[Federal Register Volume 82, Number 170 (Tuesday, September 5, 2017)]
[Rules and Regulations]
[Pages 41883-41885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18750]



22 CFR Part 41

[Public Notice 9580]
RIN 1400-AD30

Visas: Documentation of Nonimmigrants Under the Immigration and 
Nationality Act, as Amended

AGENCY: Department of State.

ACTION: Final rule.


SUMMARY: This final rule clarifies procedures for waiver of documentary 
requirements due to an unforeseen emergency for nonimmigrants seeking 
admission to the United States.

DATES: This rule is effective on October 5, 2017.

FOR FURTHER INFORMATION CONTACT: Megan B. Herndon, Legislation and 
Regulations Division, Legal Affairs, Office of Visa Services, Bureau of 
Consular Affairs, Department of State, 600 19th St. NW., Washington, DC 
20006 (202) 485-7440.

[[Page 41884]]



    This rulemaking finalizes procedures in 22 CFR 41.2, regarding 
waiver of documentary requirements, due to an unforeseen emergency, for 
nonimmigrants seeking admission to the United States. The notice of 
proposed rulemaking (NPRM) was published on March 8, 2016, with a 60-
day public comment period. 81 FR 12050. Responses to the comments are 
summarized below.
    This rulemaking substantially reinstates a 1999 Department of State 
regulatory amendment that was invalidated by court order in United 
Airlines, Inc. v. Brien, 588 F.3d 158 (2d Cir. 2009). Additional 
background is contained in the Department of State NPRM. 81 FR at 
12050. Further background is in the parallel NPRM from the Department 
of Homeland Security (DHS). 81 FR 12032. The Department is acting 
jointly with DHS in issuing these final rules.

Public Comments

    The Department of State received six public comments on this rule. 
One was supportive. Three were criticisms of U.S. immigration policy, 
and thus outside the scope of this rulemaking.
    One commenter requested that the Department provide a ``detailed 
comparison of the rule that was rejected by the Court of Appeals.'' The 
1994 rule that was reinstated by the Court of Appeals provided that a 
visa and passport are not required if, prior to the alien's embarkation 
abroad or upon arrival at a port of entry, the INS concludes that the 
alien is unable to present the required documents because of an 
unforeseen emergency. The 1999 rule removed that text and provided 
that, except in cases cited in other subsections of Sec.  41.2, all 
nonimmigrants are required to present a valid, unexpired visa and 
passport upon arrival in the United States. The 1999 rule allowed 
aliens to apply for a waiver of these requirements (i.e., the 
requirements were waived, but not removed) if, prior to embarkation or 
upon arrival at a port of entry, the INS determined they were unable to 
present the required documents because of an unforeseen emergency. The 
former (1994) rule did not adequately implement section 273 of the 
Immigration and Nationality Act (INA), 8 U.S.C. 1323, which authorized 
the legacy INS to fine carriers that transported nonimmigrants without 
the appropriate documentation. The 1999 rule corrected this, and 
provided support for DHS to impose fines. This rule substantially 
reinstates the 1999 rule, which was invalidaded by the Court of Appeals 
only on procedural grounds relating to the way the 1994 rule was 
    The commenter also requested an explanation of the term, ``officer 
in charge of the port of entry.'' The term ``officer in charge of the 
port of entry'' refers to a U.S. Customs and Border Protection (CBP) 
district director. Individuals seeking admission into the United States 
are inspected at ports of entry by CBP officers who determine their 
admissibility. The CBP officer is responsible for reviewing travel 
documents, visas, and other credentials. The rule has been amended to 
refer to the CBP district director instead of the officer in charge or 
the DHS district director.
    Another commenter stated that it was unclear why this rule punishes 
carriers for transporting individuals without proper documentation, 
some of whom will be admitted legally into the United States. This rule 
is an implementation of section 273 of the INA, 8 U.S.C. 1323, which 
provides for penalties against carriers that transport an individual 
without proper documentation. Under the statute, a penalty may be 
remitted or refunded if the Secretary of Homeland Security is satisfied 
that, prior to the departure of the vessel or aircraft from the last 
port outside the United States, the carrier did not know, and could not 
have ascertained by the exercise of reasonable diligence, that the 
individual transported was an alien and that a valid passport or visa 
was required. See 8 U.S.C. 1323(c). Accordingly, the eventual admission 
of the individual to the United States does not preclude the imposition 
of the fine.


    After consideration of the public comments, the Department of State 
is clarifying the title of the responsible CBP official but otherwise 
adopts the proposed rule as final. DHS is finalizing its parallel rule 
in today's Federal Register.

Regulatory Findings

A. Administrative Procedure Act (APA)

    The Department of State published this rule as an NPRM on March 8, 
2016, and provided 60 days for public comment. 81 FR 12050. The rule 
will be effective 30 days after publication, in accordance with the 

B. Regulatory Flexibility Act/Executive Order 13272: Small Business

    The Department of State has reviewed this rulemaking and certifies 
that this rule will not have a significant economic impact on a 
substantial number of small entities.

C. The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 
104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to 
prepare a statement before proposing any rule that may result in an 
annual expenditure of $100 million or more by State, local, or tribal 
governments, or by the private sector. This rule will not result in any 
such expenditure, nor will it significantly or uniquely affect small 

D. The Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804, for 
purposes of congressional review of agency rulemaking under the Small 
Business Regulatory Enforcement Fairness Act of 1996. 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 adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based companies to compete with foreign-based companies 
in domestic and import markets.

E. Executive Orders 12866 and 13771

    The Department of State does not assess or collect fines under INA 
section 273. Neither this rule, nor prior versions of this regulation, 
address fines against carriers. However, the November 20, 2009, opinion 
from the United States Circuit Court of Appeals for the Second Circuit 
requires joint rulemaking by the Department of State and DHS for the 
DHS rule to take effect. United Airlines, Inc. v. Brien, 588 F.3d 158, 
179 (2d Cir. 2009). For a full economic analysis, see the parallel DHS 
final rule for 8 CFR 212.1(g), RIN 1651-AA97, published in this issue 
of the Federal Register. The Office of Management and Budget (OMB) has 
not designated this rule a significant regulatory action under section 
3(f) of Executive Order 12866. As this rule is not a significant 
regulatory action, this rule is exempt from the requirements of 
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory 
Costs.'' See OMB Memorandum M-17-21, ``Guidance Implementing Executive 
Order 13771'' of April 5, 2017.

F. Executive Order 13563

    The Department of State has considered this rule in light of 
Executive Order 13563 and affirms that

[[Page 41885]]

this regulation is consistent with the guidance therein.

G. Executive Orders 12372 and 13132: Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. Nor will the rule have federalism 
implications warranting the application of Executive Orders 12372 and 

H. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    The Department of State has determined that this rulemaking will 
not have tribal implications, will not impose substantial direct 
compliance costs on Indian tribal governments, and will not pre-empt 
tribal law. Accordingly, the requirements of section 5 of Executive 
Order 13175 do not apply to this rulemaking.

I. Paperwork Reduction Act

    This rule does not impose or revise information collections subject 
to the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 

List of Subjects in 22 CFR Part 41

    Aliens, Foreign officials, Immigration, Passports and visas, 

    Accordingly, for the reasons set forth in the preamble, 22 CFR part 
41 is amended as follows:


1. The authority citation for part 41 is revised to read as follows:

    Authority:  22 U.S.C. 2651a; 8 U.S.C. 1104; 8 U.S.C. 1323; Pub. 
L. 105-277, 112 Stat. 2681-795 through 2681-801; 8 U.S.C. 1185 note 
(section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. 
L. 109-295).

2. Section 41.2 is amended by revising paragraph (i) to read as 

Sec.  41.2   Exemption or waiver by Secretary of State and Secretary of 
Homeland Security of passport and/or visa requirements for certain 
categories of nonimmigrants.

* * * * *
    (i) Individual cases of unforeseen emergencies. Except as provided 
in paragraphs (a) through (h) and (j) through (l) of this section, all 
nonimmigrants are required to present a valid, unexpired visa and 
passport upon arrival in the United States. A nonimmigrant may apply 
for a waiver of the visa and passport requirement if, either prior to 
the nonimmigrant's embarkation abroad or upon arrival at a port of 
entry, the Department of Homeland Security (DHS), U.S. Customs and 
Border Protection (CBP) district director concludes that the 
nonimmigrant is unable to present the required documents because of an 
unforeseen emergency. The CBP district director may grant a waiver of 
the visa or passport requirement pursuant to INA 212(d)(4)(A), without 
the prior concurrence of the Department of State, if the CBP district 
director concludes that the nonimmigrant's claim of emergency 
circumstances is legitimate and that approval of the waiver would be 
appropriate under all of the attendant facts and circumstances.
* * * * *

Carl C. Risch,
 Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2017-18750 Filed 9-1-17; 8:45 am]