[Federal Register Volume 82, Number 10 (Tuesday, January 17, 2017)]
[Rules and Regulations]
[Pages 4771-4773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00902]


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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1235

[AG Order No. 3817-2017; EOIR Docket No. 401]
RIN 1125-AA80


Eliminating Exception to Expedited Removal Authority for Cuban 
Nationals Arriving by Air

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Final rule; request for comments.

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SUMMARY: This final rule revises Executive Office for Immigration 
Review (EOIR) regulations to eliminate the categorical exception from 
expedited removal proceedings for Cuban nationals who arrive in the 
United States at a port of entry by aircraft. This final rule conforms 
with a parallel Department of Homeland Security (DHS) regulation. As a 
result of these changes, Cuban nationals who arrive in the United 
States at a port of entry by aircraft will be subject to expedited 
removal proceedings commensurate with nationals of other countries.

DATES: This final rule is effective January 13, 2017. Interested 
persons are invited to submit written comments on this final rule on or 
before March 20, 2017. Comments received by mail will be considered 
timely if they are postmarked on or before that date. The electronic 
Federal Docket Management System (FDMS) will accept comments until 
midnight Eastern Time at the end of that day.

ADDRESSES: Please submit written comments to Jean King, General 
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2600, Falls Church, Virginia 22041. To ensure proper handling, 
please reference RIN No. 1125-AA80 or EOIR Docket No. 401 on your 
correspondence. You may submit comments electronically or view an 
electronic version of this proposed rule at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jean King, General Counsel, Executive 
Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls 
Church, Virginia 22041; telephone (703) 605-1744 (not a toll-free 
call).

SUPPLEMENTARY INFORMATION: 

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
rule. EOIR also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this rule. 
To provide the most assistance to EOIR, comments should explain the 
reason for any recommended change, and should include data, 
information, or authority that supports such recommended change.
    All comments submitted for this rulemaking should include the 
agency name and RIN 1125-AA80 or EOIR Docket No. 401. Please note that 
all comments received are considered part of the public record and will 
be made available for public inspection at www.regulations.gov., 
including personally identifiable information (such as a person's name, 
address, or any other data that might personally identify that 
individual) voluntarily submitted by the commenter.
    If you want to submit personally identifiable information as part 
of your comment, but do not want it to be posted online, you must 
include the phrase ``PERSONALLY IDENTIFIABLE INFORMATION'' in the first 
paragraph of your comment and identify what information you want 
redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential

[[Page 4772]]

business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
www.regulations.gov.
    Personally identifiable information and confidential business 
information provided as set forth above will be placed in the agency's 
public docket file, but not posted online. To inspect the agency's 
public docket file in person, you must make an appointment with agency 
counsel. Please see the FOR FURTHER INFORMATION CONTACT paragraph above 
for agency counsel's contact information.

II. Background

    This rule conforms to the rule published by DHS in this issue of 
the Federal Register that revises 8 CFR 235.3(b)(1)(i). This rule 
revises the parallel Department of Justice (DOJ) regulation, 8 CFR 
1235.3(b)(1)(i), which states that the expedited removal provisions 
apply to ``[a]rriving aliens, as defined in [8 CFR 1001.1(q)], except 
for citizens of Cuba arriving at a United States port-of-entry by 
aircraft''.\1\ Both the DHS rule and this rule eliminate the provisions 
in the Departments' respective regulations that categorically exempt 
Cuban nationals who arrive at a U.S. port of entry by aircraft from 
expedited removal proceedings. As a result of these changes, Cuban 
nationals who arrive in the United States at a port of entry by 
aircraft will be subject to expedited removal proceedings commensurate 
with nationals of other countries.
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    \1\ DOJ initially promulgated 8 CFR 235.3(b)(1)(i) as an 
exercise of the functions of the former Immigration and 
Naturalization Service (INS) and the Executive Office for 
Immigration Review. See 62 FR 10312 (Mar. 6, 1997). Following 
enactment of the HSA, 8 CFR 235.3(b)(1)(i) was transferred to DHS, 
and effectively duplicated in parallel DOJ regulations at 8 CFR 
1235.3(b)(1)(i). See 68 FR 10349 (Mar. 5, 2003).
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III. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    The implementation of this rule as a final rule, with provisions 
for post-promulgation public comments, is based on the good cause 
exception found in section 553 of the Administrative Procedure Act 
(APA) (5 U.S.C. 553(b)(B)). Delaying the implementation of the change 
announced in this rule to allow pre-promulgation notice and comment 
would be impracticable and contrary to the public interest. Section 
235(b)(1)(A)(iii)(I) of the Immigration and Nationality Act explicitly 
authorizes the Secretary of Homeland Security to designate categories 
of aliens to whom expedited removal proceedings may be applied, and 
makes clear that ``[s]uch designation shall be in the sole and 
unreviewable discretion of the Secretary and may be modified at any 
time.'' 8 U.S.C. 1225(b)(1)(A)(iii)(I). This conforming rule is 
necessary to conform to the DHS rulemaking, which will allow DHS to 
remove quickly from the United States certain Cuban nationals who 
arrive by air at U.S. ports of entry. The ability to detain such aliens 
while admissibility and identity are determined and protection claims 
are adjudicated, as well as to quickly remove those without protection 
claims or claims to lawful status, is a necessity for national security 
and public safety.
    Pre-promulgation notice and comment would undermine these 
interests, while endangering human life and having a potential 
destabilizing effect in the region. Specifically, the Department is 
concerned that publication of the rule as a proposed rule, which would 
signal a significant change in policy while permitting continuation of 
the exception for Cuban nationals, could lead to a surge in migration 
of Cuban nationals seeking to travel to and enter the United States 
during the period between the publication of a proposed and a final 
rule. Such a surge would threaten national security and public safety 
by diverting valuable Government resources from counterterrorism and 
homeland security responsibilities. A surge could also have a 
destabilizing effect on the region, thus weakening the security of the 
United States and threatening its international relations. 
Additionally, a surge could result in significant loss of human life.
    Accordingly, DOJ finds that it would be impracticable and contrary 
to the public interest to accept pre-promulgation comments on this 
rule. For the same reasons, DOJ also finds good cause to issue this 
rule without a 30-day delayed effective date requirement of the APA, 
see 5 U.S.C. 553(d).\2\
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    \2\ In addition, in light of the lack of pre-publication notice-
and-comment and a delayed effective date for the related notice that 
DHS has published in this issue of the Federal Register, a delay in 
the effective date of this regulation would be incongruous and 
unnecessary.
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    In addition, the change implemented by this rule is part of a major 
foreign policy initiative announced by the President, and is central to 
ongoing diplomatic discussions between the United States and Cuba with 
respect to travel and migration between the two countries. DOJ, in 
consultation with the Department of State, has determined that 
eliminating the exception from expedited removal proceedings for Cuban 
nationals involves a foreign affairs function of the United States, 5 
U.S.C. 553(a)(1), and is also exempt from the notice and comment and 
30-day delayed effective date requirements of the APA on that basis. 
DOJ is nevertheless providing the opportunity for the public to provide 
comments.

B. Executive Orders 13563 and 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.
    The Office of Management and Budget has not designated this rule as 
a significant regulatory action under section 3(f) of Executive Order 
12866. Accordingly, the Office of Management and Budget has not 
reviewed this rule.

C. 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 an agency to prepare a regulatory flexibility analysis that 
describes the effect of a proposed rule on small entities when the 
agency is required to publish a general notice of proposed rulemaking. 
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). Because this final rule is exempt from notice-and-
comment rulemaking requirements under 5 U.S.C. 553, a regulatory 
flexibility analysis is not required.

D. Unfunded Mandates Reform Act of 1995

    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, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions

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of the Unfunded Mandates Reform Act of 1995.

E. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. See 5 
U.S.C. 804. This rule will not result in an annual effect on the 
economy of $100 million or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

F. Executive Order 13132: Federalism

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

G. Executive Order 12988: Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

H. Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995, Public Law 
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR 
part 1320, do not apply to this rule because there are no new or 
revised recordkeeping or reporting requirements.

List of Subjects in 8 CFR Part 1235

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

    Accordingly, for the reasons stated in the preamble, part 1235 of 
title 8 of the Code of Federal Regulations is amended as follows:

PART 1235--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
1. The authority citation for part 1235 continues to read:

    Authority:  8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant 
to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 
1225, 1226, 1228, 1365a note, 1379, 1731-32; Title VII of Public Law 
110-229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458).


0
2. Revise Sec.  1235.3(b)(1)(i) to read as follows:


Sec.  1235.3  Inadmissible aliens and expedited removal.

* * * * *
    (b) * * *
    (1) * * *
    (i) Arriving aliens, as defined in Sec.  1001.1(q) of this chapter;
* * * * *

    Dated: January 11, 2017.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2017-00902 Filed 1-13-17; 8:45 am]
 BILLING CODE 4410-30-P