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Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations flexibility to receive evidence as the immigration judge deems necessary and will provide consistency between the immigration courts and the BIA.
Sixth, the final rule modifes 8 CFR
1001.1dd, 1003.8a3, and 1003.24d to update the fee waiver denial process at the BIA. The NPRM changed the existing BIA fee waiver process so that, if the BIA denied a fee waiver request, the BIA would hold the underlying filing in a pending state while allowing the filer a 10-day cure period to submit the required fee or to submit a new fee waiver request, which would also serve to toll any applicable filing deadlines.
However, after further review, the Department has decided to modify this language to more closely match the existing process, while retaining the filing deadline tolling period. The final rule states that, if a fee waiver request is denied, the BIA will reject the filing consistent with existing practice but allow the filer 15 days to re-file the document with the proper payment or a new fee waiver request. Any applicable filing deadlines will be tolled during this 15-day period. The Department believes this modification provides a more standardized process for filings at the BIA and will prevent any issues stemming from the BIA needing to hold any filings in a pending state while waiting for a fee payment or new fee waiver.
Seventh, the final rule modifies 8 CFR
1003.2g5, 1003.3g2, and 1003.31b to extend the minimum notice for planned system outages from three to five days. As a result, any planned outages announced with five or fewer days notice will be treated as an unplanned outage and filing deadlines will be extended until the first day of system availability that is not a Saturday, Sunday, or legal holiday. For planned outages with more than five days notice, filers must electronically file documents during system availability within the applicable filing deadline or paper file documents within the applicable filing deadline.
Extending the notice period will further ensure that filers have sufficient time to account for planned outages when filing their documents.
Eighth, the final rule removes proposed 8 CFR 1001.1dd2, which provided a non-exhaustive list of improper filings subject to rejection by the immigration courts and the BIA. The requirements for proper filings are contained within various statutory and regulatory provisions. See, e.g., INA
240c4B, 8 U.S.C. 1229ac4B
requiring compliance with application instructions; 8 CFR 1003.31 fee requirements, 1003.32 proof of service
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and document formatting requirements, 1003.33 document translation requirements. The proposed language in the NPRM was non-exhaustive and risked duplication and confusion with these and other similar provisions.
Therefore, the Department has removed the language from the final rule.
Ninth, this rule amends the provisions at 8 CFR 1003.2g4, 1003.3g1, and 1003.31a regarding parties that are either required to or allowed to electronically file documents with EOIR. Specifically, this rule adds a qualifier that the mandatory electronic filing requirement for attorneys and accredited representatives applies only in those cases in which the attorney or accredited representative has entered an appearance on a Form EOIR27 or a Form EOIR28. This rule also amends the explanation of who may permissively file documents electronically so that it is clear that reputable individuals and accredited officials may also do so in those cases in which they have entered an appearance on a Form EOIR27 or a Form EOIR28. Finally, this rule includes a catchall that other authorized individuals may file documents electronically. For example, depending on sytem development, EOIR
may authorize third-party electronic filing akin to the current availability of courier services.
Tenth, the final rule modifies 8 CFR
1003.2g4, 1003.3g1, and 1003.31a regarding the requirement for parties who may permsissibly and voluntarily participate in electronic filing with the immigration courts and the BIA. Previously, the proposed rule stated that such parties must first register with EOIR in conformity with 8 CFR 1292.1f. That paragraph, however, only sets out registration procedures for attorneys and accredited representatives who appear before EOIR.
Accordingly, the final rule replaces these references to 8 CFR 1292.1f with a general requirement that unrepresented respondents, reputable individuals, accredited officials, and any other authorized persons must first register with EOIR as a prerequisite to being able to electronically file documents with the immigration courts and the BIA. This amendment does not change the Departments expectation, as explained in the NPRM, that the registration procedures for these officials, once available, will mimic those that are set out in 8 CFR 1292.1f and that currently apply to attorneys and accredited representative. 85 FR at 78242 EOIR will adapt its current registration system as appropriate to allow pro se respondents, applicants, or
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petitioners and reputable individuals and accredited officials to register in order to be able to utilize ECAS..
Lastly, the final rule includes two additional technical amendments to correct additional outdated references to the Immigration and Naturalization Service in 8 CFR 1214.2 and 1245.21.
IV. Regulatory Requirements A. Regulatory Flexibility Act The Department has reviewed this rule in accordance with the Regulatory Flexibility Act and has determined that this rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C.
605b. This rule regulates attorneys and accredited representatives, most of whom qualify as small entities under the Regulatory Flexibility Act. See 5
U.S.C. 60134, 6. However, all attorneys and accredited representatives already are required to enroll in eRegistry in order to practice before EOIR. Thus, they are already eligible to participate in the electronic filing system, which is currently being made available in many locations through a voluntary pilot program. This rule mandates electronic filing in eligible cases. The Department anticipates that the adoption of electronic filing will lead to substantial net cost savings for these attorneys and accredited representatives because they will no longer be required to bear the burdens and expenses of mailing or serving paper copies in each of their cases for filings submitted to the immigration court or to the BIA or for service of process on opposing counsel. Therefore, this rule will not have an adverse economic effect on attorneys or accredited representatives; instead the Department expects it to result in net cost savings. A more detailed analysis of the costs and benefits of this rule are detailed in Section IV.D of this preamble.
B. 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 of the Unfunded Mandates Reform Act of 1995.
C. Congressional Review Act This rule is not a major rule as defined by section 804 of the Congressional Review Act. 5 U.S.C.

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