Security Bars and Processing; Delay of Effective Date
| Published date | 25 January 2021 |
| Citation | 86 FR 6847 |
| Record Number | 2021-01683 |
| Section | Rules and Regulations |
| Court | Executive Office For Immigration Review |
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.
Rules and Regulations Federal Register
6847
Vol. 86, No. 14
Monday, January 25, 2021
1
See 85 FR 80274 (Dec. 11, 2020).
2
See Pangea Legal Servs. v. Dep’t of Homeland
Security, No. 20–09253–JD, 2021 WL 75756, at *7
(N.D. Cal. Jan. 8, 2021). The Pangea court held that
plaintiffs showed a likelihood that Chad F. Wolf,
who approved the December 11 rule in his capacity
as Acting Secretary of Homeland Security, did not
have valid authority to act in that capacity. See id.
*6. Following the court’s ruling, Peter T. Gaynor
and Mr. Wolf took steps to ratify the December 11
rule. See DHS Delegation No. 23028, Delegation to
the Under Secretary for Strategy, Policy, and Plans
to Act on Final Rules, Regulations, and Other
Matters (Jan. 12, 2021); Chad F. Wolf, Ratification
(Jan. 14, 2021). By issuing this rule, the
Departments state no position on Mr. Gaynor or Mr.
Wolf’s actions or authority, the outcome thus far in
Pangea, or the effects of any further actions.
3
See, e.g., 85 FR at 84176 (‘‘As noted, the
[Security Bars] final rule is not, as the NPRM
proposed, modifying the regulatory framework to
apply the danger to the security of the United States
bars at the credible fear stage because, in the
interim between the NPRM and the final rule, the
[December 11 rule] did so for all of the bars to
eligibility for asylum and withholding of
removal.’’); id. at 84189 (describing changes made
in the Security Bars rule ‘‘to certain regulatory
provisions not addressed in the proposed rule as
necessitated by the intervening promulgation of the
[December 11] Rule.’’).
4
Compare, e.g., 85 FR at 84194–84198 (revising
8 CFR 208.30, 235.6, 1208.30, and 1235.6, among
other provisions) and 85 FR at 80390–80401 (same).
5
See 5 U.S.C. 553(b)(B), (d) (providing an
exception from the notice and comment
requirements when an agency ‘‘for good cause finds
. . . that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the
public interest,’’ and providing additional
exceptions with respect to the delayed effective
date).
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Part 208
[Docket No: USCIS 2020–0013]
RIN 1615–AC57
DEPARTMENT OF JUSTICE
Executive Office for Immigration
Review
8 CFR Part 1208
[A.G. Order No. 4975–2021]
RIN 1125–AB08
Security Bars and Processing; Delay of
Effective Date
AGENCY
: U.S. Citizenship and
Immigration Services, Department of
Homeland Security (‘‘DHS’’); Executive
Office for Immigration Review,
Department of Justice (‘‘DOJ’’)
ACTION
: Final rule; delay of effective
date.
SUMMARY
: On December 23, 2020, DHS
and DOJ (collectively, ‘‘the
Departments’’) published a final rule to
clarify that the danger to the security of
the United States statutory bar to
eligibility for asylum and withholding
of removal encompass certain
emergency public health concerns and
make certain other changes. The
Departments are delaying the rule’s
effective date for 60 days.
DATES
: As of January 21, 2021, the
effective date of the final rule published
at 85 FR 84160 (Dec. 23, 2020) is
delayed until March 22, 2021.
FOR FURTHER INFORMATION CONTACT
: For
USCIS: Andrew Davidson, Asylum
Division Chief, Refugee, Asylum and
International Affairs Directorate, U.S.
Citizenship and Immigration Services,
DHS; telephone 240–721–3000 (not a
toll-free call).
For EOIR: Lauren Alder Reid,
Assistant Director, Office of Policy,
Executive Office for Immigration
Review, telephone (703) 305–0289 (not
a toll-free call).
SUPPLEMENTARY INFORMATION
:
Background and Basis for Delay
On December 23, 2020, the
Departments published a final rule
(‘‘Security Bars rule’’) to amend existing
regulations to clarify that in certain
circumstances there are ‘‘reasonable
grounds for regarding [an] alien as a
danger to the security of the United
States’’ or ‘‘reasonable grounds to
believe that [an] alien is a danger to the
security of the United States’’ based on
emergency public health concerns
generated by a communicable disease,
making the alien ineligible to be granted
asylum in the United States under
section 208 of the Immigration and
Nationality Act or the protection of
withholding of removal under that Act
or subsequent regulations (because of
the threat of torture). See Security Bars
and Processing, 85 FR 84160 et seq.
(Dec. 23, 2020).
On January 20, 2021, the White House
Chief of Staff issued a memorandum
asking agencies to consider delaying,
consistent with applicable law, the
effective dates of any rules that have
published and not yet gone into effect,
for the purpose of allowing the
President’s appointees and designees to
review questions of fact, law, and policy
raised by those regulations. See
Memorandum for the Heads of
Executive Departments and Agencies
from Ronald A. Klain, Assistant to the
President and Chief of Staff, Re:
Regulatory Freeze Pending Review (Jan.
20, 2021). This action is consistent with
that memorandum.
The Departments have good cause to
delay this rule’s effective date without
advance notice and comment because a
permissible path to implementation of
the rule is not apparent due to a
preliminary injunction against a related
rule. On December 11, 2020, the
Departments issued a rule titled
Procedures for Asylum and Withholding
of Removal; Credible Fear and
Reasonable Fear Review.
1
On January 8,
2021, a district court preliminarily
enjoined the Departments ‘‘from
implementing, enforcing, or applying
the [December 11] rule . . . or any
related policies or procedures.’’
2
Implementing the Security Bars rule
will not be viable given this injunction.
Most prominently, the Security Bars
rule relies upon the framework for
applying bars to asylum during credible
fear processing that was established in
the December 11 rule.
3
That is not
possible given the injunction. The
regulatory text of significant portions of
the Security Bars rule is also embedded
within and repeats regulatory text that
was established by the December 11
rule.
4
To implement the full Security Bars
rule—and effectively reinsert or rely
upon provisions that the Pangea court
has enjoined—might run afoul of the
court’s injunction. Because the court’s
injunction is already effective and it
would be impracticable to engage in
notice and comment procedures in
advance of the scheduled January 22
effective date, the Departments are
proceeding with this final rule.
5
The Acting Secretary of Homeland
Security, David P. Pekoske, having
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6848
Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Rules and Regulations
reviewed and approved this document,
has delegated the authority to
electronically sign this document to
Sharmistha Das, who is the Deputy
General Counsel for DHS, for purposes
of publication in the Federal Register.
Sharmistha Das,
Deputy General Counsel, U.S. Department of
Homeland Security.
Monty Wilkinson,
Acting Attorney General, Department of
Justice.
[FR Doc. 2021–01683 Filed 1–21–21; 4:15 pm]
BILLING CODE 4410–30–P 9111–97–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. FAA–2020–0800; Airspace
Docket No. 20–ANM–43]
RIN 2120–AA66
Revocation of Class D and Amendment
of Class E Airspace; Gillette, WY
AGENCY
: Federal Aviation
Administration (FAA), DOT.
ACTION
: Final rule.
SUMMARY
: This action removes the Class
D airspace, establishes a Class E surface
area, modifies the Class E airspace as an
extension to the surface area and
modifies the Class E airspace extending
upward from 700 feet AGL at Northeast
Wyoming Regional Airport, Gillette,
WY. In addition, this action removes the
VOR/DME from the legal description
and replaces the outdated term Airport
Facility/Directory with the term Chart
Supplement. It also makes two minor
administrative corrections noted in the
Notice of Proposed Rulemaking
(NPRM); the airport name is updated
and the Class E surface area is identified
as new airspace rather than amended
airspace.
After being informed that the Airport
Traffic Control Tower at Northeast
Wyoming Regional Airport is closed
permanently, the FAA found it
necessary to create new airspace and
amend the existing airspace for the
safety and management of Instrument
Flight Rule (IFR) operations at this
airport.
DATES
: Effective 0901 UTC, April 22,
2021. The Director of the Federal
Register approves this incorporation by
reference action under Title 1 Code of
Federal Regulations part 51, subject to
the annual revision of FAA Order
7400.11 and publication of conforming
amendments.
ADDRESSES
: FAA Order 7400.11E,
Airspace Designations and Reporting
Points, and subsequent amendments can
be viewed online at https://
www.faa.gov/air_traffic/publications/.
For further information, you can contact
the Airspace Policy Group, Federal
Aviation Administration, 800
Independence Avenue SW, Washington,
DC 20591; telephone: (202) 267–8783.
The Order is also available for
inspection at the National Archives and
Records Administration (NARA).
For information on the availability of
FAA Order 7400.11E at NARA, email
fedreg.legal@nara.gov or go to https://
www.archives.gov/federal-register/cfr/
ibr-locations.html.
FOR FURTHER INFORMATION CONTACT
:
Richard Roberts, Federal Aviation
Administration, Western Service Center,
Operations Support Group, 2200 S.
216th Street, Des Moines, WA 98198;
telephone (206) 231–2245.
SUPPLEMENTARY INFORMATION
:
Authority for This Rulemaking
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code
(U.S.C.). Subtitle I, Section 106
describes the authority of the FAA
Administrator. Subtitle VII, Aviation
Programs, describes in more detail the
scope of the Agency’s authority. This
rulemaking is promulgated under the
authority described in Subtitle VII, Part
A, Subpart I, Section 40103. Under that
section, the FAA is charged with
prescribing regulations to assign the use
of airspace necessary to ensure the
safety of aircraft and the efficient use of
airspace. This regulation is within the
scope of that authority as it removes the
Class D, establishes a Class E surface
area, modifies the Class E airspace as an
extension to the surface area and
modifies the Class E airspace extending
upward from 700 feet AGL at Northeast
Wyoming Regional Airport, Gillette, WY
to support IFR operations.
History
The FAA published a notice of
proposed rulemaking in the Federal
Register (85 FR 57806; September 16,
2020) for Docket No. FAA–2020–0800 to
remove the Class D airspace and modify
the following: Class E surface area, the
Class E airspace as an extension to the
surface area and the Class E airspace
extending upward from 700 feet AGL at
Gillette-County Airport, Gillette, WY, in
support of IFR operations. Interested
parties were invited to participate in
this rulemaking effort by submitting
written comments on the proposal to the
FAA. One comment was received with
multiple concerns. The commenter was
troubled by the language used in the
NPRM and concerned it would create
difficulty in converting the airspace
from Class D to Class E for the airport
management team. This included
logistical and technical steps in
changing the airport structure,
definitions of Class D and Class E
airspace, equipment and techniques
used for changing the airspace, who will
monitor the change process, the airport
management team’s role and
responsibilities in completing the
change, and an expected timeline.
While additional information needed by
the airport management team is
available and a point of contact
provided, no one got in touch with this
office or the facility with jurisdiction for
the overlying airspace to enquire about
information contained in the NPRM.
The request for comment was based on
the belief that the commenter has a
basic knowledge of and understanding
about airspace and the equipment and
operating rules for each class of
airspace. Controlled airspace is airspace
of defined dimensions within which
ATC service is provided to IFR and VFR
flights in accordance with the airspace
classification. Within controlled
airspace, all aircraft operators are
subject to certain qualification,
operating, and aircraft equipage
requirements (see Title 14 CFR part 91).
Controlled airspace in the United States
is designated in 14 CFR part 71.
Changing the airspace designation is an
administrative task. It involves no
actions to the physical environment of
the airport or its structures. The
‘‘timeline’’, also known as the effective
date, of the change in the airspace
designation has been determined by
FAA orders to ensure safety in
execution of that change.
The commenter was also concerned
that issues related to possible effects on
the entire airport, including civil
aviation and the airport’s overall safety,
were not considered in the proposed
rule. In addition, the commenter had
questions regarding what standards and
criteria were to be used in considering
the effectiveness of the changes. The
airspace design specialist establishes,
modifies or revokes airspace based on
criteria documented in FAA Orders by
their Flight Standards Division and
Airspace Policy Regulations Group. The
specialist takes into account, as a prime
consideration, the safety and efficiency
of air traffic operations in consultation
with local Air Traffic Control. In
addition, the facility with jurisdiction
over the airspace conducts and
documents a safety risk analysis to
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