IER Delayed Effective Date Final Rule

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Rules and Regulations

Federal Register
Vol. 82, No. 131
Tuesday, July 11, 2017

This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.

DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 103, 212 and 274a
[CIS No. 2572–15; DHS Docket No. USCIS–
2015–0006]
RIN 1615–AC04

International Entrepreneur Rule: Delay
of Effective Date
U.S. Citizenship and
Immigration Services, DHS.
ACTION: Final rule with request for
comment; delay of effective date.
AGENCY:

The Department of Homeland
Security (DHS) is temporarily delaying
the effective date of the International
Entrepreneur Final Rule (82 FR 5238).
This delay will provide DHS with an
opportunity to obtain comments from
the public regarding a proposal to
rescind the rule pursuant to Executive
Order (E.O.) 13767, ‘‘Border Security
and Immigration Enforcement
Improvements.’’

SUMMARY:

The effective date of the
regulation entitled International
Entrepreneur Rule, published in the
Federal Register on January 17, 2017, 82
FR 5238, is delayed from July 17, 2017
to March 14, 2018, except for
amendatory instruction 6.a revising 8
CFR 274a.2(b)(1)(v)(C)(2), which will go
into effect on July 17, 2017. Written
comments must be received on or before
August 10, 2017.
ADDRESSES: You may submit comments,
identified by DHS Docket No. USCIS–
2015–0006, by any one of the following
methods:
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the Web
site instructions for submitting
comments.
• Mail: You may submit comments
directly to U.S. Citizenship and
Immigration Services (USCIS) by
sending correspondence to Samantha
Deshommes, Chief, Regulatory
Coordination Division, Office of Policy

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DATES:

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and Strategy, UCSIS, DHS, 20
Massachusetts Avenue NW.,
Washington, DC 20529. To ensure
proper handling, please reference DHS
Docket No. USCIS–2015–0006 in your
correspondence. This mailing address
may be used for paper, disk, or CD–
ROM submissions.
FOR FURTHER INFORMATION CONTACT:
Steven Viger, Adjudications Officer,
Office of Policy and Strategy, USCIS,
DHS, 20 Massachusetts Avenue NW.,
Suite 1100, Washington, DC 20529–
2140; telephone (202) 272–8377.
SUPPLEMENTARY INFORMATION:
I. Background
On August 31, 2016, the Department
of Homeland Security (DHS or
Department), U.S. Citizenship and
Immigration Services (USCIS) published
the International Entrepreneur Notice of
Proposed Rulemaking in the Federal
Register. See 81 FR 60129. On January
17, 2017, DHS published the
International Entrepreneur Final Rule
(the IE Final Rule) in the Federal
Register. The effective date is July 17,
2017. See 82 FR 5238.
The IE Final Rule amended DHS
regulations to include criteria that
would guide the implementation of the
Secretary of Homeland Security’s
discretionary case-by-case parole
authority as applied to international
entrepreneurs. Specifically, it applied to
international entrepreneurs who can
demonstrate that their parole into the
United States under section 212(d)(5) of
the Immigration and Nationality Act
(INA) would provide a significant
public benefit to the United States. In
accordance with the final rule’s criteria,
such potential would be indicated by,
among other things, the receipt of
significant capital investment from U.S.
investors with established records of
successful investments, or obtaining
significant awards or grants from certain
Federal, State or local government
entities. In addition to defining criteria
for the favorable exercise of the
Secretary’s discretionary parole
authority, the IE Final Rule established
a period of initial parole stay of up to
30 months (which may be extended by
up to an additional 30 months) to
facilitate the applicant’s ability to
oversee and grow his or her start-up
entity in the United States.
On January 25, 2017, the President
issued Executive Order (E.O.) 13767,

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Border Security and Immigration
Enforcement Improvements, prescribing
improvements to border security and
immigration enforcement. See 82 FR
8793 (Jan. 25, 2017). Section 11(d) of the
E.O. requires the DHS Secretary to ‘‘take
appropriate action to ensure that parole
authority under section 212(d)(5) of the
INA (8 U.S.C. 1182(d)(5)) is exercised
only on a case-by-case basis in
accordance with the plain language of
the statute, and in all circumstances
only when an individual demonstrates
urgent humanitarian reasons or a
significant public benefit derived from
such parole.’’
After review of E.O. 13767, DHS
decided to delay the effective date of the
IE Final Rule, to further consider it in
light of E.O. 13767. The new effective
date for the IE Final Rule, with one
minor exception, is March 14, 2018.
Additionally, DHS will issue a Notice of
Proposed Rulemaking soliciting public
comments on the proposal to rescind
the IE Final Rule. The delayed effective
date will provide an opportunity for the
notice and comment rulemaking to take
place.
As indicated above, DHS is not
delaying the effective date with respect
to one provision in the IE Final Rule. In
the IE Final Rule, DHS revised 8 CFR
274a.2(b)(1)(v)(C)(2) to add the
Department of State Consular Report of
Birth Abroad (Form FS–240) to the
regulatory text and to the ‘‘List C’’
listing of acceptable documents for
Form I–9 verification purposes. See 82
FR 5238, 5241 & n.3. As part of the IE
Final Rule, DHS also revised the
accompanying form instructions to
reflect this change. As this provision is
unrelated to entrepreneur parole under
the IE Final Rule, this one provision
will go into effect on July 17, 2017, as
originally provided.
II. Administrative Procedure Act
The Administrative Procedure Act
(APA) authorizes agencies to issue a
rule without notice and comment upon
a showing of good cause. 5 U.S.C.
553(b)(B). The APA’s good cause
exception to public participation
applies upon a finding that those
procedures are ‘‘impracticable,
unnecessary, or contrary to the public
interest.’’ 5 U.S.C. 553(b)(B).
DHS has good cause to forego notice
and comment rulemaking to delay the
effective date for the implementing
provisions of the IE Final Rule, because

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notice and comment rulemaking would
be contrary to the public interest. For
the same reason, DHS has good cause to
dispense with the 30-day delayed
effective date. DHS, however, is
nevertheless soliciting postpromulgation public comments on the
decision to delay the IE Final Rule.
Undertaking notice and comment
rulemaking to delay the IE Final Rule is
contrary to the public interest for
multiple reasons. If DHS does not delay
the effective date immediately, USCIS
would be required to expend limited
agency resources to implement the IE
Final Rule. Those resources are
otherwise needed for USCIS to
effectively and efficiently carry out its
many existing immigration benefit
programs facilitating lawful migration
into United States. For example,
implementing the program would
require USCIS to establish a new
business line for the processing of
entrepreneur parole applications, hiring
and training additional adjudicators,
modifying intake and case management
information technology systems,
modifying application and fee intake
contracts, developing guidance for the
adjudicators, and communicating with
the public. Given that DHS will be
proposing to rescind the IE final rule,
and may ultimately eliminate the
program, the expenditure of these
resources is unlikely to ever be
recouped from filing fees under the new
program. USCIS derives approximately
96 percent of its operating budget from
fees, and would be required to absorb
the costs of the IE program within its
existing operating budget, possibly
impacting efficiency and effectiveness
in other programs. An inefficient use of
limited resources is not conducive to
the security and economic interests of
the United States. Therefore, it is
necessary for DHS to immediately
suspend the effective date of the IE
Final Rule.
Undertaking notice and comment
rulemaking to delay the IE Final Rule
while DHS considers rescinding the rule
also would be contrary to the public
interest for other reasons: doing so
would sow confusion and would likely
cause the waste of resources by multiple
stakeholders with interests in this
rulemaking. See generally Am. Hosp.
Ass’n v. Bowen, 834 F.2d 1037, 1045
(D.C. Cir. 1987) (observing that
exceptions to notice and comment,
although construed narrowly, are
designed for ‘‘situations where the
policies promoted by public
participation in rulemaking are
outweighed by the countervailing
considerations of effectiveness,
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expense’’) (quotation marks omitted).
Courts have found ‘‘good cause’’ under
the APA when an agency is moving
expeditiously to eliminate uncertainty
or confusion that, if left to linger, could
cause tangible harm or hardship to the
agency, the program, program users, or
other members of the public. See MidTex Elec. Coop. v. FERC, 822 F.2d 1123,
1133–34 (D.C. Cir. 1987) (agency had
good cause to promote continuity and
prevent ‘‘irremedial financial
consequences’’ and ‘‘regulatory
confusion’’).
Allowing the IE Final rule to go into
effect while the agency undertakes
notice and comment rulemaking to
delay its effective date in order to
consider a rescission would lead the
public to continue to rely on the rule.
Such reliance would include expending
significant effort and resources in order
to establish eligibility under the criteria
promulgated by the IE Final Rule. These
criteria include establishing a start-up
entity in the United States and
demonstrating that the entity has
secured significant U.S. capital
investment or government funding. In
the event the IE Final Rule is
rescinded—which the Department
believes is highly likely—individuals
who satisfied these and other
requirements of the IE Final Rule would
quite possibly do so without being able
to reap benefits from the rule. Therefore,
providing notice and comment in this
case is contrary to public interest.
III. Executive Order 12866, Regulatory
Planning and Review
This rule is not ‘‘significant’’ under
E.O. 12866, Regulatory Planning and
Review.
IV. Paperwork Reduction Act
DHS is delaying the effective date for
all proposed changes to the Form I–131,
I–765, and I–941, from July 17, 2017, to
March 14, 2018. Proposed changes to
the Form I–9, with the exception to
those changes specific to IE parole, will
be effective July 17, 2017.
Under the Paperwork Reduction Act
of 1995 (PRA), Public Law 104–13, all
Departments are required to submit to
the Office of Management and Budget
(OMB), for review and approval, any
reporting requirements inherent in a
rule. See Public Law 104–13, 109 Stat.
163 (May 22, 1995). This final rule
involves a new information collection
and makes revisions to the existing
information collections as follows:

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A. Overview of Information Collection,
Application for Entrepreneur Parole,
Form I–941
The IE Final Rule published on
January 17, 2017, requires that an
applicant requesting entrepreneur
parole complete an Application for
Entrepreneur Parole, Form I–941 which
is a new information collection under
the PRA. USCIS did receive one
comment regarding the time burden of
this form and, upon review of the work
involved to review the form, gather
necessary information to support the
submission, and the time required to
complete and submit the form, USCIS
revised the estimated hour burden per
response to 4.7 hours. The Form I–941
is being delayed until March 14, 2018.
a. Type of information collection:
New information collection.
b. Abstract: If implemented, this
collection would be used by individuals
who file an application for entrepreneur
parole under INA section 212(d)(5)(A) (8
U.S.C. 1182(d)(5)(A)) and new 8 CFR
212.19. Such individuals, other than
those filing an application on the basis
of a material change, would be subject
to biometric collection in connection
with the filing of the application.
c. Title of Form/Collection:
Application for Entrepreneur Parole,
Form I–941.
d. Agency form number, if any, and
the applicable component of the
Department of Homeland Security
sponsoring the collection: Form I–941,
U.S. Citizenship and Immigration
Services.
e. Affected public who will be asked
or required to respond: Businesses and
other for profit; Not-for-profit
Institutions.
f. An estimate of the total annual
numbers of respondents: 2,940.
g. Hours per response: The estimated
hour per response for Form I–941 is 4.7
hours; the estimated hour burden per
response for the biometric processing is
1.17 hours.
h. Total Annual Reporting Burden:
The total estimated annual hour burden
associated with this collection is 17,258
hours.
B. Overview of Information Collection,
Application for Travel Document Form
I–131, OMB Control No. 1615–0013
The IE Final Rule published by DHS
on January 17, 2017 revised this
information collection (i.e. Form I–131)
by including spouses and children
seeking parole on the basis of an
entrepreneur parolee.
In addition to revising the form and
form instructions, the IE Final Rule
revised the estimate of total burden

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hours which had increased due to the
addition of this new population of
Application for Travel Document, Form
I–131, filers, and the increase of burden
hours associated with the collection of
biometrics from these applicants. The
changes made to Form I–131 are being
delayed until March 14, 2018.
a. Type of information collection:
Revised information collection.
b. Abstract: If implemented, this
collection would be used by dependents
of individuals who file an application
for entrepreneur parole under INA
section 212(d)(5)(A) (8 U.S.C.
1182(d)(5)(A)) and new 8 CFR 212.19.
Such individuals would be subject to
biometric collection in connection with
the filing of the application.
c. Title of Form/Collection:
Application for Travel Document, Form
I–131.
d. Agency form number, if any, and
the applicable component of the
Department of Homeland Security
sponsoring the collection: Application
for Travel Document, Form I–131, U.S.
Citizenship and Immigration Services.
e. Affected public who will be asked
or required to respond: Individuals or
households.
f. An estimate of the total annual
numbers of respondents: 594,324.
The total number of respondents
includes the additional population of
3,234 individuals as estimated
previously in the analysis in Section
IV.C.
g. Hours per response: The estimated
hour per response for Form I–131
Supplement is 1.9 hours; the estimated
hour burden per response for the
biometric processing is 1.17 hours; the
estimated hour burden per response for
the passport-style photographs is .5
hours.
h. Total Annual Reporting Burden:
The total estimated annual hour burden
associated with this collection is
1,372,928 hours.
C. Overview of Information Collection,
Employment Eligibility Verification,
Form I–9, OMB Control No. 1615–0047
In accordance with revised 8 CFR
274a.2(b)(1)(v)(C)(2), the IE Final Rule
published on January 17, 2017 updated
the Employment Eligibility Verification
(Form I–9) Lists of Acceptable
Documents, List C and the Document
Title table to reflect the most current
version of the certification or report of
birth issued by the Department of State,
Form FS–240 Consular Report of Birth
Abroad. DHS also made clarifying
changes in the form instructions by
removing ‘‘the end of’’ when describing
the day on which Form I–9 completion
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Special Counsel for Immigration-Related
Unfair employment Practices to its new
name of Immigrant and Employee
Rights Section (IER) in the Department
of Justice’s Civil Rights Division. These
changes to the Form I–9 will go into
effect on July 17, 2017 as currently
scheduled.
The changes made to Form I–9 and
instructions associated with new 8 CFR
274a.2(b)(1)(v)(A)(5) promulgated by the
IE Final Rule are being delayed until
March 14, 2018. Those changes concern
the acceptable List A document
described as the following: for an
individual authorized to work for a
specific employer because of his or her
status or parole, a foreign passport and
Form I–94 (or Form I–94A) that has the
same name as the passport and has an
endorsement by DHS indicating such
employment-authorized status or parole,
as long as the period of endorsement has
not yet expired and the employment is
not in conflict with the individual’s
employment-authorized status or parole.
Specific changes to the form that are
being delayed until March 14, 2018 also
include revisions to the Form I–9 Lists
of Acceptable Documents, List A item 5
to replace ‘‘nonimmigrant alien’’ with
‘‘individual,’’ to replace ‘‘alien’s
nonimmigrant’’ with ‘‘individual,’’ and
to add ‘‘or parole’’ after ‘‘status’’ in List
A item 5.b.(2).
a. Type of information collection:
Revised information collection.
b. Abstract: This form was developed
to facilitate compliance with section
274A of the Immigration and
Nationality Act, which prohibits the
knowing employment of unauthorized
aliens. This information collection is
necessary for employers, agricultural
recruiters and referrers for a fee, and
state employment agencies to verify the
identity and employment authorization
of individuals hired (or recruited or
referred for a fee, if applicable) for
employment in the United States.
c. Title of Form/Collection:
Employment Eligibility Verification.
d. Agency form number, if any, and
the applicable component of the
Department of Homeland Security
sponsoring the collection: Form I–9,
U.S. Citizenship and Immigration
Services.
e. Affected public who will be asked
or required to respond: Business or
other for-profit; Individuals or
households; State, local or Tribal
Government.
f. An estimate of the total annual
numbers of respondents: 78 million
employers and 78 million individuals.
(The total number of responses will be
only 78 million responses. Each

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response involves an employer and an
individual who is being hired.)
g. Hours per response:
b Time Burden for Employees—10
minutes (.17 hours) total;
b Time Burden for Employers—20
minutes (.33 hours) total;
b Time Burden for Recordkeeping—
5 minutes (.08 hours) total.
h. Total Annual Reporting Burden:
approximately 40,600,000 total annual
burden hours.
D. Overview of Information Collection,
Application for Employment
Authorization, Form I–765, OMB
Control No. 1615–0040
The IE Final Rule published on
January 17, 2017 made minor revisions
to the form instructions to reflect
changes made by that rule that allow
spouses of an entrepreneur parolee to
request employment authorization.
Those changes to Form I–765 are being
delayed until March 14, 2018.
a. Type of information collection:
Revised information collection.
b. Abstract: If implemented, this
collection would be used by individuals
who file an application for entrepreneur
parole under INA section 212(d)(5)(A) (8
U.S.C. 1182(d)(5)(A)) and new 8 CFR
212.19. Such individuals would be
subject to biometric collection in
connection with the filing of the
application.
This form was developed for
individual aliens to request employment
authorization and evidence of that
employment authorization. The form is
being amended to add a new class of
aliens eligible to apply for employment
authorization, specifically a spouse of
an entrepreneur parolee described as
eligible for employment authorization
under this rule. Supporting
documentation demonstrating eligibility
must be filed with the application. The
form lists examples of relevant
documentation.
c. Title of Form/Collection:
Application for Employment
Authorization, Form I–765.
d. Agency form number, if any, and
the applicable component of the
Department of Homeland Security
sponsoring the collection: Form I–765,
U.S. Citizenship and Immigration
Services.
e. Affected public who will be asked
or required to respond: Individuals or
households.
f. An estimate of the total annual
numbers of respondents: 2,139,523.
This total represents the aggregate
estimate for this information collection,
to include the additional estimate of
2,940 respondents under this rule.
g. Hours per response: The estimated
hour per response for Form I–765 is 3.42

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hours; the estimated hour burden per
response for biometric processing is
1.17 hours; the estimated hour burden
per response for Form I–765 WS is .5
hours; the estimated hour burden per
response for passport-style photographs
is .5 hours.
h. Total Annual Reporting Burden:
The total estimated annual hour burden
associated with this collection is
8,985,859 hours.
John F. Kelly,
Secretary.
[FR Doc. 2017–14619 Filed 7–10–17; 8:45 am]
BILLING CODE 9111–97–P

DEPARTMENT OF ENERGY
10 CFR Parts 429 and 431
[EERE–2014–BT–TP–0054]
RIN 1904–AD43

Energy Conservation Program: Test
Procedures for Compressors
Office of Energy Efficiency and
Renewable Energy, Department of
Energy.
ACTION: Request for information (RFI).
AGENCY:

On January 4, 2017, the U.S.
Department of Energy (‘‘DOE’’)
published a final rule establishing new
test procedures for certain varieties of
compressors. The final rule established
definitions, materials incorporated by
reference, sampling plans,
representations requirements,
enforcement provisions and test
procedures for certain varieties of
compressors. Since that time, DOE has
received correspondence, raising
concerns that certain issues and
information may not have been fully
considered during the original
rulemaking proceeding and also
indicating further clarification may be
needed to implement the rule as
adopted. As a result, by this RFI, DOE
is soliciting further data and
information regarding the compressor
test procedure and announcing that
DOE will not seek to enforce the test
procedure rule for 180 days (i.e., until
December 30, 2017) while it considers
the data and information already
submitted and any further material
submitted in response to this request for
information.
DATES: Comments: DOE will accept
comments, data, and information
regarding this RFI until September 11,
2017.

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SUMMARY:

Interested parties are
encouraged to submit comments using
the Federal eRulemaking Portal at

ADDRESSES:

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www.regulations.gov. Any comments
submitted must identify the request for
information concerning the test
procedures for compressors. You may
submit comments, identified by Docket
Number, EERE–2014–BT–TP–0054, by
any of the following methods:
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
• Email:
AirCompressors2014TP0054@
ee.doe.gov. Include the docket number,
EERE–2014–BT–TP–0054 in the subject
line of the message. Submit electronic
comments in WordPerfect, Microsoft
Word, PDF, or ASCII file format, and
avoid the use of special characters or
any form of encryption.
• Postal Mail: Appliance Standards
Program, U.S. Department of Energy,
Building Technologies Office, Mailstop
EE–5B, Compressor TP RFI Docket
Number: EERE–2014–BT–TP–0054,
1000 Independence Avenue SW.,
Washington, DC 20585–0121.
Telephone: (202) 586–6636. If possible,
please submit all items on a compact
disc (CD), in which case it is not
necessary to include printed copies.
• Hand Delivery/Courier: Appliance
and Equipment Standards Program, U.S.
Department of Energy, Building
Technologies Office, 950 L’Enfant Plaza
SW., 6th Floor, Washington, DC 20024.
Telephone: (202) 586–6636. If possible,
please submit all items on a CD, in
which case it is not necessary to include
printed copies.
No telefacsimiles (faxes) will be
accepted. For detailed instructions on
submitting comments and additional
information on the rulemaking process,
see section II of this document (Public
Participation).
FOR FURTHER INFORMATION CONTACT: Mr.
James Raba, U.S. Department of Energy,
Office of Energy Efficiency and
Renewable Energy, Building
Technologies Office, EE–5B, 1000
Independence Avenue SW.,
Washington, DC 20585–0121.
Telephone: (202) 586–8654. Email:
ApplianceStandardsQuestions@
ee.doe.gov.
Ms. Mary Greene, U.S. Department of
Energy, Office of the General Counsel,
GC–33, 1000 Independence Avenue
SW., Washington, DC 20585–0121.
Telephone: (202) 586–1817. Email:
[email protected].
For further information on how to
submit a comment, or review other
public comments and the docket,
contact the Appliance and Equipment
Standards Program staff at (202) 586–
6636 or by email:
ApplianceStandardsQuestions@
ee.doe.gov.

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SUPPLEMENTARY INFORMATION:

Table of Contents
I. Authority and Background
A. Coverage Determination
B. Test Procedure
C. Questions Raised About Test Procedure
D. Request for Information and
Enforcement Forbearance
II. Public Participation
A. Submission of Comments
III. Approval of the Office of the Secretary

I. Authority and Background
A. Coverage Determination
Title III of the Energy Policy and
Conservation Act of 1975, as amended
(‘‘EPCA’’), sets forth a variety of
provisions designed to improve energy
efficiency. (42 U.S.C. 6291, et seq.) Part
C of Title III, which for editorial reasons
was re-designated as Part A–1 upon
incorporation into the U.S. Code (42
U.S.C. 6311–6317), establishes the
‘‘Energy Conservation Program for
Certain Industrial Equipment.’’ EPCA
provides that DOE may include a type
of industrial equipment, including
compressors, as covered equipment if it
determines that to do so is necessary to
carry out the purposes of Part A–1. (42
U.S.C. 6311(2)(B)(i) and 6312(b)). The
purpose of Part A–1 is to improve the
efficiency of electric motors and pumps
and certain other industrial equipment
in order to conserve the energy
resources of the Nation. (42 U.S.C
6312(a)) On November 15, 2016, DOE
published a Notice of Final
Determination of Coverage, classifying
compressors as covered equipment. The
final coverage determination became
effective on December 15, 2016. 81 FR
79991.
B. Test Procedure
DOE may develop test procedures to
measure the energy efficiency, energy
use, or estimated annual operating cost
of each covered equipment. (42 U.S.C.
6314). Manufacturers of covered
equipment must use the prescribed DOE
test procedure as the basis for certifying
to DOE that their equipment complies
with the applicable energy conservation
standards adopted under EPCA and
when making any representations
regarding the energy use or efficiency of
that equipment. (42 U.S.C. 6295(s),
6316(a) and 6314(d)).
On January 4, 2017, DOE published a
final rule to establish new test
procedures for certain varieties of
compressors. 82 FR 1052. The final rule
established definitions, materials
incorporated by reference, sampling
plans, representations requirements,
enforcement provisions and test
procedures for certain varieties of

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