[Federal Register Volume 71, Number 144 (Thursday, July 27, 2006)]
[Proposed Rules]
[Pages 42605-42611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11993]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
8 CFR Parts 215 and 235
[DHS 2005-0037]
RIN 1601-AA35
United States Visitor and Immigrant Status Indicator Technology
Program (``US-VISIT''); Enrollment of Additional Aliens in US-VISIT
AGENCY: Office of the Secretary, DHS.
ACTION: Proposed rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security established the United
States Visitor and Immigrant Status Technology (US-VISIT) program in
2003 to verify the identities and travel documents of aliens. US-VISIT
automates this verification by comparing biometric identifiers, and by
comparing biometric identifiers with information drawn from
intelligence and law enforcement watchlists and databases. Aliens
subject to US-VISIT may be required to provide fingerscans,
photographs, or other biometric identifiers upon arrival at, or
departure from, the United States. Currently, aliens entering the
United States pursuant to a nonimmigrant visa, or those traveling
without a visa as part of the Visa Waiver Program, are subject to US-
VISIT requirements, with certain limited exceptions. Under this
proposed rule, the Department of Homeland Security will be extending
US-VISIT requirements to all aliens with the exception of aliens who
are specifically exempted and Canadian citizens applying for admission
as B1/B2 visitors for business or pleasure.
DATE: Written comments must be submitted on or before August 28, 2006.
ADDRESSES: You may submit comments identified by Docket Number DHS-
2005-0037 by one of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting the comments. All submissions
received must include the agency name and docket number for this
rulemaking. All comments received will be posted without change to
http://www.regulations.gov, including any personal information
provided.
Written comments may be submitted to Michael Hardin or
Craig Howie, Senior Policy Advisors, US-VISIT, Department of Homeland
Security; 1616 North Fort Myer Drive, 18th Floor, Arlington, VA 22209.
FOR FURTHER INFORMATION CONTACT: Michael Hardin or Craig Howie, Senior
Policy Advisors, US-VISIT, Department of Homeland Security, 1616 Fort
Myer Drive, 18th Floor, Arlington, Virginia 22209, (202) 298-5200.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
The Department of Homeland Security (DHS) established the United
States Visitor and Immigrant Status Indicator Technology Program (US-
VISIT) in accordance with several statutory mandates that collectively
require DHS to create an integrated, automated biometric entry and exit
system that records the arrival and departure of aliens; verifies the
identities of aliens; and authenticates travel documents presented by
such aliens through the comparison of biometric identifiers. Aliens
subject to US-VISIT may be required to provide fingerscans,
photographs, or other biometric identifiers upon arrival at, or
departure from, the United States. DHS views US-VISIT as a
biometrically-driven program designed to enhance the security of United
States citizens and visitors while expediting legitimate travel and
trade, ensuring the integrity of the immigration system, and protecting
visitors' personal information.
The statutes that authorize DHS to establish US-VISIT include, but
are not limited to:
Section 2(a) of the Immigration and Naturalization Service
Data Management Improvement Act of 2000, Public Law 106-215, 114 Stat.
337 (June 15, 2000);
Section 205 of the Visa Waiver Permanent Program Act of
2000, Public Law 106-396, 114 Stat. 1637, 1641 (October 30, 2000);
Section 414 of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107-56, 115 Stat.
271, 353 (October 26, 2001);
Section 302 of the Enhanced Border Security and Visa Entry
Reform Act of 2002 (Border Security Act) Public Law 107-173, 116 Stat.
543, 552 (May 14, 2002); and
[[Page 42606]]
Section 7208 of the Intelligence Reform and Terrorism
Prevention Act of 2004, Public Law 108-458 (December 17, 2004).
DHS provided detailed abstracts of the particular sections of the
statutes that established and authorized the US-VISIT program in two
prior rulemakings. See 69 FR 468 (January 5, 2004); 69 FR 53318 (August
31, 2004).
On January 5, 2004, DHS implemented the first phase of the US-VISIT
biometric component by publishing an interim final rule in the Federal
Register providing that aliens seeking admission into the United States
through nonimmigrant visas must provide fingerprints, photographs, or
other biometric identifiers upon arrival in or departure from the
United States at air and sea ports of entry. Effective September 30,
2004, nonimmigrants seeking to enter the United States without visas
under the Visa Waiver Program (VWP) also are required to provide
biometric information under US-VISIT. 69 FR 53318 (August 31, 2004).
US-VISIT is now operational for entry at 115 airports, 15 sea ports,
and at 154 land border ports of entry. The most up-to-date list of
ports of entry where US-VISIT is operational can be found at: http://www.dhs.gov/usvisit.
The following categories of aliens currently are expressly exempt
from US-VISIT requirements:
Aliens admitted on an A-1, A-2, C-3, G-1, G-2, G-3, G-4,
NATO-1, NATO-3, NATO-4, NATO-5, or NATO-6 visa;
Children under the age of 14;
Persons over the age of 79; and
Certain officials of the Taipei Economic and Cultural
Representative Office and members of their immediate families seeking
admission on E-1 visas.
8 CFR 235.1(d)(1)(iv). In addition, the Secretary of State and
Secretary of Homeland Security may jointly exempt classes of aliens
from US-VISIT. The Secretaries of State and Homeland Security, as well
as the Director of the Central Intelligence Agency, also may exempt any
individual from US-VISIT. 8 CFR 235.1(d)(iv)(B).
In many cases, US-VISIT begins overseas, at United States consular
offices issuing visas, where aliens' biometrics (digital finger scans
and photographs) are collected and checked against a database of known
criminals, suspected terrorists, and those who have previously violated
immigration laws. When the alien arrives at the port of entry, US-VISIT
compares the biometrics of the person (finger scans and a digital
photograph) to verify that the person at the port of entry is the same
person who received the visa. For those whose biometrics were not
captured overseas, a Customs and Border Protection (CBP) officer at the
port of entry collects digital finger scans and a digital photograph of
the alien. These biometrics may be
Checked against watchlists and previous uses of the
document;
Verified at the time of exit; and
Compared during subsequent interactions, such as a future
admission.
There are additional aliens that have not yet been subject to the
requirements of US-VISIT, but who are not expressly exempt from US-
VISIT requirements. Through this proposed rule, DHS proposes to amend
its regulations to expand DHS biometric collection and processing
through the US-VISIT program to all aliens except those specifically
exempted. DHS will implement this rule in a way that minimizes risk of
impact to travel and trade.\1\
---------------------------------------------------------------------------
\1\ Immediately following the introduction of US-VISIT in
January 2004, CBP introduced a ``wait time mitigation strategy.'' In
the event that wait times at air and sea primary inspection last
longer than one hour, and if the threat level was at yellow, green,
or blue, a port may incrementally relieve congestion by eliminating
the fingerprinting requirement for successive classifications of
people, for example, aliens aged 14-17 when accompanied by an adult,
or aliens between the ages of 60-79. However, this mitigation
strategy has rarely been needed even after the inclusion of Visa
Waiver Program aliens. Nonetheless, the procedures remain in place
and can be used following the inclusion of additional aliens, if
necessary.
---------------------------------------------------------------------------
DHS has determined that expanding US-VISIT to additional aliens
will improve public safety, national security, and the integrity of the
immigration process. Establishing and verifying the identity of an
alien and whether that alien is admissible to the United States based
on all relevant information is critical to the security of the United
States and the enforcement of the United States immigration laws.
Processing additional aliens in US-VISIT reduces the risk that an
individual traveler's identity (and travel document) could be used by
another individual to enter the United States. By linking the alien's
biometric information with the alien's travel documents, DHS reduces
the likelihood that another individual could later assume that identity
or use that document to gain admission to the United States.
At present, US-VISIT biometrically screens alien arrivals at all
air and sea ports of entry at primary inspection. US-VISIT also screens
alien arrivals at land border ports of entry during secondary
inspection rather than primary inspection because of the volume and
facility limitations of the land border ports. Referral of aliens to
secondary inspection at the land border ports of entry is premised on
processes that already require secondary inspection (e.g., Form I-94
issuance) or an officer's indication that further investigation of the
alien's identity or admissibility is needed to properly determine that
the alien is admissible.
Since US-VISIT biometric processing was initiated on January 5,
2004, the program has successfully identified a number of aliens with
criminal or immigration violations that would not otherwise have been
known. Between January 5, 2004, and May 25, 2006, DHS took adverse
action against more than 1160 individuals based on information obtained
through the US-VISIT biometric screening process. By ``adverse
action,'' DHS means that the alien was:
Arrested pursuant to a criminal arrest warrant;
Denied admission, placed in expedited removal, and
returned to the country of last departure; or
Otherwise detained and denied admission to the United
States.
Adding additional aliens to the US-VISIT program will likely result
in DHS identifying additional aliens who are inadmissible or who
otherwise present security and criminal threats, including those who
may be traveling improperly on previously established identities and
those who potentially pose a threat to the security interests of the
United States.
II. Additional Aliens Subject to US-VISIT
A. Specific Groups of Aliens Proposed To Be Added
Under existing regulations, DHS has been collecting and storing
biometric data on specific classes of aliens in US-VISIT. Nonimmigrant
aliens seeking admission to the United States pursuant to a
nonimmigrant visa, B-1/B-2 Visa and Border Crossing Card (Form DSP
150), or under the Visa Waiver Program, currently provide biometrics
for processing in US-VISIT. 8 CFR 235.1(d)(1)(ii). This proposed change
to the regulations would permit enrollment of any alien in US-VISIT,
with the exception of those Canadian citizens applying for admission as
B-1/B-2 visitors for business or pleasure, and those specifically
exempted.
Several large classes of aliens will be affected by this change in
the regulations, including:
Lawful Permanent Residents (LPRs).
Aliens seeking admission on immigrant visas.
Refugees and asylees.
[[Page 42607]]
Certain Canadian citizens who receive a Form I-94 at
inspection or who require a waiver of inadmissibility.
Aliens paroled into the United States.
Aliens applying for admission under the Guam Visa Waiver
Program.
The authorizing statutes, which all refer to ``aliens'' without
differentiation, support the inclusion of lawful permanent residents
(LPRs) into the US-VISIT program. See section 101(a)(3) of the
Immigration and Nationality Act of 1952, as amended, 8 U.S.C.
1101(a)(3) (``The term `alien' means any person not a citizen or
national of the United States''). For an LPR, a Form I-551, permanent
resident card, serves as a travel or entry document. Pursuant to 8 CFR
211.1(a)(2), a Form I-551 is a documentary substitute for an immigrant
visa for readmission to the United States as a permanent resident.
Accordingly, the US-VISIT biometric collection will now apply to LPRs.
DHS is not proposing that LPRs submit any additional information
above and beyond that which is currently required. As part of the
adjustment of status process, under current regulations, an alien
between the ages of 14 and 79 (the same age parameters as applied to
US-VISIT enrollment and verification) must submit a set of 10
fingerprints and photographs to DHS, Citizenship and Immigration
Services (USCIS), as applicable. (See Form I-485, ``Application to
Register Permanent Residence or Adjust Status''). As part of the
immigrant visa BioVisa process, the Department of State has collected
two index finger prints. Thus, many LPRs have already submitted
fingerprints and, for US-VISIT purposes, taking finger scans at the
time of admission will be a biometric verification of the LPR's
identity against those prints previously collected. However, DHS does
not have electronically-searchable fingerprints for all LPRs. When
those LPRs are encountered, their finger scans will be collected for an
initial electronic enrollment. The LPR will provide the same biometrics
(finger scans, photograph), under either the ``verification'' or
``enrollment'' scenario. There is no difference in what information is
collected from the perspective of the LPR or in how other aliens are
processed.
Similarly, DHS already possesses biometric data through the USCIS
application process for asylees and refugees. See, e.g., Form I-589
(Application for Asylum). To the greatest extent practicable, DHS will
use this existing information to initially ``enroll'' these aliens into
US-VISIT. The US-VISIT process at ports of entry is generally therefore
a verification against the biometric information previously submitted
to DHS, to ensure that the alien is the person whom he or she claims to
be.
The inclusion of aliens being admitted with an immigrant visa is to
ensure parity with LPRs and because an immigrant visa is a United
States-issued travel document. As noted above, these aliens submitted
fingerprints as part of the immigrant visa application process. Aliens
applying for admission with an immigrant visa are currently submitting
fingerprints and photographs as part of the admission process.
Most Canadians traveling from within the Western Hemisphere do not
require a visa or other documentation to enter the United States for
short business or pleasure trips. This rule does not change 8 CFR
212.1(a)(1), which exempts those Canadian citizens from the requirement
to present a passport or nonimmigrant visa prior to admission into the
United States. This will be addressed in upcoming rulemakings involving
the Western Hemisphere Travel Initiative. See 70 FR 52037 (September 1,
2005) (ANPRM). Canadians, other than those described below, will not be
enrolled in, or verified against, US-VISIT at this time. Canadian
citizens accustomed to border crossings for the purposes of shopping,
visiting friends and family, or taking a holiday in the United States
(typically activities encompassed by the nonimmigrant B-2, visitor for
pleasure category) are not included in US-VISIT by the provisions of
this proposed rule.
Canadians who would be included in US-VISIT as a result of adoption
of this proposed rule will be those issued a Form I-94, including:
(1) Canadians applying for admission in the following nonimmigrant
classifications:
C, aliens in transit to or through the United States;
D, alien crew members (Form I-95);
F, all alien students and dependents;
H, all alien specialty, nurse, temporary agricultural and
nonagricultural workers, trainees and dependents;
I, all representatives of foreign media and dependents;
J, exchange visitors and dependents;
L, intracompany transferees and dependents;
M, vocational or nonacademic student and dependents;
O, aliens of extraordinary ability or achievement,
including assistants and dependents;
P, aliens internationally recognized as athletes,
entertainers or participants in a culturally unique program and
dependents;
Q-1 and Q-3, international cultural exchange program
participant and dependents;
R, religious workers and dependents;
S, alien witnesses or informants and dependents;
T, victims of trafficking and dependents;
TN under the provisions of the North American Free Trade
Agreement; and
(2) Canadians who are granted a waiver of inadmissibility in order
to enter the United States.
Processing these Canadian citizens biometrically through US-VISIT
will ensure parity with other aliens applying for admission to the
United States, and it will increase security. Aliens who are currently
required to present a valid nonimmigrant visa are required to provide
biometrics as part of admission, including those Canadian citizens
required to obtain either an E (Treaty Trader or Investor) nonimmigrant
or K (fianc[eacute]/fianc[eacute]e or spouse of a United States
citizen) nonimmigrant visa. Canadians who require a waiver of
inadmissibility are already required to provide biometric data in
secondary inspection at the port of entry as part of the waiver
application. This change in regulations will permit DHS to better
verify identity and determine if new derogatory information exists on
subsequent encounters.
DHS acknowledges that some Canadian citizens holding valid
nonimmigrant status, such as an H-1B worker, commute into the United
States daily for purposes of employment while continuing to reside in
Canada. At northern land borders, CBP officers at ports of entry have
existing protocols for this situation and will not refer Canadian
commuter to secondary inspection for a biometric verification against
the US-VISIT system. These Canadian citizens will be screened
biometrically via US-VISIT when applying for a new multiple-entry Form
I-94 which typically happens at approximately six month intervals or
when referred to secondary inspection for other reasons.
All aliens paroled into the United States will provide biometrics
and be processed through US-VISIT. Parolees are aliens who are
permitted to enter the United States at a port of entry without being
legally admitted, and may be subject to specific terms as a condition
of the parole. Section 212(d) of the Act, 8 U.S.C. 1182(d). Because
these aliens
[[Page 42608]]
are ultimately allowed physically into the United States, they should
be subject to the same requirements as other aliens admitted to the
United States.
B. Mechanism for Enrolling Additional Aliens
Operationally, these additional aliens will be processed through
US-VISIT differently at the air and sea ports of entry than at the land
ports of entry.
At air and sea ports of entry, the controlled environment--where
all arriving aliens and United States citizens are interviewed by a CBP
officer--currently allows for biometric collection and US-VISIT
processing at primary inspection for the majority of the arriving
aliens addressed in this rulemaking. Therefore, DHS expects to be able
to include all non-exempt aliens into US-VISIT almost immediately at
the air and sea ports.
At the land border ports of entry, where aliens arrive by vehicle
and as pedestrians, the additional aliens will be processed through US-
VISIT somewhat differently at the time of initial application for
admission to the United States. LPRs will go through biometric
collection if they are referred to secondary inspection by the primary
inspecting officer. The officer has the discretion to send any person
to secondary inspection if the officer has any question as to the true
identity of person bearing the document or of person's admissibility to
the United States. The remaining aliens will be processed through US-
VISIT in secondary inspection the same way other aliens currently
subject to US-VISIT (those that require a Form I-94) at the land ports
of entry. This will not impose an additional imposition since these
aliens are already processed in secondary since they generally require
a Form I-94.
DHS is including additional aliens into the US-VISIT program in the
same way it has included aliens with Form DSP-150 Border Crossing Cards
(BCCs). To date, at land borders only holders of BCCs who use the BCC
as a visa and thus require a Form I-94 are generally required to be
processed through US-VISIT. US-VISIT currently does not process, on a
regular basis, applicants for admission with BCCs who wish to use the
document simply as a BCC, which authorizes them to stay in the United
States for up to 30 days, within 25 miles of the United States-Mexican
border (75 miles in parts of Arizona). This policy has allowed DHS to
take a measured approach to implementing US-VISIT at the land borders
and to ensure that US-VISIT processing does not have a negative impact
on the land border communities. However, even under this current
policy, an alien seeking admission with a BCC and not obtaining a Form
I-94 can still be required to undergo US-VISIT processing at the
discretion of the inspecting officer.
DHS requests public comment on all of these issues, but would
regard as most helpful comments on the ramifications of adding
additional classifications at land borders. DHS places a great deal of
importance on input from the public concerning the performance and
implementation of the US-VISIT program. In particular, DHS seeks input
on specific steps or milestones that should take place prior to
processing future additional classifications of aliens in US-VISIT at
land borders.
III. Regulatory Requirements
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996
(SBREFA), requires an agency to prepare and make available to the
public a regulatory flexibility analysis that describes the effect of
the rule on small entities (i.e., small businesses, small
organizations, and small governmental jurisdictions). DHS has
considered the impact of this rule on small entities and has determined
that this rule will not have a significant economic impact on a
substantial number of small entities. The individual aliens to whom
this rule applies are not small entities as that term is defined in 5
U.S.C. 601(6). There is no change expected in any process as a result
of this rule that would have a direct effect, either positive or
negative, on a small entity. Accordingly, this rule will not have a
significant economic impact on a substantial number of small entities
and DHS does not believe that US-VISIT processing will impede the free
flow of travel and trade, especially such travel and trade relating
directly to small entities.
B. Executive Order 12866
Under section 3(f) of Executive Order 12866, ``Regulatory Planning
and Review,'' 58 FR 51735 (October 4, 1993) (as amended), DHS has
determined that this proposed rule is a ``significant regulatory
action'' because there is significant public interest in issues
pertaining to national security, immigration policy, and international
trade and travel relating to this proposed rule. Accordingly, this
proposed rule has been submitted to the Office of Management and Budget
(OMB) for review.
DHS currently processes through US-VISIT, using biometrics, all
aliens entering the United States with a nonimmigrant visa or under the
Visa Waiver Program at any air, sea, or land port of entry. As of May
25, 2006, US-VISIT biometric screening has resulted in DHS's ability to
take adverse action against 1160 aliens whose prior criminal actions
rendered the alien ineligible for admission or who pose a security
threat to the United States. This proposed rule will strengthen the
ability of CBP officers to identify and take action against persons
whose conduct renders them security threat and therefore ineligible for
admission. For example, DHS expects that, just as 1160 nonimmigrants
have been intercepted by DHS using the biometric screening of US-VISIT,
additional individuals applying for admission with permanent resident
cards or reentry permits will be found, by the comparison of biometric
identifiers, to have violated the terms of their permanent resident
status. Such violations may be the result of the commission of various
crimes, tampering with the actual permanent resident card, or
attempting to gain entry by attempting to assume the identity of
another LPR. Such violations could ultimately result in the LPR losing
permanent resident status and possible removal from the United States,
or the exclusion or removal of an individual from the United States for
fraud. Based on the number of permanent resident cards that are seized
by CBP officers at ports of entry (approximately 15,000 in FY 2005) and
DHS Forensic Document Laboratory analyses each month (approximately
250), DHS estimates that US-VISIT biometric screening has the potential
to identify a significant number of aliens each month in need of
additional investigation prior to being admitted to the United States.
In addition, based on the numbers of refugee travel documents (519) and
immigrant visas (2,287) that CBP officers intercepted in attempts to
use the documents fraudulently by aliens during FY2005, US-VISIT
estimates that interception of fraudulently used documents will
increase with the introduction of biometric verification of identity.
DHS expects similar results--an increase in the number of aliens
identified with possible admission-related or immigration problems--by
including the other groups of aliens highlighted in this proposed rule
into the US-VISIT biometric screening protocol. For example, aliens
holding immigrant visas have a six-month
[[Page 42609]]
validity window from the date the visa is issued to arrive in the
United States. Events could occur during this time period that could
result in the alien being found inadmissible to the United States that
might only be discovered as the result of biometric comparisons. Over
the last several years, over one million aliens have entered the United
States annually on immigrant visas.
Refugees and asylees--appearing before Government officers in many
instances without the benefit of even the most basic form of identity
documentation--potentially pose a risk to public safety and security.
In many instances, the United States Government is providing these
individuals with a new identity. It is important to recognize that for
refugees and asylees, US-VISIT will be verifying the identity of these
aliens by comparing the biometrics collected at the time of an
application for admission to the United States with the biometrics that
were already collected during the initial refugee or asylee
adjudication process.
Similarly, aliens paroled into the United States warrant the
additional screening derived by using US-VISIT. While the majority of
these aliens have been screened overseas in order to determine whether
a parole should be granted, it is in the security interest of the
United States to verify that the individuals who arrive at the border
are the same individuals screened for parole. Approximately 150,000
aliens are granted parole into the United States each year.
The costs associated with implementation of this proposed rule for
select travelers not otherwise exempt from US-VISIT requirements
include an increase of approximately 15 seconds in initial inspection
processing time (additional biometric collection) per applicant over
the current average inspection time. No significant difference is
anticipated in the processing of an alien traveling with a visa or
under the VWP, as compared to any other alien who is exempted from the
visa requirements. These ports of entry encompass over 99% of all air
and sea border traffic and over 95% of all land border traffic for
these alien classifications. DHS, through CBP, has carefully monitored
the impact of US-VISIT biometric data collection on the inspection of
applicants for admission at air, sea, and land borders. At air and sea
ports, internal studies have established that the biometric collection
adds no more than 15 seconds on average to the inspection processing
time at primary inspection. At land border ports, internal studies have
shown positive results, and in some POEs the amount of time to process
an alien for admission using the US-VISIT process was actually shorter
than it had been previously due to the automation of data collection
and implementation of a standard process. A close examination of the
first three land ports of entry to begin US-VISIT biometric collection
as part of admission found that the average processing time for
applicants requiring a Form I-94 or Form I-94W actually decreased and
sometimes resulted in significantly reduced processing times.
----------------------------------------------------------------------------------------------------------------
Average form I-94 processing
Port of entry time before implementing US- Average form I-94 processing time after
VISIT implementing US-VISIT
----------------------------------------------------------------------------------------------------------------
Port Huron, MI....................... 11 minutes, 42 seconds....... 9 minutes, 58 seconds.
Douglas, AZ.......................... 4 minutes, 16 seconds........ 3 minutes, 12 seconds.
Laredo, TX........................... 12 minutes, 10 seconds....... 2 minutes, 18 seconds.
----------------------------------------------------------------------------------------------------------------
Accordingly, DHS does not believe that US-VISIT processing impedes
the free flow of travel and trade.
In addition, over time, the efficiency with which the process is
employed will increase, and the process can be expected to further
improve. DHS will not apply this rule to all aliens crossing land
borders until technological advancements are identified, tested, and
implemented to ensure that the land border commerce and traffic
concerns are significantly mitigated. DHS may choose to implement this
rule in the air and sea environment before the land border environment.
As mentioned in the August 31, 2004, rule, DHS has developed a number
of mitigation strategies, not unlike those already available to CBP
under other conditions to mitigate delays. DHS, while not anticipating
significant delays for travelers, will nevertheless develop procedures
and strategies to deal with any significant delays that may occur
through unanticipated and unusually heavy travel periods.
C. Executive Order 13132
Executive Order 13132 requires DHS to develop a process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
Such policies are defined in the Executive Order to include rules that
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.''
DHS has analyzed this proposed rule in accordance with the
principles and criteria in the Executive Order and has determined that
this proposed rule would not have a substantial direct effect 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, DHS has determined that this
proposed rule does not have federalism implications. This rule provides
for the collection by the Federal Government of biometric identifiers
from certain aliens seeking to enter or depart from the United States,
for the purpose of improving the administration of federal immigration
laws and for national security. States do not conduct activities with
which the provisions of this specific rule would interfere.
D. Executive Order 12988
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988. That Executive
Order requires agencies to conduct reviews, before proposing
legislation or promulgating regulations, to determine the impact of
those proposals on civil justice and potential issues for litigation.
The Order requires that agencies make reasonable efforts to ensure that
the regulation clearly identifies preemptive effects, effects on
existing federal laws and regulations, identifies any retroactive
effects of the proposal, and other matters. DHS has determined that
this regulation meets the requirements of Executive Order 12988 because
it does not involve retroactive effects, preemptive effects, or other
matters addressed in the Order.
E. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA),
Public Law 104-4, 109 Stat. 48 (March
[[Page 42610]]
22, 1995) (2 U.S.C. 1501 et seq.), requires Federal agencies to prepare
a written assessment of the costs, benefits, and other effects of
proposed or final rules that include a Federal mandate likely to result
in the expenditure by State, local, or tribal governments, in the
aggregate, or by the private sector of more than $100 million in any
one year (adjusted for inflation with 1995 base year). Before
promulgating a rule for which a written statement is needed, section
205 of the UMRA requires DHS to identify and consider a reasonable
number of regulatory alternatives and to adopt the least costly, most
cost-effective, or least burdensome option that achieves the objective
of the rule. Section 205 allows DHS to adopt an alternative, other than
the least costly, most cost-effective, or least burdensome option if
DHS publishes an explanation with the final rule. This proposed rule
will not result in the expenditure, by State, local or tribal
governments, or by the private sector, of more than $100 million
annually. Thus, DHS is not required to prepare a written assessment
under UMRA.
F. Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule as defined by section 251 of
the Small Business Regulatory Enforcement Fairness Act of 1996, 5
U.S.C. 804, as this proposed rule will not result in an annual effect
on the economy of $100 million or more.
G. Trade Impact Assessment
The Trade Impact Agreement Act of 1979, Public Law 96-39, tit IV,
secs. 401-403, 93 Stat. 242 (July 26, 1979), as amended (19 U.S.C.
2531-2533), prohibits Federal agencies from engaging in any standards
or related activities that create unnecessary obstacles to the foreign
commerce of the United States. Legitimate domestic objectives, such as
safety, are not considered unnecessary obstacles. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for United States standards. DHS
has determined that this proposed rule will not create unnecessary
obstacles to the foreign commerce of the United States and that any
minimal impact on trade that may occur is legitimate in light of this
rule's benefits for the national security and public safety interests
of the United States. In addition, DHS notes that this effort considers
and utilizes international standards concerning biometrics, and will
continue to consider these standards when monitoring and modifying the
program.
H. National Environmental Policy Act of 1969
DHS will analyze the actions contained in this proposed rule for
purposes of complying with the National Environmental Policy Act of
1969 (NEPA), 42 U.S.C. 4321 et seq., and Council on Environmental
Quality (CEQ) regulations, 40 CFR parts 1501-1508. Depending upon the
environmental impacts, DHS will conduct the appropriate level of
analysis in accordance with NEPA.
I. Paperwork Reduction Act
This proposed rule establishes the process by which DHS will
require certain aliens who cross the borders of the United States to
provide fingerprints, photograph(s), and potentially other biometric
identifiers upon their arrival and departure at designated ports. These
requirements constitute an information collection under the Paperwork
Reduction Act (PRA), 44 U.S.C. 507 et seq. OMB, in accordance with the
Paperwork Reduction Act, has previously approved this information
collection for use. The OMB Control Number for this collection is 1600-
0006.
Since this rule provides a mechanism for the addition of new aliens
by Notice in the Federal Register who may be photographed and
fingerprinted, and who may be required to provide other biometric
identifiers, DHS has submitted the required Paperwork Reduction Change
Worksheet (OMB-83C) to the Office of Management and Budget (OMB)
reflecting the increase in burden hours and OMB has approved the
changes.
J. Public Privacy Interests
As discussed in the January 5, 2004, (69 FR 468) and August 31,
2004, (69 FR 53318) interim rules, US-VISIT records will be protected
consistent with all applicable privacy laws and regulations. Personal
information will be kept secure and confidential and will not be
discussed with, nor disclosed to, any person within or outside US-VISIT
other than as authorized by law and as required for the performance of
official duties. In addition, careful safeguards, including appropriate
security controls, will ensure that the data is not used or accessed
improperly. The DHS Chief Privacy Officer will review pertinent aspects
of the program to ensure that these proper safeguards and security
controls are in place. The information will also be protected in
accordance with the DHS published privacy policy for US-VISIT. Affected
persons will have a three-stage process for redress if there is concern
about the accuracy of information. An individual may request a review
or change, or a DHS officer may determine that an inaccuracy exists in
a record. A DHS officer can modify the record. If the individual
remains dissatisfied with this response, he or she can request
assistance from the US-VISIT Privacy Officer, and can ask that the
Privacy Officer review the record and address any remaining concerns.
The DHS Privacy Office will advise US-VISIT to further ensure that
the information collected and stored in IDENT and other systems
associated with US-VISIT is being properly protected under the privacy
laws and guidance. US-VISIT also has a program-dedicated Privacy
Officer to handle specific inquiries and to provide additional advice
concerning the program.
Finally, DHS will maintain secure computer systems that will ensure
that the confidentiality of an individual's personal information is
maintained. In doing so, the Department and its information technology
personnel will comply with all laws and regulations applicable to
government systems, such as the Federal Information Security Management
Act of 2002, Title X, Public Law 107-296, 116 Stat. 2259-2273 (Nov. 25,
2002) (codified in scattered sections of titles 6, 10, 15, 40, and 44
U.S.C.); Information Management Technology Reform Act (Clinger-Cohen
Act), 40 U.S.C. 11101 et seq.; Computer Security Act of 1987, 40 U.S.C.
1441 et seq. (as amended); Government Paperwork Elimination Act, 44
U.S.C. 101, 3504; and Electronic Freedom of Information Act of 1996, 5
U.S.C. 552.
List of Subjects
8 CFR Part 215
Administrative practice and procedure, Aliens, Travel restrictions.
8 CFR Part 235
Aliens, Immigration, Registration, Reporting and recordkeeping
requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 215--CONTROL OF ALIENS DEPARTING FROM THE UNITED STATES
1. The authority citation for part 215 continues to read as
follows:
Authority: 8 U.S.C. 1104; 1184; 1185 (pursuant to E.O. 13323,
published January 2, 2004), 1365a and note, 1379, 1731-32.
[[Page 42611]]
2. Section 215.8 is proposed to be amended by revising paragraph
(a)(1) as follows:
Sec. 215.8 Requirements for biometric identifiers from aliens on
departure from the United States.
(a)(1) The Secretary of Homeland Security, or his designee, may
establish pilot programs at land border ports of entry, and at up to
fifteen air or sea ports of entry, designated through notice in the
Federal Register, through which the Secretary or his delegate may
require an alien admitted to or paroled into the United States, other
than aliens exempted under paragraph (a)(2) of this section or Canadian
citizens under section 101(a)(15)(B) of the Act who were not otherwise
required to present a visa or have been issued Form I-94 or Form I-95
upon arrival at the United States, who departs the United States from a
designated port of entry, to provide fingerprints, photograph(s) or
other specified biometric identifiers, documentation of his or her
immigration status in the United States, and such other evidence as may
be requested to determine the alien's identity and whether he or she
has properly maintained his or her status while in the United States.
* * * * *
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
3. The authority citation for part 235 continues to read as
follows:
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
E.O. 13323 published on January 2, 2004), 1201, 1224, 1225, 1226,
1228, 1365a note, 1379, 1731-32.
4. Sections 235.1 is proposed to be amended by revising paragraphs
(d)(1)(ii) as follows:
Sec. 235.1 Scope of examination.
* * * * *
(d) * * *
(1) * * *
(ii) The Secretary of Homeland Security or his delegate may require
any alien seeking admission to or parole into the United States, other
than aliens exempted under paragraph (d)(1)(iv) of this section or
Canadian citizens under section 101(a)(15)(B) of the Act who are not
otherwise required to present a visa or be issued Form I-94 or Form I-
95 for admission or parole into the United States, to provide
fingerprints, photograph(s) or other specified biometric identifiers,
documentation of his or her immigration status in the United States,
and such other evidence as may be requested to determine the alien's
identity and whether he or she has properly maintained his or her
status while in the United States. The failure of an applicant for
admission to comply with any requirement to provide biometric
identifiers may result in a determination that the alien is
inadmissible under section 212(a) of the Immigration and Nationality
Act or any other law.
* * * * *
Dated: July 13, 2006.
Michael Chertoff,
Secretary.
[FR Doc. E6-11993 Filed 7-26-06; 8:45 am]
BILLING CODE 4410-10-P