality 
of ballast water discharged in U.S. waters and require that all vessels 
that operate in U.S. waters, are bound for ports or places in the U.S., 
and are equipped with ballast tanks, install and operate a Coast Guard 
approved Ballast Water Management System (BWMS) before discharging 
ballast water into U.S. waters. This would include vessels bound for 
offshore ports or places. As the effectiveness of ballast water 
exchange varies from vessel to vessel, the Coast Guard believes that 
setting performance standards would be the most effective way for 
approving BWMS that are environmentally protective and scientifically 
sound. Ultimately, the approval of BWMS would require procedures 
similar to those located in title 46, subchapter Q, of the Code of 
Federal Regulations, to ensure that the BWMS works not only in the 
laboratory but under shipboard conditions. These would include: pre-
approval requirements, application requirements, land-based/shipboard 
testing requirements, design and construction requirements, electrical 
requirements, engineering requirements, and piping requirements. This 
requirement is intended to meet the directive from the National 
Invasive Species Act (NISA) requiring the Coast Guard to ensure to the 
maximum extent practicable that nonindigenous species (NIS) are not 
discharged into U.S. waters. This rulemaking supports maritime 
stewardship. As well, this rulemaking provides additional benefits. 
Ballast water discharged from ships is a

[[Page 64215]]

significant pathway for the introduction and spread of non-indigenous 
aquatic nuisance species. These organisms, which may be plants, 
animals, bacteria or pathogens, have the potential to displace native 
species, degrade native habitats, spread disease and disrupt human 
economic and social activities that depend on water resources.
The Coast Guard has supported the e-rulemaking initiative and, starting 
on the day of the first Federal Register publication in a rulemaking 
project, the public can submit comments electronically and view agency 
documents and public comments on the Federal Register's Document 
Management System, which is available online at http://
www.regulations.gov/search/Regs/home.htmlhome. The Coast Guard 
endeavors to reduce the paperwork burden it places on the public and 
strives to issue only necessary regulations that are tailored to impose 
the least burden on society.
United States Customs and Border Protection
U.S. Customs and Border Protection (CBP) is the federal agency 
principally responsible for the security of our Nation's borders, both 
at and between the ports of entry and at official crossings into the 
United States. CBP must accomplish its border security and enforcement 
mission without stifling the flow of legitimate trade and travel. The 
primary mission of CBP is its homeland security mission, that is, to 
prevent terrorists and terrorist weapons from entering the United 
States. An important aspect of this priority mission involves improving 
security at our borders and ports of entry, but it also means extending 
our zone of security beyond our physical borders.
CBP also is responsible for administering laws concerning the 
importation into the United States of goods, and enforcing the laws 
concerning the entry of persons into the United States. This includes 
regulating and facilitating international trade; collecting import 
duties; enforcing U.S. trade, immigration and other laws of the United 
States at our borders; inspecting imports, overseeing the activities of 
persons and businesses engaged in importing; enforcing the laws 
concerning smuggling and trafficking in contraband; apprehending 
individuals attempting to enter the United States illegally; protecting 
our agriculture and economic interests from harmful pests and diseases; 
servicing all people, vehicles and cargo entering the U.S.; maintaining 
export controls; and protecting American businesses from theft of their 
intellectual property.
In carrying out its priority mission, CBP's goal is to facilitate the 
processing of legitimate trade and people efficiently without 
compromising security. Consistent with its primary mission of homeland 
security, CBP published several final and proposed rules during the 
last fiscal year and intends to propose and finalize others during the 
next fiscal year that are intended to improve security at our borders 
and ports of entry. We have highlighted some of these rules below.
Electronic System for Travel Authorization. On June 9, 2008, CBP 
published an interim final rule amending DHS regulations to implement 
the Electronic System for Travel Authorization (ESTA) for aliens who 
wish to enter the United States under the Visa Waiver Program (VWP) at 
air or sea ports of entry. This rule is intended to fulfill the 
requirements of section 711 of the Implementing Recommendations of the 
9/11 Commission Act of 2007 (9/11 Act). The rule establishes ESTA and 
delineates the data fields DHS has determined will be collected by the 
system. The rule requires that each alien traveling to the United 
States under the VWP must obtain electronic travel authorization via 
the ESTA System in advance of such travel. VWP travelers may obtain the 
required ESTA authorization by electronically submitting to CBP 
biographic and other information as currently required by the I-94W 
Nonimmigrant Alien Arrival/Departure Form (I-94W). By Federal Register 
notice dated November 13, 2008, the Secretary of Homeland Security 
informed the public that ESTA would become mandatory beginning January 
12, 2009. This means that all VWP travelers must either obtain travel 
authorization in advance of travel under ESTA or obtain a visa prior to 
traveling to the United States.
By shifting from a paper to an electronic form and requiring the data 
in advance of travel, CBP will be able to determine before the alien 
departs for the U.S., the eligibility of nationals from VWP countries 
to travel to the United States and to determine whether such travel 
poses a law enforcement or security risk. By modernizing the VWP, the 
ESTA is intended to increase national security and provide for greater 
efficiencies in the screening of international travelers by allowing 
for vetting of subjects of potential interest well before boarding, 
thereby reducing traveler delays based on lengthy processes at ports of 
entry. CBP intends to issue a final rule during the next fiscal year.
Importer Security Filing and Additional Carrier Requirements. The 
Security and Accountability for Every Port Act of 2006 (SAFE Port Act), 
calls for CBP to promulgate regulations to require the electronic 
transmission of additional data elements for improved high-risk 
targeting. See Pub. L. No. 109-347, Sec.  203 (Oct. 13, 2006). This 
includes appropriate security elements of entry data for cargo destined 
for the United States by vessel prior to loading of such cargo on 
vessels at foreign seaports. Id. The SAFE Port Act requires that the 
information collected reasonably improve CBP's ability to identify 
high-risk shipments to prevent smuggling and ensure cargo safety and 
security. Id.
On November 25, 2008, CBP published an interim final rule ``Importer 
Security Filing and Additional Carrier Requirements,'' amending CBP 
Regulations to require carriers and importers to provide to CBP, via a 
CBP approved electronic data interchange system, information necessary 
to enable CBP to identify high-risk shipments to prevent smuggling and 
ensure cargo safety and security. This rule, which became effective on 
January 26, 2009, improves CBP's risk assessment and targeting 
capabilities, facilitates the prompt release of legitimate cargo 
following its arrival in the United States, and assists CBP in 
increasing the security of the global trading system. The comment 
period for the interim final rule concluded on June 1, 2009. CBP is 
analyzing comments and conducting a structured review of certain 
flexibilities provided in the interim final rule. CBP intends to 
publish a final rule during the next fiscal year.
Implementation of the Guam-CNMI Visa Waiver Program. CBP published an 
interim final rule in November 2008 amending the DHS Regulations to 
replace the current Guam Visa Waiver Program with a new Guam-CNMI Visa 
Waiver program. This rule implements portions of the Natural Resources 
Act of 2008 (CNRA), which extends the immigration laws of the United 
States to the Commonwealth of the Northern Mariana Islands (CNMI) and 
among other things, provides for a visa waiver program for travel to 
Guam and the CNMI. The amended regulations set forth the requirements 
for nonimmigrant visitors who seek admission for business or pleasure 
and solely for entry into and stay on Guam or the CNMI

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without a visa. The rule also establishes six ports of entry in the 
CNMI for purposes of administering and enforcing the Guam-CNMI Visa 
Waiver program.
Global Entry Program. Pursuant to section 7208(k) of the Intelligence 
Reform and Terrorism Prevention Act of 2004, as amended, in the fall of 
2009, CBP issued a notice of proposed rulemaking (NPRM), proposing to 
establish an international trusted traveler program, called Global 
Entry. This voluntary program would allow CBP to expedite clearance of 
pre-approved, low-risk air travelers into the United States. CBP has 
been operating the Global Entry program as a pilot at several airports 
since June 6, 2008. Based on the successful operation of the pilot, CBP 
now proposes to establish Global Entry as a permanent voluntary 
regulatory program. CBP will evaluate the public comments received in 
response to the NPRM, in order to develop a final rule.
The rules discussed above foster DHS's mission. Under section 403(1) of 
the Homeland Security Act of 2002, the former-U.S. Customs Service, 
including functions of the Secretary of the Treasury relating thereto, 
transferred to the Secretary of Homeland Security. As part of the 
initial organization of DHS, the Customs Service inspection and trade 
functions were combined with the immigration and agricultural 
inspection functions and the Border Patrol and transferred into CBP. It 
is noted that certain regulatory authority of the United States Customs 
Service relating to customs revenue functions was retained by the 
Department of the Treasury (see the Department of the Treasury 
Regulatory Plan). In addition to its plans to continue issuing 
regulations to enhance border security, CBP, during fiscal year 2010, 
expects to continue to issue regulatory documents that will facilitate 
legitimate trade and implement trade benefit programs. CBP regulations 
regarding the customs revenue function are discussed in the Regulatory 
Plan of the Department of the Treasury.
Federal Emergency Management Agency
FEMA's mission is to support our citizens and first responders to 
ensure that as a nation we work together to build, sustain, and improve 
our capability to prepare for, protect against, respond to, recover 
from, and mitigate all hazards. In fiscal year 2010, FEMA will continue 
to serve that mission and promote the Department of Homeland Security's 
goals. In furtherance of the Department and agency's goals, in the 
upcoming fiscal year, FEMA will be working on regulations to implement 
provisions of the Post-Katrina Emergency Management Reform Act of 2006 
(PKEMRA) (Public Law 109-295, Oct. 4, 2006), the U.S. Troop Readiness, 
Veterans' Care, Katrina Recovery, and Iraq Accountability 
Appropriations Act, 2007 (Public Law 110-28, May 25, 2007), and to 
implement lessons learned from past events.
Disaster Assistance; Federal Assistance to Individuals and Households. 
FEMA intends to update the current interim rule titled ``Disaster 
Assistance; Federal Assistance to Individuals and Households.'' This 
rulemaking would implement section 408 of the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act (the Stafford Act) (42 
U.S.C. 5121-5207). It would also make further revisions to 44 CFR part 
206, subparts D (the Individuals and Households Program (IHP)) and 
remove subpart E (Individual and Family Grant Programs). Among other 
things, it would implement section 686 of PKEMRA to remove the IHP 
subcaps; implement section 685 regarding semi-permanent and permanent 
housing construction eligibility; revise FEMA's regulations related to 
individuals with disabilities pursuant to PKEMRA section 689; and 
revise FEMA's regulations to allow for the payment of security deposits 
and the costs of utilities, excluding telephone service, in accordance 
with section 689d of PKEMRA. This regulation also would propose to 
implement section 689f of PKEMRA by authorizing assistance to relocate 
individuals displaced from their predisaster primary residence, to and 
from alternate locations for short-or long-term accommodations.
Public Assistance Program regulations. FEMA will also work to revise 
the Public Assistance Program regulations in 44 CFR part 206 to reflect 
changes made to the Stafford Act by PKEMRA, the Pets Evacuation and 
Transportation Standards Act of 2006 (PETS Act) (Public Law 109-308, 
Oct., 2006), the Local Community Recovery Act of 2006 (Public Law 109-
218, Apr. 20, 2006), and the Security and Accountability for Every Port 
Act of 2006 (SAFE Port Act) (Public Law 109-347, Oct. 13, 2006), and to 
make other substantive and nonsubstantive clarifications and 
corrections to the Public Assistance regulations. The proposed changes 
would expand eligibility to include performing arts facilities and 
community arts centers pursuant to section 688 of PKEMRA; include 
education in the list of critical services pursuant to section 689h of 
PKEMRA, thus allowing private nonprofit educational facilities to be 
eligible for restoration funding; add accelerated Federal assistance to 
available assistance and precautionary evacuations to activities 
eligible for reimbursement pursuant to section 681 of PKEMRA; include 
household pets and service animals in essential assistance pursuant to 
section 689 of PKEMRA and section 4 of the PETS Act; provide for 
expedited payments of grant assistance for the removal of debris 
pursuant to section 610 of the SAFE Port Act; and allow for a contract 
to be set aside for award based on a specific geographic area pursuant 
to section 2 of the Local Community Recovery Act of 2006. Other changes 
would include adding or changing requirements to improve and streamline 
the Public Assistance grant application process.
Special Community Disaster Loans. In addition, FEMA intends to address 
public comments and publish a final rule that would implement loan 
cancellation provisions for Special Community Disaster Loans (SCDLs). 
FEMA provided SCDLs to local governments in the Gulf region following 
Hurricanes Katrina and Rita. This rule would not result in the 
automatic cancellation of all SCDLs. It would finalize the procedures 
and requirements for governments who received SCDLs to apply for 
cancellation of loan obligations as authorized by section 4502 of the 
U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq 
Accountability Appropriations Act, 2007. The final rule would establish 
the procedures by which loan holders would provide FEMA with 
information that would then be used to determine when cancelation of a 
SCDL, in whole or in part, is warranted. The final rule would not apply 
to any loans made under FEMA's traditional Community Disaster Loans 
Program which is governed under separate regulations.
Federal Law Enforcement Training Center
The Federal Law Enforcement Training Center (FLETC) does not have any 
significant regulatory actions planned for fiscal year 2010.
United States Immigration and Customs Enforcement
The mission of the U.S. Immigration and Customs Enforcement (ICE) is to 
protect national security by enforcing our nation's customs and 
immigration laws. During fiscal year 2010, ICE will

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pursue rulemaking actions that improve three critical subject areas: 
the processes for the Student and Exchange Visitor Program (SEVP); the 
detention of aliens who are subject to final orders of removal; and the 
electronic signature and storage of Form I-9, Employment Eligibility 
Verification.
Processes for the Student and Exchange Visitor Program. ICE will 
improve SEVP processes by publishing the Optional Practical Training 
(OPT) final rule, which will respond to comments on the OPT interim 
final rule (IFR). The IFR increased the maximum period of OPT from 12 
months to 29 months for nonimmigrant students who have completed a 
science, technology, engineering, or mathematics (STEM) degree and who 
accept employment with employers who participate in the U.S. 
Citizenship and Immigration Services E-Verify employment verification 
program.
In addition, ICE will publish proposed revisions of 8 CFR 214.1-4 in a 
regulation that will clarify the criteria for F, M and J nonimmigrant 
status and for schools certified by SEVP, update policy and procedure 
for SEVP, remove obsolete provisions, and support the implementation of 
a major reprogramming of the Student and Exchange Visitor Information 
System (SEVIS), known as ``SEVIS II.''
Detention of Aliens Subject to Final Orders of Removal. ICE will also 
improve the post order custody review process in the final rule related 
to the Continued Detention of Aliens Subject to Final Orders of Removal 
in light of the Supreme Court's decisions in Zadvydas v. Davis, 533 
U.S. 678 (2001), Clark v. Martinez, 543 U.S. 371 (2005). ICE will also 
make conforming changes as required by the Homeland Security Act of 
2002.
Electronic Signature and Storage of Form I-9, Employment Eligibility 
Verification. A final rule on the Electronic Signature and Storage of 
Form I-9, Employment Eligibility Verification will respond to comments 
and make minor changes to the IFR that was published in 2006.
National Protection and Programs Directorate
The goal of the National Protection and Programs Directorate (NPPD) is 
to advance the Department's risk-reduction mission. Reducing risk 
requires an integrated approach that encompasses both physical and 
virtual threats and their associated human elements.
Secure Handling of Ammonium Nitrate Program
The Secure Handling of Ammonium Nitrate Act, section 563 of the Fiscal 
Year 2008 Department of Homeland Security Appropriations Act, P.L. 110-
161, amended the Homeland Security Act of 2002 to provide DHS with the 
authority to ``regulate the sale and transfer of ammonium nitrate by an 
ammonium nitrate facility . . . to prevent the misappropriation or use 
of ammonium nitrate in an act of terrorism.''
The Secure Handling of Ammonium Nitrate Act directs DHS to promulgate 
regulations requiring potential buyers and sellers of ammonium nitrate 
to register with DHS. As part of the registration process, the statute 
directs DHS to screen registration applicants against the Federal 
Government's Terrorist Screening Database. The statute also requires 
sellers of ammonium nitrate to verify the identities of those seeking 
to purchase it; to record certain information about each sale or 
transfer of ammonium nitrate; and to report thefts and losses of 
ammonium nitrate to DHS.
The rule would aid the Federal Government in its efforts to prevent the 
misappropriation of ammonium nitrate for use in acts of terrorism. By 
preventing such misappropriation, this rule will limit terrorists' 
abilities to threaten the public and to threaten the Nation's critical 
infrastructure and key resources. By securing the nation's supply of 
ammonium nitrate, it will be more difficult for terrorists to obtain 
ammonium nitrate materials for use in terrorist acts.
DHS published an advance notice of proposed rulemaking (ANPRM) for the 
Secure Handling of Ammonium Nitrate Program on October 29, 2008, and 
has received a number of public comments on that ANPRM. DHS is 
presently reviewing those comments and is in the process of developing 
a notice of proposed rulemaking (NPRM), which the Department hopes to 
issue in Spring 2010.
US-VISIT
The U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) 
is an integrated, automated entry-exit system that records the arrival 
and departure of aliens, verifies aliens' identities, and verifies 
aliens' travel documents by comparison of biometric identifiers. The 
goals of US-VISIT are to enhance the security of U.S. citizens and 
visitors to the United States, facilitate legitimate travel and trade, 
ensure the integrity of the U.S. immigration system, and protect the 
privacy of visitors to the United States.
The US-VISIT program, through CBP officers or Department of State (DOS) 
consular offices, collects biometrics (digital fingerprints and 
photographs) from aliens seeking to enter the United States. DHS checks 
that information against government databases to identify suspected 
terrorists, known criminals, or individuals who have previously 
violated U.S. immigration laws. This system assists DHS and DOS in 
determining whether an alien seeking to enter the United States is, in 
fact, admissible to the United States under existing law. No biometric 
exit system currently exists, however, to assist DHS or DOS in 
determining whether an alien has overstayed the terms of his or her 
visa or other authorization to be present in the United States.
NPPD published an NPRM on April 24, 2008, proposing to establish an 
exit program at all air and sea ports of departure in the United 
States. Congress subsequently enacted the Consolidated Security, 
Disaster Assistance, and Continuing Appropriations Act of 2009, Public 
Law 110-329, 122 Stat. 3574, 3669 - 70 (Sept. 30, 2008), requiring DHS 
to delay issuance of a final rule until the conclusion of pilot tests 
to analyze the collection of biometrics from at least two air exit 
scenarios. DHS currently is reviewing the results of those tests. DHS 
continues to work to ensure that the final air/sea exit rule will be 
issued during fiscal year 2010.
Transportation Security Administration
The Transportation Security Administration (TSA) protects the Nation's 
transportation systems to ensure freedom of movement for people and 
commerce. TSA is committed to continuously setting the standard for 
excellence in transportation security through its people, processes, 
and technology as we work to meet the immediate and long-term needs of 
the transportation sector.
In fiscal year 2010, TSA will promote the DHS mission by emphasizing 
regulatory efforts that allow TSA to better identify, detect, and 
protect against threats against various modes of the transportation 
system, while facilitating the efficient movement of the traveling 
public, transportation workers, and cargo.
Screening of Air Cargo. TSA will finalize an interim final rule that 
codifies a statutory requirement of Implementing Recommendations of the 
9/11 Commission Act of 2008 (9/11 Act)

[[Page 64218]]

that TSA establish a system to screen 100 percent of cargo transported 
on passenger aircraft by August 3, 2010. TSA is working to finalize the 
interim rule by November 2010. To assist in carrying out this mandate, 
TSA is establishing a voluntary program under which it will certify 
cargo screening facilities to screen cargo according to TSA standards 
prior to its being tendered to aircraft operators for carriage on 
passenger aircraft.
Large Aircraft Security Program (General Aviation). TSA plans to issue 
a supplemental notice of proposed rulemaking (SNPRM) to propose 
amendments to current aviation transportation security regulations to 
enhance the security of general aviation by expanding the scope of 
current requirements and by adding new requirements for certain General 
Aviation (GA) aircraft operators. To date, the government's focus with 
regard to aviation security generally has been on air carriers and 
commercial operators. As vulnerabilities and risks associated with air 
carriers and commercial operators have been reduced or mitigated, 
terrorists may perceive that GA aircraft are more vulnerable and may 
view them as attractive targets. This rule would yield benefits in the 
areas of security and quality governance by expanding the mandatory use 
of security measures to certain operators of large aircraft that are 
not currently required to have a security plan. TSA published a notice 
of proposed rulemaking on October 30, 2008, and received over 7,000 
public comments, generally urging significant changes to the proposal. 
The SNPRM will respond to the comments and contain proposals on 
addressing security in the GA sector.
Security Training for Non-Aviation Modes. TSA will propose regulations 
to enhance the security of several non-aviation modes of 
transportation, in accordance with the requirements of the 9/11 Act. In 
particular, TSA will propose regulations requiring freight railroads, 
passenger railroads, public transportation system operators, over-the-
road bus operators, and motor carriers transporting certain hazardous 
materials to conduct security training for certain of their employees. 
Requiring security training programs of these employees is important, 
because it will prepare these employees, including frontline employees, 
for potential security threats and conditions.
Aircraft Repair Station Security. TSA will propose regulations to 
require repair stations that are certificated by the Federal Aviation 
Administration (FAA) under 14 CFR part 145 to adopt and implement 
standard security programs and to comply with security directives 
issued by TSA. The rule will also propose to codify the scope of TSA's 
existing inspection program and to require regulated parties to allow 
DHS officials to enter, inspect, and test property, facilities, and 
records relevant to repair stations. This rulemaking action implements 
section 1616 of the 9/11 Act.
Vetting, Adjudication, and Redress Process and Fees. TSA is developing 
a proposed rule to revise and standardize the procedures, adjudication 
criteria, and fees for most of the security threat assessments (STA) of 
individuals for which TSA is responsible. The scope of the rulemaking 
will include transportation workers from all modes of transportation 
who are required to undergo an STA in other regulatory programs. In 
addition, TSA will propose fees to cover the cost of the STAs, and 
credentials for some personnel. TSA plans to improve efficiencies in 
processing STAs and streamline existing regulations by simplifying 
language and removing redundancies. Standardized procedures and 
adjudication criteria will allow TSA to reduce the need for certain 
individuals to undergo multiple STAs; streamlined processes are 
intended to reduce the time needed for TSA to complete the adjudication 
of STAs.
United States Secret Service
The United States Secret Service does not have any significant 
regulatory actions planned for fiscal year 2010.
DHS Regulatory Plan for Fiscal Year 2010
A more detailed description of the priority regulations that comprise 
DHS's Fall 2009 Regulatory Plan follows.
_______________________________________________________________________



DHS--Office of the Secretary (OS)

                              -----------

                          PROPOSED RULE STAGE

                              -----------




56. SECURE HANDLING OF AMMONIUM NITRATE PROGRAM

Priority:


Other Significant. Major status under 5 USC 801 is undetermined.


Legal Authority:


Sec 563 of the 2008 Consolidated Appropriations Act, Subtitle J--Secure 
Handling of Ammonium Nitrate, PL 110-161


CFR Citation:


6 CFR 31


Legal Deadline:


NPRM, Statutory, May 26, 2008, Publication of Notice of Proposed 
Rulemaking.


Abstract:


This rulemaking will implement the December 2007 amendment to the 
Homeland Security Act entitled the Secure Handling of Ammonium Nitrate. 
The amendment requires the Department of Homeland Security to 
``regulate the sale and transfer of ammonium nitrate by an ammonium 
nitrate facility . . .to prevent the misappropriation or use of 
ammonium nitrate in an act of terrorism.''


Statement of Need:


Pursuant to section 563 of the 2008 Consolidated Appropriations Act, 
the Secure Handling of Ammonium Nitrate Act, P.L. 110-161, the 
Department of Homeland Security is required to promulgate a rulemaking 
to create a registration regime for certain buyers and sellers of 
ammonium nitrate. The rule, as proposed by this NPRM, would create that 
regime, and will aid the Federal Government in its efforts to prevent 
the misappropriation of ammonium nitrate for use in acts of terrorism. 
By preventing such misappropriation, this rule will limit terrorists' 
abilities to threaten the public and to threaten the Nation's critical 
infrastructure and key resources. By securing the nation's supply of 
ammonium nitrate, it will be much more difficult for terrorists to 
obtain ammonium nitrate materials for use in improvised explosive 
devices (IEDs). As a result, there is a direct value in the deterrence 
of a catastrophic terrorist attack using ammonium nitrate such as the 
Oklahoma City attack that killed over 160, injured 853 people, and is 
estimated to have caused $652 million in damages ($921 million in 
$2009).


Summary of Legal Basis:


Section 563 of the 2008 Consolidated Appropriations Act, Subtitle J -- 
Secure Handling of Ammonium Nitrate, PL 110-161, authorizes and 
requires this rulemaking.


Alternatives:


The Department of Homeland Security is required by statute to publish 
regulations implementing the Secure

[[Page 64219]]

Handling of Ammonium Nitrate Act. As part of its notice of proposed 
rulemaking, the Department will seek public comment on the numerous 
alternative ways in which the final Secure Handling of Ammonium Nitrate 
Program could carry out the requirements of the Secure Handling of 
Ammonium Nitrate Act.


Anticipated Cost and Benefits:


There will be costs to ammonium nitrate (AN) purchasers, including 
farms, fertilizer mixers, farm supply wholesalers and coops, golf 
courses, landscaping services, explosives distributors, mines, retail 
garden centers, and lab supply wholesalers. There will also be costs to 
AN sellers, such as ammonium nitrate fertilizer and explosive 
manufacturers, fertilizer mixers, farm supply wholesalers and coops, 
retail garden center, explosives distributors, fertilizer applicator 
services, and lab supply wholesalers. Costs will relate to the point of 
sale requirements, registration activities, recordkeeping, inspections/
audits, and reporting of theft or loss. DHS plans to provide an initial 
regulatory flexibility analysis, which covers the populations and cost 
impacts on small business.


Because the value of the benefits of reducing risk of a terrorist 
attack is a function of both the probability of an attack and the value 
of the consequence, it is difficult to identify the particular risk 
reduction associated with the implementation of this rule. When the 
proposed rule is published, DHS will provide a break even analysis. The 
program elements that would help achieve the risk reductions will be 
discussed in the break even analysis. These elements and related 
qualitative benefits include point of sale identification requirements 
and requiring individuals to be screened against the TSDB resulting in 
known bad actors being denied the ability to purchase ammonium nitrate.


Risks:


Explosives containing ammonium nitrate are commonly used in terrorist 
attacks. Such attacks have been carried out both domestically and 
internationally. The 1995 Murrah Federal Building attack in Oklahoma 
City claimed the lives of 167 individuals and demonstrated firsthand to 
America how ammonium nitrate could be misused by terrorists. In 
addition to the Murrah Building attack, the Provisional Irish 
Republican Army used ammonium nitrate as part of its London, England 
bombing campaign in the early 1980s. More recently, ammonium nitrate 
was used in the 1998 East African Embassy bombings and in November 2003 
bombings in Istanbul, Turkey. Additionally, since the events of 9/11, 
stores of ammonium nitrate have been confiscated during raids on 
terrorist sites around the world, including sites in Canada, England, 
India, and the Philippines.


The Department of Homeland Security aims to prevent terrorist attacks 
within the United States and to reduce the vulnerability of the United 
States to terrorism. By preventing the misappropriation or use of 
ammonium nitrate in acts of terrorism, this rulemaking will support the 
Department's efforts to prevent terrorist attacks and to reduce the 
Nation's vulnerability to terrorist attacks. This rulemaking is 
complementary to other Department programs seeking to reduce the risks 
posed by terrorism, including the Chemical Facility Anti-terrorism 
Standards program (which seeks in part to prevent terrorists from 
gaining access to dangerous chemicals) and the Transportation Worker 
Identification Credential program (which seeks in part to prevent 
terrorists from gaining access to certain critical infrastructure), 
among other programs.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
ANPRM                           10/29/08                    73 FR 64280
Correction                      11/05/08                    73 FR 65783
ANPRM Comment Period End        12/29/08
NPRM                            04/00/10

Regulatory Flexibility Analysis Required:


No


Government Levels Affected:


Federal, Local, State, Tribal


Federalism:


 This action may have federalism implications as defined in EO 13132.


URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Dennis Deziel
Infrastructure Security Compliance Division
Department of Homeland Security
Washington, DC 20528
Phone: 703 235-5263
Email: [email protected]
RIN: 1601-AA52
_______________________________________________________________________



DHS--OS

                              -----------

                            FINAL RULE STAGE

                              -----------




57. COLLECTION OF ALIEN BIOMETRIC DATA UPON EXIT FROM THE UNITED STATES 
AT AIR AND SEA PORTS OF DEPARTURE; UNITED STATES VISITOR AND IMMIGRANT 
STATUS INDICATOR TECHNOLOGY PROGRAM (US-VISIT)

Priority:


Economically Significant. Major under 5 USC 801.


Unfunded Mandates:


This action may affect the private sector under PL 104-4.


Legal Authority:


8 USC 1101 to 1104; 8 USC 1182; 8 USC 1184 to 1185 (pursuant to EO 
13323); 8 USC 1221; 8 USC 1365a, 1365b; 8 USC 1379; 8 USC 1731 to 1732


CFR Citation:


8 CFR 215.1; 8 CFR 231.4


Legal Deadline:


None


Abstract:


DHS established the United States Visitor and Immigrant Status 
Indicator Technology Program (US-VISIT) in accordance with a series of 
legislative mandates requiring that DHS create an integrated automated 
entry-exit system that records the arrival and departure of aliens; 
verifies aliens' identities; and authenticates travel documents. This 
rule requires aliens to provide biometric identifiers at entry and upon 
departure at any air and sea port of entry at which facilities exist to 
collect such information.


Statement of Need:


This rule establishes an exit system at all air and sea ports of 
departure in the United States. This rule requires aliens subject to 
United States Visitor and Immigrant Status Indicator Technology Program 
biometric requirements upon entering the United States to also provide 
biometric identifiers prior to departing the United States from air or 
sea ports of departure.


Alternatives:


The proposed rule would require aliens who are subject to US-VISIT 
biometric requirements upon entering the United

[[Page 64220]]

States to provide biometric information before departing from the 
United States at air and sea ports of entry. The rule proposed a 
performance standard for commercial air and vessel carriers to collect 
the biometric information and to submit this information to DHS no 
later than 24 hours after air carrier staff secure the aircraft doors 
on an international departure, or for sea travel, no later than 24 
hours after the vessel's departure from a U.S. port. DHS is considering 
numerous alternatives based upon public comment on the alternatives in 
the NPRM. Alternatives included various points in the process, kiosks, 
and varying levels of responsibility for the carriers and government. 
DHS may select another variation between the outer bounds of the 
alternatives presented or another alternative if subsequent analysis 
warrants.


Anticipated Cost and Benefits:


The proposed rule expenditure and delay costs for a ten-year period are 
estimated at $3.5 billion. Alternative costs range from $3.1 billion to 
$6.4 billion. US-VISIT assessed seven categories of economic impacts 
other than direct expenditures. Of these two are economic costs: social 
costs resulting from increased traveler queue and processing time; and 
social costs resulting from increased flight delays. Ten-year benefits 
are estimated at $1.1 billion. US-VISIT assessed seven categories of 
economic impacts other than direct expenditures. Of these five are 
benefits, which include costs that could be avoided, for each 
alternative: cost avoidance resulting from improved detection of aliens 
overstaying visas; cost avoidance resulting from improved U.S. 
Immigrations and Customs Enforcement (ICE) efficiency attempting 
apprehension of overstays; cost avoidance resulting from improved 
efficiency processing Exit/Entry data; improved compliance with NSEERS 
requirements due to the improvement in ease of compliance; and improved 
National Security Environment. These benefits are measured 
quantitatively or qualitatively.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
NPRM                            04/24/08                    73 FR 22065
NPRM Comment Period End         06/23/08
Final Rule                      07/00/10

Regulatory Flexibility Analysis Required:


No


Small Entities Affected:


No


Government Levels Affected:


None


URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Helen DeThomas
Management and Program Analyst
Department of Homeland Security
1616 N. Fort Myer Drive
Arlington, VA 22203
Phone: 202 298-5173
Email: [email protected]
Related RIN: Previously reported as 1650-AA04
RIN: 1601-AA34
_______________________________________________________________________



DHS--U.S. Citizenship and Immigration Services (USCIS)

                              -----------

                          PROPOSED RULE STAGE

                              -----------




58. ASYLUM AND WITHHOLDING DEFINITIONS

Priority:


Other Significant


Legal Authority:


8 USC 1103; 8 USC 1158; 8 USC 1226; 8 USC 1252; 8 USC 1282; 8 CFR 2


CFR Citation:


8 CFR 208


Legal Deadline:


None


Abstract:


This rule proposes to amend Department of Homeland Security regulations 
that govern asylum eligibility. The amendments focus on portions of the 
regulations that deal with the definitions of membership in a 
particular social group, the requirements for failure of State 
protection, and determinations about whether persecution is inflicted 
on account of a protected ground. This rule codifies long-standing 
concepts of the definitions. It clarifies that gender can be a basis 
for membership in a particular social group. It also clarifies that a 
person who has suffered or fears domestic violence may under certain 
circumstances be eligible for asylum on that basis. After the Board of 
Immigration Appeals published a decision on this issue in 1999, Matter 
of R-A-, Int. Dec. 3403 (BIA 1999), it became clear that the governing 
regulatory standards required clarification. The Department of Justice 
began this regulatory initiative by publishing a proposed rule 
addressing these issues in 2000.


Statement of Need:


This rule provides guidance on a number of key interpretive issues of 
the refugee definition used by adjudicators deciding asylum and 
withholding of removal (withholding) claims. The interpretive issues 
include whether persecution is inflicted on account of a protected 
ground, the requirements for establishing the failure of State 
protection, and the parameters for defining membership in a particular 
social group. This rule will aid in the adjudication of claims made by 
applicants whose claims fall outside of the rubric of the protected 
grounds of race, religion, nationality, or political opinion. One 
example of such claims which often fall within the particular social 
group ground concerns people who have suffered or fear domestic 
violence. This rule is expected to consolidate issues raised in a 
proposed rule in 2000 and to address issues that have developed since 
the publication of the proposed rule. This should provide greater 
stability and clarity in this important area of the law.


Summary of Legal Basis:


The purpose of this rule is to provide guidance on certain issues that 
have arisen in the context of asylum and withholding adjudications. The 
1951 Geneva Convention relating to the Status of Refugees (1951 
Convention) contains the internationally accepted definition of a 
refugee. United States immigration law incorporates an almost identical 
definition of a refugee as a person outside his or her country of 
origin ``who is unable or unwilling to return to, and is unable or 
unwilling to avail himself or herself of the protection of, that 
country because of persecution or a well-founded fear of persecution on 
account of race, religion, nationality, membership in a particular 
social group, or political opinion.'' Section 101(a)(42) of the 
Immigration and Nationality Act.


Alternatives:


A sizable body of interpretive case law has developed around the 
meaning of the refugee definition. Historically, much of this case law 
has addressed

[[Page 64221]]

more traditional asylum and withholding claims based on the protected 
grounds of race, religion, nationality, or political opinion. In recent 
years, however, the United States increasingly has encountered asylum 
and withholding applications with more varied bases, related, for 
example, to an applicant's gender or sexual orientation. Many of these 
new types of claims are based on the ground of ``membership in a 
particular social group,'' which is the least well-defined of the five 
protected grounds within the refugee definition.


On December 7, 2000, a proposed rule was published in the Federal 
Register providing guidance on the definitions of ``persecution'' and 
``membership in a particular social group.'' Prior to publishing a 
final rule, the Department will be considering how the nexus between 
persecution and a protected ground might be further conceptualized; how 
membership in a particular social group might be defined and evaluated; 
and what constitutes a State's inability or unwillingness to protect 
the applicant where the persecution arises from a non-State actor. This 
rule will provide guidance to the following adjudicators: USCIS asylum 
officers, Department of Justice Executive Office for Immigration Review 
(EOIR) immigration judges, and members of the EOIR Board of Immigration 
Appeals. The alternative to publishing this rule would be to allow the 
standards governing this area of law to continue to develop piecemeal 
through administrative and judicial precedent. This approach has 
resulted in inconsistent and confusing standards and the Department has 
therefore determined that promulgation of the final rule is necessary.


Anticipated Cost and Benefits:


By providing a clear framework for key asylum and withholding issues, 
we anticipate that adjudicators will have clear guidance, increasing 
administrative efficiency and consistency in adjudicating these cases. 
The rule will also promote a more consistent and predictable body of 
administrative and judicial precedent governing these types of cases. 
We anticipate that this will enable applicants to better assess their 
potential eligibility for asylum and to present their claims more 
efficiently when they believe that they may qualify, thus reducing the 
resources spent on adjudicating claims that do not qualify. In 
addition, a more consistent and predictable body of law on these issues 
will likely result in fewer appeals, both administrative and judicial, 
and reduce the associated litigation costs. The Department has no way 
of accurately predicting how this rule will impact the number of asylum 
applications filed in the US. Based on anecdotal evidence and on the 
reported experience of other nations that have adopted standards under 
which the results are similar to those we anticipate from this rule, we 
do not believe this rule will cause a large change in the number of 
asylum applications filed.


Risks:


The failure to promulgate a final rule in this area presents 
significant risks of further inconsistency and confusion in the law. 
The government's interests in fair, efficient and consistent 
adjudications would be compromised.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
NPRM                            12/07/00                    65 FR 76588
NPRM                            09/00/10
NPRM Comment Period End         11/00/10

Regulatory Flexibility Analysis Required:


No


Small Entities Affected:


No


Government Levels Affected:


None


Additional Information:


CIS No. 2092-00


Transferred from RIN 1115-AF92


Agency Contact:
Jedidah Hussey
Deputy Chief, Asylum Division
Department of Homeland Security
U.S. Citizenship and Immigration Services
20 Massachusetts Avenue NW.
Suite 3300
Washington, DC 20529
Phone: 202 272-1663
Email: [email protected]
RIN: 1615-AA41
_______________________________________________________________________



DHS--USCIS



59. REGISTRATION REQUIREMENTS FOR EMPLOYMENT-BASED CATEGORIES SUBJECT 
TO NUMERICAL LIMITATIONS

Priority:


Other Significant


Legal Authority:


8 USC 1184(g)


CFR Citation:


8 CFR 103; 8 CFR 299


Legal Deadline:


None


Abstract:


The Department of Homeland Security is proposing to amend its 
regulations governing petitions filed on behalf of alien workers 
subject to annual numerical limitations. This rule proposes an 
electronic registration program for petitions subject to numerical 
limitations contained in the Immigration and Nationality Act (the Act). 
Initially, the program would be for the H-1B nonimmigrant 
classification; however, other nonimmigrant classifications will be 
added as needed. This action is necessary because the demand for H-1B 
specialty occupation workers by U.S. companies generally exceeds the 
numerical limitation. This rule is intended to allow USCIS to more 
efficiently manage the intake and lottery process for these H-1B 
petitions.


Statement of Need:


U.S. Citizenship and Immigration Services (USCIS) proposes to establish 
a mandatory Internet-based electronic registration process for U.S. 
employers seeking to file H-1B petitions for alien workers subject to 
either the 65,000 or 20,000 caps. This registration process would allow 
U.S. employers to electronically register for consideration of 
available H-1B cap numbers. The mandatory proposed registration process 
will alleviate administrative burdens on USCIS service centers and 
eliminate the need for U.S. employers to needlessly prepare and file H-
1B petitions without any certainty that an H-1B cap number will 
ultimately be allocated to the beneficiary named on that petition.


Summary of Legal Basis:


Section 214(g) of the Immigration and Nationality Act provides limits 
on the number of alien temporary workers who may be granted H-1B 
nonimmigrant status each fiscal year (commonly known as the ``cap''). 
USCIS has responsibility for monitoring the requests for H-1B workers 
and administers the distribution of available H-1B cap numbers in light 
of these limits.

[[Page 64222]]

Alternatives:


To ensure a fair and orderly distribution of H-1B cap numbers, USCIS 
evaluated its current random selection process, and has found that when 
it receives a significant number of H-1B petitions within the first few 
days of the H-1B filing period, it is extremely difficult to handle the 
volume of petitions received in advance of the H-1B random selection 
process. Further, the current petition process of preparing and mailing 
H-1B petitions, with the required filing fee, can be burdensome and 
costly for employers, if the petition is returned because the cap was 
reached and the petition was not selected in the random selection 
process.


Accordingly, this rule proposes to implement a new process to allow 
U.S. employers to electronically register for consideration of 
available H-1B cap numbers without having to first prepare and submit 
the petition.


Risks:


There is a risk that a petitioner will submit multiple petitions for 
the same H-1B beneficiary so that the U.S. employer will have a better 
chance of his or her petition being selected. Accordingly, should USCIS 
receive multiple petitions for the same H-1B beneficiary by the same 
petitioner, the system will only accept the first petition and reject 
the duplicate petitions.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
NPRM                            03/00/10
NPRM Comment Period End         05/00/10

Regulatory Flexibility Analysis Required:


Yes


Small Entities Affected:


Businesses


Government Levels Affected:


None


Additional Information:


2443-08


Agency Contact:
Greg Richardson
Department of Homeland Security
U.S. Citizenship and Immigration Services
20 Massachusetts Avenue NW.
2nd Floor
Washington, DC 20529
Phone: 202 272-8465
Email: [email protected]
RIN: 1615-AB71
_______________________________________________________________________



DHS--USCIS

                              -----------

                            FINAL RULE STAGE

                              -----------




60. NEW CLASSIFICATION FOR VICTIMS OF SEVERE FORMS OF TRAFFICKING IN 
PERSONS ELIGIBLE FOR THE T NONIMMIGRANT STATUS

Priority:


Other Significant


Legal Authority:


5 USC 552; 5 USC 552a; 8 USC 1101 to 1104; 8 USC 1182; 8 USC 1184; 8 
USC 1187; 8 USC 1201; 8 USC 1224 to 1227; 8 USC 1252 to 1252a; 22 USC 
7101; 22 USC 7105; . . .


CFR Citation:


8 CFR 103; 8 CFR 212; 8 CFR 214; 8 CFR 274a; 8 CFR 299


Legal Deadline:


None


Abstract:


T classification was created by 107(e) of the Victims of Trafficking 
and Violence Protection Act of 2000 (VTVPA), Public Law 106-386. The T 
nonimmigrant classification was designed for eligible victims of severe 
forms of trafficking in persons who aid the Government with their case 
against the traffickers and who can establish that they would suffer 
extreme hardship involving unusual and severe harm if they were removed 
from the United States after having completed their assistance to law 
enforcement. The rule establishes application procedures and 
responsibilities for the Department of Homeland Security and provides 
guidance to the public on how to meet certain requirements to obtain T 
nonimmigrant status. The Trafficking Victims Protection Reauthorization 
Act of 2008, Public Law 110-457, made amendments to the T nonimmigrant 
status provisions of the Immigration and Naturalization Act. The 
Department will issue another interim final rule to make the changes 
required by recent legislation and to provide the opportunity for 
notice and comment.


Statement of Need:


T nonimmigrant status is available to eligible victims of severe forms 
of trafficking in persons who have complied with any reasonable request 
for assistance in the investigation or prosecution of acts of 
trafficking in persons, and who can demonstrate that they would suffer 
extreme hardship involving unusual and severe harm if removed from the 
United States. This rule addresses the essential elements that must be 
demonstrated for classification as a T nonimmigrant alien; the 
procedures to be followed by applicants to apply for T nonimmigrant 
status; and evidentiary guidance to assist in the application process.


Summary of Legal Basis:


Section 107(e) of the Trafficking Victims Protection Act (TVPA), Public 
Law 106-386, established the T classification to create a safe haven 
for certain eligible victims of severe forms of trafficking in persons, 
who assist law enforcement authorities in investigating and prosecuting 
the perpetrators of these crimes.


Alternatives:


To develop a comprehensive Federal approach to identifying victims of 
severe forms of trafficking in persons, to provide them with benefits 
and services, and to enhance the Department of Justice's ability to 
prosecute traffickers and prevent trafficking in persons in the first 
place, a series of meetings with stakeholders were conducted with 
representatives from key Federal agencies; national, state, and local 
law enforcement associations; non-profit, community-based victim rights 
organizations; and other groups. Suggestions from these stakeholders 
were used in the drafting of this regulation.


Anticipated Cost and Benefits:


There is no cost associated with this regulation. Applicants for T 
nonimmigrant status do not pay application or biometric fees.


The anticipated benefits of these expenditures include: Assistance to 
trafficked victims and their families, prosecution of traffickers in 
persons, and the elimination of abuses caused by trafficking 
activities.


Benefits which may be attributed to the implementation of this rule are 
expected to be:

[[Page 64223]]

1. An increase in the number of cases brought forward for investigation 
and/or prosecution;


2. Heightened awareness by the law enforcement community of trafficking 
in persons;


3. Enhanced ability to develop and work cases in trafficking in persons 
cross-organizationally and multi-jurisdictionally, which may begin to 
influence changes in trafficking patterns.


Risks:


There is a 5,000-person limit to the number of individuals who can be 
granted T-1 status per fiscal year. Eligible applicants who are not 
granted T-1 status due solely to the numerical limit will be placed on 
a waiting list to be maintained by U.S. Citizenship and Immigration 
Services (USCIS).


To protect T-1 applicants and their families, USCIS will use various 
means to prevent the removal of T-1 applicants on the waiting list, and 
their family members who are eligible for derivative T status, 
including its existing authority to grant deferred action, parole, and 
stays of removal.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
Interim Final Rule              01/31/02                     67 FR 4784
Interim Final Rule 
    Effective                   03/04/02
Interim Final Rule 
    Comment Period End          04/01/02
Interim Final Rule              09/00/10

Regulatory Flexibility Analysis Required:


No


Small Entities Affected:


No


Government Levels Affected:


Federal, State


Additional Information:


CIS No. 2132-01; AG Order No. 2554-2002


There is a related rulemaking, CIS No. 2170-01, the new U nonimmigrant 
status (RIN 1615-AA67).


Transferred from RIN 1115-AG19


Agency Contact:
Laura M. Dawkins
Chief, Family Immigration and Victim Protection Division
Department of Homeland Security
U.S. Citizenship and Immigration Services
20 Massachusetts Avenue NW.
Suite 2304
Washington, DC 20529
Phone: 202 272-8398
Email: [email protected]
RIN: 1615-AA59
_______________________________________________________________________



DHS--USCIS



61. ADJUSTMENT OF STATUS TO LAWFUL PERMANENT RESIDENT FOR ALIENS IN T 
AND U NONIMMIGRANT STATUS

Priority:


Other Significant


Legal Authority:


5 USC 552; 5 USC 552a; 8 USC 1101 to 1104; 8 USC 1182; 8 USC 1184; 8 
USC 1187; 8 USC 1201; 8 USC 1224 to 1227; 8 USC 1252 to 1252a; 8 USC 
1255; 22 USC 7101; 22 USC 7105


CFR Citation:


8 CFR 204; 8 CFR 214; 8 CFR 245


Legal Deadline:


None


Abstract:


This rule sets forth measures by which certain victims of severe forms 
of trafficking who have been granted T nonimmigrant status and victims 
of certain criminal activity who have been granted U nonimmigrant 
status may apply for adjustment to permanent resident status in 
accordance with Public Law 106-386, Victims of Trafficking and Violence 
Protection Act of 2000, and Public Law 109-162, Violence Against Women 
and Department of Justice Reauthorization Act of 2005. The Trafficking 
Victims Protection Reauthorization Act of 2008, Public Law 110-457, 
made amendments to the T nonimmigrant status provisions of the 
Immigration and Naturalization Act. The Department will issue another 
interim final rule to make the changes required by recent legislation 
and to provide the opportunity for notice and comment.


Statement of Need:


This regulation is necessary to permit aliens in lawful T or U 
nonimmigrant status to apply for adjustment of status to that of lawful 
permanent residents. T nonimmigrant status is available to aliens who 
are victims of a severe form of trafficking in persons and who are 
assisting law enforcement in the investigation or prosecution of the 
acts of trafficking. U nonimmigrant status is available to aliens who 
are victims of certain crimes and are being helpful to the 
investigation or prosecution of those crimes.


Summary of Legal Basis:


This rule implements the Victims of Trafficking and Violence Protection 
Act of 2000 (VTVPA), Public Law 106-386, 114 Stat. 1464 (Oct. 28, 
2000), as amended, to permit aliens in lawful T or U nonimmigrant 
status to apply for adjustment of status to that of lawful permanent 
residents.


Alternatives:


USCIS did not consider alternatives to managing T and U applications 
for adjustment of status. Ease of administration dictates that 
adjustment of status applications from T and U nonimmigrants would be 
best handled on a first in, first out basis, because that is the way 
applications for T and U status are currently handled.


Anticipated Cost and Benefits:


USCIS uses fees to fund the cost of processing applications and 
associated support benefits. The fees to be collected resulting from 
this rule will be approximately $3 million dollars in the first year, 
$1.9 million dollars in the second year, and an average about $32 
million dollars in the third and subsequent years. To estimate the new 
fee collections to be generated by this rule, USCIS estimated the fees 
to be collected for new applications for adjustment of status from T 
and U nonimmigrants and their eligible family members. After that, 
USCIS estimated fees from associated applications that are required 
such as biometrics, and others that are likely to occur in direct 
connection with applications for adjustment, such as employment 
authorization or travel authorization.


The anticipated benefits of these expenditures include: Continued 
assistance to trafficked victims and their families, increased 
investigation and prosecution of traffickers in persons, and the 
elimination of abuses caused by trafficking activities.


Benefits that may be attributed to the implementation of this rule are 
expected to be:


1. An increase in the number of cases brought forward for investigation 
and/or prosecution;

[[Page 64224]]

2. Heightened awareness of trafficking-in-persons issues by the law 
enforcement community; and


3. Enhanced ability to develop and work cases in trafficking in persons 
cross-organizationally and multi-jurisdictionally, which may begin to 
influence changes in trafficking patterns.


Risks:


Congress created the U nonimmigrant status (``U visa'') to provide 
immigration protection to crime victims who assist in the investigation 
and prosecution of those crimes. Although there are no specific data on 
alien crime victims, statistics maintained by the Department of Justice 
have shown that aliens, especially those aliens without legal status, 
are often reluctant to help in the investigation or prosecution of 
crimes. U visas are intended to help overcome this reluctance and aid 
law enforcement accordingly.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
Interim Final Rule              12/12/08                    73 FR 75540
Interim Final Rule 
    Effective                   01/12/09
Interim Final Rule 
    Comment Period End          02/10/09
Interim Final Rule              09/00/10

Regulatory Flexibility Analysis Required:


No


Small Entities Affected:


No


Government Levels Affected:


None


Additional Information:


CIS No. 2134-01


Transferred from RIN 1115-AG21


Agency Contact:
Laura M. Dawkins
Chief, Family Immigration and Victim Protection Division
Department of Homeland Security
U.S. Citizenship and Immigration Services
20 Massachusetts Avenue NW.
Suite 2304
Washington, DC 20529
Phone: 202 272-8398
Email: [email protected]
RIN: 1615-AA60
_______________________________________________________________________



DHS--USCIS



62. NEW CLASSIFICATION FOR VICTIMS OF CERTAIN CRIMINAL ACTIVITY; 
ELIGIBILITY FOR THE U NONIMMIGRANT STATUS

Priority:


Other Significant


Legal Authority:


5 USC 552; 5 USC 552a; 8 USC 1101; 8 USC 1101 note; 8 USC 1102; . . .


CFR Citation:


8 CFR 103; 8 CFR 204; 8 CFR 212; 8 CFR 214; 8 CFR 299


Legal Deadline:


Other, Statutory, January 5, 2006, Regulations need to be promulgated 
by July 5, 2006.


Public Law 109-162, Violence Against Women and Department of Justice 
Reauthorization Act of 2005.


Abstract:


This rule sets forth application requirements for a new nonimmigrant 
status. The U classification is for non-U.S. Citizen/Lawful Permanent 
Resident victims of certain crimes who cooperate with an investigation 
or prosecution of those crimes. There is a limit of 10,000 principals 
per year.


This rule establishes the procedures to be followed in order to 
petition for the U nonimmigrant classifications. Specifically, the rule 
addresses the essential elements that must be demonstrated to receive 
the nonimmigrant classification; procedures that must be followed to 
make an application and evidentiary guidance to assist in the 
petitioning process. Eligible victims will be allowed to remain in the 
United States.The Trafficking Victims Protection Reauthorization Act of 
2008, Public Law 110-457, made amendments to the T nonimmigrant status 
provisions of the Immigration and Naturalization Act. The Department 
will issue another interim final rule to make the changes required by 
recent legislation and to provide the opportunity for notice and 
comment.


Statement of Need:


This rule provides requirements and procedures for aliens seeking U 
nonimmigrant status. U nonimmigrant classification is available to 
alien victims of certain criminal activity who assist government 
officials in the investigation or prosecution of that criminal 
activity. The purpose of the U nonimmigrant classification is to 
strengthen the ability of law enforcement agencies to investigate and 
prosecute such crimes as domestic violence, sexual assault, and 
trafficking in persons, while offering protection to alien crime 
victims in keeping with the humanitarian interests of the United States


Summary of Legal Basis:


Congress created the U nonimmigrant classification in the Battered 
Immigrant Women Protection Act of 2000 (BIWPA). Congress intended to 
strengthen the ability of law enforcement agencies to investigate and 
prosecute cases of domestic violence, sexual assault, trafficking of 
aliens, and other crimes, while offering protection to victims of such 
crimes. Congress also sought to encourage law enforcement officials to 
better serve immigrant crime victims.


Alternatives:


USCIS has identified four alternatives, the first being chosen for the 
rule:


1. USCIS would adjudicate petitions on a first in, first out basis. 
Petitions received after the limit has been reached would be reviewed 
to determine whether or not they are approvable but for the numerical 
cap. Approvable petitions that are reviewed after the numerical cap has 
been reached would be placed on a waiting list and written notice sent 
to the petitioner. Priority on the waiting list would be based upon the 
date on which the petition is filed. USCIS would provide petitioners on 
the waiting list with interim relief until the start of the next fiscal 
year in the form of deferred action, parole, or a stays of removal.


2. USCIS would adjudicate petitions on a first in, first out basis, 
establishing a waiting list for petitions that are pending or received 
after the numerical cap has been reached. Priority on the waiting list 
would be based upon the date on which the petition was filed. USCIS 
would not provide interim relief to petitioners whose petitions are 
placed on the waiting list.


3. USCIS would adjudicate petitions on a first in, first out basis. 
However, new filings would be reviewed to identify particularly 
compelling cases for adjudication. New filings would be rejected once 
the numerical cap is reached. No official waiting list would be 
established; however, interim relief until the start of the next fiscal 
year would be provided for some compelling cases. If a case was not 
particularly

[[Page 64225]]

compelling, the filing would be denied or rejected.


4. USCIS would adjudicate petitions on a first in, first out basis. 
However, new filings would be rejected once the numerical cap is 
reached. No waiting list would be established, nor would interim relief 
be granted.


Anticipated Cost and Benefits:


USCIS estimates the total annual cost of this interim rule to be $6.2 
million. This cost includes the biometric services fee that petitioners 
must pay to USCIS, the opportunity cost of time needed to submit the 
required forms, the opportunity cost of time required for a visit to an 
Application Support Center, and the cost of traveling to an Application 
Support Center.


This rule will strengthen the ability of law enforcement agencies to 
investigate and prosecute such crimes as domestic violence, sexual 
assault, and trafficking in persons, while offering protection to alien 
crime victims in keeping with the humanitarian interests of the United 
States.


Risks:


In the case of witness tampering, obstruction of justice, or perjury, 
the interpretive challenge for USCIS was to determine whom the BIWPA 
was meant to protect, given that these criminal activities are not 
targeted against a person. Accordingly it was determined that a victim 
of witness tampering, obstruction of justice, or perjury is an alien 
who has been directly and proximately harmed by the perpetrator of one 
of these three crimes, where there are reasonable grounds to conclude 
that the perpetrator principally committed the offense as a means: (1) 
to avoid or frustrate efforts to investigate, arrest, prosecute, or 
otherwise bring him or her to justice for other criminal activity; or 
(2) to further his or her abuse or exploitation of, or undue control 
over, the alien through manipulation of the legal system.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
Interim Final Rule              09/17/07                    72 FR 53013
Interim Final Rule 
    Effective                   10/17/07
Interim Final Rule 
    Comment Period End          11/17/07
Interim Final Rule              09/00/10

Regulatory Flexibility Analysis Required:


No


Small Entities Affected:


No


Government Levels Affected:


Federal, Local, State


Additional Information:


Transferred from RIN 1115-AG39


Agency Contact:
Laura M. Dawkins
Chief, Family Immigration and Victim Protection Division
Department of Homeland Security
U.S. Citizenship and Immigration Services
20 Massachusetts Avenue NW.
Suite 2304
Washington, DC 20529
Phone: 202 272-8398
Email: [email protected]
RIN: 1615-AA67
_______________________________________________________________________



DHS--USCIS



63. COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS TRANSITIONAL 
NONIMMIGRANT INVESTOR CLASSIFICATION

Priority:


Other Significant


Legal Authority:


8 USC 1101 to 1103; 8 USC 1182; 8 USC 1184; 8 USC 1186a


CFR Citation:


8 CFR 214


Legal Deadline:


None


Abstract:


On May 8, 2008, Public Law 110-229, Commonwealth Natural Resources Act, 
established a transitional period for the application of the 
Immigration and Nationality Act (INA) to the Commonwealth of the 
Northern Mariana Islands (CNMI). Although the CNMI is subject to most 
U.S. laws, the CNMI has administered its own immigration system under 
the terms of its 1976 covenant with the United States. The Department 
of Homeland Security is proposing to amend its regulations by creating 
a new E2 CNMI Investor classification for the duration of the 
transition period. These temporary provisions are necessary to reduce 
the potential harm to the CNMI economy before these foreign workers and 
investors are required to convert into U.S. immigrant or nonimmigrant 
visa classifications.


Statement of Need:


This final rule responds to a Congressional mandate that requires the 
Federal Government to assume responsibility for visas for entry to CNMI 
by foreign investors.


Anticipated Cost and Benefits:


Public Costs: This rule reduces the employer's annual cost by $200 per 
year ($500 - $300), plus any further reduction caused by eliminating 
the paperwork burden associated with the CNMI's process. In 2006 - 
2007, there were 464 long-term business entry permit holders and 20 
perpetual foreign investor entry permit holders and retiree investor 
permit holders, totaling 484, or approximately 500 foreign registered 
investors. The total savings to employers from this rule is thus 
expected to be $100,000 per year ($500 x $200). Cost to the Federal 
Government: The yearly Federal Government cost is estimated at $42,310.


Benefits: The potential abuse of the visa system by those seeking to 
illegally emigrate from the CNMI to Guam or elsewhere in the United 
States reduces the integrity of the United States immigration system by 
increasing the ease by which aliens may unlawfully enter the United 
States through the CNMI. Federal oversight and regulations of CNMI 
foreign investors should help reduce abuse by foreign employees in the 
CNMI, and should help reduce the opportunity for aliens to use the CNMI 
as an entry point into the United States.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
NPRM                            09/14/09                    74 FR 46938
NPRM Comment Period End         10/14/09
Final Action                    03/00/10

Regulatory Flexibility Analysis Required:


Yes


Small Entities Affected:


Businesses


Government Levels Affected:


Local, State


Additional Information:


CIS No. 2458-08

[[Page 64226]]

Agency Contact:
Steven Viger
Department of Homeland Security
U.S. Citizenship and Immigration Services
20 Massachusetts Avenue NW.
Washington, DC 20529
Phone: 202 272-1470
Email: [email protected]
RIN: 1615-AB75
_______________________________________________________________________



DHS--USCIS



64. COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS TRANSITIONAL WORKERS 
CLASSIFICATION

Priority:


Other Significant


Legal Authority:


PL 110-229


CFR Citation:


8 CFR 214.2


Legal Deadline:


None


Abstract:


The Department of Homeland Security (DHS) is creating a new, temporary, 
Commonwealth of the Northern Mariana Islands (CNMI)-only transitional 
worker classification (CW classification) in accordance with title VII 
of the Consolidated Natural Resources Act of 2008 (CNRA). The 
transitional worker program is intended to provide for an orderly 
transition from the CNMI permit system to the U.S. federal immigration 
system under the Immigration and Nationality Act (INA). A CW 
transitional worker is an alien worker who is ineligible for another 
classification under the INA and who performs services or labor for an 
employer in the CNMI. The CNRA imposes a five-year transition period 
before the INA requirements become fully applicable in the CNMI. The 
new CW classification will be in effect for the duration of that 
transition period, unless extended by the Secretary of Labor. The rule 
also establishes employment authorization incident to CW status.


Statement of Need:


Title VII of the Consolidated Natural Resources Act of 2008 (CNRA) 
created a new, temporary, Commonwealth of the Northern Mariana Islands 
(CNMI)-only transitional worker classification. The transitional worker 
program is intended to provide for an orderly transition from the CNMI 
permit system to the U.S. federal immigration system under the 
Immigration and Nationality Act.


Anticipated Cost and Benefits:


Each of the estimated 22,000 CNMI transitional workers will be required 
to pay a $320 fee per year, for an annualized cost to the affected 
public of $7 million. However, since these workers will not have to pay 
CNMI fees, the total present value costs of this rule are a net cost 
savings ranging from $9.8 million to $13.4 million depending on the 
validity period of CW status (1 or 2 years), whether out-of-status 
aliens present in the CNMI are eligible for CW status, and the discount 
rate applied. The intended benefits of the rule include improvements in 
national and homeland security and protection of human rights.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
Interim Final Rule              10/27/09                    74 FR 55094
Interim Final Rule 
    Comment Period End          11/27/09
Final Action                    05/00/10

Regulatory Flexibility Analysis Required:


No


Government Levels Affected:


State


Agency Contact:
Greg Richardson
Department of Homeland Security
U.S. Citizenship and Immigration Services
20 Massachusetts Avenue NW.
2nd Floor
Washington, DC 20529
Phone: 202 272-8465
Email: [email protected]
RIN: 1615-AB76
_______________________________________________________________________



DHS--USCIS



65. REVISIONS TO FEDERAL IMMIGRATION REGULATIONS FOR THE COMMONWEALTH 
OF THE NORTHERN MARIANA ISLANDS; CONFORMING REGULATIONS

Priority:


Other Significant


Legal Authority:


PL 110-229


CFR Citation:


8 CFR 208 and 209; 8 CFR 214 and 215; 8 CFR 217; 8 CFR 235; 8 CFR 248; 
8 CFR 264; 8 CFR 274a


Legal Deadline:


Final, Statutory, November 28, 2009, Consolidated Natural Resources Act 
(CNRA) of 2008.


Abstract:


The Department of Homeland Security (DHS) and the Department of Justice 
(DOJ) are implementing conforming amendments to their respective 
regulations to comply with the Consolidated Natural Resources Act 
(CNRA) of 2008. The CNRA extends the immigration laws of the United 
States to the Commonwealth of the Northern Mariana Islands (CNMI). This 
rule amends the regulations governing asylum and credible fear of 
persecution determinations; references to the geographical ``United 
States'' and its territories and possessions; alien classifications 
authorized for employment; documentation acceptable for Form I-9, 
Employment Eligibility Verification (Form I-9); employment of 
unauthorized aliens; and adjustment of status of immediate relatives 
admitted under the Guam-CNMI Visa Waiver Program. Additionally, this 
rule makes a technical change to correct a citation error in the 
regulations governing the Visa Waiver Program and the regulations 
governing asylum and withholding of removal. The purpose of this rule 
is to ensure that the regulations apply to persons and entities 
arriving in or physically present in the CNMI to the extent authorized 
by the CNRA.


Statement of Need:


The Department of Homeland Security (DHS) and the Department of Justice 
(DOJ) are implementing conforming amendments to their respective 
regulations to comply with the Consolidated Natural Resources Act of 
2008 (CNRA). The CNRA extends the immigration laws of the United States 
to the Commonwealth of the Northern Mariana Islands (CNMI). This rule 
amends the regulations governing: asylum and credible fear of 
persecution determinations; references to the geographical ``United 
States'' and its territories and possessions; alien classifications 
authorized for employment; documentation acceptable for Employment 
Eligibility Verification; employment of unauthorized aliens; and 
adjustment of status of immediate relatives admitted under the Guam-
CNMI Visa Waiver Program.

[[Page 64227]]

Additionally, this rule makes a technical change to correct a citation 
error in the regulations governing the Visa Waiver Program and the 
regulations governing asylum and withholding of removal.


Anticipated Cost and Benefits:


The stated goals of the CNRA are to ensure effective border control 
procedures, to properly address national security and homeland security 
concerns by extending U.S. immigration law to the CNMI, and to maximize 
the CNMI's potential for future economic and business growth. While 
those goals are expected to be partly facilitated by the changes made 
in this rule, they are general and qualitative in nature. There are no 
specific changes made by this rule with sufficiently identifiable 
direct or indirect economic impacts so as to be quantified.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
Interim Final Rule              10/28/09                    74 FR 55725
Interim Final Rule 
    Comment Period End          11/27/09
Final Action                    10/00/10

Regulatory Flexibility Analysis Required:


No


Government Levels Affected:


None


Additional Information:


CIS 2460-08


Agency Contact:
Evelyn Sahli
Chief, Policy and Regulation Management Division
Department of Homeland Security
U.S. Citizenship and Immigration Services
20 Massachusetts Avenue NW.
Washington, DC 20529
Phone: 202 272-1722
RIN: 1615-AB77
_______________________________________________________________________



DHS--U.S. Coast Guard (USCG)

                              -----------

                          PROPOSED RULE STAGE

                              -----------




66. STANDARDS FOR LIVING ORGANISMS IN SHIPS' BALLAST WATER DISCHARGED 
IN U.S. WATERS (USCG-2001-10486)

Priority:


Economically Significant. Major under 5 USC 801.


Unfunded Mandates:


This action may affect the private sector under PL 104-4.


Legal Authority:


16 USC 4711


CFR Citation:


33 CFR 151


Legal Deadline:


None


Abstract:


This rulemaking would propose to add performance standards to 33 CFR 
part 151, subparts C and D, for all discharges of ballast water. It 
supports the Coast Guard's broad roles and responsibilities of maritime 
safety and maritime stewardship. This project is significant due to 
high interest from Congress and several Federal and State agencies, as 
well as costs imposed on industry.


Statement of Need:


The unintentional introductions of nonindigenous species into U.S. 
waters via the discharge of vessels' ballast water has had significant 
impacts to the nation's aquatic resources, biological diversity, and 
coastal infrastructures. This rulemaking would amend the ballast water 
management requirements (33 CFR part 151 subparts C and D) and 
establish standards that specify the level of biological treatment that 
must be achieved by a ballast water treatment system before ballast 
water can be discharged into U.S. waters. This would increase the Coast 
Guard's ability to protect U.S. waters against the introduction of 
nonindigenous species via ballast water discharges.


Summary of Legal Basis:


Congress has directed the Coast Guard to develop ballast water 
regulations to prevent the introduction of nonindigenous species into 
U.S. waters under the Nonindigenous Aquatic Nuisance Prevention and 
Control Act of 1990 and reauthorized and amended it with the National 
Invasive Species Act of 1996. This rulemaking does not have a statutory 
deadline.


Alternatives:


We would use the standard rulemaking process to develop regulations for 
ballast water discharge standards. Nonregulatory alternatives such as 
navigation and vessel inspection circulars and the Marine Safety Manual 
have been considered and may be used for the development of policy and 
directives to provide the maritime industry and our field offices 
guidelines for implementation of the regulations. Nonregulatory 
alternatives cannot be substituted for the standards we would develop 
with this rule. Congress has directed the Coast Guard to review and 
revise its BWM regulations not less than every three years based on the 
best scientific information available to the Coast Guard at the time of 
that review.


This proposed rule includes a phase-in schedule (Phase-one and Phase-
two) for the implementation of ballast water discharge standards based 
on vessel's ballast water capacity and build date. The proposed phase-
one standard is the same standard adopted by the International Maritime 
Organization (IMO) for concentration of living organisms in ballast 
water discharges. For phase-two, we propose incorporating a 
practicability review to determine whether technology to achieve a more 
stringent standard than the IMO can practicably be implemented.


Anticipated Cost and Benefits:


This proposed rule would affect vessels operating in U.S. waters that 
are equipped with ballast tanks. Owners and operators of these vessels 
would be required to install and operate Coast Guard approved ballast 
water management systems before discharging ballast water into U.S. 
waters. Cost estimates for individual vessels vary due to the vessel 
class, type and size, and the particular technology of the ballast 
water management system installed. We expect the highest annual costs 
of this rulemaking during the periods of installation as the bulk of 
the existing fleet of vessels must meet the standards according to 
proposed phase-in schedules. The primary cost driver of this rulemaking 
is the installation costs for all existing vessels. Operating and 
maintenance costs are substantially less than the installation costs.

[[Page 64228]]

We evaluated the benefits of this rulemaking by researching the impact 
of aquatic nonindigenous species (NIS) invasions in the U.S. waters, 
since ballast water discharge is one of the main vectors of NIS 
introductions in the marine environment. The primary benefit of this 
rulemaking would be the economic and environmental damages avoided from 
the reduction in the number of new invasions as a result of the 
reduction in concentration of organisms in discharged ballast water. We 
expect that the benefits of this rulemaking would increase as the 
technology is developed to achieve more stringent ballast water 
discharge standards.


At this time, we estimate that this rulemaking would have annual 
impacts that exceed $100 million and result in an economically 
significant regulatory action.


Risks:


Ballast water discharged from ships is a significant pathway for the 
introduction and spread of non-indigenous aquatic nuisance species. 
These organisms, which may be plants, animals, bacteria or pathogens, 
have the potential to displace native species, degrade native habitats, 
spread disease and disrupt human economic and social activities that 
depend on water resources. It is estimated that for areas such as the 
Great Lakes, San Francisco Bay, and Chesapeake Bay, one nonindigenous 
species becomes established per year. At this time, it is difficult to 
estimate the reduction of risk that would be accomplished by 
promulgating this rulemaking; however, it is expected a major reduction 
will occur. We are currently requesting information on costs and 
benefits of more stringent ballast water discharge standards.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
ANPRM                           03/04/02                     67 FR 9632
ANPRM Comment Period End        06/03/02
NPRM                            08/28/09                    74 FR 44632
Public Meeting                  09/14/09                    74 FR 46964
Public Meeting                  09/22/09                    74 FR 48190
Public Meeting                  09/28/09                    74 FR 49355
Notice--Extension of 
    Comment Period              10/15/09                    74 FR 52941
Public Meeting                  10/22/09                    74 FR 54533
Public Meeting Correction       10/26/09                    74 FR 54944
NPRM Comment Period End         12/04/09                    74 FR 52941
Final Rule                      12/00/10

Regulatory Flexibility Analysis Required:


Yes


Small Entities Affected:


Businesses


Government Levels Affected:


Undetermined


URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Mr. John C Morris
Project Manager
Department of Homeland Security
U.S. Coast Guard
2100 2nd Street, SW, STOP 7126
Washington, DC 20593-7126
Phone: 202 372-1433
Email: [email protected]
RIN: 1625-AA32
_______________________________________________________________________



DHS--USCG



67. INSPECTION OF TOWING VESSELS (USCG-2006-24412)

Priority:


Other Significant. Major status under 5 USC 801 is undetermined.


Legal Authority:


46 USC 3301, 46 USC 3305, 46 USC 3306, and 46 USC 3103; 46 USC 3703 
[DHS Delegation No 0170.1]


CFR Citation:


33 CFR 156 and 157; 33 CFR 163 and 164; 46 CFR 135 to 146


Legal Deadline:


None


Abstract:


This rulemaking would implement a program of inspection for 
certification of towing vessels, which were previously uninspected. It 
would prescribe standards for safety management systems and third-party 
entities along with standards for construction, operation, vessel 
systems, safety equipment, and recordkeeping. Due to the costs imposed 
on an entire uninspected segment of the marine industry, the Coast 
Guard projects that this will be a significant rulemaking, especially 
for small entities.


Statement of Need:


This rulemaking would implement sections 409 and 415 of the Coast Guard 
and Maritime Transportation Act of 2004. The intent of the proposed 
rule is to promote safer work practices and reduce casualties on towing 
vessels by ensuring that towing vessels adhere to prescribed safety 
standards and safety management systems. This proposed rule was 
developed in cooperation with the Towing Vessel Safety Advisory 
Committee. It would establish a new subchapter dedicated to towing 
vessels and covering vessel equipment, systems, operational standards 
and inspection requirements.


Summary of Legal Basis:


Proposed new Subchapter Authority: 46 U.S.C. 3103, 3301, 3306, 3308, 
3316, 8104, 8904; 33 CFR 1.05; DHS Delegation 0170.1.


The Coast Guard and Maritime Transportation Act of 2004 (CGMTA 2004), 
Pub. L. 108-293, 118 Stat. 1028, (Aug. 9, 2004), established new 
authorities for towing vessels as follows:


Section 415 added towing vessels, as defined in section 2101 of title 
46, United States Code (U.S.C.), as a class of vessels that are subject 
to safety inspections under chapter 33 of that title (Id. at 1047).


Section 415 also added new section 3306(j) of title 46, authorizing the 
Secretary of Homeland Security to establish, by regulation, a safety 
management system appropriate for the characteristics, methods of 
operation, and nature of service of towing vessels (Id.).


Section 409 added new section 8904(c)of title 46, U.S.C., authorizing 
the Secretary to establish, by regulation, ``maximum hours of service 
(including recording and recordkeeping of that service) of individuals 
engaged on a towing vessel that is at least 26 feet in length measured 
from end to end over the deck (excluding the sheer).'' (Id. at 1044-
45).


Alternatives:


We considered the following alternatives for the notice of proposed 
rulemaking (NPRM):


One regulatory alternative would be the addition of towing vessels to 
one or more existing subchapters that deal with other inspected 
vessels, such as cargo and miscellaneous vessels (subchapter I), 
offshore supply vessels (subchapter L), or small passenger vessels 
(subchapter T). This option would involve very minimal regulatory work. 
We do not believe, however, that this approach would recognize the

[[Page 64229]]

often ``unique'' nature and characteristics of the towing industry in 
general and towing vessels in particular.


In addition to inclusion in a particular existing subchapter (or 
subchapters) for equipment-related concerns, the same approach could be 
adopted for use of a safety management system by merely requiring 
compliance with Title 33, Code of Federal Regulations, part 96 (Rules 
for the Safe Operation of Vessels and Safety Management Systems). 
Adoption of these requirements, without an alternative safety 
management system, would also not be``appropriate for the 
characteristics, methods of operation, and nature of service of towing 
vessels.''


The Coast Guard has had extensive public involvement (four public 
meetings, over 100 separate comments submitted to the docket, as well 
as extensive ongoing dialogue with members of the Towing Safety 
Advisory Committee (TSAC)) regarding development of these regulations. 
Adoption of one of the alternatives discussed above would likely 
receive little public or industry support, especially considering the 
TSAC efforts toward development of standards to be incorporated into a 
separate subchapter dealing specifically with the inspection of towing 
vessels.


An approach that would seem to be more in keeping with the intent of 
Congress would be the adoption of certain existing standards from those 
applied to other inspected vessels. In some cases, these existing 
standards would be appropriately modified and tailored to the nature 
and operation of certain categories of towing vessels. The adopted 
standards would come from inspected vessels that have demonstrated 
``good marine practice'' within the maritime community. These 
regulations would be incorporated into a subchapter specifically 
addressing the inspection for certification of towing vessels. The law 
requiring the inspection for certification of towing vessels is a 
statutory mandate, compelling the Coast Guard to develop regulations 
appropriate for the nature of towing vessels and their specific 
industry.


Anticipated Cost and Benefits:


We estimate that 1,059 owners and operators (companies) would incur 
additional costs from this rulemaking. The rulemaking would affect a 
total of 5,208 vessels owned and operated by these companies. We 
estimate that 232 of the companies, operating 2,941 vessels, already 
use some type of safety management system. We estimate that 827 of the 
companies, operating 2,267 vessels, do not currently use a safety 
management system. Our cost assessment includes existing and new 
vessels. We are currently developing cost estimates for the proposed 
rule.


The Coast Guard developed the requirements in the proposed rule by 
researching both the human factors and equipment failures that caused 
towing vessel accidents. We believe that the proposed rule would 
address a wide range of causes of towing vessel accidents and supports 
the main goal of improving safety in the towing industry. The primary 
benefit of the proposed rule is an increase in vessel safety and a 
resulting decrease in the risk of towing vessel accidents and their 
consequences.


Risks:


This regulatory action would reduce the risk of towing vessel accidents 
and their consequences. Towing vessels accidents result in fatalities, 
injuries, property damage, pollution, and delays.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
NPRM                            02/00/10

Regulatory Flexibility Analysis Required:


Yes


Small Entities Affected:


Businesses, Governmental Jurisdictions, Organizations


Government Levels Affected:


State


URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Dave Dolloff
Program Manager, CG-5222
Department of Homeland Security
U.S. Coast Guard
2100 Second Street SW. STOP 7126
Washington, DC 20593-7126
Phone: 202 372-1415
RIN: 1625-AB06
_______________________________________________________________________



DHS--U.S. Customs and Border Protection (USCBP)

                              -----------

                          PROPOSED RULE STAGE

                              -----------




68. ESTABLISHMENT OF GLOBAL ENTRY PROGRAM

Priority:


Other Significant


Legal Authority:


8 USC 1365b(k)(1); 8 USC 1365b(k)(3); 8 USC 1225; 8 USC 1185(b)


CFR Citation:


8 CFR 235; 8 CFR 103


Legal Deadline:


None


Abstract:


CBP already operates several regulatory and non-regulatory 
international registered traveler programs, also known as trusted 
traveler programs. In order to comply with the Intelligence Reform 
Terrorism Prevention Act of 2004 (IRPTA), CBP is proposing to amend its 
regulations to establish another international registered traveler 
program called Global Entry. The Global Entry program would expedite 
the movement of low-risk, frequent international air travelers by 
providing an expedited inspection process for pre-approved, pre-
screened travelers. These travelers would proceed directly to automated 
Global Entry kiosks upon their arrival in the United States. This 
Global Entry Program, along with the other programs that have already 
been established, are consistent with CBP's strategic goal of 
facilitating legitimate trade and travel while securing the homeland. A 
pilot of Global Entry has been operating since June 6, 2008.


Statement of Need:


CBP has been operating the Global Entry program as a pilot at several 
airports since June 6, 2008, and the pilot has been very successful. As 
a result, there is a desire on the part of the public that the program 
be established as a permanent program, and expanded, if possible. By 
establishing this program, CBP will make great strides toward 
facilitating the movement of people in a more efficient manner, thereby 
accomplishing our strategic goal of balancing legitimate travel with 
security. Through the use of biometric and record-keeping technologies, 
the risk of terrorists entering the United

[[Page 64230]]

States would be reduced. Improving security and facilitating travel at 
the border, both of which are accomplished by Global Entry, are primary 
concerns within CBP jurisdiction.


Anticipated Cost and Benefits:


Global Entry is a voluntary program that provides a benefit to the 
public by speeding the CBP processing time for participating travelers. 
Travelers who are otherwise admissible to the United States will be 
able to enter or exit the country regardless of whether they 
participate in Global Entry. CBP estimates that over a five year 
period, 250,000 enrollees will be processed (an annual average of 
50,000 individuals). CBP will charge a fee of $100 per applicant and 
estimates that each application will require 40 minutes (0.67 hours) of 
the enrollee's time to search existing data resources, gather the data 
needed, and complete and review the application form. Additionally, an 
enrollee will experience an ``opportunity cost of time'' to travel to 
an Enrollment Center upon acceptance of the initial application. We 
assume that one hour will be required for this time spent at the 
Enrollment Center and travel to and from the Center, though we note 
that during the pilot program, many applicants coordinated their trip 
to an Enrollment Center with their travel at the airport. We have used 
one hour of travel time so as not to underestimate potential 
opportunity costs for enrolling in the program. We use a value of 
$28.60 for the opportunity cost for this time, which is taken from the 
Federal Aviation Administration's ``Economic Values for FAA Investment 
and Regulatory Decisions, A Guide.'' (July 3, 2007). This value is the 
weighted average for U.S. business and leisure travelers. For this 
evaluation, we assume that all enrollees will be U.S. citizens, U.S. 
nationals, or Lawful Permanent Residents.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
NPRM                            11/19/09                    74 FR 59932
NPRM Comment Period End         01/19/10
Final Rule                      11/00/10

Regulatory Flexibility Analysis Required:


No


Small Entities Affected:


No


Government Levels Affected:


None


URL For More Information:
www.globalentry.gov

Agency Contact:
John P. Wagner
Director, Trusted Traveler Programs
Department of Homeland Security
U.S. Customs and Border Protection
Office of Field Operations
1300 Pennsylvania Avenue NW.
Washington, DC 20229
Phone: 202 344-2118
RIN: 1651-AA73
_______________________________________________________________________



DHS--USCBP

                              -----------

                            FINAL RULE STAGE

                              -----------




69. IMPORTER SECURITY FILING AND ADDITIONAL CARRIER REQUIREMENTS

Priority:


Economically Significant. Major under 5 USC 801.


Unfunded Mandates:


This action may affect the private sector under PL 104-4.


Legal Authority:


PL 109-347, sec 203; 5 USC 301; 19 USC 66; 19 USC 1431; 19 USC 1433 to 
1434; 19 USC 1624; 19 USC 2071 note; 46 USC 60105


CFR Citation:


19 CFR 4; 19 CFR 12.3; 19 CFR 18.5; 19 CFR 103.31a; 19 CFR 113; 19 CFR 
123.92; 19 CFR 141.113; 19 CFR 146.32; 19 CFR 149; 19 CFR 192.14


Legal Deadline:


None


Abstract:


This interim final rule implements the provisions of section 203 of the 
Security and Accountability for Every Port Act of 2006. It amends CBP 
Regulations to require carriers and importers to provide to CBP, via a 
CBP approved electronic data interchange system, information necessary 
to enable CBP to identify high-risk shipments to prevent smuggling and 
insure cargo safety and security. Under the rule, importers and 
carriers must submit specified information to CBP before the cargo is 
brought into the United States by vessel. This advance information will 
improve CBP's risk assessment and targeting capabilities, assist CBP in 
increasing the security of the global trading system, and facilitate 
the prompt release of legitimate cargo following its arrival in the 
United States.


Statement of Need:


Vessel carriers are currently required to transmit certain manifest 
information by way of the CBP Vessel Automated Manifest System (AMS) 24 
hours prior to lading of containerized and non-exempt break bulk cargo 
at a foreign port. For the most part, this is the ocean carrier's or 
non-vessel operating common carrier (NVOCC)'s cargo declaration. CBP 
analyzes this information to generate its risk assessment for targeting 
purposes.


Internal and external government reviews have concluded that more 
complete advance shipment data would produce even more effective and 
more vigorous cargo risk assessments. In addition, pursuant to section 
203 of the Security and Accountability for Every Port Act of 2006 (Pub. 
L. 109-347, 6 U.S.C. 943) (SAFE Port Act), the Secretary of Homeland 
Security, acting through the Commissioner of CBP, must promulgate 
regulations to require the electronic transmission of additional data 
elements for improved high-risk targeting, including appropriate 
security elements of entry data for cargo destined to the United States 
by vessel prior to loading of such cargo on vessels at foreign 
seaports.


Based upon its analysis, as well as the requirements under the SAFE 
Port Act, CBP is requiring the electronic transmission of additional 
data for improved high-risk targeting. Some of these data elements are 
being required from carriers (Container Status Messages and Vessel Stow 
Plan) and others are being required from ``importers,'' as that term is 
defined for purposes of the regulations.


This rule improves CBP's risk assessment and targeting capabilities and 
enables the agency to facilitate the prompt release of legitimate cargo 
following its arrival in the United States. The information will assist 
CBP in increasing the security of the global trading system and, 
thereby, reducing the threat to the United States and world economy.


Summary of Legal Basis:


Pursuant to section 203 of the Security and Accountability for Every 
Port Act of 2006 (Pub. L. 109-347, 6 U.S.C. 943) (SAFE Port Act), the 
Secretary of Homeland Security, acting through the Commissioner of CBP, 
must promulgate regulations to require the electronic transmission of 
additional data

[[Page 64231]]

elements for improved high-risk targeting, including appropriate 
security elements of entry data for cargo destined to the United States 
by vessel prior to loading of such cargo on vessels at foreign 
seaports.


Alternatives:


CBP considered and evaluated the following four alternatives:


Alternative 1 (the chosen alternative): Importer Security Filings and 
Additional Carrier Requirements are required. Bulk cargo is exempt from 
the Importer Security Filing requirements;


Alternative 2: Importer Security Filings and Additional Carrier 
Requirements are required. Bulk cargo is not exempt from the Importer 
Security Filing requirements;


Alternative 3: Only Importer Security Filings are required. Bulk cargo 
is exempt from the Importer Security Filing requirements; and


Alternative 4: Only the Additional Carrier Requirements are required.


Anticipated Cost and Benefits:


When the NPRM was published, CBP estimated that approximately 11 
million import shipments conveyed by 1,000 different carrier companies 
operating 37,000 unique voyages or vessel-trips to the United States 
will be subject to the rule. Annualized costs range from $890 million 
to $7.0 billion (7 percent discount rate over 10 years).


The annualized cost range results from varying assumptions about the 
estimated security filing transaction costs or fees charged to the 
importers by the filing parties, the potential for supply chain delays, 
and the estimated costs to carriers for transmitting additional data to 
CBP.


Ideally, the quantification and monetization of the benefits of this 
regulation would involve estimating the current level of risk of a 
successful terrorist attack, absent this regulation, and the 
incremental reduction in risk resulting from implementation of the 
regulation. CBP would then multiply the change by an estimate of the 
value individuals place on such a risk reduction to produce a monetary 
estimate of direct benefits. However, existing data limitations and a 
lack of complete understanding of the true risks posed by terrorists 
prevent us from establishing the incremental risk reduction 
attributable to this rule. As a result, CBP has undertaken a ``break-
even'' analysis to inform decision-makers of the necessary incremental 
change in the probability of such an event occurring that would result 
in direct benefits equal to the costs of the proposed rule. CBP's 
analysis finds that the incremental costs of this regulation are 
relatively small compared to the median value of a shipment of goods 
despite the rather large absolute estimate of present value cost.


The regulation may increase the time shipments are in transit, 
particularly for shipments consolidated in containers. For such 
shipments, the supply chain is generally more complex and the importer 
has less control of the flow of goods and associated security filing 
information. Foreign cargo consolidators may be consolidating multiple 
shipments from one or more shippers in a container destined for one or 
more buyers or consignees. In order to ensure that the security filing 
data is provided by the shippers to the importers (or their designated 
agents) and is then transmitted to and accepted by CBP in advance of 
the 24-hour deadline, consolidators may advance their cut-off times for 
receipt of shipments and associated security filing data.


These advanced cut-off times would help prevent a consolidator or 
carrier from having to unpack or unload a container in the event the 
security filing for one of the shipments contained in the container is 
inadequate or not accepted by CBP. For example, consolidators may 
require shippers to submit, transmit, or obtain CBP approval of their 
security filing data before their shipments are stuffed in the 
container, before the container is sealed, or before the container is 
delivered to the port for lading. In such cases, importers would likely 
have to increase the times they hold their goods as inventory and thus 
incur additional inventory carrying costs to sufficiently meet these 
advanced cut-off times imposed by their foreign consolidators. The high 
end of the cost ranges presented assumes an initial supply chain delay 
of 2 days for the first year of implementation (2008) and a delay of 1 
day for years 2 through 10 (2009 to 2017).


The benefit of this rule is the improvement of CBP's risk assessment 
and targeting capabilities, while at the same time, enabling CBP to 
facilitate the prompt release of legitimate cargo following its arrival 
in the United States. The information will assist CBP in increasing the 
security of the global trading system, and thereby reducing the threat 
to the United States and the world economy.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
NPRM                            01/02/08                       73 FR 90
NPRM Comment Period End         03/03/08
NPRM Comment Period 
    Extended                    02/01/08                     73 FR 6061
NPRM Comment Period End         03/18/08
Interim Final Rule              11/25/08                    73 FR 71730
Interim Final Rule 
    Effective                   01/26/09
Interim Final Rule 
    Comment Period End          06/01/09
Final Action                    02/00/10

Regulatory Flexibility Analysis Required:


Yes


Small Entities Affected:


Businesses


Government Levels Affected:


None


International Impacts:


 This regulatory action will be likely to have international trade and 
investment effects, or otherwise be of international interest.


URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Richard DiNucci
Department of Homeland Security
U.S. Customs and Border Protection
Office of Field Operations
1300 Pennsylvania Avenue, NW.
Washington, DC 20229
Phone: 202 344-2513
Email: [email protected]
RIN: 1651-AA70
_______________________________________________________________________



DHS--USCBP



70. CHANGES TO THE VISA WAIVER PROGRAM TO IMPLEMENT THE ELECTRONIC 
SYSTEM FOR TRAVEL AUTHORIZATION (ESTA) PROGRAM

Priority:


Economically Significant. Major under 5 USC 801.


Legal Authority:


8 USC 1103; 8 USC 1187; 8 CFR 2


CFR Citation:


8 CFR 217.5


Legal Deadline:


None

[[Page 64232]]

Abstract:


This rule implements the Electronic System for Travel Authorization 
(ESTA) for aliens who travel to the United States under the Visa Waiver 
Program (VWP) at air or sea ports of entry. Under the rule, VWP 
travelers are required to provide certain biographical information to 
CBP electronically before departing for the United States. This allows 
CBP to determine before their departure, whether these travelers are 
eligible to travel to the United States under the VWP and whether such 
travel poses a security risk. The rule is intended to fulfill the 
requirements of section 711 of the Implementing recommendations of the 
9/11 Commission Act of 2007 (9/11 Act). In addition to fulfilling a 
statutory mandate, the rule serves the twin goals of promoting border 
security and legitimate travel to the United States. By modernizing the 
VWP, the ESTA is intended to increase national security and to provide 
for greater efficiencies in the screening of international travelers by 
allowing for vetting of subjects of potential interest well before 
boarding, thereby reducing traveler delays at the ports of entry.


Statement of Need:


Section 711 of the 9/11 Act requires the Secretary of Homeland 
Security, in consultation with the Secretary of State, to develop and 
implement a fully automated electronic travel authorization system that 
will collect biographical and other information in advance of travel to 
determine the eligibility of the alien to travel to the United States 
and to determine whether such travel poses a law enforcement or 
security risk. ESTA is intended to fulfill these statutory 
requirements.


Under this rule, VWP travelers provide certain information to CBP 
electronically before departing for the United States. VWP travelers 
who receive travel authorization under ESTA are not required to 
complete the paper Form I-94W when arriving on a carrier that is 
capable of receiving and validating messages pertaining to the 
traveler's ESTA status as part of the traveler's boarding status. By 
automating the I-94W process and establishing a system to provide VWP 
traveler data in advance of travel, CBP is able to determine the 
eligibility of citizens and eligible nationals from VWP countries to 
travel to the United States and to determine whether such travel poses 
a law enforcement or security risk, before such individuals begin 
travel to the United States. ESTA provides for greater efficiencies in 
the screening of international travelers by allowing CBP to identify 
subjects of potential interest before they depart for the United 
States, thereby increasing security and reducing traveler delays upon 
arrival at U.S. ports of entry.


Summary of Legal Basis:


The ESTA program is based on congressional authority provided under 
section 711 of the Implementing Recommendations of the 9/11 Commission 
Act of 2007 and section 217 of the Immigration and Nationality Act 
(INA).


Alternatives:


CBP considered three alternatives to this rule:


1. The ESTA requirements in the rule, but with a $1.50 fee per each 
travel authorization (more costly)


2. The ESTA requirements in the rule, but with only the name of the 
passenger and the admissibility questions on the I-94W form (less 
burdensome)


3. The ESTA requirements in the rule, but only for the countries 
entering the VWP after 2009 (no new requirements for VWP, reduced 
burden for newly entering countries)


CBP determined that the rule provides the greatest level of enhanced 
security and efficiency at an acceptable cost to traveling public and 
potentially affected air carriers.


Anticipated Cost and Benefits:


The purpose of ESTA is to allow DHS and CBP to establish the 
eligibility of certain foreign travelers to travel to the United States 
under the VWP, and whether the alien's proposed travel to the United 
States poses a law enforcement or security risk. Upon review of such 
information, DHS will determine whether the alien is eligible to travel 
to the United States under the VWP.


Impacts to Air & Sea Carriers


CBP estimated that eight U.S.-based air carriers and eleven sea 
carriers will be affected by the rule. An additional 35 foreign-based 
air carriers and five sea carriers will be affected. CBP concluded that 
costs to air and sea carriers to support the requirements of the ESTA 
program could cost $137 million to $1.1 billion over the next 10 years 
depending on the level of effort required to integrate their systems 
with ESTA, how many passengers they need to assist in applying for 
travel authorizations, and the discount rate applied to annual costs.


Impacts to Travelers


ESTA will present new costs and burdens to travelers in VWP countries 
who were not previously required to submit any information to the U.S. 
Government in advance of travel to the United States. Travelers from 
Roadmap countries who become VWP countries will also incur costs and 
burdens, though these are much less than obtaining a nonimmigrant visa 
(category B1/B2), which is currently required for short-term pleasure 
or business to travel to the United States. CBP estimated that the 
total quantified costs to travelers will range from $1.1 billion to 
$3.5 billion depending on the number of travelers, the value of time, 
and the discount rate. Annualized costs are estimated to range from 
$133 million to $366 million.


Benefits


As set forth in section 711 of the 9/11 Act, it was the intent of 
Congress to modernize and strengthen the security of the Visa Waiver 
Program under section 217 of the Immigration and Nationality Act (INA, 
8 USC 1187) by simultaneously enhancing program security requirements 
and extending visa-free travel privileges to citizens and eligible 
nationals of eligible foreign countries that are partners in the war on 
terrorism.


By requiring passenger data in advance of travel, CBP may be able to 
determine, before the alien departs for the United States, the 
eligibility of citizens and eligible nationals from VWP countries to 
travel to the United States under the VWP, and whether such travel 
poses a law enforcement or security risk. In addition to fulfilling a 
statutory mandate, the rule serves the twin goals of promoting border 
security and legitimate travel to the United States. By modernizing the 
VWP, ESTA is intended to both increase national security and provide 
for greater efficiencies in the screening of international travelers by 
allowing for the screening of subjects of potential interest well 
before boarding, thereby reducing traveler delays based on potentially 
lengthy processes at U.S. ports of entry.


CBP concluded that the total benefits to travelers could total $1.1 
billion to $3.3 billion over the period of analysis. Annualized 
benefits could range from $134 million to $345 million.


In addition to these benefits to travelers, CBP and the carriers should

[[Page 64233]]

also experience the benefit of not having to administer the I-94W 
except in limited situations. While CBP has not conducted an analysis 
of the potential savings, it should accrue benefits from not having to 
produce, ship, and store blank forms. CBP should also be able to accrue 
savings related to data entry and archiving. Carriers should realize 
some savings as well, though carriers will still have to administer the 
I-94 for those passengers not traveling under the VWP and the Customs 
Declaration forms for all passengers aboard the aircraft and vessel.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
Interim Final Action            06/09/08                    73 FR 32440
Interim Final Rule 
    Effective                   08/08/08
Interim Final Rule 
    Comment Period End          08/08/08
Notice - Announcing Date 
    Rule Becomes 
    Mandatory                   11/13/08                    73 FR 67354
Final Action                    01/00/10

Regulatory Flexibility Analysis Required:


No


Government Levels Affected:


None


Additional Information:


http://www.cbp.gov/xp/cgov/travel/id--visa/esta/


URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Suzanne Shepherd
Director, Electronic System for Travel Authorization
Department of Homeland Security
U.S. Customs and Border Protection
1300 Pennsylvania Avenue NW
Washington, DC 20229
Phone: 202 344-2073
Email: [email protected]
RIN: 1651-AA72
_______________________________________________________________________



DHS--USCBP



71. IMPLEMENTATION OF THE GUAM-CNMI VISA WAIVER PROGRAM

Priority:


Other Significant. Major under 5 USC 801.


Legal Authority:


PL 110-229, sec 702


CFR Citation:


8 CFR 100.4; 8 CFR 212.1; 8 CFR 233.5; 8 CFR 235.5; 19 CFR 4.7b; 19 CFR 
122.49a


Legal Deadline:


Final, Statutory, November 4, 2008, Public Law 110-229.


Abstract:


This rule amends Department of Homeland Security (DHS) regulations to 
implement section 702 of the Consolidated Natural Resources Act of 2008 
(CNRA). This law extends the immigration laws of the United States to 
the Commonwealth of the Northern Mariana Islands (CNMI) and provides 
for a joint visa waiver program for travel to Guam and the CNMI. This 
rule implements section 702 of the CNRA by amending the regulations to 
replace the current Guam Visa Waiver Program with a new Guam-CNMI Visa 
Waiver Program. The amended regulations set forth the requirements for 
nonimmigrant visitors who seek admission for business or pleasure and 
solely for entry into and stay on Guam or the CNMI without a visa. This 
rule also establishes six ports of entry in the CNMI for purposes of 
administering and enforcing the Guam-CNMI Visa Waiver Program.


Statement of Need:


Currently, aliens who are citizens of eligible countries may apply for 
admission to Guam at a Guam port of entry as nonimmigrant visitors for 
a period of fifteen (15) days or less, for business or pleasure, 
without first obtaining a nonimmigrant visa, provided that they are 
otherwise eligible for admission. Section 702(b) of the Consolidated 
Natural Resources Act of 2008 (CNRA), supersedes the Guam visa waiver 
program by providing for a visa waiver program for Guam and the 
Commonwealth of the Northern Mariana Islands (Guam-CNMI Visa Waiver 
Program). Section 702(b) requires DHS to promulgate regulations within 
180 days of enactment of the CNRA to allow nonimmigrant visitors from 
eligible countries to apply for admission into Guam and the CNMI, for 
business or pleasure, without a visa, for a period of authorized stay 
of no longer than forty-five (45) days.


Summary of Legal Basis:


The Guam-CNMI Visa Waiver Program is based on congressional authority 
provided under 702(b) of the Consolidated Natural Resources Act of 2008 
(CNRA).


Alternatives:


None


Anticipated Cost and Benefits:


The most significant change for admission to the CNMI as a result of 
the rule will be for visitors from those countries who are not included 
in either the existing U.S. Visa Waiver Program or the Guam-CNMI Visa 
Waiver Program established by the rule. These visitors must apply for 
U.S. visas, which require in-person interviews at U.S. embassies or 
consulates and higher fees than the CNMI currently assesses for its 
visitor entry permits. CBP anticipates that the annual cost to the CNMI 
will be $6 million. These are losses associated with the reduced visits 
from foreign travelers who may no longer visit the CNMI upon 
implementation of this rule.


The anticipated benefits of the rule are enhanced security that will 
result from the federalization of the immigration functions in the 
CNMI.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
Interim Final Rule              01/16/09                     74 FR 2824
Interim Final Rule 
    Effective                   01/16/09
Interim Final Rule 
    Comment Period End          03/17/09
Final Action                    06/00/10

Regulatory Flexibility Analysis Required:


No


Government Levels Affected:


None


International Impacts:


 This regulatory action will be likely to have international trade and 
investment effects, or otherwise be of international interest.


Agency Contact:
Cheryl C. Peters
Department of Homeland Security
U.S. Customs and Border Protection
1300 Pennsylvania Avenue NW.
Washington, DC 20229
Phone: 202 344-1707
Email: [email protected]
RIN: 1651-AA77

[[Page 64234]]

_______________________________________________________________________



DHS--Transportation Security Administration (TSA)

                              -----------

                          PROPOSED RULE STAGE

                              -----------




72. AIRCRAFT REPAIR STATION SECURITY

Priority:


Other Significant. Major under 5 USC 801.


Legal Authority:


49 USC 114; 49 USC 44924


CFR Citation:


49 CFR 1554


Legal Deadline:


Final, Statutory, August 8, 2004, Rule within 240 days of the date of 
enactment of Vision 100.


Final, Statutory, August 3, 2008, Rule within 1 year after the date of 
enactment of 9/11 Commission Act.


Section 611(b)(1) of Vision 100--Century of Aviation Reauthorization 
Act (Pub. L. 108-176; Dec. 12, 2003; 117 Stat. 2490), codified at 49 
U.S.C. 44924, requires TSA issue ``final regulations to ensure the 
security of foreign and domestic aircraft repair stations.'' Section 
1616 of the Implementing Recommendations of the 9/11 Commission Act of 
2007 (Pub. L. 110--531; Aug. 3, 2007; 21 Stat. 266) requires TSA issue 
a final rule on foreign repair station security.


Abstract:


The Transportation Security Administration (TSA) will propose to add a 
new regulation to improve the security of domestic and foreign aircraft 
repair stations, as required by the section 611 of Vision 100--Century 
of Aviation Reauthorization Act and section 1616 of the 9/11 Commission 
Act of 2007. The regulation will propose general requirements for 
security programs to be adopted and implemented by repair stations 
certificated by the Federal Aviation Administration (FAA). Regulations 
originally were to be promulgated by August 8, 2004. A Report to 
Congress was sent August 24, 2004, explaining the delay. The delay in 
publication of the notice of proposed rulemaking has been due to TSA 
scoping out the project, including making site visits to repair 
stations in different locations around the world.


Statement of Need:


The Transportation Security Administration (TSA) is proposing 
regulations to improve the security of domestic and foreign aircraft 
repair stations. The proposed regulations will require repair stations 
that are certificated by the Federal Aviation Administration to adopt 
and carry out a security program. The proposal will codify the scope of 
TSA's existing inspection program. The proposal also will provide 
procedures for repair stations to seek review of any TSA determination 
that security measures are deficient.


Summary of Legal Basis:


Section 611(b)(1) of Vision 100--Century of Aviation Reauthorization 
Act (Pub. L. 108-176; 12/12/2003; 117 Stat. 2490), codified at 49 
U.S.C. 44924, requires TSA to issue ``final regulations to ensure the 
security of foreign and domestic aircraft repair stations'' within 240 
days from date of enactment of Vision 100. Section 1616 of Public Law 
110-53, Implementing Recommendations of the 9/11 Commission Act of 2007 
(Aug. 3, 2007; 121 Stat. 266) requires that the FAA may not certify any 
foreign repair stations if the regulations are not issued within one 
year after the date of enactment of the 9/11 Commission Act unless the 
repair station was previously certificated or is in the process of 
certification.


Alternatives:


TSA is required by statute to publish regulations requiring security 
programs for aircraft repair stations. As part of its notice of 
proposed rulemaking, TSA will seek public comment on the numerous 
alternative ways in which the final rule could carry out the 
requirements of the statute.


Anticipated Cost and Benefits:


TSA anticipates costs to aircraft repair stations mainly related to the 
establishment of security programs, which may include adding such 
measures as access controls, a personnel identification system, 
security awareness training, the designation of a security coordinator, 
employee background verification, and a contingency plan.


It is difficult to identify the particular risk reduction associated 
with the implementation of this rule because the nature of value of the 
benefits of reducing risk of a terrorist attack is a function of both 
the probability of an attack and the value of the consequence. When the 
proposed rule is published, DHS will provide a break even analysis 
discussing the program elements that would help achieve risk 
reductions. These elements and related qualitative benefits include a 
reduction in the risk of an aircraft being sabotaged, resulting in 
potential injury or loss of life for the passengers and crew, or 
reduction in the risk of being hijacked, resulting in the additional 
potential for the aircraft being used as a weapon of mass destruction.


Risks:


The Department of Homeland Security aims to prevent terrorist attacks 
within the United States and to reduce the vulnerability of the United 
States to terrorism. By requiring security programs for aircraft repair 
stations, TSA will focus on preventing unauthorized access to repair 
work and to aircraft to prevent sabotage or hijacking.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
Notice--Public Meeting; 
    Request for Comments        02/24/04                     69 FR 8357
Report to Congress              08/24/04
NPRM                            11/18/09                    74 FR 59873
NPRM Comment Period End         01/19/10
Final Rule                      11/00/10

Regulatory Flexibility Analysis Required:


Yes


Small Entities Affected:


Businesses


Government Levels Affected:


None


URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

[[Page 64235]]

Agency Contact:
Celio Young
Program Manager, Repair Stations
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management, General Aviation 
Division
TSA-28, HQ, E5
601 South 12th Street
Arlington, VA 20598-6028
Phone: 571 227-3580
Fax: 571 227-1362
Email: [email protected]

Thomas (Tom) Philson
Manager, Economic Analysis
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E10-411N
601 South 12th Street
Arlington, VA 20598-6028
Phone: 571 227-3236
Fax: 571 227-1362
Email: [email protected]

Linda L. Kent
Assistant Chief Counsel, Regulations and Security Standards Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-126S
601 South 12th Street
Arlington, VA 20598-6002
Phone: 571 227-2675
Fax: 571 227-1381
Email: [email protected]
RIN: 1652-AA38
_______________________________________________________________________



DHS--TSA



73. LARGE AIRCRAFT SECURITY PROGRAM, OTHER AIRCRAFT OPERATOR SECURITY 
PROGRAM, AND AIRPORT OPERATOR SECURITY PROGRAM

Priority:


Economically Significant. Major under 5 USC 801.


Unfunded Mandates:


This action may affect the private sector under PL 104-4.


Legal Authority:


6 USC 469; 18 USC 842; 18 USC 845; 46 USC 70102 to 70106; 46 USC 70117; 
49 USC 114; 49 USC114(f)(3); 49 USC 5103; 49 USC 5103a; 49 USC 40113; 
49 USC 44901 to 44907; 49 USC 44913 to 44914; 49 USC 44916 to 44918; 49 
USC 44932; 49 USC 44935 to 44936; 49 USC 44942; 49 USC 46105


CFR Citation:


49 CFR 1515; 49 CFR 1520; 49 CFR 1522; 49 CFR 1540; 49 CFR 1542; 49 CFR 
1544; 49 CFR 1550


Legal Deadline:


None


Abstract:


On October 30, 2008, the Transportation Security Administration (TSA) 
issued a Notice of Proposed Rulemaking, proposing to amend current 
aviation transportation security regulations to enhance the security of 
general aviation by expanding the scope of current requirements, and by 
adding new requirements for certain large aircraft operators and 
airports serving those aircraft. TSA also proposed that all aircraft 
operations, including corporate and private charter operations, with 
aircraft having a maximum certificated takeoff weight (MTOW) above 
12,500 pounds (``large aircraft'') be required to adopt a large 
aircraft security program. TSA also proposed to require certain 
airports that serve large aircraft to adopt security programs. TSA is 
preparing a supplemental NPRM (SNPRM), which will include a comment 
period for public comments.


After considering comments received on the NPRM and meeting with 
stakeholders, TSA decided to revise the original proposal to tailor 
security requirements to the general aviation industry. TSA is 
considering alternatives to the following proposed provisions in the 
SNPRM: (1) the weight threshold for aircraft subject to TSA regulation; 
(2) compliance oversight; (3) watch list matching of passengers; (4) 
prohibited items; (5) scope of the background check requirements and 
the procedures used to implement the requirement; and (6) other issues.


Statement of Need:


This rule would enhance current security measures, and would apply 
security measures currently in place for operators of certain types of 
aircraft, to operators of other aircraft. While the focus of TSA's 
existing aviation security programs has been on air carriers and 
commercial operators, TSA is aware that general aviation aircraft of 
sufficient size and weight may inflict significant damage and loss of 
lives if they are hijacked and used as missiles. TSA has current 
regulations that apply to large aircraft operated by air carriers and 
commercial operators, including the twelve five program, the partial 
program, and the private charter program. However, the current 
regulations do not cover all general aviation operations, such as those 
operated by corporations and individuals, and such operations do not 
have the features that are necessary to enhance security.


Alternatives:


DHS considered continuing to use voluntary guidance to secure general 
aviation, but determined that to ensure that each aircraft operator 
maintains an appropriate level of security, these security measures 
would need to be mandatory requirements.


Anticipated Cost and Benefits:


This proposed rule would yield benefits in the areas of security and 
quality governance. The rule would enhance security by expanding the 
mandatory use of security measures to certain operators of large 
aircraft that are not currently required to have a security plan. These 
measures would deter malicious individuals from perpetrating acts that 
might compromise transportation or national security by using large 
aircraft for these purposes.


In the NPRM, TSA estimated the total 10-year cost of the program would 
be $1.3 billion, discounted at 7 percent. Aircraft operators, airport 
operators, and TSA would incur costs to comply with the requirements of 
the proposed Large Aircraft Security Program rule. Aircraft operator 
costs comprise 85 percent of all estimated expenses. TSA estimated 
approximately 9,000 general aviation aircraft operators use aircraft 
with a maximum takeoff weight exceeding 12,500 pounds, and would be 
newly subjected to the proposed rule.


Risks:


This rulemaking addresses the national security risk of general 
aviation aircraft being used as a weapon or as a means to transport 
persons or weapons that could pose a threat to the United States.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
NPRM                            10/30/08                    73 FR 64790
NPRM Comment Period End         12/29/08
Notice--NPRM Comment 
    Period Extended             11/25/08                    73 FR 71590
NPRM Extended Comment 
    Period End                  02/27/09

[[Page 64236]]

Notice--Public Meetings; 
    Requests for Comments       12/28/08                    73 FR 77045
Supplemental NPRM               10/00/10

Regulatory Flexibility Analysis Required:


Undetermined


Government Levels Affected:


Local


Additional Information:


Public Meetings held on: Jan. 6, 2009 at White Plains, NY; Jan. 8, 
2009, at Atlanta, GA; Jan 16, 2009, at Chicago, IL; Jan. 23, 2009, at 
Burbank, CA; and Jan. 28, 2009, at Houston, TX.


Additional Comment Sessions held in Arlington, VA, on April 16, 2009, 
May 6, 2009, and June 15, 2009.


URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Erik Jensen
Assistant General Manager, General Aviation Security
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E10-132S
601 South 12th Street
Arlington, VA 20598-6028
Phone: 571 227-2154
Fax: 571 227-1923
Email: [email protected]

Holly Merwin
Economist, Regulatory Development and Economic Analysis
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E10-343N
601 South 12th Street
Arlington, VA 20598-6028
Phone: 571 227-4656
Fax: 571 227-1362
Email: [email protected]

Mai Dinh
Assistant Chief Counsel, Regulations and Security Standards Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-309N
601 South 12th Street
Arlington, VA 20598-6002
Phone: 571 227-2725
Fax: 571 227-1378
Email: [email protected]

Kiersten Ols

Attorney, Regulations and Security Standards Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-316N
601 South 12th Street
Arlington, VA 20598-6002
Phone: 571 227-2403
Fax: 571 227-1378
Email: [email protected]
Related RIN: Related to 1652-AA03, Related to 1652-AA04
RIN: 1652-AA53
_______________________________________________________________________



DHS--TSA



74. PUBLIC TRANSPORTATION AND PASSENGER RAILROADS--SECURITY TRAINING OF 
EMPLOYEES

Priority:


Other Significant. Major under 5 USC 801.


Unfunded Mandates:


Undetermined


Legal Authority:


49 USC 114; PL 110-53, secs 1408 and 1517


CFR Citation:


Not Yet Determined


Legal Deadline:


Final, Statutory, November 1, 2007, Interim Rule for public 
transportation agencies is due 90 days after date of enactment.


Final, Statutory, February 3, 2008, Rule for railroads is due 6 months 
after date of enactment.


Final, Statutory, August 3, 2008, Rule for public transportation 
agencies is due 1 year after date of enactment.


According to section 1408 of Public Law 110-53, Implementing 
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121 
Stat. 266), interim final regulations for public transportation 
agencies are due 90 days after the date of enactment (Nov. 1, 2007), 
and final regulations are due 1 year after the date of enactment of 
this Act.According to section 1517 of the same Act, final regulations 
for railroads are due no later than 6 months after the date of 
enactment of this Act.


Abstract:


The Transportation Security Administration (TSA) will propose a new 
regulation to improve the security of public transportation and 
passenger railroads in accordance with the Implementing Recommendations 
of the 9/11 Commission Act of 2007. This rulemaking will propose 
general requirements for a public transportation security training 
program and a passenger railroad training program to prepare public 
transportation and passenger railroad employees, including frontline 
employees, for potential security threats and conditions.


Statement of Need:


A security training program for public transportation agencies and for 
passenger railroads is proposed to prepare public transportation and 
passenger railroad employees, including frontline employees, for 
potential security threats and conditions.


Summary of Legal Basis:


49 U.S.C. 114; sections 1408 and 1517 of Public Law 110-53, 
Implementing

[[Page 64237]]

Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121 
Stat. 266).


Alternatives:


TSA is required by statute to publish regulations requiring security 
programs for these operators. As part of its notice of proposed 
rulemaking, TSA will seek public comment on the numerous ways in which 
the final rule could carry out the requirements of the statute.


Anticipated Cost and Benefits:


Economic analysis under development.


Risks:


The Department of Homeland Security aims to prevent terrorist attacks 
within the United States and to reduce the vulnerability of the United 
States to terrorism. By providing for security training for personnel, 
TSA intends in this rulemaking to reduce the risk of a terrorist attack 
on this transportation sector.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
NPRM                            04/00/10

Regulatory Flexibility Analysis Required:


Undetermined


Government Levels Affected:


Undetermined


Federalism:


 Undetermined


Agency Contact:
Thomas L. Farmer
Deputy General Manager-Mass Transit
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, E10-219S
601 South 12th Street
Arlington, VA 20598-6028
Phone: 571 227-3552
Email: [email protected]

Shaina Pereira
Economist, Regulatory Development and Economic Analysis
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E10-339N
601 South 12th Street
Arlington, VA 20598-6028
Phone: 571 227-5138
Fax: 571 227-1362
Email: [email protected]

David Kasminoff
Sr. Counsel, Regulations and Security Standards Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-310N
601 South 12th Street
Arlington, VA 20598-6002
Phone: 571 227-3583
Fax: 571 227-1378
Email: [email protected]
Related RIN: Related to 1652-AA57, Related to 1652-AA59
RIN: 1652-AA55
_______________________________________________________________________



DHS--TSA



75. FREIGHT RAILROADS--SECURITY TRAINING OF EMPLOYEES

Priority:


Other Significant. Major status under 5 USC 801 is undetermined.


Unfunded Mandates:


Undetermined


Legal Authority:


49 USC 114; PL 110-53, sec 1517


CFR Citation:


Not Yet Determined


Legal Deadline:


Final, Statutory, February 3, 2008, Rule is due 6 months after date of 
enactment.


According to section 1517 of Public Law 110-53, Implementing 
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121 
Stat. 266), TSA must issue a regulation no later than 6 months after 
the date of enactment of this Act.


Abstract:


The Transportation Security Administration (TSA) will propose new 
regulations to improve the security of freight railroads in accordance 
with the Implementing Recommendations of the 9/11 Commission Act of 
2007. The rulemaking will propose general requirements for a security 
training program to prepare freight railroad employees, including 
frontline employees, for potential security threats and conditions. The 
regulations will take into consideration any current security training 
requirements or best practices.


Statement of Need:


The rulemaking will propose general requirements for a security 
training program to prepare freight railroad employees, including 
frontline employees, for potential security threats and conditions.


Summary of Legal Basis:


49 U.S.C. 114; section 1517 of Public Law 110-53, Implementing 
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121 
Stat. 266).


Alternatives:


TSA is required by statute to publish regulations requiring security 
programs for these operators. As part of its notice of proposed 
rulemaking, TSA will seek public comment on the numerous ways in which 
the final rule could carry out the requirements of the statute.


Anticipated Cost and Benefits:


Economic analysis under development.


Risks:


The Department of Homeland Security aims to prevent terrorist attacks 
within the United States and to reduce the vulnerability of the United 
States to terrorism. By providing for security training for personnel, 
TSA intends in this rulemaking to reduce the risk of a terrorist attack 
on this transportation sector.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
NPRM                            04/00/10

Regulatory Flexibility Analysis Required:


Undetermined

[[Page 64238]]

Government Levels Affected:


Undetermined


Federalism:


 Undetermined


Agency Contact:
Scott Gorton
Policy and Plans Branch Chief for Freight Rail
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E10-423N
601 South 12th Street
Arlington, VA 20598-6028
Phone: 571 227-1251
Fax: 571 227-2930
Email: [email protected]

Shaina Pereira
Economist, Regulatory Development and Economic Analysis
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E10-339N
601 South 12th Street
Arlington, VA 20598-6028
Phone: 571 227-5138
Fax: 571 227-1362
Email: [email protected]

David Kasminoff
Sr. Counsel, Regulations and Security Standards Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-310N
601 South 12th Street
Arlington, VA 20598-6002
Phone: 571 227-3583
Fax: 571 227-1378
Email: [email protected]
Related RIN: Related to 1652-AA55, Related to 1652-AA59
RIN: 1652-AA57
_______________________________________________________________________



DHS--TSA



76. OVER-THE-ROAD BUSES--SECURITY TRAINING OF EMPLOYEES

Priority:


Other Significant. Major status under 5 USC 801 is undetermined.


Unfunded Mandates:


Undetermined


Legal Authority:


49 USC 114; PL 110-53, sec 1534


CFR Citation:


Not Yet Determined


Legal Deadline:


Final, Statutory, February 3, 2008, Rule due 6 months after date of 
enactment.


According to section 1534 of Public Law 110-53, Implementing 
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007); 121 
Stat. 266), TSA must issue a regulation no later than 6 months after 
date of enactment of this Act.


Abstract:


The Transportation Security Administration (TSA) will propose new 
regulations to improve the security of over-the-road buses in 
accordance with the Implementing Recommendations of the 9/11 Commission 
Act of 2007. The rulemaking will propose an over-the-road bus security 
training program to prepare over-the-road bus frontline employees for 
potential security threats and conditions. The regulations will take 
into consideration any current security training requirements or best 
practices.


Statement of Need:


The rulemaking will propose an over-the-road bus security training 
program to prepare over-the-road bus frontline employees for potential 
security threats and conditions.


Summary of Legal Basis:


49 U.S.C. 114; section 1534 of Public Law 110-53, Implementing 
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121 
Stat. 266).


Anticipated Cost and Benefits:


Economic analysis under development.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
NPRM                            04/00/10

Regulatory Flexibility Analysis Required:


Undetermined


Government Levels Affected:


Undetermined


Federalism:


 Undetermined


Agency Contact:
Paul Pitzer
Policy and Planning Branch Chief; Highway and Motor Carrier Programs
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E
601 South 12th Street
Arlington, VA 20598-6028
Phone: 571 227-1233
Email: [email protected]

Shaina Pereira
Economist, Regulatory Development and Economic Analysis
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E10-339N
601 South 12th Street
Arlington, VA 20598-6028
Phone: 571 227-5138
Fax: 571 227-1362
Email: [email protected]

Denise Starr
Attorney, Regulations and Security Standards Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, E12-419N
601 South 12th Street
Arlington, VA 20598-6002
Phone: 571 227-5130
Email: [email protected]
Related RIN: Related to 1652-AA55, Related to 1652-AA57
RIN: 1652-AA59
_______________________________________________________________________



DHS--TSA



77. VETTING, ADJUDICATION, AND REDRESS PROCESS AND FEES

Priority:


Other Significant. Major status under 5 USC 801 is undetermined.


Unfunded Mandates:


Undetermined


Legal Authority:


49 USC 114; PL 110-53, secs 1411, 1414, 1520, 1522, 1602


CFR Citation:


Not Yet Determined


Legal Deadline:


None


Abstract:


The Transportation Security Administration (TSA) will propose new

[[Page 64239]]

regulations to revise and standardize the procedures, adjudication 
criteria, and fees for most of the security threat assessments (STA) of 
individuals for which TSA is responsible. In accordance with the 
Implementing Recommendations of the 9/11 Commission Act of 2007, the 
scope of the rulemaking will include transportation workers from all 
modes of transportation who are required to undergo an STA in other 
regulatory programs, including certain aviation workers and frontline 
employees for public transportation agencies, railroads, and over-the-
road buses.


In addition, TSA will propose fees to cover the cost of the STAs, and 
credentials for some personnel. TSA plans to improve efficiencies in 
processing STAs and streamline existing regulations by simplifying 
language and removing redundancies.


Statement of Need:


Sections of the Implementing Recommendation of the 9/11 Commission Act 
of 2007 require TSA to complete security threat assessments and provide 
a redress process for all frontline employees for public transportation 
agencies, railroads, and over-the-road buses. There could be a further 
need for threat assessments on transportation personnel that could be 
addressed under this rule.


Summary of Legal Basis:


49 U.S.C. 114; sections 1411, 1414, 1520, 1522, and 1602 of Public Law 
110-53, Implementing Recommendation of the 9/11 Commission Act of 2007.


Anticipated Cost and Benefits:


Economic analysis under development.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
Notice of Proposed 
    Rulemaking (NPRM)           02/00/10

Regulatory Flexibility Analysis Required:


Undetermined


Government Levels Affected:


Undetermined


Federalism:


 Undetermined


Agency Contact:
Hao-y Tran Froemling
Program Manager, Maritime and Surface Credentialing
Department of Homeland Security
Transportation Security Administration
Office of Transportation Threat Assessment and Credentialing
TSA-19, HQ, E3-401N
601 South 12th Street
Arlington, VA 20598-6019
Phone: 571 227-2782
Email: [email protected]

Adam Sicking
Economist, Regulatory Development and Economic Analysis
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E10-345N
601 South 12th Street
Arlington, VA 20598-6028
Phone: 571 227-2304
Fax: 571 227-1362
Email: [email protected]

Christine Beyer
Assistant Chief Counsel, Regulations and Security Standards Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-336N
601 South 12th Street
Arlington, VA 20598-6002
Phone: 571 227-2657
Email: [email protected]
RIN: 1652-AA61
_______________________________________________________________________



DHS--TSA

                              -----------

                            FINAL RULE STAGE

                              -----------




78. AIR CARGO SCREENING

Priority:


Economically Significant. Major under 5 USC 801.


Unfunded Mandates:


This action may affect the private sector under PL 104-4.


Legal Authority:


PL 110-53, sec 1602; 49 USC 114; 49 USC 40113; 49 USC 44901 to 44905; 
49 USC 44913 to 44914; 49 USC 44916; 49 USC 44935 to 44936; 49 USC 
46105


CFR Citation:


49 CFR 1520; 49 CFR 1522; 49 CFR 1540; 49 CFR 1544; 49 CFR 1548; 49 CFR 
1549


Legal Deadline:


Other, Statutory, February 3, 2009, Screen 50 percent of cargo on 
passenger aircraft.


Final, Statutory, August 3, 2010, Screen 100 percent of cargo on 
passenger aircraft.


Section 1602 of the Implementing Recommendations of the 9/11 Commission 
Act of 2007 (Pub. L. 110-53, 121 Stat. 266, 478, Aug. 3, 2007) requires 
that the Secretary of Homeland Security establish a system to screen 50 
percent of cargo on passenger aircraft not later than 18 months after 
the date of enactment and 100 percent of such cargo not later than 3 
years after the date of enactment.


Abstract:


The Transportation Security Administration (TSA) is establishing the 
Certified Cargo Screening Program that will certify shippers, 
manufacturers, and other entities to screen air cargo intended for 
transport on a passenger aircraft. This will be the primary means 
through which TSA will meet the requirements of section 1602 of the 
Implementing Recommendations of the 9/11 Commission Act of 2007 that 
mandates that 100 percent of air cargo transported on passenger 
aircraft, operated by an air carrier or foreign air carrier in air 
transportation or intrastate air transportation, must be screened by 
August 2010, to ensure the security of all such passenger aircraft 
carrying cargo.


Under this rulemaking, each certified cargo screening facility (CCSF) 
and their employees and authorized representatives that will be 
screening cargo must successfully complete a security threat 
assessment. The CCSF must also submit to an audit of their security 
measures by TSA-approved auditors, screen cargo using TSA-approved 
methods, and initiate strict chain of custody measures to ensure the 
security of the cargo throughout the supply chain prior to tendering it 
for transport on passenger aircraft.


Statement of Need:


TSA is establishing a system to screen 100 percent of cargo transported 
on passenger aircraft operated by an air carrier or foreign air carrier 
in air transportation or intrastate air transportation to ensure the 
security of all such passenger aircraft carrying cargo.


The system shall require, at a minimum, that equipment, technology, 
procedures, personnel, or other

[[Page 64240]]

methods approved by the Administrator of TSA, used to screen cargo 
carried on passenger aircraft, provide a level of security commensurate 
with the level of security for the screening of passenger checked 
baggage.


Summary of Legal Basis:


49 U.S.C. 114; section 1602 of the Implementing Recommendations of the 
9/11 Commission Act of 2007 (Pub. L. 110-53, 121 Stat. 266, 478, 10/3/
2007), codified at 49 U.S.C. 44901(g).


Alternatives:


The Interim Final Rule (IFR) states that as an alternative to 
establishing the CCSP, TSA considered meeting the statutory 
requirements by having aircraft operators screen cargo intended for 
transportation on passenger aircraft--that is, continuing the current 
cargo screening program but expanding it to 85 percent of air cargo on 
passenger aircraft. Under this alternative, the cost drivers for this 
alternative are screening equipment, personnel for screening, training 
of personnel, and delays. Delays are the largest cost component, 
totaling $7.0 billion over 10 years, undiscounted. In summary, the 
undiscounted 10 year cost of the alternative is $11.1 billion, and 
discounted at 7 percent, the cost is 7.7 billion.


Anticipated Cost and Benefits:


TSA estimates the cost of the rule will be $1.9 billion (discounted at 
7 percent) over 10 years. TSA analyzed the alternative of not 
establishing the Certified Cargo Screening Program (CCSP) and, instead, 
having aircraft operators and air carriers perform screening of all 
cargo transported on passenger aircraft. Absent the CCSP, the estimated 
cost to aircraft operators and air carriers is $7.7 billion (discounted 
at seven percent) over ten years. The bulk of the costs for both the 
CCSP and the alternative are attributed to personnel and the impact of 
cargo delays resulting from the addition of a new operational process.


The benefits of the IFR are four fold. First, passenger air carriers 
will be more firmly protected against an act of terrorism or other 
malicious behaviors by the screening of 100 percent of cargo shipped on 
passenger aircraft. Second, allowing the screening process to occur 
throughout the supply chain via the Certified Cargo Screening Program 
will reduce potential bottlenecks and delays at the airports. Third, 
the IFR will allow market forces to identify the most efficient venue 
for screening along the supply chain, as entities upstream from the 
aircraft operator may apply to become CCSFs and screen cargo. Finally, 
validation firms will perform assessments of the entities that become 
CCSFs, allowing TSA to set priorities for compliance inspections.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
Interim Final Rule              09/16/09                    74 FR 47672
Interim Final Rule 
    Comment Period End          11/16/09
Interim Final Rule 
    Effective                   11/16/09
Final Rule                      11/00/10

Regulatory Flexibility Analysis Required:


No


Government Levels Affected:


Federal


Agency Contact:
Robert S. Hyde
Branch Chief, Air Cargo Policy & Plans
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E4-417N
601 South 12th Street
Arlington, VA 20598-6028
Phone: 571 227-3943
Fax: 571 227-1923
Email: [email protected]

Adam Sicking
Economist, Regulatory Development and Economic Analysis
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E10-345N
601 South 12th Street
Arlington, VA 20598-6028
Phone: 571 227-2304
Fax: 571 227-1362
Email: [email protected]

Alice Crowe
Sr. Attorney, Regulations and Security Standards Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-320N
601 South 12th Street
Arlington, VA 20598-6002
Phone: 571 227-2652
Fax: 571 227-1379
Email: [email protected]
RIN: 1652-AA64
_______________________________________________________________________



DHS--U.S. Immigration and Customs Enforcement (USICE)

                              -----------

                          PROPOSED RULE STAGE

                              -----------




79. CLARIFICATION OF CRITERIA FOR CERTIFICATION, OVERSIGHT, AND 
RECERTIFICATION OF SCHOOLS BY THE STUDENT AND EXCHANGE VISITOR PROGRAM 
(SEVP) TO ENROLL F OR M NONIMMIGRANT STUDENTS

Priority:


Other Significant


Legal Authority:


8 USC 1356(m); PL 107-56; PL 107-173


CFR Citation:


8 CFR 103; 8 CFR 214.3; 8 CFR 214.4


Legal Deadline:


None


Abstract:


This proposed rule would clarify the criteria for nonimmigrant academic 
(F visa) and vocational (M visa) students and exchange aliens (J visa) 
to maintain visa status, and for the schools certified by the Student 
and Exchange Visitor Program (SEVP) to enroll F or M nonimmigrant 
students to fulfill their recordkeeping, retention, and reporting 
requirements to SEVP. The proposed rule would incorporate significant 
refinements in policy and procedures that have evolved since the last 
major regulatory update in 2002 and since the establishment of SEVP 
nearly 6 years ago. The proposed rule would remove obsolete provisions 
in the regulations used prior to and during implementation of the 
Student and Exchange Visitor Information Program (SEVIS). In 
anticipation of the implementation of a major reprogramming of SEVIS, 
referred to as SEVIS II, that will begin in late 2009, the proposed 
rule would incorporate language to support that transition.


Statement of Need:


ICE will publish this proposed rule that will incorporate significant 
refinements in policy and procedures that have evolved since the last 
major regulatory update in 2002, and since the establishment of SEVP 
nearly six years ago. These revisions of 8 CFR 214.1-4 will clarify the 
criteria for F, M and J nonimmigrant status and for schools certified 
by SEVP, update policy and procedure for SEVP, remove obsolete 
provisions and support the

[[Page 64241]]

implementation of a major reprogramming of the Student and Exchange 
Visitor Information System (SEVIS), known as ``SEVIS II.''


Anticipated Cost and Benefits:


Under development. It is difficult to quantify monetarily the benefits 
of the Clarification of Criteria for Certification, Oversight and 
Recertification of Schools by the Student and Exchange Visitor Program 
(SEVP) To Enroll F or M Nonimmigrant Students regulation using standard 
economic accounting techniques. Nonimmigrant students, the schools that 
serve them, and the communities in which they live will benefit from 
the improvements and clarifications to the rules governing the 
certification, oversight, and recertification of schools certified by 
SEVP.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
NPRM                            05/00/10

Regulatory Flexibility Analysis Required:


Undetermined


Small Entities Affected:


 Businesses


Government Levels Affected:


None


Agency Contact:
Sharon Snyder
Acting Branch Chief, SEVP Policy, Student and Exchange Visitor Program
Department of Homeland Security
U.S. Immigration and Customs Enforcement
Potomac Center North
500 12th Street SW.
Washington, DC 20024-6121
Phone: 703 603-3415
Related RIN: Related to 1653-AA42
RIN: 1653-AA44
_______________________________________________________________________



DHS--USICE

                              -----------

                            FINAL RULE STAGE

                              -----------




80. CONTINUED DETENTION OF ALIENS SUBJECT TO FINAL ORDERS OF REMOVAL

Priority:


Other Significant


Legal Authority:


8 USC 1103; 8 USC 1223; 8 USC 1227; 8 USC 1231; 8 USC 1253; . . .


CFR Citation:


8 CFR 241


Legal Deadline:


None


Abstract:


The U.S. Department of Homeland Security is finalizing, with 
amendments, the interim rule that was published on November 14, 2001, 
by the former Immigration and Naturalization Service (Service). The 
interim rule included procedures for conducting custody determinations 
in light of the U.S. Supreme Court's decision in Zadvydas v. Davis, 533 
U.S. 678 (2001), which held that the detention period of certain aliens 
who are subject to a final administrative order of removal is limited 
under section 241(a)(6) of the Immigration and Nationality Act (Act) to 
the period reasonably necessary to effect their removal. The interim 
rule amended section 241.4 of title 8, Code of Federal Regulations 
(CFR), in addition to creating two new sections: 8 CFR 241.13 
(establishing custody review procedures based on the significant 
likelihood of the alien's removal in the reasonably foreseeable future) 
and 241.14 (establishing custody review procedures for special 
circumstances cases). Subsequently, in the case of Clark v. Martinez, 
543 U.S. 371 (2005), the Supreme Court clarified a question left open 
in Zadvydas, and held that section 241(a)(6) of the Act applies equally 
to all aliens described in that section. This rule amends the interim 
rule to conform to the requirements of Martinez. Further, the 
procedures for custody determinations for post-removal period aliens 
who are subject to an administratively final order of removal, and who 
have not been released from detention or repatriated, have been revised 
in response to comments received and experience gained from 
administration of the interim rule published in 2001. This final rule 
also makes conforming changes as required by the enactment of the 
Homeland Security Act of 2002 (HSA). Additonally, certain portions of 
the Final Rule were determined to require public comment and, for this 
reason, have been developed into a separate/companion Notice of 
Proposed Rulemaking; RIN 1653-AA60.


Statement of Need:


This rule will improve the post order custody review process in the 
Final Rule related to the Detention of Aliens Subject to Final Orders 
of Removal in light of the U.S. Supreme Court's decisions in Zadvydas 
v. Davis, 533 U.S. 678 (2001), Clark v. Martinez, 543 U.S. 371 (2005) 
and conforming changes as required by the enactment of the Homeland 
Security Act of 2002 (HSA). A companion Notice of Proposed Rulemaking 
(NPRM) will amend 8 CFR 241.1(g) to provide for a new 90-day removal 
period once an alien comes into compliance with his or her obligation 
to make timely application in good faith for travel or other documents 
and not conspire or act to prevent removal. The NPRM adds new 
subparagraph (iii) to 8 CFR 241.4(g)(1) to provide for a 90-day removal 
period once the alien is taken into custody if at liberty or in another 
agency's custody at the time the removal order becomes administratively 
final and amends 8 CFR 241.13(b)(3) to clarify that aliens who fall 
within the provisions of 236A of the Act, 8 U.S.C. 1226a, are not 
covered by the provisions of 8 CFR 241.13(a) (such alien covered by the 
specific provisions of section 236A).


Anticipated Cost and Benefits:


Under development; this rule is not significant for economic reasons.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
Interim Final Rule              11/14/01                    66 FR 56967
Interim Final Rule 
    Comment Period End          01/14/02
Final Action                    05/00/10

Regulatory Flexibility Analysis Required:


No


Small Entities Affected:


No


Government Levels Affected:


None


Additional Information:


INS No. 2156-01


Transferred from RIN 1115-AG29


Agency Contact:
Jason Johnsen
Department of Homeland Security
U.S. Immigration and Customs Enforcement
500 12th Street SW.
Washington, DC 20024
Phone: 202 732-4245
Email: [email protected]
RIN: 1653-AA13

[[Page 64242]]

_______________________________________________________________________



DHS--USICE



81. ELECTRONIC SIGNATURE AND STORAGE OF FORM I-9, EMPLOYMENT 
ELIGIBILITY VERIFICATION

Priority:


Other Significant


Legal Authority:


8 USC 1101; 8 USC 1103; 8 USC 1324a; 8 CFR 2


CFR Citation:


8 CFR 274a


Legal Deadline:


None


Abstract:


Department of Homeland Security (DHS) regulations provide that 
employers and recruiters or referrers for a fee required to complete 
and retain Forms I-9, Employment Eligibility Verification, may sign and 
retain these forms electronically.


Statement of Need:


This final rule on the Electronic Signature and Storage of Form I-9, 
Employment Eligibility Verification will respond to comments and make 
minor changes to the IFR that was published in 2006.


Anticipated Cost and Benefits:


Under development.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
Interim Final Rule              06/15/06                    71 FR 34510
Interim Final Rule 
    Effective                   06/15/06
Interim Final Rule 
    Comment Period End          08/14/06
Final Rule                      02/00/10

Regulatory Flexibility Analysis Required:


No


Government Levels Affected:


Federal, Local, State, Tribal


Additional Information:


ICE 2345-05


URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Allan Vanscoy
Department of Homeland Security
U.S. Immigration and Customs Enforcement
500 12th Street SW.
Washington, DC 20025
Phone: 202 732-5798
RIN: 1653-AA47
_______________________________________________________________________



DHS--USICE



82. EXTENDING PERIOD FOR OPTIONAL PRACTICAL TRAINING BY 17 MONTHS FOR 
F-1 NONIMMIGRANT STUDENTS WITH STEM DEGREES AND EXPANDING THE CAP-GAP 
RELIEF FOR ALL F-1 STUDENTS WITH PENDING H-1B PETITIONS

Priority:


Other Significant. Major status under 5 USC 801 is undetermined.


Legal Authority:


8 USC 1101 to 1103; 8 USC 1182; 8 USC 1184 to 1187; 8 USC 1221; 8 USC 
1281 and 1282; 8 USC 1301 to 1305


CFR Citation:


8 CFR 214


Legal Deadline:


None


Abstract:


Currently, foreign students in F-1 nonimmigrant status who have been 
enrolled on a full-time basis for at least one full academic year in a 
college, university, conservatory, or seminary certified by U.S. 
Immigration and Custom Enforcement's (ICE) Student and Exchange Visitor 
Program (SEVP) are eligible for 12 months of optional practical 
training (OPT) to work for a U.S. employer in a job directly related to 
the student's major area of study. The maximum period of OPT is 29 
months for F-1 students who have completed a science, technology, 
engineering, or mathematics (STEM) degree and accept employment with 
employers enrolled in U.S. Citizenship and Immigration Services' 
(USCIS') E-Verify employment verification program. Employers of F-1 
students with an extension of post-completion OPT authorization must 
report to the student's designated school official (DSO) within 48 
hours after the OPT student has been terminated from, or otherwise 
leaves, his or her employment with that employer prior to end of the 
authorized period of OPT.


The final rule will respond to public comments and may make adjustments 
to the regulations.


Statement of Need:


ICE will improve SEVP processes by publishing the Final Optional 
Practical Training (OPT) rule, which will respond to comments on the 
OPT interim final rule (IFR). The IFR increased the maximum period of 
OPT from 12 months to 29 months for nonimmigrant students who have 
completed a science, technology, engineering, or mathematics (STEM) 
degree and who accept employment with employers who participate in the 
U.S. Citizenship and Immigration Services' (USCIS') E-Verify employment 
verification program.


Alternatives:


DHS is considering several alternatives to the 17-month extension of 
OPT and cap-gap extension, ranging from taking no action to further 
extension for a larger populace. The interim final rule addressed an 
immediate competitive disadvantage faced by U.S. industries and 
ameliorated some of the adverse impacts on the U.S. economy. DHS 
continues to evaluate both quantitative and qualitative alternatives.


Anticipated Cost and Benefits:


Based on an estimated 12,000 students per year that will receive an OPT 
extension and an estimated 5,300 employers that will need to enroll in 
E-verify, DHS projects that this rule will cost students approximately 
$1.49 million per year in additional information collection burdens, 
$4,080,000 in fees, and cost employers $1,240,000 to enroll in E-Verify 
and $168,540 per year thereafter to verify the status of new hires. 
However, this rule will increase the availability of qualified workers 
in science, technology, engineering, and mathematical fields; reduce 
delays that place U.S. employers at a disadvantage when recruiting 
foreign job candidates, thereby improving strategic and resource 
planning capabilities; increase the quality of life for participating 
students, and increase the integrity of the student visa program.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
Interim Final Rule              04/08/08                    73 FR 18944
Interim Final Rule 
    Comment Period End          06/09/08
Final Rule                      05/00/10

[[Page 64243]]

Regulatory Flexibility Analysis Required:


No


Government Levels Affected:


None


URL For More Information:
www.dhs.gov/sevis/

Agency Contact:
Sharon Snyder
Acting Branch Chief, SEVP Policy, Student and Exchange Visitor Program
Department of Homeland Security
U.S. Immigration and Customs Enforcement
Potomac Center North
500 12th Street SW.
Washington, DC 20024-6121
Phone: 703 603-3415
RIN: 1653-AA56
_______________________________________________________________________



DHS--Federal Emergency Management Agency (FEMA)

                              -----------

                          PROPOSED RULE STAGE

                              -----------




83. DISASTER ASSISTANCE; FEDERAL ASSISTANCE TO INDIVIDUALS AND 
HOUSEHOLDS

Priority:


Other Significant


Legal Authority:


42 USC 5174


CFR Citation:


44 CFR 206


Legal Deadline:


Final, Statutory, October 15, 2002.


Abstract:


This rulemaking implements section 408 of the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act. In doing so, the notice 
of proposed rulemaking would propose further revisions to 44 CFR part 
206, subpart D (the Individuals and Households Program (IHP)) and 
remove subpart E (Individual and Family Grant Programs). Among other 
things, it would propose to implement section 686 of the Post-Katrina 
Emergency Management Reform Act of 2006 (PKEMRA) to remove the IHP 
subcaps; and PKEMRA section 685 regarding semi-permanent and permanent 
housing construction eligibility. It would revise FEMA's regulations 
related to individuals with disabilities pursuant to PKEMRA section 
689; and revise FEMA's regulations to allow for the payment of security 
deposits and the costs of utilities, excluding telephone service, in 
accordance with section 689d of PKEMRA. The rule would propose to 
implement section 689f of PKEMRA by authorizing assistance to relocate 
individuals displaced from their predisaster primary residence, to and 
from alternate locations for short- or long-term accommodations.


Statement of Need:


FEMA needs to revise its IHP regulations to reflect lessons learned, 
from Hurricane Katrina and subsequent events, to address comments 
received on the interim regulations, and to implement recent 
legislative changes (i.e. Post-Katrina Emergency Management Reform Act 
of 2006). These changes are intended to provide clear information to 
disaster assistance applicants, implement new authorities, and help 
ensure the consistent administration of the Individuals and Households 
Program.


Summary of Legal Basis:


This rulemaking is authorized by the Robert T. Stafford Disaster Relief 
and Emergency Assistance Act as amended by the Post-Katrina Emergency 
Management Reform Act of 2006.


Alternatives:


The rule is under development.


Anticipated Cost and Benefits:


The economic analysis for this rule is under development.


Risks:


This action does not adversely affect public health, safety, or the 
environment.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
NPRM                            01/23/02                     67 FR 3412
NPRM Comment Period End         03/11/02
Interim Final Rule              09/30/02                    67 FR 61446
Corrections                     10/09/02                    67 FR 62896
Corrections Effective           10/09/02
Interim Final Rule 
    Effective                   10/15/02
Interim Final Rule 
    Comment Period End          04/15/03
NPRM                            08/00/10

Regulatory Flexibility Analysis Required:


No


Small Entities Affected:


No


Government Levels Affected:


Federal, State


Additional Information:


Transferred from RIN 3067-AD25; Docket ID FEMA-2008-0005


URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Julia Chiu
Disaster Assistance Directorate
Department of Homeland Security
Federal Emergency Management Agency
500 C Street SW.
Washington, DC 20472-3100
Phone: 202 212-1100
Fax: 202 212-1002
Email: [email protected]
RIN: 1660-AA18
_______________________________________________________________________



DHS--FEMA



84. UPDATE OF FEMA'S PUBLIC ASSISTANCE REGULATIONS

Priority:


Other Significant


Legal Authority:


42 USC 5121-5207


CFR Citation:


44 CFR 206


Legal Deadline:


None


Abstract:


This proposed rule would revise the Federal Emergency Management 
Agency's Public Assistance program regulations. Many of these changes 
reflect amendments made to the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act by the Post-Katrina Emergency Management 
Reform Act of 2006 and the Security and Accountability For Every Port 
Act of 2006. The proposed rule also proposes to reflect lessons learned 
from recent events, and propose further substantive and non-substantive 
clarifications and corrections to improve upon the Public Assistance 
regulations. This proposed rule is intended to improve the efficiency 
and consistency of the Public Assistance program, as well as implement 
new statutory authority by expanding Federal assistance, providing for 
precautionary evacuations, improving the Project Worksheet process, 
empowering grantees, and improving State Administrative Plans.

[[Page 64244]]

Statement of Need:


The proposed changes implement new statutory authorities and 
incorporate necessary clarifications and corrections to streamline and 
improve the Public Assistance program. Portions of FEMA's Public 
Assistance regulations have become out of date and do not implement all 
of FEMA's available statutory authorities. The current regulations 
inhibit FEMA's ability to clearly articulate its regulatory 
requirements, and the Public Assistance applicants' understanding of 
the program. The proposed changes are intended to improve the 
efficiency and consistency of the Public Assistance program.


Summary of Legal Basis:


The legal authority for the changes in this proposed rule is contained 
in the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 
42 U.S.C. 5121 to 5207, as amended by the Post-Katrina Emergency 
Management Reform Act of 2006, 6 U.S.C. 701 et seq., the Security and 
Accountability for Every Port Act of 2006, 6 U.S.C. 901 note, the Local 
Community Recovery Act of 2006, Public Law 109-218, 120 Stat. 333, and 
the Pets Evacuation and Transportation Standards Act of 2006, Public 
Law 109-308, 120 Stat. 1725.


Alternatives:


One alternative is to revise some of the current regulatory 
requirements (such as application deadlines) in addition to 
implementing the amendments made to the Stafford Act by (1) the Post-
Katrina Emergency Management Reform Act of 2006 (PKEMRA) Public law 
109-295, 120 Stat. 1394; 2) the Security and Accountability for Every 
Port Act of 2006 (SAFE Port Act), Public Law 109-347, 120 Stat. 1884, 
3) the Local Community Recovery Act of 2006, Public Law 109-218, 120 
Stat. 333; and 4) the Pets Evacuation and Transportation Standards Act 
of 2006 (PETS Act), Public Law 109-308, 120 Stat. Another alternative 
is to expand funding by expanding force account labor cost eligibility 
to Category A Projects (debris removal) as well as Category B Projects 
(emergency protective measures).


Anticipated Cost and Benefits:


The proposed rule is expected to have economic impacts on the public, 
grantees, subgrantees, and FEMA. The expected benefits are a reduction 
in property damages, societal losses, and losses to local businesses, 
as well as improved efficiency and consistency of the Public Assistance 
program. The expected cost impact of the proposed rule is mainly the 
costs to FEMA in administering the Public Assistance program of 
approximately $60 million per year. Less than $1 million per year is 
expected to be attributed to grantees, and FEMA estimates the rule will 
have no costs added to subgrantees. These costs to FEMA are expected to 
accrue from the inclusion of education to the list of eligible private 
nonprofit critical services; expansion of force account labor cost 
eligibility; the inclusion of durable medical equipment; the 
evacuation, care, and sheltering of pets; as well as providing for 
precautionary evacuation measures. However, most of the proposed 
changes are not expected to result in any additional cost to FEMA or 
any changes in the eligibility of assistance. For example, the proposed 
rule would provide for accelerated Federal assistance and expedited 
payment of Federal share for debris removal. These are expected to 
improve the agency's ability to quickly provide funding to grantees and 
subgrantees without affecting Public Assistance funding amounts.


Risks:


This action does not adversely affect public health, safety, or the 
environment.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
NPRM                            06/00/10

Regulatory Flexibility Analysis Required:


Yes


Small Entities Affected:


Governmental Jurisdictions


Government Levels Affected:


Federal, Local, State


Federalism:


 This action may have federalism implications as defined in EO 13132.


Agency Contact:
James A. Walke
Disaster Assistance Directorate
Department of Homeland Security
Federal Emergency Management Agency
500 C Street SW.
Washington, DC 20472-3100
Phone: 202 646-2751
Fax: 202 646-3304
Email: [email protected]
RIN: 1660-AA51
_______________________________________________________________________



DHS--FEMA

                              -----------

                            FINAL RULE STAGE

                              -----------




85. SPECIAL COMMUNITY DISASTER LOANS PROGRAM

Priority:


Economically Significant. Major under 5 USC 801.


Legal Authority:


42 USC 5121 to 5207


CFR Citation:


44 CFR 206


Legal Deadline:


None


Abstract:


This rule amends FEMA's regulations to implement loan cancellation 
provisions for Special Community Disaster Loans (Special CDLs), which 
were provided by FEMA to local governments in the Gulf region following 
Hurricanes Katrina and Rita. This rule would not automatically cancel 
all Special CDLs, but would establish the procedures and requirements 
for governments who received Special CDLs to apply for cancellation of 
loan obligations as authorized by the U.S. Troop Readiness, Veterans' 
Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 
2007 (Troop Act). With the passage of the Troop Act, FEMA has the 
discretionary ability to cancel Special CDLs subject to the limitations 
of section 417(c)(1) of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (Stafford Act). Under section 417 of the 
Stafford Act, FEMA is authorized to cancel a loan if it determines that 
the ``revenues of the local government during the three full fiscal 
year period following the major disaster are insufficient to meet the 
operating budget of the local government, including additional 
disaster-related expenses of a municipal operation character.'' Since 
the cancellation provisions of section 417 of the Stafford Act already 
exist in the Traditional CDL Program regulations at 44 CFR 206.366, and 
section 417 of the Stafford Act provides the basis for cancellation of 
loans under both the Special CDL Program and the Traditional CDL 
Program, FEMA proposed to mirror the Traditional CDL cancellation 
provisions for Special CDLs. This rule will not affect the

[[Page 64245]]

cancellation provisions for the Traditional CDL Program.


Statement of Need:


This rulemaking is needed to address the needs of the communities 
affected by Hurricanes Katrina and Rita in 2005. This rule would 
provide for the alleviation of financial hardship on those communities 
who can demonstrate that in the three full fiscal years after the 
disaster they have not recovered to the point that their revenues are 
sufficient to meet their operating budget. This rule is needed to help 
those communities recover from that catastrophic disaster by offering 
the potential for relief of an additional financial burden.


Summary of Legal Basis:


This rulemaking is authorized by the Community Disaster Loan Act of 
2005 (Pub. L. 109-88), the Emergency Supplemental Appropriations Act 
for Defense, the Global War on Terror, and Hurricane Recovery, 2006, 
(Pub. L. 109-234), and the U.S. Troop Readiness, Veterans' Care, 
Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 
(Pub. L. 110-28).


Alternatives:


FEMA considered creating new and different cancellation application 
requirements for these communities but decided against that method as 
the cancellation authority is the same as the authority for traditional 
CDLs and the regulations currently used to cancel traditional CDLs has 
been in place and working for 19 years. New requirements may be 
confusing, additionally burdensome, or insufficient. FEMA is also 
considering the alternatives proposed by the commenters in drafting the 
final rule.


Anticipated Cost and Benefits:


The overall impact of this rule is the cost to the applicant to apply 
for the cancellation, as well as the impact on the economy of 
potentially forgiving all Special Community Disaster Loans and any 
related interest and costs. As the total amount of loans approved in 
the SCDL program reached almost $1.3 billion, therefore, the maximum 
total economic impact of this rule is approximately $1.3 billion. 
However, without knowing which communities will apply for cancellation 
and the dollar amount of the loans that will be cancelled, it is 
impossible to predict the amount of the economic impact of this rule 
with any precision. Although the impact of the rule could be spread 
over multiple years as applications are received, processed, and loans 
cancelled, the total economic effect of a specific loan cancellation 
would only occur once, rather than annually.


Risks:


This action does not adversely affect public health, safety, or the 
environment.


Timetable:
_______________________________________________________________________
Action                            Date                        FR Cite

_______________________________________________________________________
Interim Final Rule              10/18/05                    70 FR 60443
Interim Final Rule 
    Effective                   10/18/05
Interim Final Rule 
    Comment Period End          12/19/05
NPRM                            04/03/09                    74 FR 15228
NPRM Comment Period End         06/02/09
Final Rule                      01/00/10

Regulatory Flexibility Analysis Required:


No


Small Entities Affected:


No


Government Levels Affected:


Federal, Local, State, Tribal


Additional Information:


Docket ID FEMA-2005-0051


URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
James A. Walke
Disaster Assistance Directorate
Department of Homeland Security
Federal Emergency Management Agency
500 C Street SW.
Washington, DC 20472-3100
Phone: 202 646-2751
Fax: 202 646-3304
Email: [email protected]
RIN: 1660-AA44
BILLING CODE 9110-9B-S