[Federal Register Volume 67, Number 231 (Monday, December 2, 2002)]
[Rules and Regulations]
[Pages 71443-71450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30295]



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 Rules and Regulations
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  Federal Register / Vol. 67, No. 231 / Monday, December 2, 2002 / 
Rules and Regulations  

[[Page 71443]]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 212, 214, 235, 264, 286, and 299

[INS No. 1931-98]
RIN 1115-AF24


Requirements for Biometric Border Crossing Identification Cards 
(BCCs) and Elimination of Non-Biometric BCCs on Mexican and Canadian 
Borders

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: Section 104 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA), as amended, requires the 
establishment of regulations governing the issuance and use of border 
crossing identification cards (BCCs) containing biometric information. 
See 8 U.S.C. 1101(a)(6) and note. To satisfy documentary requirements 
for admission to the United States, Mexican nationals who are not 
permanent residents must possess either a BCC or a valid passport and a 
nonimmigrant visa issued at a consulate abroad. Canadians and certain 
other residents of Canada are not required to possess a visa, but they 
must present documentation of any waivers of inadmissibility. This rule 
amends the Immigration and Naturalization Service (Service) regulations 
by requiring that an alien seeking admission to the United States by 
presentation of a BCC must present a BCC that contains biometric 
information that is machine readable. The biometric information on the 
card will be verified by machine at the ports-of-entry (POEs) where 
feasible or by other reliable means. This rule further eliminates 
certain former versions of BCCs and clarifies the validity period of 
waivers of inadmissibility issued under 8 CFR 212.4. This rule promotes 
uniformity and clarity in the adjudication and production processes, 
and is necessary to comply with the congressional mandates set forth in 
section 104 of the IIRIRA.

DATES: Effective date: October 1, 2002.
    Comment date: Written comments must be submitted on or before 
January 31, 2003.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division, Immigration and Naturalization Service, 
425 I Street, NW., Room 4034, Washington, DC 20536. To ensure proper 
handling, you must include INS No. 1931-98 on your correspondence. 
Comments are available for public inspection at the above address by 
calling (202) 514-3291 to arrange for an appointment. Comments can also 
be submitted electronically at [email protected]. When submitting 
comments electronically, please make sure to place the INS No. 1931-98 
in the subject box.

FOR FURTHER INFORMATION CONTACT: Michael J. Flemmi, Assistant Chief 
Inspector, Office of Inspections, U.S. Immigration and Naturalization 
Service, 425 I Street, NW., Room 4064, Washington, DC 20536, Telephone 
(202) 305-9247.

SUPPLEMENTARY INFORMATION:

Background

    This rule is essential to meet the requirements of section 104 of 
the IIRIRA, which amended section 101(a)(6) of the Immigration and 
Nationality Act (Act) (codified as amended at 8 U.S.C. 1101(a)(6) and 
1101 note (2002)). The definition of a BCC and related requirements are 
covered by section 101(a)(6) of the Act. The IIRIRA, section 104 
establishes two new requirements: (1) A machine-readable biometric 
identifier must be included in any document issued on or after April 1, 
1998, that is designated as a ``border crossing identification card,'' 
and (2) an alien who presents such a card cannot be permitted to cross 
the border into the United States unless the biometric identifier 
contained on the card matches the appropriate biometric characteristic 
of the alien who presents the card on or after October 1, 2002.
    Section 601 of the Enhanced Border Security and Visa Entry Reform 
Act (Border Security Act), Public Law 107-173, 116 Stat. 543 (May 14, 
2002) amended section 104 of IIRIRA to extend the deadline from October 
1, 2001 to October 1, 2002 for presentation of the biometric BCC at the 
borders. The deadline had previously been extended from 1999 to 2001. 
(Omnibus Consolidated and Emergency Supplemental Appropriations Act of 
1999, Sec. 410(b), Public Law 105-277, 112 Stat. 2681 (October 21, 
1998)). Between October 1, 2001 and the passage of the most recent 
deadline extension in the Border Security Act, the Service required 
border crossers to present the new biometric BCC, passports, visas, 
other appropriate documents, or valid waivers if required. After 
enactment of the Border Security Act extension, the Service again 
accepted unexpired non-biometric BCCs. This regulation ends the 
acceptance of the non-biometric BCCs as required by law.
    The Service and the Department of State (DOS) have realigned their 
responsibilities so that each agency specializes in part of the BCC 
adjudication and production process: The DOS adjudicates all 
applications for the biometric BCCs for Mexicans, and the Service 
produces most such BCCs. The DOS also produces some of the BCCs. 
Canadian BCCs are no longer produced. Canadians and certain other 
Canadian residents are not required to possess a visa or BCC; however, 
waivers of any relevant grounds of inadmissibility will continue to be 
required of eligible Canadians and Canadian residents. See 8 U.S.C. 
1182(d)(3-4); 8 CFR 212.1(a); 8 CFR 212.4, and 8 CFR 212.7. The concept 
for the realignment of responsibilities for the adjudication and 
production of BCCs grew out of discussions with the DOS about areas 
where the two agencies' programs interface.
    This rule eliminates the use of Form I-175, Application for 
Nonresident Alien Canadian Border Crossing Card, and Form I-190, 
Application for Nonresident Alien Mexican Border Crossing Card. It also 
terminates the production of Form I-185, Nonresident Alien Canadian 
Border Crossing Card, and Form I-586, Nonresident Alien Mexican Border 
Crossing Card. In addition, this rule prohibits the use of

[[Page 71444]]

Form I-186 (previous version of the Mexican BCC Card), Form I-185 and 
Form I-586 BCCs. The rule also prohibits the use of the non-biometric 
BCC portion of the combined B-1/B-2 visitor visa and border crossing 
identification card (B-1/B-2 Visa/BCC) (or similar combination stamp in 
a passport) that the DOS issued prior to April 1, 1998. The B-1/B-2 
visas contained on the older DOS-issued cards will remain valid until 
their expiration dates unless otherwise revoked or voided.

Mexican Border Crossing Cards

How Were Mexican BCCs Issued Prior to This Rulemaking?

    Under the previous procedures, both the Service and the DOS 
adjudicated and produced Mexican BCCs. The Service issued BCCs on Form 
I-586 and Form I-186. Several different revisions of the Forms have 
been issued (last revision 1997). The Service adjudicated about 240,000 
BCC applications per year at more than 30 southwest border POEs. 
Approximately 180,000 BCC applications were approved annually.
    The DOS adjudicated about 800,000 BCC applications per year at its 
eight consular posts in Mexico. The DOS non-biometric BCCs were also 
issued in several formats, including a document that is a combination 
B-1/B-2 Visa/BCC and a similar combination stamp in the person's 
passport. In 1998, the DOS published regulations on application 
procedures and criteria for the new biometric BCC (Form DSP-150). See 
22 CFR 41.32. Those procedures must be followed by all Mexican 
applicants seeking BCCs. Following publication of this rule, the 
Service's previous regulations concerning applications for the older 
non-biometric cards will no longer be effective.

How Many of the Service-Issued BCCs Are Now in Use, and Why Must They 
Be Replaced?

    In 1998 when the biometric BCCs became available and all other 
versions ceased to be produced, the Service had estimated that between 
2 and 5 million of the non-biometric, Service-issued BCCs remained in 
circulation. The number of such cards has steadily declined as the 
older versions of both the Service-issued and DOS-issued cards have 
been replaced with the biometric BCC. The Service and DOS have 
adjudicated and produced nearly 6 million BCCs with a biometric 
identifier.
    Section 104 of the IIRIRA requires that each BCC issued on or after 
April 1, 1998, include a biometric identifier that is machine readable, 
and that each alien presenting a BCC on or after October 1, 2002, be 
refused admission unless the biometric identifier on the card matches 
the biometric identifier of the alien. None of the BCCs issued before 
April 1, 1998, contain the required biometric identifier. Thus, they 
cannot be accepted for admission into the United States on or after 
October 1, 2002. Therefore, an individual who wishes to continue using 
a BCC (rather than obtaining a B-1/B-2 visa at a consulate) must 
replace his or her older BCC with the new biometric BCC in order to be 
admitted to the United States on or after October 1, 2002.

Is a DOS-Issued Combination B-1/B-2 Visa/BCC Document or Stamp Issued 
Before April 1, 1998, Still Valid for Admission?

    The BCC portion will no longer be valid for admission because it 
does not contain the required biometric identifier. The B-1/B-2 visa 
portion will remain valid for admission until its expiration date, 
unless the alien is subject to a ground of inadmissibility that has not 
been waived. However, a holder of any B-1/B-2 visa, including a visa 
documented on a non-biometric BCC, must also present his or her 
passport, unless otherwise exempt from the passport requirement. Since 
the DOS-issued BCCs are considered both a nonimmigrant visa and a BCC, 
they will not be subject to this card replacement requirement and may 
continue to be used only as a nonimmigrant visa after October 1, 2002, 
with a passport.

Is a Biometric BCC Mandatory for Mexican Nationals?

    No. A biometric BCC may be presented in lieu of a passport and 
visa. A nonimmigrant Mexican national may present any of the following 
documents for admission into the United States: (1) A valid, unexpired 
visa and unexpired passport if the alien is otherwise admissible; (2) A 
valid, unexpired biometric BCC (DSP-150) if the alien is otherwise 
admissible and provided that the inspector has matched the biometric 
identifier on the card to the bearer's corresponding characteristic(s). 
If the biometric authentication is unsuccessful, the alien cannot be 
permitted to cross the border, as required under section 104 of IIRIRA. 
A passport may be required under 8 CFR 212.6 if the BCC-bearer is not 
arriving from Mexico or Canada, or is arriving from Canada but has been 
in another country other than the United States or Canada since leaving 
Mexico; (3) a non-biometric DOS-issued combination BCC/B-1/B-2 visa (or 
similar stamp in a passport) may be accepted on the basis of the 
unexpired B-1/B-2 visa portion only. The non-biometric BCC portion of 
the card (or stamp) is no longer valid on or after October 1, 2002. As 
usual with a B-1/B-2 visa, a valid, unexpired passport is also 
required. A Form I-94 should be issued unless the individual is 
otherwise exempt from the Form I-94 requirement by regulation; or (4) 
other applicable documents may be accepted depending on the alien's 
eligibility for admission (e.g., Form I-512, Authorization for Parole; 
Form I-194, Notice of Advance Permission to Enter as Non-immigrant 
Pursuant to 212(d)(3)(A) or (B) of the Act).

What Are the Application Procedures for Replacing the Non-Biometric 
BCCs?

    The application procedures for replacing a non-biometric BCC are 
described in the regulation published by the DOS at 22 CFR 41.32. The 
DOS consular officers in Mexico accept and adjudicate the application 
for replacement BCCs. After receiving an appropriate card order from 
the DOS, the Service (or DOS in some cases) will process and produce 
the biometric BCC (DSP-150, B-1/B-2 Visa and Border Crossing Card), 
through its Integrated Card Production System (ICPS). The Service sends 
the cards to the DOS and the DOS will then return the biometric BCC to 
the applicant.
    Each time the bearer presents this biometric BCC to an immigration 
officer at the border, the officer must make sure that the biometric 
identifier on the BCC matches the bearer's characteristics. If the 
biometric identifier does not match, the person will not be admitted to 
the United States.

If An Immigration Officer Voids and Cancels Either a Biometric or a 
Non-Biometric BCC For Any Reason, What Procedures Will Apply?

    If an alien's BCC is voided and cancelled and the alien presenting 
the BCC does not possess other valid admission documents (such as a 
visa and a passport), he or she may be denied admission, unless the 
Service grants a discretionary waiver of the applicable ground of 
inadmissibility, or for an unforeseen emergency under sections 
212(d)(3) or 212(d)(4) of the Act, or determines that the alien should 
be paroled into the United States under section 212(d)(5) of the Act. 
If a waiver or parole is not granted, the Service, in its discretion, 
may permit the alien to withdraw his or her application for admission 
and seek appropriate documentation for his or her future admission. See 
8 CFR 235.4. In certain cases, the alien may be subject to

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expedited removal under section 235(b)(1) of the Act and 8 CFR 235.3. 
The expedited removal provisions give immigration officers at POEs the 
authority to order aliens removed, without further hearing or review 
(unless they request asylum or express a fear of persecution) if they 
apply for admission without proper documents, or seek to procure 
documentation or admission by fraud or misrepresentation. Following 
consultation with a wide variety of immigrant, legal, and community-
based groups, the Service developed extensive detailed regulations and 
procedures to ensure fair and consistent application of the expedited 
removal process. These procedures further ensure that individuals who 
express fears of persecution or torture are given an opportunity for a 
determination of credible fear and to apply for asylum where 
appropriate. See 8 CFR 235.3. During the transition period of the new 
biometric BCC, immigration officers generally will not apply the 
expedited removal procedures to aliens who present only their older, 
non-biometric BCCs, even if they do not meet the criteria discussed 
above for granting a section 212(d)(4)(A) waiver. Unless there is 
fraud, willful misrepresentation, evidence that the applicant is an 
imposter, or other serious violations involved in the alien's 
application for a visa or application for admission, the alien will be 
permitted to withdraw his or her application for admission in lieu of 
formal removal proceedings.
    If there is evidence of fraudulent documentation or willful 
misrepresentation, or other serious violations, the Service may take 
appropriate investigative and enforcement actions, where necessary. 
These enforcement actions may include administrative procedures and 
criminal charges.
    Where the person is not subject to the expedited removal 
procedures, this rule restates the existing procedures that will be 
applied when a BCC is declared void and cancelled. The individual will 
be advised that he or she may request a hearing before an immigration 
judge to determine admissibility in accordance with 8 CFR 235.6 and may 
be represented by an attorney of his or her choice with no expense to 
the government. The person will be provided with a list of free legal 
services providers. If the applicant chooses not to have a hearing, the 
BCC will be cancelled and the applicant will receive a notice of the 
action taken and the reasons for that action. If the BCC was issued by 
the DOS, the Service will also notify the DOS in writing of the reasons 
for the voidance of the BCC. Where applicable, the alien may also be 
ordered removed under the expedited removal provisions.

Canadian Border Crossing Cards

How Will the Issuance of Canadian BCCs Be Affected by This Rulemaking?

    As a result of the IIRIRA mandate and the realignment of 
responsibilities with the DOS, the issuance of Canadian BCCs (Form I-
185) ceased as of April 1, 1998. Long existent regulations permit 
Canadians to travel temporarily to the United States without visas. 8 
CFR 212.1(a). Currently, Canadian BCCs are used primarily for Canadian 
citizens and certain other Canadian residents in possession of an 
approved Form I-194, Notice of Approval of Advance Permission to Enter 
as Nonimmigrant, following a request for a discretionary waiver of 
inadmissibility under section 212(d)(3) of the Act. The Canadian card 
is both a BCC and documentation of the waiver, which is noted 
separately on the card. This procedure allows Canadian citizens, who 
would otherwise be inadmissible, to enter the United States.
    Although the Canadian BCC is no longer issued, Canadians who 
require and are eligible for a waiver of inadmissibility still must 
possess appropriate documentation of the waiver. Individuals who 
require but do not have any documentation of a waiver of 
inadmissibility must apply for one according to the procedures in 8 CFR 
212.4. If eligible, a waiver applicant will be issued a Form I-194, 
Notice of Approval of Advance Permission to Enter as Nonimmigrant. The 
rule further provides that an unexpired waiver of inadmissibility that 
was previously granted and documented on a BCC issued to a Canadian or 
other Canadian resident exempt from the visa requirements under 8 CFR 
212.1 remains valid, although the non-biometric BCC portion of the card 
does not. The Service is considering alternative documentation for 
waivers issued to Canadians and certain other Canadian residents.
    In addition, with the issuance of this rule, approvals of new 
applications for the exercise of discretion under section 212(d)(3) of 
the Act may be granted for a maximum period of 5 years. All admissions 
pursuant to section 212(d)(3) of the Act shall be subject to the terms 
and conditions set forth in the waiver authorization. The period for 
which the alien's admission is authorized shall not exceed the period 
justified, subject to the limitations specified in 8 CFR part 214 
(Nonimmigrant Classes). The section 212(d)(3) waiver allows the 
applicant to apply for admission into the United States without 
reapplying for a discretionary waiver for the same grounds of 
inadmissibility upon each application for admission into the United 
States. Previous regulations restricted the granting of such waiver 
approvals to 1 year unless the DOS had recommended a longer period. The 
extension of the period of validity of waiver approvals will provide 
long-term documentation (the Form I-194 will be valid for up to 5 
years) to approved waiver applicants.

Proposed Changes

What Exactly Does This Rule Do?

    This rule establishes the procedures to terminate the use of 
current non-biometric BCCs and introduces a card that is machine-
readable and contains a personal biometric identifier of the alien. The 
rule also provides a requirement that the biometric characteristic 
contained in any BCC presented for admission on or after October 1, 
2002, must be matched to the alien presenting the card. The rule 
further removes references to application forms and documents that can 
no longer be used. Specifically this rule:
    (1) Amends 8 CFR 103.7 to remove references to Form I-175 and Form 
I-190.
    (2) Amends 8 CFR 212.1 to prohibit the use of the former non-
biometric BCCs, to add references to allow the use of the biometric 
DSP-150, B-1/B-2 Visa and Border Crossing Card; and to add the 
requirement that the biometric identifier on any BCC presented must be 
matched to the alien presenting the BCC at time of admission before the 
alien will be permitted to enter the United States.
    (3) Amends 8 CFR 212.4 to extend the maximum period of validity of 
a waiver authorization issued under section 212(d)(3)(A) or (B) of the 
Act from 1 to 5 years and restructures the section for the purpose of 
clarity. Further amends 8 CFR 212.4 to provide that a waiver previously 
issued in conjunction with a Form I-185, Nonresident Alien Canadian 
Border Crossing Card, may remain valid although the Form I-185 itself 
is void.
    (4) Amends 8 CFR 212.6 to change the title; add a reference to the 
biometric Form DSP-150, B-1/B-2 Visa and Border Crossing Card, to be 
issued by the DOS; specify the application process for the DOS-issued 
card; limit the remaining validity period of the current border 
crossing cards; give authority to Service officers to physically cancel 
the

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former non-biometric DOS-issued cards; and provides for the replacement 
of the former versions of specified Service-issued BCCs.
    (5) Amends 8 CFR 214.2 to eliminate the use of the Nonresident 
Alien Mexican Border Crossing Card (Form I-186 or I-586) and allows for 
the use of the Form DSP-150, B-1/B-2 Visa and Border Crossing Card, for 
applications for admission of aliens pursuant to the North American 
Free Trade Agreement. Substantive changes have not been made to this 
section.
    (6) Amends 8 CFR 235.1(f)(1)(iv) to reference Sec.  212.1(c) for 
Mexican documentary requirements.
    (7) Amends 8 CFR 264.1 to remove references to Form I-175 and Form 
I-190.
    (8) Removes 8 CFR 264.4, which refers only to the collection of 
fees for applications for BCCs, in its entirety.
    (9) Amends 8 CFR 286.9 to add a reference to the Form DSP-150, B-1/
B-2 Visa and Border Crossing Card, where the issuance of Form I-94 is 
required, and to remove 8 CFR 286.9(b)(5) and (6) which referenced the 
collection of fees in conjunction with the former BCC applications.
    (10) Amends 8 CFR 299.1 to remove the references to BCC 
applications (Form I-175 and Form I-190), to the ``Nonresident Alien 
Canadian Border Crossing Card'' (Form I-185), to the ``Nonresident 
Alien Border Crossing Card (Form I-586), and to add a reference to the 
new DOS Form DSP-150, B-1/B-2 Visa and Border Crossing Card.
    (11) Amends 8 CFR 299.5 to remove references to Form I-175 and Form 
I-190.

Good Cause Exception

    Implementation of this rule as an interim rule with provision for 
post-promulgation public comments is based upon the ``good cause'' 
exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The reason and 
necessity for immediate implementation of this interim rule is that the 
statutory deadlines contained in section 104 of the IIRIRA of 1996, as 
amended, require that only BCCs bearing a machine-readable biometric 
identifier may be produced on or after April 1, 1998, and that a 
verification of the biometric identifier for all bearers of these cards 
must be completed before the alien may be admitted on or after October 
1, 2002. The production of the new cards began on April 1, 1998, in 
accordance with regulations published by the DOS, and these cards are 
now in use. The publication of an interim rule will promote the timely 
institution of procedures necessary to comply with the statute. 
Accordingly, since delaying the effective date of this rule is 
impractical and contrary to the public interest, there is good cause 
under 5 U.S.C. 553 to make this rule effective immediately.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, 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. This rule affects individuals who are applicants for 
admission. Although some applicants may be business persons, the 
requirement for a machine-readable biometric identifier in any BCC 
presented for admission after October 1, 2002 is a statutory mandate 
that the Service must implement. This rule further standardizes the 
adjudication and production processes for BCCs, thereby improving 
government efficiency and service to the public. It also provides 
greater flexibility in the permissible validity periods for waivers 
under section 212(d)(3) of the Act. This is anticipated to reduce the 
burdens on certain frequent border crossers and thereby help to improve 
traffic flows at the POEs.

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.

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, 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 has reviewed this rule in light of Executive Order 
12866, section 1(b), Principles of Regulation. The Department has 
determined that this rule is a ``significant regulatory action'' under 
Executive Order 12866, section 3(f), Regulatory Planning and Review, 
and, accordingly, this rule has been reviewed by the Office of 
Management and Budget. The Department has assessed both the costs and 
benefits of this rule and has made a reasoned determination that the 
benefits of this regulation justify its costs. The benefits include the 
following: (1) Promulgation of this rule meets the statutory 
requirements of section 104 of IIRIRA, as amended; (2) this rule 
ensures consistency between the Service's regulations on BCCs and the 
regulations issued in 1998 by the DOS regarding the application process 
for the new biometric BCC (22 CFR 41.32); (3) the rule's requirement 
that INS inspectors must match the biometric identifier in any BCC that 
is presented for admission to the characteristic of the nonimmigrant 
card holder enhances enforcement of the immigration laws and national 
security by improving the verification of a border crosser's true 
identity; (4) the rule will reduce the ability of illegal aliens to 
present fraudulent BCCs at the ports and in the interior of the United 
States; (5) the rule maintains the validity of waivers of 
inadmissibility issued to certain Canadian BCC holders so that they 
will continue to be able to enter the country although their non-
biometric BCCs are now invalid.
    The costs considered by the Department include: (1) The effort 
required by holders of the invalid non-biometric BCC to obtain the 
biometric BCC (DSP-150), or a valid visa and passport by the effective 
date of this rule. The Department determined that the vast majority of 
people who wished to replace their nonbiometric BCCs had already done 
so by October 1, 2002 because nearly 6 million biometric BCCs have been 
issued since 1998, and the Service had estimated that there were 
between 2-5 million old cards in circulation that would require 
replacement; DOS also reports that the vast majority of current 
applicants (approximately 95%) are applying for a BCC for the first 
time, not replacing a nonbiometric BCC; in addition, there are no 
significant card processing backlogs; and (2) the costs and burdens to 
the public associated with the BCC application process under the DOS 
procedures at 22 CFR 41.32. The DOS has previously determined that the 
BCC application can be completed in approximately one hour and that the 
application fee would be $65 for adults and $13 for children under age 
15. See

[[Page 71447]]

63 FR 16892-01 (April 7, 1998); 22 CFR 22.1 (schedule of fees).
    The primary purpose of this rule and the Congressional mandate in 
section 104 of IIRIRA is to enhance the security of BCCs, reduce the 
prevalence of fraudulent documents presented by border crossers, and 
improve the ability of immigration inspectors to verify a card holder's 
identity. The benefits of implementing this rule outweigh any burdens 
it imposes.

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 preparation of a 
federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

    This interim rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    This rule requires the use of Optional Form DS-156, Nonimmigrant 
Visa Application, and Service Form I-192, Application for Advance 
Permission to Enter as Nonimmigrant, and Form I-193, Application for 
Waiver of Passport and/or Visa, which are considered information 
collections under the Paperwork Reduction Act. These information 
collections have previously been approved for use by the Office of 
Management and Budget (OMB). The OMB information collection control 
numbers are 1405-0018, 1115-0028 and 1115-0042, respectively. This rule 
also eliminates Form I-185, I-175, I-190, and I-586.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Reporting and recordkeeping 
requirements.

8 CFR Part 212

    Aliens, Immigration, Passports and visas.

8 CFR Part 214

    Foreign officials, Health professionals, Students.

8 CFR Part 235

    Aliens, Immigration.

8 CFR Part 264

    Reporting and recordkeeping requirements.

8 CFR Part 286

    Air carriers, Maritime carriers.

8 CFR Part 299

    Immigration, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1356; 31 
U.S.C. 9701; E.O. 12356; 47 FR 14874, 15557; 3 CFR, 1982 Comp., p. 
166; 8 CFR part 2.


Sec.  103.7  [Amended]

    2. Section 103.7(b)(1) is amended by removing the entry for ``Form 
I-175'' and ``Form I-190.''

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    3. The authority citation for part 212 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 
1184, 1187, 1225, 1226, 1227, 1228; 8 CFR part 2.


    4. Section 212.1 is amended by removing paragraphs (c-1) and (c-2), 
and by revising paragraphs (c) and (g) to read as follows:


Sec.  212.1  Documentary requirements for nonimmigrants.

* * * * *
    (c) Mexican nationals.
    (1) A visa and a passport are not required of a Mexican national 
who:
    (i) Is in possession of a Form DSP-150, B-1/B-2 Visa and Border 
Crossing Card, containing a machine-readable biometric identifier, 
issued by the DOS and is applying for admission as a temporary visitor 
for business or pleasure from contiguous territory.
    (ii) Is a Mexican national entering solely for the purpose of 
applying for a Mexican passport or other official Mexican document at a 
Mexican consular office on the United States side of the border.
    (2) A visa shall not be required of a Mexican national who:
    (i) Is in possession of a Form DSP-150, with a biometric 
identifier, issued by the DOS, and a passport, and is applying for 
admission as a temporary visitor for business or pleasure from other 
than contiguous territory;
    (ii) Is a crew member employed on an aircraft belonging to a 
Mexican company owned carrier authorized to engage in commercial 
transportation into the United States; or
    (iii) Bears a Mexican diplomatic or official passport and who is a 
military or civilian official of the Federal Government of Mexico 
entering the United States for 6 months or less for a purpose other 
than on assignment as a permanent employee to an office of the Mexican 
Federal Government in the United States, and the official's spouse or 
any of the official's dependent family members under 19 years of age, 
bearing diplomatic or official passports, who are in the actual company 
of such official at the time of admission into the United States. This 
provision does not apply to the spouse or any of the official's family 
members classifiable under section 101(a)(15)(F) or (M) of the Act.
    (3) A Mexican national who presents a BCC at a POE must present the 
DOS-issued DSP-150 containing a machine-readable biometric identifier. 
The alien will not be permitted to cross the border into the United 
States unless the biometric identifier contained on the card matches 
the appropriate biometric characteristic of the alien.
    (4) Mexican nationals presenting a combination B-1/B-2 nonimmigrant 
visa and border crossing card (or similar stamp in a passport), issued 
by DOS prior to April 1, 1998, that does not contain a machine-readable 
biometric identifier, may be admitted on the basis of the nonimmigrant 
visa only, provided it has not expired and the alien remains 
admissible. A passport is also required.
    (5) Aliens entering pursuant to International Boundary and Water 
Commission Treaty. A visa and a passport are not required of an alien 
employed either directly or indirectly on the construction, operation, 
or maintenance of works in the United States undertaken in accordance 
with the treaty concluded on February 3, 1944, between the United 
States and Mexico regarding the functions of the International Boundary 
and Water Commission, and entering the United States temporarily in 
connection with such employment.
* * * * *
    (g) Unforeseen emergency. A nonimmigrant seeking admission to the 
United States must present an unexpired visa and a passport valid for 
the amount of time set forth in section 212(a)(7)(B) of the Act or a 
valid biometric border crossing card, issued

[[Page 71448]]

by the DOS on Form DSP-150, at the time of application for admission, 
unless the nonimmigrant satisfies the requirements described in one or 
more of the paragraphs (a) through (f),(i) or (o) of this section. Upon 
a nonimmigrant's application on Form I-193, Application for Waiver of 
Passport and/or Visa, a district director may, in the exercise of his 
or her discretion, on a case-by-case basis, waive the documentary 
requirements if satisfied that the nonimmigrant cannot present the 
required documents because of an unforeseen emergency. The district 
director or the Deputy Commissioner may at any time revoke a waiver 
previously authorized pursuant to this paragraph and notify the 
nonimmigrant in writing to that effect.
* * * * *
    5. Section 212.4 is amended by revising paragraph (c) to read as 
follows:


Sec.  212.4  Applications for the exercise of discretion under section 
212(d)(1) and 212(d)(3).

* * * * *
    (c) Terms of authorization.
    (1) General. Except as provided in paragraph (c)(2) of this 
section, each authorization under section 212(d)(3)(A) or (B) of the 
Act shall specify:
    (i) Each section of law under which the alien is inadmissible;
    (ii) The intended date of each arrival, unless the applicant is a 
bona fide crewman. However, if the authorization is valid for multiple 
entries rather than for a specified number of entries, this information 
shall be specified only with respect to the initial entry;
    (iii) The length of each stay authorized in the United States, 
which shall not exceed the period justified and shall be subject to 
limitations specified in 8 CFR part 214. However, if the authorization 
is valid for multiple entries rather than for a specified number of 
entries, this information shall be specified only with respect to the 
initial entry;
    (iv) The purpose of each stay;
    (v) The number of entries for which the authorization is valid;
    (vi) Subject to the conditions set forth in paragraph (c)(2) of 
this section, the dates on or between which each application for 
admission at POEs in the United States is valid;
    (vii) The justification for exercising the authority contained in 
section 212(d)(3) of the Act; and
    (viii) That the authorization is subject to revocation at any time.
    (2) Conditions of admission.
    (i) For aliens issued an authorization for temporary admission in 
accordance with this section, admissions pursuant to section 212(d)(3) 
of the Act shall be subject to the terms and conditions set forth in 
the authorization.
    (ii) The period for which the alien's admission is authorized 
pursuant to this section shall not exceed the period justified, or the 
limitations specified, in 8 CFR part 214 for each class of 
nonimmigrant, whichever is less.
    (3) Validity.
    (i) Authorizations granted to crew members may be valid for a 
maximum period of 2 years for application for admission at U.S. POEs 
and may be valid for multiple entries.
    (ii) An authorization issued in conjunction with an application for 
a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, issued by the 
DOS shall be valid for a period not to exceed the validity of the 
biometric BCC for applications for admission at U.S. POEs and shall be 
valid for multiple entries.
    (iii) A multiple entry authorization for a person other than a crew 
member or applicant for a Form DSP-150 may be made valid for a maximum 
period of 5 years for applications for admission at U.S. POEs.
    (iv) An authorization that was previously issued in conjunction 
with Form I-185, Nonresident Alien Canadian Border Crossing Card, and 
that is noted on the card may remain valid. Although the waiver may 
remain valid, the non-biometric border crossing card portion of this 
document is not valid after that date. This waiver authorization shall 
cease if otherwise revoked or voided.
    (v) A single-entry authorization to apply for admission at a U.S. 
POE shall not be valid for more than 6 months from the date the 
authorization is issued.
    (vi) An authorization may not be revalidated. Upon expiration of 
the authorization, a new application and authorization are required.
* * * * *

    6. Section 212.6 is revised to read as follows:


Sec.  212.6  Border crossing identification cards.

    (a) Application for Form DSP-150, B-1/B-2 Visa and Border Crossing 
Card, issued by the Department of State. A citizen of Mexico, who seeks 
to travel temporarily to the United States for business or pleasure 
without a visa and passport, must apply to the DOS on Form DS-156, 
Visitor Visa Application, to obtain a Form DSP-150 in accordance with 
the applicable DOS regulations at 22 CFR 41.32 and/or instructions.
    (b) Use.
    (1) Application for admission with Non-resident Canadian Border 
Crossing Card, Form I-185, containing separate waiver authorization; 
Canadian residents bearing DOS-issued combination B-1/B-2 visa and 
border crossing card (or similar stamp in a passport).
    (i) A Canadian citizen or other person sharing common nationality 
with Canada and residing in Canada who presents a Form I-185 that 
contains a separate notation of a waiver authorization issued pursuant 
to Sec.  212.4 may be admitted on the basis of the waiver, provided the 
waiver has not expired or otherwise been revoked or voided. Although 
the waiver may remain valid on or after October 1, 2002, the non-
biometric border crossing card portion of the document is not valid 
after that date.
    (ii) A Canadian resident who presents a combination B-1/B-2 visa 
and border crossing card (or similar stamp in a passport) issued by the 
DOS prior to April 1, 1998, that does not contain a machine-readable 
biometric identifier, may be admitted on the basis of the nonimmigrant 
visa only, provided it has not expired and the alien remains otherwise 
admissible.
    (2) Application for admission by a national of Mexico--Form DSP-150 
issued by the DOS; DOS-issued combination B-1/B-2 visa and border 
crossing card (or similar stamp in a passport).
    (i) The rightful holder of a Form DSP-150 issued by the DOS may be 
admitted under Sec.  235.1(f) of this chapter if found otherwise 
admissible and if the biometric identifier contained on the card 
matches the appropriate biometric characteristic of the alien.
    (ii) The bearer of a combination B-1/B-2 nonimmigrant visa and 
border crossing card (or similar stamp in a passport) issued by DOS 
prior to April 1, 1998, that does not contain a machine-readable 
biometric identifier, may be admitted on the basis of the nonimmigrant 
visa only, provided it has not expired and the alien remains otherwise 
admissible. A passport is also required.
    (iii) Any alien seeking admission as a visitor for business or 
pleasure, must also present a valid passport with his or her border 
crossing card, and shall be issued a Form I-94 if the alien is applying 
for admission from:
    (A) A country other than Mexico or Canada, or
    (B) Canada if the alien has been in a country other than the United 
States or Canada since leaving Mexico.
    (c) Validity. Forms I-185, I-186, and I-586 are invalid on or after 
October 1,

[[Page 71449]]

2002. If presented on or after that date, these documents will be 
voided at the POE.
    (d) Voidance for reasons other than expiration of the validity of 
the form.
    (1) At a POE.
    (i) In accordance with 22 CFR 41.122, a Form DSP-150 or combined B-
1/B-2 visitor visa and non-biometric border crossing identification 
card or (a similar stamp in a passport), issued by the DOS, may be 
physically cancelled and voided by a supervisory immigration officer at 
a POE if it is considered void pursuant to section 222(g) of the Act 
when presented at the time of application for admission, or as the 
alien departs the United States. If the card is considered void and if 
the applicant for admission is not otherwise subject to expedited 
removal in accordance with 8 CFR part 235, the applicant shall be 
advised in writing that he or she may request a hearing before an 
immigration judge. The purpose of the hearing shall be to determine 
his/her admissibility in accordance with Sec.  235.6 of this chapter. 
The applicant may be represented at this hearing by an attorney of his/
her own choice at no expense to the Government. He or she shall also be 
advised of the availability of free legal services provided by 
organizations and attorneys qualified under 8 CFR part 3, and 
organizations recognized under Sec.  292.2 of this chapter located in 
the district where the removal hearing is to be held. If the applicant 
requests a hearing, the Form DSP-150 or combined B-1/B-2 visitor visa 
and non-biometric border crossing identification card (or similar stamp 
in a passport), issued by the DOS, shall be held by the Service for 
presentation to the immigration judge.
    (ii) If the applicant chooses not to have a hearing, the Form DSP-
150 or combined B-1/B-2 visitor visa and non-biometric BCC (or similar 
stamp in a passport) issued by the DOS, shall be voided and physically 
cancelled. The alien to whom the card or stamp was issued by the DOS 
shall be notified of the action taken and the reasons for such action 
by means of Form I-275, Withdrawal of Application for Admission/
Consular Notification, delivered in person or by mailing the Form I-275 
to the last known address. The DOS shall be notified of the 
cancellation of the biometric Form DSP-150 or combined B-1/B-2 visitor 
visa and non-biometric BCC (or similar stamp in a passport) issued by 
DOS, by means of a copy of the original Form I-275. Nothing in this 
paragraph limits the Service's ability to remove an alien pursuant to 8 
CFR part 235 where applicable.
    (2) Within the United States. In accordance with former section 242 
of the Act (before amended by section 306 of the IIRIRA of 1996, Div. 
C, Public Law 104-208, 110 Stat. 3009 (Sept. 30, 1996,) or current 
sections 235(b), 238, and 240 of the Act, if the holder of a Form DSP-
150, or other combined B-1/B-2 visa and BCC, or (similar stamp in a 
passport) issued by the DOS, is placed under removal proceedings, no 
action to cancel the card or stamp shall be taken pending the outcome 
of the hearing. If the alien is ordered removed or granted voluntary 
departure, the card or stamp shall be physically cancelled and voided 
by an immigration officer. In the case of an alien holder of a BCC who 
is granted voluntary departure without a hearing, the card shall be 
declared void and physically cancelled by an immigration officer who is 
authorized to issue a Notice to Appear or to grant voluntary departure.
    (3) In Mexico or Canada. Forms I-185, I-186 or I-586 issued by the 
Service and which are now invalid, or a Form DSP-150 or combined B-1/B-
2 visitor visa and non-biometric BCC, or (similar stamp in a passport) 
issued by the DOS may be declared void by United States consular 
officers or United States immigration officers in Mexico or Canada.
    (4) Grounds. Grounds for voidance of a Form I-185, I-186, I-586, a 
DOS-issued non-biometric BCC, or the biometric Form DSP-150 shall be 
that the holder has violated the immigration laws; that he/she is 
inadmissible to the United States; that he/she has abandoned his/her 
residence in the country upon which the card was granted; or if the BCC 
is presented for admission on or after October 1, 2002, it does not 
contain a machine-readable biometric identifier corresponding to the 
bearer and is invalid on or after October 1, 2002.
    (e) Replacement. If a valid Border Crossing Card (Forms I-185, I-
186, or I-586) previously issued by the Service, a non-biometric border 
crossing card issued by the DOS before April 1998, or a Form DSP-150 
issued by the DOS has been lost, stolen, mutilated, or destroyed, the 
person to whom the card was issued may apply for a new card as provided 
for in the DOS regulations found at 22 CFR 41.32 and 22 CFR 41.103.

PART 214--NONIMMIGRANT CLASSES

    7. The authority citation for part 214 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 
1221, 1281, 1282; 1301-1305; sec. 643, Pub. L. 104-208, 110 Stat. 
3009-708; Section 141 of the Compacts of Free Association with the 
Federated States of Micronesia and the Republic of the Marshall 
Islands, and with the Government of Palau, 48 U.S.C. 1901, note, and 
1931, note, respectively; 8 CFR part 2.


    8. Section 214.2 is amended by revising paragraph (b)(4) 
introductory text to read as follows:


Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (b) * * *
    (4) Admission of aliens pursuant to the North American Free Trade 
Agreement (NAFTA). A citizen of Canada or Mexico seeking temporary 
entry for purposes set forth in paragraph (b)(4)(i) of this section, 
who otherwise meets existing requirements under section 101(a)(15)(B) 
of the Act, including but not limited to requirements regarding the 
source of remuneration, shall be admitted upon presentation of proof of 
such citizenship in the case of Canadian applicants, and valid, 
unexpired entry documents such as a passport and visa, or a passport 
and BCC in the case of Mexican applicants, a description of the purpose 
for which the alien is seeking admission, and evidence demonstrating 
that he or she is engaged in one of the occupations or professions set 
forth in paragraph (b)(4)(i) of this section. Existing requirements, 
with respect to Canada, are those requirements which were in effect at 
the time of entry into force of the Canada/U.S. Free Trade Agreement 
and, with respect to Mexico, are those requirements which were in 
effect at the time of entry into force of the NAFTA. Additionally, 
nothing shall preclude the admission of a citizen of Mexico or Canada 
who meets the requirements of paragraph (b)(4)(ii) of this section. * * 
*
* * * * *

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

    9. The authority citation for part 235 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1201, 1224, 1225, 
1226, 1228; 8 CFR part 2.


Sec.  235.1  [Amended]

    10. Section 235.1(f)(1)(iv) is amended by revising the reference to 
``Sec.  212.1(c-1)'' to read ``Sec.  212.1(c)''.

[[Page 71450]]

PART 264--REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED 
STATES

    11. The authority citation for part 264 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1201, 1303-1305; 8 CFR part 2.


Sec.  264.1  [Amended]

    12. Section 264.1(a) is amended by removing the entries for Forms 
``I-175'' and ``I-190''.


Sec.  264.4  [Removed and reserved]

    13. Section 264.4 is removed and Reserved.

PART 286--IMMIGRATION USER FEE

    14. The authority citation for part 286 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1356; 8 CFR part 2.


    15. Section 286.9 is amended by revising paragraph (b)(3) and by 
removing paragraphs (b)(5) and (b)(6).
    The revisions read as follows:


Sec.  286.9  Fee for processing applications and issuing documentation 
at land border Ports-of-Entry.

* * * * *
    (b) * * *
    (3) A Mexican national in possession of a valid Form DSP-150, B-1/
B-2 Visa and Border Crossing Card, issued by the DOS, or a passport and 
combined B-1/B-2 visa and non-biometric BCC (or similar stamp in a 
passport) issued by the DOS, who is required to be issued Form I-94, 
Arrival/Departure Record, pursuant to Sec.  235.1(f) of this chapter, 
must remit the required fee for issuance of Form I-94 upon 
determination of admissibility.
* * * * *

PART 299--IMMIGRATION FORMS

    16. The authority citation for part 299 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101 and note, 1103; 8 CFR part 2.


    17. Section 299.1 is amended in the table by removing the entries 
for Form ``I-175'', and Form ``I-190'' and by adding an entry for Form 
``DSP-150'', in proper alpha numeric sequence, to read as follows:


Sec.  299.1  Prescribed forms.

* * * * *

----------------------------------------------------------------------------------------------------------------
          Form No.             Edition date                                  Title
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
DSP-150.....................        01-01-98  B-1/B-2 Visa and Border Crossing Card.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

Sec.  299.5  [Amended]

    18. Section 299.5 is amended by removing the entries in the table 
for Form ``I-175'' and Form ``I-190''.

    Dated: November 22, 2002.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-30295 Filed 11-29-02; 8:45 am]
BILLING CODE 4410-10-P