[Federal Register Volume 67, Number 37 (Monday, February 25, 2002)]
[Rules and Regulations]
[Pages 8477-8478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4541]



[[Page 8477]]

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DEPARTMENT OF STATE

22 CFR Parts 40, 41, and 42

[Public Notice 3921]


Visas: Documentation of Nonimmigrants and Immigrants Under the 
Immigration and Nationality Act, As Amended: Fingerprinting; Access to 
Criminal History Records; Conditions for Use of Criminal History 
Records

ACTION: Interim rule, with request for comments.

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SUMMARY: Recent legislation, commonly known as the USA Patriot Act, 
requires the Federal Bureau of Investigation (FBI) to give the 
Department access to certain of its criminal history record and other 
databases, conditioned in certain instances upon the Department 
providing an applicant's fingerprints to the FBI. This rule amends the 
Department's regulations pertaining to the fingerprinting of 
nonimmigrants and immigrants. It also establishes new regulations that 
set forth the conditions for the use, protection, dissemination and 
destruction of any criminal history or other records provided to the 
Department by the FBI.

DATES: Effective date: This interim final rule is effective on February 
25, 2002.
    Comment date: Written comments must be submitted on or before April 
26, 2002.

ADDRESSES: Submit comments in duplicate to the Chief, Legislation and 
Regulations Division, Visa Services, Department of State, 20520-0106, 
Comments may also be forwarded via e-mail at [email protected]. or 
faxed at (202) 663-3898.

FOR FURTHER INFORMATION CONTACT: Nancy Altman, Legislation and 
Regulations Division, Visa Services, Department of State, Washington, 
DC 20520-0106, (202) 261-8040.

SUPPLEMENTARY INFORMATION:

What Is the Authority for This Rule?

    On October 26, 2001, the President signed into law the ``Uniting 
and Strengthening America Act by Providing Appropriate Tools Required 
to Intercept and Obstruct Terrorism'' (USA Patriot Act), Pub. L. 107-
56. [Section 403 of the USA Patriot Act, in relevant part, amended 
section 105 of the INA by inserting ``(a)'' after ``Sec. 105 `` and by 
adding the language of section 403 as subpart ``(b)'' in that section.]
    Section 403 of the USA Patriot Act requires the FBI to provide the 
Department access to certain criminal history record and other 
databases contained in the National Crime Information Center (NCIC) as 
mutually agreed upon by the Attorney General and the Department. The 
purpose of this provision is to give the Department access to an 
applicant's criminal history or other record indexed in a specified 
NCIC database and to place conditions on the Department's use of 
database information it receives from the FBI.

How Will the Department Access NCIC Criminal History Records?

    Access to NCIC databases is to be provided by means of criminal 
history record extracts for placement in the Department's automated 
Lookout database. All visa applicants and applicants for admission to 
the United States will be subject to name-check queries against the 
extract information for the purpose of determining whether an applicant 
may have a criminal history or other record. The extracts of the 
records are to be provided without charge and are to be updated at 
intervals mutually agreed upon by the FBI and the Department. At the 
time of receipt of an updated criminal history extract, the Department 
will destroy previously provided extracts contained in its database. 
Access to an extract does not entitle the Department to obtain an 
applicant's corresponding automated full content criminal history 
record. The full content of a criminal history record can only be 
obtained by submitting the applicant's fingerprints to the FBI with the 
appropriate processing fee.

Which Applicants Must Be Fingerprinted?

    When extract information indicates that an applicant may have a 
criminal history record indexed in an NCIC database, the Department 
will require the applicant to submit fingerprints and pay the specified 
fee fingerprint processing fee. The Department will forward the 
fingerprints and the fee to the FBI for the purpose of confirming 
whether or not the criminal history or other record in the NCIC 
database belongs to the applicant. If an applicant's fingerprints 
confirm an NCIC criminal history record, the FBI will forward the 
automated full content criminal history record to the Department.

Are Limitations Placed On the Department's Use of NCIC Criminal 
History Records?

    NCIC criminal history record information (which includes the 
extract data associated with such information) received by the 
Department is considered law enforcement sensitive and is subject to 
conditions for its use and procedures for its destruction.
Section 403 requires the Department:
     To limit the re-dissemination of criminal history records 
received from the FBI;
     To use any criminal history information it receives solely 
to determine whether or not to issue a visa to an alien or to admit the 
alien to the United States;
     To ensure the security, confidentiality, and destruction 
of such information; and
     To protect any privacy rights of individuals who have NCIC 
criminal history records.
    Because NCIC-III and other FBI criminal history records received by 
the Department are law enforcement sensitive, only authorized consular 
personnel with visa processing responsibilities may have access to an 
applicant's criminal history record. To protect applicants' privacy, 
the Department must secure all NCIC criminal history or other records, 
automated or otherwise, to prevent access by unauthorized persons. 
Unless otherwise mutually agreed upon by the Attorney General and the 
Secretary of State, NCIC-III and other FBI criminal history records may 
be used solely to determine whether or not to issue a visa to an alien 
or to admit an alien to the United States. At the time the Department 
receives updated NCIC criminal history extracts from the FBI, the 
Department will delete the outdated NCIC criminal history extracts from 
its database/s.

How Is the Department Amending Its Regulations?

    The Department is amending its regulations by adding a new section 
at 22 CFR 40.5 ``Limitations on the use of NCIC criminal history record 
information.'' The new section establishes the conditions for the use 
of applicants' criminal history record information by the Department.
    The Department is also amending its regulations at section 22 CFR 
41.105(b) by adding a new paragraph (2) ``NCIC name check response.'' 
Paragraph (2) of subsection (b) states the requirement for the 
fingerprinting of any nonimmigrant applicant whose name check response 
indicates the possibility of a criminal history record indexed in the 
NCIC databases.
    The Department is further amending its regulations at section 22 
CFR 42.67(c) ``Fingerprinting'' by adding a new paragraph (2) ``NCIC 
name check response.'' Paragraph (2) of subsection (c ) states the 
requirement for fingerprinting any immigrant applicant

[[Page 8478]]

whose name check response indicates the possibility of a criminal 
history record indexed in the NCIC databases.

Regulatory Analysis and Notices

Administrative Procedure Act

    The Department's implementation of this regulation as an interim 
rule is based upon the ``good cause'' exceptions found at 5 U.S.C. 
553(b)(B) and (d)(3). The USA Patriot Act, signed into law on October 
26, 2001, requires that final regulations be promulgated prior to the 
Department's receipt of NCIC data but no later than four months after 
the date of enactment. The Department has determined there to be 
insufficient time to issue a proposed rule with a request for comments.

Regulatory Flexibility Act

    The Department of State, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by 
approving it, certifies that this rule will not have a significant 
economic impact on a substantial number of small entities.

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 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.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement 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 significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    The Department does not consider this rule to be a ``significant 
regulatory action'' under Executive Order 12866, section (3)(f), 
Regulatory planning and Review. Therefore, in accordance with the 
letter to the Department of State of February 4, 1994, from the 
Director of the Office of Management and Budget, it does not require 
review by the Office of Management and Budget.

Executive Order 13132

    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.

Paperwork Reduction Act

    This rule does not impose any new reporting or record-keeping 
requirements.

List of Subjects

22 CFR Part 40

    Aliens, Nonimmigrants and Immigrants, Passports and visas.

22 CFR Part 41

    Aliens, Nonimmigrants, Passports and visas.

22 CFR Part 42

    Aliens, Immigrants, Passports and visas.
    Accordingly, the Department amends 22 CFR Parts 40, 41, and 42 to 
read as follows:

PART 40--[AMENDED]

    1. The authority citation for Part 40 shall continue to read:

    Authority: 8 U.S.C. 1104.

    2. Amend Part 40 by adding a new Sec. 40.5 to read as follows:


Sec. 40.5  Limitations on the use of National Crime Information Center 
(NCIC) criminal history information.

    (a) Authorized access. The FBI's National Crime Information Center 
(NCIC) criminal history records are law enforcement sensitive and can 
only be accessed by authorized consular personnel with visa processing 
responsibilities.
    (b) Use of information. NCIC criminal history record information 
shall be used solely to determine whether or not to issue a visa to an 
alien or to admit an alien to the United States. All third party 
requests for access to NCIC criminal history record information shall 
be referred to the FBI.
    (c ) Confidentiality and protection of records. To protect 
applicants' privacy, authorized Department personnel must secure all 
NCIC criminal history records, automated or otherwise, to prevent 
access by unauthorized persons. Such criminal history records must be 
destroyed, deleted or overwritten upon receipt of updated versions.

PART 41--[AMENDED]

    3. The authority citation for Part 41 shall continue to read as 
follows:

    Authority: 8 U.S.C, 1104; Pub. L. 105-277, 112 Stat. 2681 et 
seq.

    4. Amend Sec. 41.105 by redesignating paragraph (b) as (b)(1) and 
adding a new paragraph (b)(2) to read as follows:


Sec. 41.105  Supporting documents and fingerprinting.

* * * * *
    (b) * * *
    (2) NCIC name check response. When an automated database name check 
query indicates that a nonimmigrant applicant may have a criminal 
history record indexed in an NCIC database, the applicant shall be 
required to have a set of fingerprints taken in order for the 
Department to obtain such record. The applicant must pay the 
fingerprint-processing fee as indicated in the schedule of fees found 
at 22 CFR part 22.1.

PART 42--[AMENDED]

    5. The authority citation for Part 42 shall continue to read:

    Authority: 8 U.S.C. 1104

    6. Amend Sec. 42.67 by redesignating paragraph (c) as (c )(1) and 
adding a new paragraph (c )(2) to read as follows:


Sec. 42.67  Execution of application, registration, and fingerprinting.

* * * * *
    (c) * * *
    (2) NCIC name check response. When an automated database name check 
query indicates that an immigrant applicant may have a criminal history 
record indexed in an NCIC database, the applicant shall be required to 
have a set of fingerprints taken in order for the Department to obtain 
such record. The applicant must pay the fingerprint processing fee as 
indicated in the schedule of fees found at 22 CFR 22.1.

    Dated: February 15, 2002.
Mary A. Ryan,
Assistant Secretary for Consular Affairs, U.S. Department of State.
[FR Doc. 02-4541 Filed 2-22-02; 8:45 am]
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