[Federal Register Volume 81, Number 45 (Tuesday, March 8, 2016)]
[Proposed Rules]
[Pages 12032-12038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04741]


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DEPARTMENT OF HOMELAND SECURITY

Customs and Border Protection

8 CFR Part 212

RIN 1651-AA97
[USCBP-2016-0006]


Waiver of Passport and Visa Requirements Due to an Unforeseen 
Emergency

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: This rule proposes to reinstate a 1996 amendment to a 
regulation in title 8 of the Code of Federal Regulations regarding a 
discretionary waiver of certain documentary requirements for 
nonimmigrants seeking admission to the United States. The 1996 
amendment allowed the legacy Immigration and Naturalization Service 
(INS) (now U.S. Customs and Border Protection) to waive passport and 
visa requirements for nonimmigrants due to an unforeseen emergency 
while preserving its ability to fine carriers for unlawfully bringing 
aliens who do not have a valid passport or visa to the United States. 
The U.S. Court of Appeals for the Second Circuit ruled that the legacy 
INS and the U.S. Department of State (State Department) did not satisfy 
a statutory requirement to act jointly when the amendment was 
promulgated. As a result, the court found that the 1996 amendment to 
the regulation was procedurally deficient and reimposed an earlier 
version of the regulation that legacy INS and the State Department 
promulgated in 1994.
    This rule proposes to reinstate the 1996 amendment with some 
technical amendments. DHS and the State Department have acted jointly 
in this matter and the State Department is publishing a parallel 
proposed rule to amend its regulation in today's edition of the Federal 
Register.

DATES: Comments must be received on or before May 9, 2016.

FOR FURTHER INFORMATION CONTACT: Joseph O'Donnell, Fines, Penalties and 
Forfeitures, Office of Field Operations, 202-344-1691.

ADDRESSES: You may submit comments, identified by docket number, by one 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2016-0006.
     Mail: Border Security Regulations Branch, Office of 
Regulations and Rulings, U.S. Customs and Border Protection, 90 K 
Street NE.,10th Floor, Washington, DC 20229-1177.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. For detailed instructions on submitting 
comments and additional information on the rulemaking process, see the 
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION 
section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Submitted comments 
may also be inspected during regular business days between the hours of 
9 a.m. and 4:30 p.m. at the Office of International Trade, Regulations 
and Rulings, U.S. Customs and Border Protection, 90 K Street NE.,10th 
Floor, Washington, DC. Arrangements to inspect submitted comments 
should be made in advance by calling Mr. Joseph Clark at (202) 325-
0118.

SUPPLEMENTARY INFORMATION:

Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
proposed rule. U.S. Customs and Border Protection (CBP) also invites 
comments that relate to the economic, environmental or federalism 
effects that might result from this proposed rule. Comments that will 
provide the most assistance to CBP will reference a specific portion of 
the proposed rule, explain the reason for any recommended change, and 
include data, information, or authority that support such recommended 
change.

[[Page 12033]]

Background

    In general, nonimmigrant aliens must present an unexpired passport 
and, if required, a valid unexpired visa in order to be admitted to the 
United States. See section 212(a)(7)(B)(i) of the Immigration and 
Nationality Act, as amended (INA) (8 U.S.C. 1182(a)(7)(B)(i)). The 
Secretary of Homeland Security and the Secretary of State, acting 
jointly, in specified situations, as provided in section 212(d)(4) of 
the INA (8 U.S.C. 1182(d)(4)), may waive either or both of these 
requirements.\1\ One of these situations is when the the agencies 
determine ``in individual cases'' that the nonimmigrant is unable to 
present the required documents due to an unforeseen emergency. See 
section 212(d)(4)(A) of the INA (8 U.S.C. 1182(d)(4)(A)). DHS 
regulations list those classes of persons who are not required to 
present a visa (or passport, in some cases) in 8 CFR 212.1. The 
unforeseen emergency waiver is provided for in 8 CFR 212.1(g).\2\ The 
State Department has a similar provision in 22 CFR part 41.
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    \1\ Previously, the Attorney General acting jointly with the 
Secretary of State was authorized to waive the documentary 
requirements due to an unforeseen emergency. However, pursuant to 
the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 
2135 (HSA), as of March 1, 2003, functions of the legacy INS of the 
Department of Justice and the legacy U.S. Customs Service of the 
Department of the Treasury were transferred to DHS. Specifically, 
pursuant to sections 102(a), 441, 1512(d) and 1517 of the HSA and 8 
CFR 2.1, the authorities of the Attorney General, as described in 
section 212 of the INA (8 U.S.C. 1182), were transferred to the 
Secretary of Homeland Security, and the reference to the Attorney 
General in the statute is deemed to refer to the Secretary. Thus, 
the waiver authority in section 212 of the INA therefore now resides 
with the Secretary of Homeland Security acting jointly with the 
Secretary of State.
    \2\ An example of an unforeseen emergency may be where a 
nonimmigrant loses his or her passport and/or visa or has these 
documents stolen immediately prior to departure for the United 
States, and does not have time to obtain replacement documents.
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1994 Regulatory Amendment

    On January 11, 1994, the legacy INS and the State Department each 
issued final rules amending their respective regulations to simplify 
the administrative procedure for granting unforeseen emergency waivers. 
See 59 FR 1467 and 59 FR 1473 (Jan. 11, 1994). The amended INS 
regulation (referred to in this document as the 1994 version of 
212.1(g)) provided that the district director would have authority to 
grant a waiver of the passport and/or visa requirements under section 
212(d)(4)(A) of the INA without the prior concurrence of the Department 
of State. Previously, the legacy INS needed to seek the concurrence of 
the State Department Visa Office prior to granting a waiver. The 
amended regulation also provided that a visa and a passport are not 
required of a nonimmigrant who satisfies the district director that the 
documents cannot be presented due to an unforeseen emergency. 
Specifically, the legacy INS amended 8 CFR 212.1(g) to provide that a 
visa and a passport are not required of a nonimmigrant who, either 
prior to his or her embarkation at a foreign port or place or at the 
time of arrival at a port of entry in the United States, satisfies the 
district director at the port of entry that, because of an unforeseen 
emergency, he or she is unable to present the required documents, in 
which case a waiver application shall be made on Form I-193. The 
amended regulation also provided that the district director may approve 
a waiver of documents in each case in which he or she is satisfied that 
the nonimmigrant cannot present the required documents because of an 
unforeseen emergency and the waiver would be appropriate in the 
circumstances. See 59 FR 1467-68.
    The amended State Department regulation, 22 CFR 41.2(j), contained 
similar provisions.\3\
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    \3\ The amended State Department regulation provided that a visa 
and passport are not required of an alien if, either prior to the 
alien's embarkation abroad or upon arrival at a port of entry, the 
responsible district director of the Immigration and Naturalization 
Service in charge of the port of entry concludes that the alien is 
unable to present the required documents because of an unforeseen 
emergency. The amended State Department regulation further provided 
that any waiver of the visa or passport requirement may be granted 
by the INS district director pursuant to INA 212(d)(4)(A) without 
the prior concurrence of the Department of State in each case in 
which the district director concludes that the alien's claim of 
emergency circumstances is legitimate and bona fide and that 
approval of the waiver would be appropriate under all of the 
attendant facts and circumstances. See 59 FR 1473 (Jan. 11, 1994).
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1996 Regulatory Amendment

    On March 22, 1996, the legacy INS published a final rule that 
amended the unforeseen emergency waiver in 8 CFR 212.1(g). See 61 FR 
11717. Among other things, the legacy INS final rule removed the 
statement that a ``visa and a passport are not required of a 
nonimmigrant who . . . satisfies the district director at the port of 
entry that, because of an unforeseen emergency, he or she is unable to 
present the required documents. . . .'' The legacy INS replaced this 
language with general language about the documentary requirements for a 
nonimmigrant seeking admission to the United States, a statement 
authorizing the legacy INS to waive the documentary requirements 
because of an unforeseen emergency, and a statement authorizing the 
legacy INS to revoke such a waiver. The amended text (referred to in 
this document as the 1996 version of 212.1(g)) provided that a 
nonimmigrant seeking admission to the United States must present an 
unexpired visa and a passport valid for the amount of time set forth in 
section 212(a)(7)(B) of the Act, or a valid border crossing 
identification card at the time of application for admission, unless 
the nonimmigrant satisfies the requirements described in one or more of 
the paragraphs (a) through (f) or (i) of 8 CFR 212.1. The amended text 
also provided that upon a nonimmigrant's application on Form I-193, a 
district director at a port of entry may, in the exercise of his or her 
discretion, on a case-by-case basis, waive the documentary 
requirements, if satisfied that the nonimmigrant cannot present the 
required documents because of an unforeseen emergency. Finally, the 
amended text provided that the district director or the Deputy 
Commissioner may at any time revoke a waiver previously authorized 
pursuant to this paragraph and notify the nonimmigrant in writing to 
that effect. See 61 FR 11720-21.
    One important distinction between the 1994 and 1996 versions of 
section 212.1(g) is that the 1994 version specifies that a visa and 
passport ``are not required'' of a nonimmigrant if the legacy INS (now 
CBP) concludes that the nonimmigrant is unable to present the required 
documents because of an unforeseen emergency. In contrast, the 1996 
version does not include the phrase ``are not required.'' The absence 
of that language supported the legacy INS' authority to fine carriers 
that transported aliens without a valid passport or visa even where the 
alien is granted a discretionary waiver under section 212(d)(4) of the 
INA.\4\ Section 273 of the INA (8 U.S.C. 1323) makes it unlawful for 
any person or company to bring an alien to the United States (other

[[Page 12034]]

than from a foreign contiguous territory) who does not have a valid 
passport and an unexpired visa (if a visa is required), including under 
controlling regulations, and authorizes a fine against the carrier for 
each alien unlawfully brought into the United States.\5\ On May 28, 
1999, the State Department amended 22 CFR 41.2(j) in a similar 
manner.\6\ See 64 FR 28915.
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    \4\ The Board of Immigration Appeals (Board) supported legacy 
INS' interpretations of both the 1994 and 1996 versions of 8 CFR 
212.1(g). Prior to the 1996 amendment to the regulation, the Board 
had held ``that liability to fine was not incurred . . . for 
bringing to the United States a nonimmigrant alien without a valid 
visa when such alien was paroled into the United States and was 
subsequently granted a waiver of the nonimmigrant visa.'' Matter of 
United Airlines Flight UA802, 22 I&N Dec. 777, 780 (BIA 1999) 
(citing Matter of ``Flight SR-4'', 10 I&N Dec. 197 (BIA 1963)). 
However, in Matter of Finnair Flight AY103, 23 I&N Dec. 140 (BIA 
2001), the Board held that a carrier was subject to a fine for 
bringing an alien passenger to the United States without a valid 
nonimmigrant visa even though the passenger was subsequently granted 
a waiver of the documentary requirements under the 1996-amended 
version of the regulation.
    \5\ Section 212(a)(7)(B)(i) of the INA, which concerns only 
nonimmgrants, uses the term ``nonimmigrant.'' Section 273 of the 
INA, which concerns immigrant and nonimmigrant aliens, uses the term 
``alien.'' This document will generally use the term 
``nonimmigrant'' when discussing the waiver provision contained in 
section 212(d)(4) of the INA or 8 CFR 212.1(g) and use the term 
``alien'' when discussing the fines provision contained in section 
273.
    \6\ The legacy INS amended 8 CFR 212.1(g) on two occasions in 
2002. First, it added a reference to section 212.1(o). 67 FR 4784 
(Jan. 31, 2002). Second, it updated the documentary requirements by 
adding the phrase ``, issued by the DOS on Form DSP 150.'' Finally, 
DHS amended this provision in 2007 to add U nonimmigrants to the 
list of nonimmigrants who are not required to satisfy the visa and 
passport requirement under section 212(a)(7)(B) of the INA 
consistent with other regulatory provisions. See 8 CFR 212.1(p).
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Litigation Challenging the 1996 Regulation

    Numerous airlines challenged the 1996 version of 212.1(g) in the 
U.S. District Court for the Eastern District of New York. Legacy INS 
had fined certain airlines for bringing undocumented aliens into the 
United States in violation of section 273 of the INA (8 U.S.C. 1323) 
even though some of the undocumented aliens had been granted unforeseen 
emergency waivers pursuant to 8 CFR 212.1(g) after the aliens arrived 
in the United States. Section 273 of the INA makes it unlawful for any 
person or company to bring an alien to the United States (other than 
from a foreign contiguous territory) who does not have a valid passport 
and an unexpired visa, if a visa was required, and authorizes a $4,300 
fine against the carrier for each alien unlawfully brought into the 
United States.\7\ Legacy INS believed that granting unforeseen 
emergency waivers did not preclude the imposition of fines under 
section 273 of the INA on the airlines transporting such waiver 
recipients.
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    \7\ DHS adjusted the statutory fine of $3,000 to $4,300 to 
account for inflation. See 76 FR 74625 (Dec. 1, 2011).
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    Several of the airlines that legacy INS fined claimed that the 
fines were not authorized because the 1996 version of 212.1(g) was void 
due to procedural defects. Specifically, they claimed that the INA 
required joint action between the legacy INS and State Department and 
that the 1996 version of 212.1(g) was deficient because the legacy INS 
acted on its own when promulgating the regulation. If the 1996 version 
was void, the 1994 version of 212.1(g) would control. As described 
above, the 1994 version specified that ``a visa and passport are not 
required'' of a nonimmigrant if the INS concludes that the nonimmigrant 
is unable to present the required documents because of an unforeseen 
emergency. Under this version, the legacy INS did not assess carrier 
fines for bringing in aliens who were unable to present a valid, 
unexpired visa and passport due to an unforeseen emergency.

1996 Regulation Found to Have Been Improperly Promulgated

    The district court ruled in favor of the legacy INS on this issue 
and the airlines appealed. On November 20, 2009, the United States 
Court of Appeals for the Second Circuit issued its opinion in United 
Airlines, Inc. v. Brien, 588 F.3d 158 (2d Cir. 2009), a consolidated 
appeal from three final orders of the lower court. Although the Second 
Circuit agreed with the Government's view that the 1996 version of 8 
CFR 212.1(g) would not have precluded the assessment of carrier fines 
when an unforeseen emergency waiver had been granted, it held that the 
1996 amendment was void because it was improperly promulgated. The 
Court stated that section 212(d)(4)(A) of the INA ``requires joint 
action, and the two agencies acted jointly when enacting the pre-1996 
version of the regulation.'' United Airlines, 588 F.3d at 179. The 
Court further stated that ``[t]he INS's attempt to amend the jointly 
enacted regulation on its own, therefore, [wa]s ineffective, and the 
pre-1996 version remains in effect'' and that ``[t]he INS's failure to 
coordinate with the State Department in the amendment of the 
regulations render[ed] the 1996 amendment void.'' Id. The Court also 
found that the 1999 State Department amendment of its regulation 
violated the joint action requirement, that the amendment should have 
undergone notice and comment rulemaking before being adopted, and that 
``the prior versions of both agencies' regulations remain effective 
until the two agencies act jointly to amend them.'' Id. at 180 
(emphasis in original). As a result, the Court invalidated the 1996 
amendment to 8 CFR 212.1(g), as well as subsequent amendments to the 
regulation made in 2002 and 2007.\8\ The Court reinstated the 1994 
version of the regulation.
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    \8\ The INS amended the regulation in 2002 to update documentary 
requirements, and DHS amended the regulation in 2007 to include U 
nonimmigrants among those who could seek a waiver. See 67 FR 71443 
(Dec. 2, 2002) and 72 FR 53014 (Sept. 17, 2007).
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Proposal

    DHS is now proposing to reinstate the 1996, 2002 and 2007 
amendments to 8 CFR 212.1(g). DHS and the State Department have 
consulted and are each proposing parallel and simultaneous amendments 
to 8 CFR 212.1(g) and 22 CFR 41.2(i), respectively, to reinstate the 
1996, 2002 and 2007 amendments to 8 CFR 212.1(g) and the 1999 
amendments to 22 CFR 41.2(i).\9\ The State Department's Notice of 
Proposed Rulemaking is published in today's Federal Register. The 
issuance of parallel regulations was specifically sanctioned by the 
Court in United Airlines when it noted that ``[t]he 1999 State 
Department amendment, like the 1996 INS amendment, violated the joint 
action requirement, and the prior versions of both agencies' 
regulations remain effective until the two agencies act jointly to 
amend them.'' 588 F.3d at 180.
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    \9\ 22 CFR 41.2(j) was redesignated as 22 CFR 41.2(i) in 2016. 
See 81 FR 5908.
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    With these amendments, DHS will be able to assess carrier fines 
under section 273 of the INA in appropriate cases notwithstanding that 
an ``unforeseen emergency'' waiver had been granted under section 
212(d)(4)(A) of the Act and 8 CFR 212.1(g).\10\
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    \10\ CBP generally would not consider it appropriate to apply a 
fine if CBP granted the waiver prior to the nonimmigrant alien's 
boarding.
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Regulatory Analyses

A. Executive Order 13563 and Executive Order 12866

    Executive Orders 13563 and 12866 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule is a ``significant regulatory action,'' although 
not an economically significant regulatory action, under section 3(f) 
of Executive Order 12866. Accordingly, the Office of Management and 
Budget has reviewed this regulation.
    In 1996, the legacy INS published a final rule (61 FR 11717) 
amending 8 CFR 212.1(g) which allowed for the waiver of the requirement 
of proper entry documentation for a

[[Page 12035]]

nonimmigrant in an unforeseen emergency while still retaining the 
ability to fine the carrier for transporting an alien to the United 
States without proper entry documentation. In 2009, the U.S. Court of 
Appeals for the Second Circuit issued an opinion in United Airlines, 
Inc. v. Brien, 588 F.3d 158 (2d Cir. 2009) which held that the 
regulation amending 8 CFR 212.1(g) was improperly promulgated because 
the State Department and the legacy INS did not jointly promulgate the 
rule. In its ruling, the Court upheld CBP's right to issue fines under 
section 273 of the INA when aliens do not receive a waiver but are 
otherwise allowed to enter the United States without proper documents, 
such as when they are paroled into the United States.\11\ This has led 
to a situation where carriers are being penalized inconsistently when 
they transport aliens to the United States without proper 
documentation. If an alien qualifies for parole, the carrier is fined. 
If an alien does not qualify for parole but receives a waiver, the 
carrier is not fined. Since the carrier is equally violative in these 
situations, CBP believes the penalties should be the same for each.
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    \11\ An alien may be paroled into the United States when he or 
she appears to be inadmissible to the inspecting officer but is 
allowed into the United States for urgent humanitarian reasons or 
when that alien's entry is determined to be for significant public 
benefit. Parole does not constitute an admission to the United 
States and shall be terminated when, inter alia, the purpose of 
parole is accomplished or neither humanitarian reasons nor public 
benefit warrants the continued presence of the alien in the United 
States. See 8 CFR 212.5(e). See http://www.dhs.gov/definition-terms 
for information on various types of parole.
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    As such, DHS (functions of the legacy INS were transferred to DHS 
in 2003) and the State Department are now jointly promulgating rules to 
allow CBP to waive the requirement to present entry documents for 
nonimmigrants under an unforeseen emergency while still retaining the 
ability to fine the carrier a maximum penalty of $4,300 for 
transporting an alien to the United States without proper entry 
documentation.
    From FY 2010-2015, if this proposed rule had been in effect, 
carriers would have been subject to penalties averaging $1.7 million 
per year for 950 violations to section 273 of the INA. This $1.7 
million represents a transfer from violative carriers to the United 
States government. To avoid the penalties imposed by this rule and 
existing penalties, carriers may adopt further oversight. CBP requests 
comment on any additional oversight costs that could result from this 
rule.
    CBP currently issues penalties under this provision to any carriers 
that transport aliens without proper documents who are inadmissible, 
including when these aliens qualify for parole. Therefore, CBP will not 
have to set up a new process to fine carriers as a result of this rule. 
A penalty under this provision takes CBP approximately 2.5 hours to 
process. Therefore, on average this rule would take approximately 2,375 
hours a year for CBP to administer.
    Currently, carriers are penalized for violations of section 273 
inconsistently. When a carrier transports an alien without proper 
documentation, whether it is penalized depends not on the nature of the 
carrier's violation, but on whether the alien it transported qualifies 
for a waiver. CBP believes it is more equitable to penalize carriers 
who violate section 273 equally. Additionally, CBP believes that the 
penalty provisions in the proposed regulation provide an economic 
incentive to enforce the statutory requirements of section 273 of the 
INA.
    For additional analysis on the impacts of this rule on small 
entities and a discussion of alternatives, see section B. Regulatory 
Flexibility Act.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996, 
requires agencies to assess the impact of regulations on small 
entities. A small entity may be a small business (defined as any 
independently owned and operated business not dominant in its field 
that qualifies as a small business per the Small Business Act); a small 
not-for-profit organization; or a small governmental jurisdiction 
(locality with fewer than 50,000 people).
    As discussed above, DHS and the State Department are proposing 
parallel and simultaneous amendments to 8 CFR 212.1(g) and 22 CFR 
41.2(i) respectively, that would allow CBP to waive the passport and/or 
visa requirements for nonimmigrants due to an unforeseen emergency 
while retaining the ability to enforce the statutory requirement 
imposing a maximum penalty of $4,300 on a carrier for transporting an 
alien to the United States without proper documentation.
    The Regulatory Flexibility Act does not specify thresholds for 
economic significance but instead gives agencies flexibility to 
determine the appropriate threshold for a particular rule. CBP believes 
that a maximum penalty of $4,300 may be considered a significant 
economic impact given the wide range of companies subject to the 
requirements of this rule and that it is possible that a specific small 
entity may receive more than one penalty in a year. Therefore CBP is 
preparing an Initial Regulatory Flexibility Analysis under section 603 
of the Regulatory Flexibility Act.
    It is unlawful under section 273 of the INA for any person or 
company to transport an alien to the United States (other than from a 
foreign contiguous territory) who does not have a valid passport and an 
unexpired visa (if a visa is required). 8 U.S.C. 1323. As such, it is 
possible that any person or company engaged in the transportation of 
aliens may be affected by the proposed rule. Below, Table 1 presents 
data on the industries CBP has identified that could be affected by 
this rule. While CBP finds that only 41 small entities have violated 
section 273 of the INA from FY 2008 to FY 2012, CBP is unable to 
certify that substantial number of small entities will not be affected 
by the proposed regulation in the future.\12\
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    \12\ Since November 20, 2009 CBP has been unable to impose a 
penalty when a section 212(d)(4)(A) waiver has been granted to an 
alien without proper documentation. Nevertheless, the small entities 
listed in Table 1 transported aliens who received such waivers. The 
small entities responsible for transporting the aliens were not 
assessed a penalty.
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    CBP is choosing not to certify that this rule will not have a 
significant economic impact on a substantial number of small entities. 
Accordingly, CBP has conducted the following Initial Regulatory 
Flexibility Analysis.
1. A Description of the Reasons Why Action by the Agency Is Being 
Considered
    In 1996, the legacy INS published a final rule (61 FR 11717) 
amending 8 CFR 212.1(g) which allowed for the waiver of the requirement 
of proper entry documentation for a nonimmigrant in an unforeseen 
emergency while still retaining the ability to fine the carrier for 
transporting an alien to the United States without proper entry 
documentation. In 2009, the U.S. Court of Appeals for the Second 
Circuit issued an opinion in United Airlines, Inc. v. Brien, 588 F.3d 
158 (2d Cir. 2009) which held that the regulation amending 8 CFR 
212.1(g) was improperly promulgated because the State Department and 
the legacy INS did not jointly promulgate the rule. As such, DHS 
(functions of the legacy INS were transferred to DHS in 2003) and the 
State Department are now jointly promulgating rules to allow CBP to 
waive the requirement to present entry documents for nonimmigrants 
under an unforeseen emergency while still

[[Page 12036]]

retaining the ability to fine the carrier for transporting an alien to 
the United States without proper entry documentation. CBP believes that 
the penalty provisions in the proposed regulation provide the necessary 
economic incentive to enforce the statutory requirements of section 273 
of the INA.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    The objective of this regulation is to allow CBP to waive the 
requirement of proper entry documents for nonimmigrants in an 
unforeseen emergency while still retaining the ability to fine the 
carrier for transporting an alien to the United States without proper 
entry documentation. In general, nonimmigrant aliens must present an 
unexpired passport and, if required, a valid unexpired visa in order to 
be admitted to the United States. See section 212(a)(7)(B)(i) of the 
INA (8 U.S.C. 1182(a)(7)(B)(i)). The Secretary of Homeland Security and 
the Secretary of State, acting jointly, in specified situations, as 
provided in section 212(d)(4) of the INA (8 U.S.C. 1182(d)(4)), may 
waive either or both of these requirements. One of these situations is 
when the nonimmigrant is unable to present the required documents due 
to an unforeseen emergency. See section 212(d)(4)(A) of the INA. DHS 
regulations list those classes of persons who are not required to 
present a visa (or passport, in some cases) in 8 CFR 212.1. The 
unforeseen emergency waiver is provided for in 8 CFR 212.1(g). The 
State Department has a similar provision in 22 CFR part 41.
3. A Description of and, Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Rule Will Apply
    It is unlawful under section 273 of the INA for any person or 
company to transport an alien to the United States (other than from a 
foreign contiguous territory) who does not have a valid passport and an 
unexpired visa (if a visa is required). As such, it is possible that 
any person or company engaged in the transportation of aliens may be 
affected by this rule. Below, Table 1 presents data on the industries 
CBP estimates could be affected by this rule. The data include the 
NAICS codes of an industry, a description of the industry, and the 
Small Business Administration's (SBA) guidance on what qualifies an 
entity to be considered small in the respective industry. Additionally, 
Table 1 includes the number small entities in the respective industry 
that have violated section 273 of the INA from FY 2008 through FY 
2012.\13\ Of the industries that could be affected, only four 
industries have had small entities that have violated section 273 of 
the INA from FY 2008 through FY 2012.
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    \13\ Since November 20, 2009, CBP has been unable to impose a 
penalty when a 212.1(g) waiver has been granted to an alien without 
proper documentation. Nevertheless, the small entities listed in 
Table 1 transported aliens who received 212.1(g) waivers. The small 
entities responsible for transporting the aliens were not assessed a 
penalty.

                                                     Table 1
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                                                                                                 Small entities
                                                                                                    that have
              NAICS                     Industry description             SBA size standard      violated section
                                                                                                 273 of the INA
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481111..........................  Scheduled Passenger Air           <1,500 employees..........                 0
                                   Transportation.
481112..........................  Scheduled Freight Air             <1,500 employees..........                 0
                                   Transportation.
481211..........................  Nonscheduled Chartered Passenger  <1,500 employees..........                16
                                   Air Transportation.
481212..........................  Nonscheduled Chartered Freight    <1,500 employees..........                 0
                                   Air Transportation.
481219..........................  Other Nonscheduled Air            <$14 million in revenue...                 0
                                   Transportation.
482111..........................  Line-Haul Railroads.............  <1,500 employees..........                 0
482112..........................  Short Line Railroads............  <500 employees............                 0
483111..........................  Deep Sea Freight Transportation.  <500 employees............                 1
483112..........................  Deep See Passenger                <500 employees............                 0
                                   Transportation.
483113..........................  Coastal and Great Lakes Freight   <500 employees............                 0
                                   Transportation.
483114..........................  Coastal and Great Lakes           <500 employees............                 0
                                   Passenger Transportation.
483211..........................  Inland Water Freight              <500 employees............                 0
                                   Transportation.
483212..........................  Inland Water Passenger            <500 employees............                 1
                                   Transportation.
484230..........................  Specialized Freight (except,      <$25.5 million in revenue.                 0
                                   Used Goods) Trucking, Long-
                                   Distance.
485991..........................  Special Needs Transportation....  <$14 million in revenue...                 0
487110..........................  Scenic and Sightseeing            <$7 million in revenue....                 0
                                   Transportation, Land.
488330..........................  Navigational Services to          <$35.5 million in revenue.                 0
                                   Shipping.
541614..........................  Process, Physical Distribution    <$14 million in revenue...                23
                                   and Logistics Consulting
                                   Services.
621910..........................  Ambulance Services..............  <$14 million in revenue...                 0
----------------------------------------------------------------------------------------------------------------
Sources: U.S. Census Bureau, Small Business Administration, and CBP.

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

[[Page 12037]]

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

    \14\ http://www.census.gov/econ/susb/.
    \15\ http://transtats.bts.gov/Employment/.
---------------------------------------------------------------------------

    Although CBP can use the Census and DOT data to provide an estimate 
of the number of small entities that have the potential to be affected 
by this rule, CBP cannot use the Census data to determine the number of 
small entities that are, or will be, engaged in the transportation of 
aliens within a reasonable degree of accuracy.\16\ As shown in both 
Tables 1 and 2, however, CBP's internal records show that only 41 small 
entities from FY 2008 to FY 2012 violated section 273 of the INA and 
thus would have been subject to a penalty if this rule were in effect. 
CBP seeks comment on the number of small entities that are, or will be, 
engaged in the transportation of aliens.
---------------------------------------------------------------------------

    \16\ For instance, CBP cannot tell which scheduled passenger air 
transportation entities do, or will, transport aliens and which do, 
or will, not transport aliens.

                                                                         Table 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                         Small entities
                                                                                                              Total number of small         that have
            NAICS              Industry description      SBA Size Standard      Total number of entities             entities           violated section
                                                                                                                                         273 of the INA
--------------------------------------------------------------------------------------------------------------------------------------------------------
481111......................  Scheduled Passenger     <1,500 employees......  258........................  233........................                 0
                               Air Transportation.
481112......................  Scheduled Freight Air   <1,500 employees......  232........................  227........................                 0
                               Transportation.
481211......................  Nonscheduled Chartered  <1,500 employees......  1498.......................  1498.......................                16
                               Passenger Air
                               Transportation.
481212......................  Nonscheduled Chartered  <1,500 employees......  171........................  171........................                 0
                               Freight Air
                               Transportation.
481219......................  Other Nonscheduled Air  $14 million in revenue  476........................  477........................                 0
                               Transportation.
482111......................  Line-Haul Railroads...  <1,500 employees......  not available..............  not available..............                 0
482112......................  Short Line railroads..  <500 employees........  not available..............  not available..............                 0
483111......................  Deep Sea Freight        <500 employees........  231........................  213........................                 1
                               Transportation.
483112......................  Deep See Passenger      <500 employees........  48.........................  41.........................                 0
                               Transportation.
483113......................  Coastal and Great       <500 employees........  376........................  350........................                 0
                               Lakes Freight
                               Transportation.
483114......................  Coastal and Great       <500 employees........  170........................  170........................                 0
                               Lakes Passenger
                               Transportation.
483211......................  Inland Water Freight    <500 employees........  319........................  294........................                 0
                               Transportation.
483212......................  Inland Water Passenger  <500 employees........  235........................  233........................                 1
                               Transportation.
484230......................  Specialized Freight     $25.5 million in        9,839......................  9,476......................                 0
                               (except, Used Goods)    revenue.
                               Trucking, Long-
                               Distance.
485991......................  Special Needs           $14 million in revenue  2,130......................  2,026......................                 0
                               Transportation.
487110......................  Scenic and Sightseeing  $7 million in revenue.  646........................  121........................                 0
                               Transportation, Land.
488330......................  Navigational Services   $35.5 million in        728........................  693........................                 0
                               to Shipping.            revenue.
541614......................  Process, Physical       $14 million in revenue  6,379......................  6,058......................                23
                               Distribution and
                               Logistics Consulting
                               Services.
621910......................  Ambulance Services....  $14 million in revenue  3,150......................  2,941......................                 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: U.S. Census Bureau, Small Business Administration, and CBP.

4. A Description of the Projected Reporting, Recordkeeping and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Will Be Subject to the Requirement 
and the Type of Professional Skills Necessary for Preparation of the 
Report or Record
    The proposed regulation does not propose changes to any required 
reporting, recordkeeping, or compliance requirements. The objective of 
the proposed rule is to allow CBP in an unforeseen emergency to waive 
the requirement that a nonimmigrant present proper entry documents in 
order to be admitted into the United States while retaining the ability 
to fine the carrier that did not comply with the requirements 
pertaining to the proper transportation of an alien to the United 
States. When the nonimmigrant without proper documentation is not 
admitted, including when he or she is granted parole, CBP already has 
the authority to fine the carrier that did not comply with the 
requirements. This rule would only affect the carriers transporting 
aliens for whom CBP waives the document requirement. As discussed 
above, the proposed rule could affect any small entity that transports 
an alien without proper entry documentation.

[[Page 12038]]

5. An Identification, to the Extent Practicable, of All Relevant 
Federal Rules Which May Duplicate, Overlap or Conflict With the 
Proposed Rule
    The State Department is jointly promulgating this rule with DHS. 
DHS does not view this as duplicative, overlapping, or in conflict with 
this proposed rule as it is a judicial requirement stemming from the 
opinion in United Airlines, Inc. v. Brien, 588 F.3d 158 (2d Cir. 2009), 
which held that the 8 CFR 212.1(g) was improperly promulgated because 
the State Department and the legacy INS did not promulgate the rule 
jointly.
6. A Description of Any Significant Alternatives to the Proposed Rule 
Which Accomplish the Stated Objectives of Applicable Statutes and Which 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities
    Alternative 1 (chosen alternative): Allows CBP to waive the 
requirement for nonimmigrants to present valid documentation for entry 
into the United States in an unforeseen emergency while retaining the 
ability to enforce the statutory requirement imposing a maximum penalty 
of $4,300 on a carrier, regardless of size, for transporting an alien 
to the United States without proper documentation. When the 
nonimmigrant without proper documentation is not admitted, including 
when he or she is granted parole, CBP already has the authority to fine 
the carrier that did not comply with the requirements.
    Alternative 2: Same as Alternative 1, but waive the penalty in 
Alternative 1 for small entities.
    Alternative 3: No regulatory action (i.e. the world as it is now).
    CBP has chosen to implement Alternative 1. CBP believes that a 
penalty mechanism is necessary in order to enforce the statutory 
prohibition on transporting aliens into the United States without 
proper documentation. In addition, this rule would end the current 
inconsistency in fines for violations of section 273. Finally, CBP 
believes that the penalty provisions in the proposed regulation provide 
an economic incentive to enforce the statutory requirements of section 
273 of the INA.
    Alternative 2 would eliminate the economic impact of the proposed 
rule on noncompliant small entities. CBP believes that it would also 
eliminate economic incentive to enforce the statutory requirement for 
small entities. Furthermore, 8 CFR 273.5 sets forth the mitigation 
criteria for the mitigation of fines under Sec.  273(e) of the INA and 
applies the administrative procedures provided for in 8 CFR 280.12 and 
280.51. In determining the amount of the mitigation, CBP may take into 
account the effectiveness of the carrier's screening procedures, the 
carrier's history of fines, and the existence of extenuating 
circumstances. This mitigation is available to any carrier, including 
small entities.
    Alternative 3 would eliminate the economic impact of the proposed 
rule for all noncompliant carriers, regardless of size. In addition, 
the current inconsistency in fines for violations of section 273 would 
continue--carriers who transport aliens who qualify for parole would be 
fined if they do not adhere to the requirements of section 273, but 
those who transport aliens who qualify for unforeseen emergency waivers 
would not be fined.

C. Unfunded Mandates Reform Act of 1995

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

D. Executive Order 13132

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

E. Paperwork Reduction Act

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

List Of Subjects in 8 CFR Part 212

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

Amendments to the Regulations

    For the reasons stated in the preamble, DHS proposes to amend part 
212 of title 8 of the Code of Federal Regulations (8 CFR part 212), as 
set forth below:

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

0
1. The authority citation for part 212 continues to read as follows:

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

0
2. Section 212.1(g) is revised to read as follows:


Sec.  212.1  Documentary Requirements for Nonimmigrants.

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

    Dated: February 29, 2016.
Jeh Charles Johnson,
Secretary.
[FR Doc. 2016-04741 Filed 3-7-16; 8:45 am]
 BILLING CODE 9111-14-P