Federal Register, Volume 73 Issue 245 (Friday, December 19, 2008)

[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Rules and Regulations]
[Pages 77473-77491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30095]

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Rules and Regulations
Federal Register
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Federal Register / Vol. 73, No. 245 / Friday, December 19, 2008 /
Rules and Regulations

[[Page 77473]]

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 215 and 235

[DHS-2005-0037]
RIN 1601-AA35; RIN 1600-AA00

United States Visitor and Immigrant Status Indicator Technology
Program (``US-VISIT''); Enrollment of Additional Aliens in US-VISIT;
Authority To Collect Biometric Data From Additional Travelers and
Expansion to the 50 Most Highly Trafficked Land Border Ports of Entry

AGENCY: National Protection and Programs Directorate, DHS.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security (DHS) established the
United States Visitor and Immigrant Status Indicator Technology Program
(US-VISIT) in 2003 to verify the identities and travel documents of
aliens. Aliens subject to US-VISIT may be required to provide
fingerscans, photographs, or other biometric identifiers upon arrival
at the United States. Currently, aliens arriving at a United States
port of entry with 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. This final rule expands
the population of aliens who will be subject to US-VISIT requirements
to nearly all aliens, including lawful permanent residents. Exceptions
include Canadian citizens seeking short-term admission for business or
pleasure under B visas and individuals traveling on A and G visas,
among others.
On August 31, 2004, the Department promulgated an interim final
rule that expanded the US-VISIT program to include aliens seeking
admission under the Visa Waiver Program and travelers arriving at
designated land border ports of entry. This rule also finalizes that
interim final rule and addresses public comments received during that
rulemaking action.

DATES: This final rule is effective January 18, 2009.

FOR FURTHER INFORMATION, CONTACT: Helen deThomas, Senior Policy
Analyst, US-VISIT, Department of Homeland Security, 1616 Fort Myer
Drive, 18th Floor, Arlington, Virginia 22209, (202) 298-5200.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
A. Program Development
B. Program Operation
C. Notice of Proposed Rulemaking
II. Comments on the Notice of Proposed Rulemaking
A. Status of LPRs in US-VISIT
1. Past Security Checks
2. Relationship to United States Citizens
3. Relationship to Canadian Citizens
4. Travel Concerns in United States Air and Sea Ports
5. Travel Concerns at Land Border Inspections
6. Privacy Concerns of LPRs
7. Ten-Print Enrollment
B. Canadian Citizens
1. Western Hemisphere Travel Initiative
2. Preclearance Sites in Canada
3. Canadians Requiring a Waiver of Inadmissibility
4. Canadians in Transit through the United States
5. Crew Members
C. Mexican Citizens
D. Operational Issues
1. Clarification of Procedures for Returning Nonimmigrants
2. REAL ID Act of 2005
3. Advance Passenger Information System
4. Connection to IDENT/IAFIS Interoperability
5. Biometric Identifiers
6. Age Restrictions
7. Exemption of Individual Aliens
E. Privacy and Information Retention
F. International Conventions
G. United States Citizen Voluntary Enrollment
H. Economic Impact
I. Attorney Representation
J. Pacific Rim Issues
III. Comments on the August 31, 2004 Interim Rule
A. General
B. Outreach to the Affected Public
C. Use of Interim Rules
D. Facilities
E. Interaction With Existing Programs
G. Travel and Delays
H. Health Risks
I. Program Exemptions
J. Privacy
K. Fees
IV. Statutory and Regulatory Review
A. Regulatory Flexibility Act
B. Executive Order 12866--Regulatory Planning and Review
C. Executive Order 13132--Federalism
D. Unfunded Mandates Reform Act
E. Small Business Regulatory Enforcement and Fairness Act
F. Trade Impact Assessment
G. National Environmental Policy Act
H. Paperwork Reduction Act
I. Public Privacy Interests

I. Background

A. Program Development

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; biometrically
compares 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
in, 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
the privacy of our 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 (DMIA), 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 (Oct. 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 (Oct. 26, 2001);
Section 302 of the Enhanced Border Security and Visa Entry
Reform Act of

[[Page 77474]]

2002 (Border Security Act) Public Law 107-173, 116 Stat. 543, 552 (May
14, 2002);
Section 7208 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (IRTPA), Public Law 108-458, 118 Stat. 3638,
3817 (December 17, 2004); and
Section 711 of the Implementing Recommendations of the 9/
11 Commission Act of 2007, Public Law 110-52, 121 Stat. 266 (Aug. 3,
2007).
DHS provided detailed abstracts of the particular sections of the
statutes that established and authorized the US-VISIT program in prior
rulemakings and the proposed rule. See 69 FR 468 (Jan. 5, 2004); 69 FR
53318 (Aug. 31, 2004); 71 FR 42605 (July 27, 2006); 73 FR 22065 (Apr.
24, 2008).
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. 69 FR 468 (Jan. 5, 2004).
Effective September 30, 2004, nonimmigrants seeking to enter the United
States without visas under the Visa Waiver Program (VWP) \1\ also are
required to provide biometric information to US-VISIT. 69 FR 53318
(Aug. 31, 2004). US-VISIT is now operational for entry at 115 airports,
15 seaports, and 154 land border ports of entry. The following
categories of aliens currently are expressly exempt from US-VISIT
requirements by DHS regulations:
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\1\ Pursuant to section 217 of the Immigration and Nationality
Act (INA), 8 U.S.C. 1187, the Secretary of Homeland Security (the
Secretary), in consultation with the Secretary of State, may
designate certain countries as Visa Waiver Program (VWP) countries
if certain requirements are met. Citizens and eligible nationals of
VWP countries may apply for admission to the United States at a U.S.
port of entry as nonimmigrant aliens for a period of ninety (90)
days or less for business or pleasure without first obtaining a
nonimmigrant visa, provided that they are otherwise eligible for
admission under applicable statutory and regulatory requirements.
The list of countries which currently are eligible to participate in
VWP is set forth in 8 CFR 217.2(a).
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Aliens admitted on an A-1, A-2, C-3 (except for
attendants, servants, or personal employees of accredited officials),
G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6
visa;
Children under the age of 14;
Persons over the age of 79;
Taiwan officials admitted on an E-1 visa and members of
their immediate families admitted on E-1 visas.

8 CFR 235.1(f)(1)(iv).\2\ 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(f)(1)(iv)(B).
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\2\ Effective January 23, 2007, 8 CFR 235(d)(1)(iv) was
redesignated as 8 CFR 235.1(f)(1)(iv). 71 FR 68412 (Nov. 24, 2006).
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B. Program Operation

The US-VISIT program, through U.S. Customs and Border Protection
(CBP) officers, collects biometrics (digital fingerprints and
photographs) from aliens seeking admission to the United States. 73 FR
22066. The US-VISIT program also receives biometric data collected by
Department of State (DOS) consular offices in the visa application
process. DHS checks biometric data on those applying for admission to
the United States against government databases to identify suspected
terrorists, known criminals, or individuals who have previously
violated U.S. immigration laws. These procedures assist DHS in
determining whether an alien seeking to enter the United States is, in
fact, admissible to the United States under existing law. Biometric
data collected by US-VISIT assists DOS consular officers in the
verification of the identity of a visa applicant and the determination
of the applicant's eligibility for a visa. DHS's ability to establish
and verify the identity of an alien and to determine whether that alien
is admissible to the United States is critical to the security of the
United States and the enforcement of the laws of the United States. By
linking the alien's biometric information with the alien's travel
documents, DHS reduces the likelihood that another individual could
assume the identity of an alien already recorded in US-VISIT or use an
existing recorded identity to gain admission to the United States.
From its inception on January 5, 2004 to the present, US-VISIT has
biometrically screened more than 130 million aliens at the time they
applied for admission to the United States. DHS has taken adverse
action against more than 3,800 aliens 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, or returned
to the country of last departure; or
Otherwise detained and denied admission to the United
States.
In addition, by quickly verifying identity and validity of
documents, US-VISIT has expedited the travel of millions of legitimate
entrants. Expanding the population of aliens required subject to US-
VISIT requirements will allow DHS to identify additional aliens who are
inadmissible or who otherwise may present security and criminal
threats, including those who may be traveling improperly on previously
established identities.

C. Notice of Proposed Rulemaking

On July 27, 2006, DHS published a notice of proposed rulemaking
(NPRM or proposed rule) proposing to expand the population of aliens
subject to US-VISIT requirements. The NPRM proposed to require
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 under DHS
regulations. Under the proposed rule, the following classes of aliens,
among others, would become subject to US-VISIT requirements:
Lawful Permanent Residents (LPRs). \3\
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\3\ 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'').
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Aliens seeking admission on immigrant visas.
Refugees and asylees.
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.

DHS received 69 comments on the 2004 interim final rule during the 30-
day notice and comment period. DHS has considered the comments received
in the development of this final rule. This final rule adopts the
proposed rule without change.
This rule also addresses comments received on the August 31, 2004,
interim final rule and finalizes that rule. For ease of reference, DHS
responds separately to the comments submitted on the interim rule and
the proposed rule.

[[Page 77475]]

II. Comments on the Notice of Proposed Rulemaking

DHS received 71 comments on the July 27, 2006, notice of proposed
rulemaking. Some comments were positive, while other comments were
negative or asked that the regulation be withdrawn. The comments raised
a number of issues, including the relationship with other DHS
initiatives, suggesting that US-VISIT should not proceed until other
initiatives have been completed. One commenter noted that there have
been several GAO reports that have been critical of US-VISIT and DHS
has addressed those concerns as discussed in the published reports. DHS
continues to address all of these concerns and recommendations as US-
VISIT is developed. The most common issue raised by the comments was
the inclusion of lawful permanent residents (LPRs) in US-VISIT
enrollment and verification.
Some comments were very general, such as those suggesting that DHS
concentrate on removing illegal aliens present in the United States.
DHS believes that US-VISIT plays an important role in preventing
illegal immigration in the first place by requiring biometric
information from travelers seeking to enter the United States. DHS
continues to concentrate on intercepting aliens who are in the United
States without authorization. These priorities do not conflict.
Similarly, a commenter asked how DHS is benchmarking or measuring
the success of US-VISIT. DHS provides performance measures to the
Executive Office of the President and to the Office of Management and
Budget (OMB) using OMB's Program Assessment Rating Tool (PART). Some of
the factors included in the Fiscal Year (FY) 2006 PART assessment were:
Cumulative and annual percentage baseline cost and schedule overrun on
US-VISIT Increment Development and Deployment, Reduction in Review Time
for Privacy Redress, Ratio of Adverse Actions to Total Biometric Watch
List Hits at Ports of Entry, Percentage of Exit Records Matched to
Entry Records, and other factors. OMB rated US-VISIT as ``moderately
effective.'' DHS accepts OMB's view on these performance measures and
is taking steps to achieve better results. The comment, however, does
not raise issues relating to the proposed rule.

A. Status of LPRs in US-VISIT

1. Past Security Checks
Thirty-two commenters urged that LPRs be exempt from US-VISIT,
based on their status as LPRs, because they have previously been
subject to significant security checks in order to obtain LPR status.
Similarly, some commenters stated that there is no evidence that LPRs
pose a threat to the level that they ``should be grouped with''
nonimmigrants who are subject to US-VISIT. One commenter stated that
DHS has a flawed process in that it is willing to trust in an LPR's
first use of US-VISIT for initial capture of fingerprints, rather than
compare against the records captured during the initial adjustment of
status process.
DHS agrees that LPRs receive an extensive background check to
become LPRs, including a criminal background check using the
applicant's fingerprints. United States Citizenship and Immigration
Services (USCIS) conducts an extensive investigation prior to granting
adjustment of status to that of an LPR, and the DOS undertakes
significant investigation of an alien applying for an immigrant visa.
Also, DHS agrees that there is not necessarily evidence to support the
notion that LPRs--as a class--pose risks not posed by nonimmigrants--as
a class.
DHS does not, however, believe that this point is entirely relevant
for the purposes of this rule for several significant reasons. DHS and
DOJ continue to uncover significant immigration document fraud,
particularly in relation to permanent resident cards (Form I-551).
Common examples include giving or selling a permanent resident card to
someone else, altering a lost permanent resident card, and using a
fraudulently created permanent resident card. DHS has substantially
increased the security features on permanent resident cards in recent
years, but security features are not foolproof.
The Immigration and Naturalization Service (INS), predecessor to a
number of DHS functions, issued resident alien cards without expiration
dates until 1989. Permanent resident cards issued after 1989 are valid
only for ten years. Additionally, INS upgraded the Form I-551
significantly, including more secure features, in September 1997. 62 FR
44146 (Aug. 19, 1997). Many LPRs possess permanent resident cards that
have limited security features and no expiration date. Trafficking in
these cards is inhibited by the fact that the card must appear to be
aged to the date of its issue, but otherwise these cards provide
limited security from assumed identity. DHS is taking steps to recall
all such cards. 72 FR 46922 (Aug. 22, 2007).
Including LPRs within the scope of US-VISIT processing will enable
DHS to detect, deter, and act against those who attempt fraud through
the biometric match of the person presenting the Form I-551 against the
record of the person to whom that card was issued. Accordingly, the
inclusion of LPRs within US-VISIT is consistent with other security
programs initiated by DHS.
LPRs are still subject to entry, documentation, and removability
requirements to the United States. LPRs are aliens. See sections 101,
212, 237 of the INA (8 U.S.C. 1101, 1182, 1227) and 8 CFR 235.1(b),
(f)(1)(i). Although LPRs are not technically regarded as seeking
admission to the United States if they are returning from a stay of
less than 180 days under section 101(a)(13)(C)(ii) of the INA (8 U.S.C.
1101(a)(13)(C)(ii)), they remain subject to the admissibility
requirements of section 212 of the INA (8 U.S.C. 1182) because of their
status as an alien and not a United States citizen. Accordingly, DHS
must determine whether an LPR is admissible to the United States
whenever the LPR arrives at a port of entry, as well as determine
whether an LPR is removable from the United States based on intervening
facts since the time LPR status was granted, and initial background
checks conducted, which may have been many years ago. US-VISIT enables
DHS to determine if an LPR seeking entry has been convicted of any
crime that would render him or her subject to removal from the United
States. In addition, DHS is concerned about attempts by terrorist and
transnational criminal organizations to recruit LPRs, who are perceived
to be subject to less scrutiny in travel. See section 101(a)(13)(C)(v)
of the INA (8 U.S.C. 1101(a)(13)(C)(v). Accordingly, the processing of
LPRs through US-VISIT serves an important purpose: Identifying aliens
who pose a security risk, have a disqualifying criminal or immigration
violation, or are otherwise inadmissible at the time that they present
themselves for entry into the United States as LPRs.
DHS compares the fingerprints collected as part of the adjustment
of status or immigrant visa process with the fingerscans of the LPR
seeking entry, when those fingerprints are available in DHS's Automated
Biometric Identification System (IDENT). The addition of data from
adjustment of status and immigrant visa applications to the IDENT
system will substantially reduce the initial enrollment of LPRs, but
LPRs, as aliens, should be enrolled in US-VISIT.
Finally, the statutes underlying the development of US-VISIT have
never distinguished between immigrants and nonimmigrants. For the
purpose of data collection and biometric comparison,

[[Page 77476]]

the law requires the collection of data from all aliens.
2. Relationship to United States Citizens
Five commenters suggested that LPRs should not be subject to US-
VISIT because they are so similar to United States citizens, and United
States citizens are not subject to US-VISIT by the terms of this rule.
DHS does not agree that the difference between an LPR and a United
States citizen is minor. The INA defines the term ``alien'' as ``any
person not a citizen or national of the United States.'' See section
101(a)(3) of the INA (8 U.S.C. 1101(a)(3)).
Similarly, some commenters suggested that the distinction between
LPRs and United States citizens in terms of US-VISIT processing should
be ``all or nothing.'' In other words, these commenters stated that
either both LPRs and United States citizens should be subject to US-
VISIT, or neither should. Generally, these comments tend to suggest
that passports are just as likely to be used fraudulently as permanent
resident cards and that there are no significant legal differences
between LPRs and United States citizens. A corollary argument was made
by other commenters: DHS should increase significantly the security
features of the Form I-551 in order to make them equivalent to
passports in terms of security.
As a legal matter, LPRs, although allowed to stay and work in the
United States permanently, are still ``aliens'' and subject to
immigration law. Unlike United States citizens,
The status of LPRs can be rescinded under section 246 of
the INA (8 U.S.C. 1256) and LPRs can be removed from the United States
under section 237 of the INA (8 U.S.C. 1227); \4\
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\4\ Even after an LPR is naturalized as a United States citizen,
such naturalization can be revoked under section 340 of the INA (8
U.S.C. 1451). [Suggest adding language to make clear there are very
limited bases for revocation. Otherwise, this may be misleading.]
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LPRs are required to acquire and carry evidence of their
status (Form I-551) and replace it when it is lost or expires under
section 264 of the INA (8 U.S.C. 1304) and 8 CFR 264.5(b);
LPRs must present specific documentation as a condition
for admission and re-admission to the United States under section 211
of the INA (8 U.S.C. 1181) and 8 CFR 211.1(a);
LPRs must notify DHS of each change of address and new
address within ten days of the date of the change of address under
section 265(a) of the INA (8 U.S.C. 1305(a)) and 8 CFR 265.1;
LPRs may be deemed to have abandoned their status when
outside of the United States for more than one year, unless they obtain
a re-entry permit, in line with the documentary requirements at 8 CFR
211.1(a) and (b)(3); and
LPRs must apply for naturalization to obtain citizenship,
demonstrating good moral character and at least five years of
continuous residence under section 316 of the INA (8 U.S.C. 1427), as
well as an understanding of the English language and a knowledge and
understanding of the fundamentals of the history and of the principles
and form of government of the United States under section 312 of the
INA (8 U.S.C. 1423).
These requirements, and others, clearly differentiate LPRs from
United States citizens. Moreover, LPR status does not grant an alien a
variety of benefits accorded to a citizen of the United States,
including the most fundamental right to vote for federally elected
officials. See 18 U.S.C. 611 (criminal penalties for alien voting).
Aliens, whether immigrants or nonimmigrants, may not serve on a federal
jury. See 28 U.S.C. 1861 (declaration of policy that citizens sit on
juries), 1862 (discrimination against citizens on account of race,
color, religion, sex, national origin, or economic status prohibited
for jury service), 1865(b)(1) (requirement of citizenship for jury
service); 18 U.S.C. 243 (discrimination on basis of race or color
against citizens prohibited in jury selection). Accordingly, obtaining
LPR status is not equivalent to citizenship and DHS is not constrained
to treat aliens in LPR status and citizens alike.
Finally, DHS has a specific and unique responsibility with respect
to ensuring that LPRs comply with the requirements of their status. DHS
does not accept the argument that LPR status is so equivalent to United
States citizenship that US-VISIT processing must be the same or similar
for both. DHS recognizes that most LPRs do not pose a threat to the
United States and do not commit crimes that would subject them to
removal, and has accommodated the free flow of travel by LPRs by
instructing them to seek inspection at airports by joining the ``United
States Citizen'' inspection line. This accommodation does not mean that
LPRs are, or will otherwise be treated as, United States citizens.
DHS is taking steps to improve the security of permanent resident
cards, but that does not necessarily mean that they should remain
exempt from contemporaneous biometric identification under US-VISIT. As
noted above, DHS has proposed to invalidate all permanent resident
cards without an expiration date; this action will facilitate upgrading
card security and evidence of LPR status legitimacy and security. 72 FR
46922 (Aug. 22, 2007). US-VISIT is only one step in the ongoing efforts
by DHS to improve the security of the United States and enforce the
immigration laws of the United States.
DHS believes that US-VISIT creates better protections against the
fraudulent use of immigration documentation than does mere document
examination, and does so in a way that is cost-effective. Using US-
VISIT, a CBP officer can match an LPR's biometric features against a
database where those features are stored based on the processing done
to obtain the benefit of LPR status (either an immigrant visa or an
adjustment of status application). This greatly diminishes the
possibility that a Form I-551 can be used fraudulently to obtain entry
to the United States because there is an automated comparison to the
biometric characteristics and an examination of the card itself. Thus,
the security features on the Form I-551 itself are extremely helpful,
but it is the biometric checks that provide the best security against
immigration fraud, as this also prevents legitimate cards from being
used by those to whom a card was not issued. DHS believes that because
it has the biometric data collected for LPRs and the capability to
technically, quickly, and easily compare those data to a person seeking
to enter a port of entry, DHS has a responsibility to use those data to
ensure that the person seeking admission is using his or her
documentation legitimately.
3. Relationship to Canadian Citizens
Twelve commenters suggested that it was unfair to exempt Canadian
tourists from US-VISIT, but require LPRs to be enrolled and processed
by US-VISIT. Another commenter opposed LPR enrollment in US-VISIT, but
supported the enrollment of all Canadian citizens regardless of the
purpose of their trip to the United States.
DHS understands that the ``staged'' implementation of US-VISIT can
carry the perception of unfairness. However, the distinction between
LPRs and Canadian temporary visitors is not based on the notion that
one is inherently more of a ``threat'' than the other. Logistical
difficulties in implementation of biometric checks at primary
inspection in the land border environment and foreign policy issues
govern the continued exemption of

[[Page 77477]]

Canadians visitors for business or pleasure for the time being.
All LPRs and Canadians arriving at land border ports of entry are
treated the same--those who are sent to secondary inspection are
processed through US-VISIT; those who are inspected at primary
inspection are not. Aliens requiring a Form I-94 (select Canadians, in
this case) will actually be referred to secondary inspection more often
than LPRs, because they must secure a new Form I-94, in most cases,
every six to eight months in addition to those instances where such
referrals may be made for any other reason. In some instances, such as
classifications with extended duration of status, a single Form I-94
may be valid for an extended period, those aliens must renew their Form
I-94 at least every six to eight months. This result is simply a
function of the need for additional technological advancements in order
to build an operational system that can function as a biometric entry
system without significantly impairing the efficiency of inspections.
4. Travel Concerns in United States Air and Sea Ports
Seven commenters mentioned the current structure of most United
States airports and seaports, where ``United States Citizens/LPRs'' are
directed into one inspection line and ``Visitors'' are directed to a
different inspection line. They suggested that placing LPRs in the
``Visitors'' line merely for the sake of US-VISIT processing would
cause significant delays for them and could separate families traveling
together. DHS has deployed US-VISIT equipment in virtually all lanes at
United States airports and seaports where US-VISIT is functional. This
deployment allows CBP the flexibility to quickly change ``Citizen/LPR''
lanes to ``Visitors'' lanes and vice versa, as there is a need to
balance and rebalance the time spent in the queue and process all
arrivals efficiently and effectively. Because of almost universal lane
availability, DHS will be able to process LPRs and others in the
existing lane determinations. LPRs will remain within the ``United
States Citizen/LPR'' lanes and will not be shifted into the
``Visitors'' lane unless such action could expedite processing.
Additionally, LPRs are processed in the same lanes as United States
citizen lanes, in many instances, to process entire families more
expeditiously; DHS continues to recognize and attempt to accommodate
families traveling together.
One commenter stated that this would cause delays for United States
citizens, as the lanes dedicated to LPRs and United States citizens
will slow down. DHS will monitor delays in processing carefully, but
does not believe that US-VISIT will add to such delays. The United
States averages roughly 33 million air/sea port arriving United States
citizen travelers per year and approximately 4.4 million air/sea port
arriving LPR travelers per year. Further, many ports of entry use
dedicated ``United States Passport only'' lanes even within the
``United States Citizen/LPR'' lanes. DHS believes that the application
of US-VISIT to LPRs will not impact United States citizens' travel to a
significant degree.
One commenter questioned whether, given that DHS does not currently
possess electronically searchable fingerprints on all LPRs, LPRs would
be required to provide a full set of ten fingerprints (or ``10
prints'') through US-VISIT at the point in which US-VISIT transfers to
10-print enrollment. DHS began transitioning to 10-print devices and
capture at primary inspection in December 2007.
The process for LPR enrollment and verification will be the same as
for other aliens. If entering the United States at a port with
available 10-print devices, LPRs will be enrolled though the 10-print
enrollment process. Thus, an alien will need to submit 10 fingerprints
only one time (whether at a port of entry or at a USCIS Application
Support Center), and all subsequent times, in whatever environment, the
alien will provide less than 10 fingerprints for verification. DHS will
possess a higher percentage of 10 prints in its biometric database for
LPRs, because LPRs generally must renew their permanent resident card
every 10 years and are required to submit 10 fingerprints as part of
the renewal process.
5. Travel Concerns at Land Border Inspections
One commenter implied that the treatment of LPRs is unfair due to
lack of radio frequency identification (RFID) chips in the Form I-551.
This comment refers to a DHS proof of concept program in which five
land border ports of entry have used RFID technology to track exits and
pre-position information on entry for nonimmigrants. See 70 FR 44934
(Aug. 4, 2005). This proof of concept has now been concluded. While
Form I-551 does not provide, at this time, an RFID chip, treatment of
non-immigrants, immigrants, and citizens does not, and has never,
required parity.
DHS agrees that documentation issued to different aliens should be
consistent to the extent practical and to the extent that consistency
serves security and efficiency goals. DHS is examining integration of
data processes to provide both better security and better efficiency.
Accordingly, DHS will consider additional opportunities to include LPRs
in these initiatives in addition to United States citizens and Canadian
travelers.
LPRs at the land border, however, are less likely than nonimmigrant
aliens to be referred to secondary inspection as discussed above. LPRs
will be referred to secondary inspection only when a CBP officer in
primary inspection determines that further investigation is required
before admission, as is the current practice. There is no reason to
believe that LPRs, as a result of the promulgation of this rule, will
be referred to secondary inspection more frequently or will spend
significantly more time while in secondary inspection. Nonimmigrant
aliens, on the other hand, are referred to secondary inspection
routinely at least every six to eight months to renew their Form I-94.
6. Privacy Concerns of LPRs
Five commenters suggested that promulgation of the rule as proposed
would violate, in a very generic way, the privacy rights of LPRs. One
commenter objected to the retention of travel information on LPRs.
DHS complies with the Privacy Act, 5 U.S.C. 552a. In addition, the
Homeland Security Act of 2002, in creating DHS, established a Privacy
Officer who is tasked with assuring full compliance with the Privacy
Act, advising the Secretary and DHS on the privacy of personal
information, and conducting privacy impact assessments on DHS
regulations. See Homeland Security Act of 2002, Public Law 107-296,
tit. II, Sec. 222, 116 Stat. 2135, 2155 (Nov. 25, 2002) (as amended,
found at 6 U.S.C. 142). DHS has published the privacy impact analysis
for this rule. See 71 FR 42653. DHS continues to be concerned about the
privacy of all persons in the United States and compliance with the
laws affecting privacy.
However, the US-VISIT programmatic statutes all refer to ``aliens''
without differentiation. DHS believes the intent of these statutes is
clear: LPRs are to be included within US-VISIT as much as practical and
consistent with other legal obligations relating to travel documents
issued by the United States, including those issued by DHS and DOS.
Most LPRs travel internationally on DHS-issued documents; therefore,
LPRs are directly impacted by these requirements. Additionally, DHS has
a legitimate need for maintaining some information on LPR travel. DHS
has collected travel information on LPRs for many years, originally as
part of the

[[Page 77478]]

Treasury Enforcement Communications System (TECS) that was transferred
to DHS in 2003. See 66 FR 52984, at 53029 (Notice of Privacy Act
systems of record). Per DHS regulations, an LPR can be deemed to have
abandoned his or her status if he or she stays outside of the United
States for longer than one year. See 8 CFR 211.1(a), (b)(3) (imposing
certain documentary requirements or waiver applications on LPRs only if
returning from a temporary absence of less than a year).
7. Ten-Print Enrollment
One commenter inquired whether LPRs for whom DHS has no electronic
biometric record will have ten-print or two-print fingerscan enrollment
upon being processed in US-VISIT in the primary lane. DHS began
transitioning to a ten-print enrollment process in December 2007. These
processes will not be limited to LPRs, however, and DHS is confident
that it can use technology to minimize the potential for delay as a
result of the change.

B. Canadian Citizens

1. Western Hemisphere Travel Initiative
The Western Hemisphere Travel Initiative (WHTI) requires that the
Secretary of Homeland Security, in consultation with the Secretary of
State, develop and implement a plan to require travelers entering the
United States to present a passport, other document, or combination of
documents which is ``deemed by the Secretary of Homeland Security to be
sufficient to denote identity and citizenship'' by June 1, 2009. See
section 7209 of IRTPA, Public Law 108-458, 118 Stat. at 3823, as
amended by the Department of Homeland Security Appropriations Act,
2007, Public Law 109-295, sec. 546, 120 Stat. 1355, 1386 (Oct. 4,
2006), found at 8 U.S.C. 1185 note. DHS and DOS have implemented this
requirement effective January 23, 2007, for air ports of entry. 70 FR
52037 (Sept. 1, 2005) (Western Hemisphere Travel Initiative, ANPRM); 71
FR 46155 (Aug. 11, 2006) (same, NPRM); 71 FR 68412 (Nov. 24, 2006)
(same; air ports of entry; Final Rule).
One commenter to this rule asked whether the Canadian border issues
that have been addressed through WHTI were being taken into account in
the promulgation of this rule. DHS has been working very closely with
Canadian authorities in order to secure better the border between the
United States and Canada without sacrificing the close ties between the
two countries. In March 2005, the Administration launched the Security
and Prosperity Partnership (SPP) as a trilateral effort with Canada and
Mexico premised on the mutual reinforcement of our security and
economic prosperity. See http://www.spp.gov/Security_Fact_Sheet.pdf.
Through this effort and others, the United States and Canada are
engaged in greater cooperation and information sharing, while being
mindful of the privacy laws of each country. Together, the United
States and Canada are exploring ways to facilitate legitimate travel
and trade while assuring the security of our border. All of these
efforts were considered in the promulgation of this rule.
Another commenter suggested that the NPRM fails to consider the
impact of WHTI and this US-VISIT expansion at the same time. This rule
is being implemented on January 18, 2009, and the first phase of WHTI
(requiring a passport or other document to demonstrate identity and
citizenship at air ports of entry) began on January 23, 2007. The
second phase of WHTI (land borders and sea ports) was published as a
final rule on April 3, 2008, and will be effective June 1, 2009. 73 FR
18384.
This expansion of US-VISIT procedures deals with the type of
immigration processing certain aliens will require at all ports of
entry, with the differences described elsewhere based on the type of
port of entry. One of the main reasons for exempting Canadians who do
not require a separate admissibility determination through Form I-94 in
this rulemaking is to coordinate the timing of the WHTI land border
port of entry procedures, before DHS can determine what, if any,
additional steps should be taken for US-VISIT processing of these
aliens at land border ports of entry. DHS and DOS are carefully
coordinating the implementation of multiple initiatives to improve the
security of the United States and ensure efficient border management.
2. Preclearance Sites in Canada
Three commenters expressed concern that the preclearance sites in
Canada would see a dramatic increase in the numbers of aliens subject
to US-VISIT and be unable to handle the increase in time and traffic.
One commenter also noted that unlike the traditional environment of
immigration processing where the flights have already landed, in the
preclearance environment, persons are trying to board a flight before
it is too late, and that, therefore, the delays would be much more
costly.
DHS acknowledges the concerns with preclearance flight locations in
Canada. However, DHS notes that Canadians not requiring visas--which
include those transiting the United States or applying for admission to
the United States as visitors for business or pleasure--are not
required to be processed in US-VISIT. Accordingly, the increased volume
of preclearance travelers in US-VISIT may not be as high as the
commenters suggest. Nonetheless, DHS has existing mitigation strategies
in effect to respond to overcrowded inspection facilities. DHS will pay
close attention to these preclearance locations to determine whether
implementing these strategies is appropriate, especially during the
first few weeks after this final rule becomes effective.
3. Canadians Requiring a Waiver of Inadmissibility
One commenter expressed concern about Canadian B-1/B-2 travelers
who frequently travel over the land border and require a waiver of
inadmissibility under section 212 of the INA (8 U.S.C. 1182) to be
admitted to the United States. DHS is currently considering alternative
administrative processes for simplified handling of waivers and their
application to US-VISIT, but until DHS implements these processes, DHS
will maintain the same procedures for Canadian B-1/B-2 travelers
requiring a waiver of inadmissibility as it has with all Canadians
requiring a waiver of inadmissibility and given a multiple entry Form
I-94: US-VISIT secondary processing every six months or when sent to
secondary by a CBP officer. Canadian B-1/B-2 applicants for admission
requiring a waiver of admissibility will not be required to be
processed in US-VISIT every time they cross a United States land
border.
4. Canadians in Transit Through the United States
Three commenters raised concerns about Canadians in transit through
the United States, two in the land context and one in the air context.
In the air context, one commenter suggested that Canadian B-1/B-2
travelers will be exempt from US-VISIT processing if flying to the
United States, but not if they are flying through the United States.
DHS agrees with the commenter that this would be an illogical result if
this were in fact what had been proposed. The proposed rule provided
that Canadians are subject to US-VISIT procedures only if they are
required to obtain a visa or be issued a Form I-94. Typically,
Canadians may transit through the United States by air without a visa
and are not required to obtain a Form I-94. See 8 CFR 212.1(a)(1) (no
visa required); 8 CFR 235.1(h)(1)(i) (no Form I-94 required). Canadians
needing a waiver of inadmissibility are required to obtain a visa even
if transiting the

[[Page 77479]]

United States. Thus, only these Canadians transiting the United States
but needing such a waiver and visa are subject to US-VISIT as a result
of publication of this final rule. Accordingly, the number of Canadians
transiting the United States by air who will be subject to US-VISIT is
small.
In the land context, another commenter suggested essentially the
same point, explaining a scenario in which a Canadian truck driver
entering the United States as a visitor for business (and who is thus
visa-exempt) would not be subject to US-VISIT processing, but where the
same person transiting through the United States to Mexico would be
subject to US-VISIT processing. The commenter conceded that this was
not currently a concern due to restrictions in hauling cargo between
the three countries, but that it could be a concern in the future. DHS
does not believe this scenario requires US-VISIT processing for the
same reason as in the air environment. The driver in the scenario posed
above--a truck driver taking cargo from Canada to Mexico--would not
require a visa to enter the United States, nor would he be issued a
Form I-94, regardless of whether he is ultimately driving to Mexico.
Thus, transiting aliens who do not otherwise require US-VISIT
processing would not be subject to US-VISIT processing as a result of
this final rule.
5. Crew Members
Two commenters suggested that Canadian airline crew members be
exempt from US-VISIT requirements. These commenters stated that crew
members are subject to significant levels of scrutiny to begin with,
including checks made by Transport Canada and placement on the Master
Crew lists provided to CBP 48 hours prior to departure. They also
stated that the same reasoning applied to the continuing exemption for
Canadian B1/B2 travelers appears to apply here, as each group is
staying for a limited period of time. Finally, they said that any
security benefits from these checks are insignificant compared to the
costs that Canadian airlines would incur as a result of the inclusion
of crew members in US-VISIT.
In promulgating this final rule, DHS is attempting to treat all
aliens as equally as operationally possible in US-VISIT processing. In
other words, crew from all other foreign carriers (D visa holders)
currently are required to be processed in US-VISIT, and in nearly all
airports there is a special crew lane designated especially for air
crew members' use. Based on observations from the four years that US-
VISIT has been operational, DHS does not believe that any delay for
crew travel has been so significant as to justify continuing to not
process airline crews through US-VISIT based on country of origin or
nationality. Second, DHS does not believe that the connection to
Canadian B1/B2 travelers is equivalent, as the exemption for those
travelers is meant to account for the unique operational concerns of
the land border environment. In addition, the extra checks that are
mentioned by the commenter are biographic checks, and not the biometric
checks that US-VISIT processing would provide.
However, the commenter also identifies an inequity faced by
Canadian crew with respect to biometric exit procedures. Because of the
large number of United States preclearance sites in Canada, Canadian
airlines often fly into United States domestic airport terminals. The
commenter states that if one of these airlines were to fly into a
United States airport where biometric exit processing were operational,
the Canadian crewmember would be required to leave the domestic
terminal, go to the international terminal, record his exit
biometrically, and then return to the domestic terminal for the next
flight.
DHS agrees with the commenter that under these specific
circumstances it may be unreasonable for Canadian airline crew members
to biometrically register their departure. The exit pilot program has
been terminated and, therefore, no pilots are being required to provide
to register their departure.

C. Mexican Citizens

Two commenters stated there should be no continued exemption for
Mexican citizens, as the BCC and Form I-551 are the same. Currently,
Mexican citizens who use a BCC to meet the documentary requirements of
8 CFR 212.1, if staying in the United States for 72 hours or less
within a specified distance from the United States/Mexico border, are
not required to obtain Form I-94 and, therefore, are not subject to US-
VISIT. See 8 CFR 235.1(h)(1)(iii), (v). The commenter is correct that,
from a security standpoint, BCCs are equivalent to Forms I-551 carried
by LPRs. DHS anticipates that procedures for interacting with these two
populations will be very similar. At air or sea ports of entry, both
populations will be biometrically checked on every encounter. At land
borders, under this final rule, LPRs and BCC holders will be checked as
appropriate by CBP officers. This final rule adds LPRs to the list of
travelers who, upon being referred to secondary inspection at land
border ports of entry, will be processed in US-VISIT. Thus, this rule
places LPRs and BCC holders in equivalent circumstances.

D. Operational Issues

1. Clarification of Procedures for Returning Nonimmigrants
One commenter professed confusion with the proposed regulation's
treatment of nonimmigrants returning through a land border port of
entry, suggesting that DHS should clearly state whether it plans to
conduct US-VISIT processing of all returning nonimmigrants arriving at
a land port who, during primary inspection, present a valid visa and a
current, multiple-entry Form I-94.
Nonimmigrant visa holders have been subject to US-VISIT processing
in secondary inspection at the 50 most trafficked land border ports of
entry since December 2004, and at all land border ports of entry since
December 2005. These procedures have been in place for three years, and
the additional alien classifications added by this final rule do not
change any existing land border procedures. Nonimmigrant aliens
requiring completion of a Form I-94 may be referred to secondary
inspection at any time at the discretion of the CBP officer at primary
inspection, but at least every six to eight months for renewal of the
Form I-94, regardless of the time remaining on the validity of the
document or whether it is issued for duration of status (D/S). Forms I-
94 issued following US-VISIT processing are marked with the date on
which the alien's period of admission expires (or duration of status,
if applicable) and the date on which the person was processed in US-
VISIT. At primary inspection, the alien is referred to secondary
inspection for US-VISIT processing if six to eight months have passed
since the last time the alien was processed in US-VISIT (depending on
the level of activity at the port of entry at that moment, the capacity
to efficiently process the alien, and other factors). If no adverse
information is found relating to that alien, the alien is admitted
under the existing terms of the original Form I-94.
The commenter characterizes this procedure as ``recurrent
readjudication of previously approved nonimmigrant status.'' DHS does
not agree with this characterization. Under the INA, each nonimmigrant
alien applies for admission to the United States by approaching a port
of entry and presenting identification for inspection, and DHS
determines whether that nonimmigrant alien is admissible to the United
States. See sections 101(a)(13),

[[Page 77480]]

212(a), 214, and 235(a)(3) of the INA (8 U.S.C. 1101(a)(13), 1182(a),
1184, and 1225(a)(3). DHS is not persuaded that requiring some
nonimmigrant aliens to undergo an abbreviated review every six to eight
months at the land border ports of entry is somehow illegitimate or
unfair to the nonimmigrant alien who is being inspected and admitted,
or denied admission. The DHS policy of requiring the alien to be
processed every six to eight months responds to the precise problem
raised by the commenter--a CBP officer has a two-month ``gap'' in which
to refer multiple entry aliens to secondary inspection for US-VISIT
processing in order to best select a time that would be the least
burdensome on the alien. DHS feels strongly that the balancing test
here--the need for additional security and an additional tool to combat
immigration fraud against what is, at worst, a minor inconvenience to
the alien--favors the proposed policy.
The commenter suggested also that the proposed regulation would
inject uncertainty and inefficiency into the process, as a Canadian
would need to carry the entire documentation for their visa
classification, as well as payroll records and employment records to
prove whatever the examining officer might decide is required to
establish maintenance of status. DHS policy does not currently require
such complex presentations on existing Forms I-94, nor does DHS
anticipate changing this policy as a result of this final rule.
Experience has established that the program is not being executed in
the way the commenter fears. Under the INA, an alien may be required to
present all of the appropriate evidence necessary to establish
admissibility at any inspection or at any time. See e.g. section 264(e)
of the INA, 8 U.S.C. 1304(e).
2. Real ID Act of 2005
One commenter suggested that the expansion of alien categories in
US-VISIT, in conjunction with the REAL ID Act of 2005, would have an
impact on the states' relationship with the federal government under
Executive Order 13132 because the REAL ID Act will require states to
issue driver's licenses with effective dates that do not exceed the
time permitted on the alien's admission period on the Form I-94. DHS
disagrees.
The REAL ID Act of 2005 prohibits federal agencies from accepting a
state driver's license or personal identification card for any
``official purpose'' unless it has been issued by a state that has
certified to, and been determined by DHS to meet, the minimum document
requirements, minimum issuance standards, and other requirements of the
REAL ID Act. See REAL ID Act of 2005, Public Law 109-13, Div. B, tit.
II, section 202, 119 Stat. 231, 302, 312 (May 11, 2005) (49 U.S.C.
30301 note). Nothing in the REAL ID Act or final rule pertains to the
expansion of the population of persons subject to US-VISIT requirements
under this final rule. The commenter's concern that under the REAL ID
Act and implementing regulations, states will issue REAL-ID compliance
licenses to aliens that track with period of the aliens lawful status
in the United States is outside the scope of this rulemaking action.
The present regulatory action to expand US-VISIT makes no regulatory
change that has a direct impact on the states. See 72 FR 10819.
3. Advance Passenger Information System
One commenter suggested that the proposed expansion of US-VISIT was
inconsistent with previous DHS regulatory statements regarding the
possible elimination of the Form I-94. DHS understands this concern and
believes that it is pursuing a consistent long-term goal that may
result in elimination of the Form I-94.
DHS currently requires the electronic transmission of manifest
information for passengers (passenger name record or ``PNR'') and crew
members to CBP in advance of those flights. Electronic Transmission of
Passenger and Crew Manifests for Vessels and Aircraft, 70 FR 17820
(Apr. 7, 2005) (Advance Passenger Information System or ``APIS'' final
rule); Advance Electronic Transmission of Passenger and Crew Member
Manifests for Commercial Aircraft and Vessels, 72 FR 48320 (Aug. 23,
2007) (``APIS Quick Query or ``AQQ'' final rule''). As noted in the
APIS final rule, DHS continues to study whether, and the extent to
which, the transmission of APIS data can replace the submission of
paper forms. At that time, DHS indicated that preliminary analysis
suggested that Forms I-94 and I-418 could be significantly reduced, if
not eliminated. That evaluation is ongoing as DHS pursues a
consolidated data analysis approach--beginning with applications for
visas to the DOS and machine-readable passports, through advance
passenger information, to inspection admission verification, and to
exit verification. As technological capacity further develops, DHS
believes that a unified system is possible and preferable. This
expansion of US-VISIT is one step toward that unified and streamlined
goal. As further steps become possible and are taken, appropriate
regulatory changes will be adopted and obsolete forms eliminated.
4. Connection to IDENT/IAFIS Interoperability
One commenter questioned the inter-connections between US-VISIT
under the changes in the regulations as proposed and IDENT, and the
Federal Bureau of Investigation's (FBI's) Integrated Automated
Fingerprint Identification System (IAFIS). The commenter expressed
concern that IDENT database entries might be made available in the
IAFIS database and opposed any plan to place civil immigration
violations in a criminal database. Finally, the commenter requested an
update on the ability of the systems to timely reflect changes and
extensions of status. The commenter suggested that the proposal to
expand US-VISIT to additional alien populations should wait for full
IDENT/IAFIS integration.
IDENT is a DHS-wide electronic record system for the collection and
processing of biometric and limited biographic information in
connection with the national security, law enforcement, immigration,
intelligence, and other mission-related functions of DHS, as well as
for any associated testing, training, management reporting, planning
and analysis, or other administrative uses. See 71 FR 42651 (July 27,
2006) (systems of records notice for IDENT).
IAFIS is a national fingerprint and criminal history system
maintained by the Criminal Justice Information Services (CJIS) Division
of the FBI. IAFIS provides automated fingerprint search capabilities,
latent searching capability, electronic image storage, and electronic
exchange of fingerprints and responses. As a result of submitting
fingerprints electronically, agencies receive electronic responses to
criminal ten-print fingerprint submissions within two hours and within
24 hours for civil fingerprint submissions.
DHS, DOJ, and DOS are collaborating to achieve interoperability
between IAFlS and IDENT. See 71 FR 67884, 67885 (Nov. 24, 2006)
(Interim Data Sharing Model). Interoperability is defined as the
sharing of alien immigration history, criminal history, and terrorist
information based on positive identification and the interoperable
capabilities of IDENT and IAFIS. Interoperability between the two
systems is expected by late 2009. DHS and FBI already share information
for the most egregious offense data sets held by the FBI, including
known or suspected terrorists, wanted persons,

[[Page 77481]]

and sex offenders, as well as serious immigration violators.
It is unclear from the comments why the proposal to expand the
classifications of aliens subject to US-VISIT should wait for full
IDENT/IAFIS interoperability. DHS currently receives substantial
benefits from screening without interoperability because US-VISIT
identifies existing aliens requiring further review (e.g. criminal
warrants, prior deportations, etc.).
Whether immigration violations are made available to law
enforcement officers through IAFIS is not germane to this final rule.
As IDENT/IAFIS interoperability moves forward, any such determination
will be discussed in the appropriate PIAs by the appropriate Department
if and when contemplated.
Finally, although not germane to the rulemaking, DHS notes that
biographic data from USCIS are transmitted to the Arrival Departure
Information System (ADIS) so that changes to immigration status are
reflected in US-VISIT in near-real time. Accordingly, US-VISIT has the
capability to ensure that aliens who are in lawful status are not
determined to have stayed past their original periods of admission if
that period has been extended by USCIS.
5. Biometric Identifiers
One commenter inquired about the language in the proposed rule that
reserves the ability for DHS to collect ``other biometric identifiers''
in addition to photograph and fingerprints. This language is
prophylactic. At this time, DHS has no plans to collect biometric
identifiers in addition to photographs and fingerprints. However, DHS
also recognizes that historically, other biometric identifiers such as
height, weight, color of hair, color of eyes, etc., have been recorded,
and this language continues to reflect that historic fact. Moreover,
technological development may provide the capacity for use of other
biometric identifiers in the future. DHS will make, as appropriate,
changes in Privacy Impact Assessments and Systems of Records Notices
for these systems.
Another commenter suggested that visual comparison of photographs
is sufficient for identification. DHS disagrees. Document fraud, in
some instances, has been effective in creating a false identity that
defeats simple visual inspection of photographs with the face of the
bearer. In addition, the commenter's suggestion overlooks the purpose
of positive freezing of an identity with fingerscans to determine
whether the individual is admissible to the United States or has
committed criminal or terrorist acts that bar admission.
6. Age Restrictions
One commenter stated that the age limitations on the requirement to
be processed in US-VISIT were too narrow, saying the program should be
applicable to no one over the age of 60 years old, as opposed to over
the age of 79. Another commenter suggested the opposite, saying that
the age range should be expanded to cover those between the ages of 10
and 85.
US-VISIT processing is currently required of aliens who are between
the ages of 14 and 79 and otherwise required to enroll and be verified
in US-VISIT. Technically, it is possible to include more individuals
who are younger and older than these age limitations. However, this age
range is consistent with longstanding DHS and legacy INS policy
concerning the fingerprinting of those seeking immigration benefits,
including adjustment of status to permanent resident and
naturalization. DHS uses exemptions consistent with these limitations.
DHS may reconsider these age ranges in the future, but does not do so
as part of this regulation. The current exemptions will continue to
apply equally to all of the aliens enrolled in US-VISIT.
7. Exemption of Individual Aliens
One commenter objected to language in the proposed 8 CFR
215.8(a)(2)(iv) and 8 CFR 235.1(f)(1)(iv)(D) that allows the Secretary
of Homeland Security, the Secretary of State, or the Director of
Central Intelligence to exempt any individual alien from the biometric
entry or exit processes. Each of these three departments has specific
reasons why a particular person should be exempt from the biometric
collection process that is integral for their core mission. The
individualized decision to exempt an alien is based on the interests of
the United States in managing its foreign and military affairs and
poses no risk to the security of the United States.

E. Privacy and Information Retention

Several commenters raised concerns relating to privacy,
particularly the privacy of particular groups of aliens and DHS
compliance with the Privacy Act, 5 U.S.C. 552a.
One commenter stated that DHS has not met its responsibilities
under the Privacy Act by failing to publish a Privacy Impact Assessment
(PIA). DHS has published a PIA. 71 FR 42653 (July 27, 2006). Though not
legally required to do so because nonimmigrants are not covered by the
Privacy Act, DHS, as a matter of policy, has considered all aliens
subject to US-VISIT as warranting Privacy Act analysis. DHS has
published numerous PIAs and System of Record Notices (SORNs) for the
systems making up US-VISIT. The PIAs published by US-VISIT list the
principal users for, and uses of, the data contained within US-VISIT/
DHS systems. The PIAs also identify the extent that the information may
be shared with other law enforcement agencies of the United States,
State, local, foreign or tribal governments, who, in accordance with
their responsibilities, are lawfully engaged in collecting law
enforcement intelligence information and/or investigating, prosecuting,
enforcing or implementing civil and/or criminal laws, related rules,
regulations, or orders. DHS has published the PIAs (www.dhs.gov/privacy) and provided links to the system of records notices for the
US-VISIT program. See, e.g., 68 FR 69412 (Dec. 12, 2003); 68 FR 69414
(Dec. 12, 2003); 69 FR 482 (Jan. 5, 2004); 69 FR 57036 (Sept. 23,
2004); 70 FR 35110 (Jun. 16, 2005); 70 FR 38699 (July 5, 2005); 70 FR
39300 (July 7, 2005); 71 FR 3873 (Jan. 24, 2006); 71 FR 13987 (Mar. 20,
2006); 71 FR 42653 (July 27, 2006); 71 FR 42651 (July 27, 2006).
One commenter objected to the data retention policies of the US-
VISIT system, stating that DHS does not have adequate justification for
taking new photographs and fingerprints of aliens at each encounter.
Another commenter questioned whether DHS should retain identification
information perpetually, even if the alien later became a United States
citizen. DHS is currently reviewing the retention policy for the
Arrival Departure Information System (ADIS) and plans to adjust that
policy to be consistent with the retention policy for IDENT, which is
part of US-VISIT. IDENT is an encounter-based system compiling a
complete travel history to permit DHS to prevent fraud and provide
evidence of each particular encounter. DHS disagrees with the
commenters' conclusion that insufficient justification exists for this
system.
In addition, DHS uses the historical fingerscans to ensure that the
best quality prints are matched against watchlists. This ``best print
forward'' process involves evaluating the quality of the prints each
time DHS encounters an alien and using the best quality print from that
point on. DHS is less and less likely to receive a ``false positive,''
as the quality of prints will improve over a lifetime of encounters--
both because of this quality selection process and because of
improvements in the

[[Page 77482]]

hardware and software used in the process.
Another commenter questioned how many adverse actions were based on
``false positives.'' None of the adverse actions were based on false
positives. DHS is aware of the potential of false positive ``hits''
against immigration and criminal databases and has taken documented
steps to address this potential. Currently, US-VISIT uses a series of
matching algorithms and thresholds developed in consultation and
testing with the United States National Institute of Standards and
Technology (NIST). An automated fingerprint comparison establishes
mathematical scores of matching and non-matching, and a non-conclusive
score is checked manually by a fingerprint examiner located at the DHS
Biometric Support Center. The Biometric Support Center manually
determines whether any ``close'' match is a ``false positive'' on a 24-
hour, seven-day-per-week basis.
Three commenters stated that what they perceived to be low numbers
of ``adverse actions'' against those being matched against biometric
databases provided evidence that the program should be scaled back
instead of expanded. DHS does not agree and does not measure the
success of the program solely by the specific number of adverse
actions. Further, the number of adverse actions pertains to those in
which the person was identified solely by biometric information. It
also excludes those who were identified but ultimately admitted.
Finally, it obviously does not include those who were deterred by the
system in the first place. Overall, measuring a program's success by
the detection of the things it is designed to prevent does not
necessarily lead to significant conclusions.

F. International Conventions

One commenter argued that the proposed rule would violate the
obligations of the United States under Articles 10, 12, and 21 of the
International Covenant on Civil and Political Rights (ICCPR) of 1966
relating to detention, freedom to leave a country, and assembly. The
commenter suggests that these provisions apply in the border management
process when a person requests admission at a port of entry. [I sent
question to Nina and Elizabeth]DHS disagrees. The ICCPR is not self-
executing and was ratified with limitations and understandings. See
International Covenant on Civil and Political Rights, Dec. 16, 1966,
999 U.N.T.S. 171, 6 I.L.M. 368, as signed and submitted see Four
Treaties Pertaining to Human Rights, Feb. 23, 1978, S. Exec. Docs. C,
D, E, and F, 95th Cong., 2d Sess. (1978); as reported S. Exec. Rep. No.
23, 102d Cong., 2d Sess. 2 (1992); as considered and ratified in the
Senate 138 Cong. Rec. 8070--8071 (1992); see Multilateral Treaties
Deposited with the Secretary-General: Status as of 31 Dec. 1995, at
122, 130, U.N. Doc. ST/LEG/SER.E/14 (1996); Sosa v. Alvarez-Machain,
542 U.S. 692, 734-35 (2004) (stating that the ICCPR is not self-
executing). The United States takes its international obligations
seriously, and this rule violates no provision of the ICCPR.
Article 10 of the ICPPR is not applicable to the border management
process by definition--Article 10 applies to the detention of persons
for violation of the criminal laws of a signatory country. Although the
ICCPR does not apply to this rule, DHS also does not believe there is
anything inherently degrading or inhuman about the current US-VISIT
process. Moreover, individuals often provide pictures for the purpose
of obtaining a benefit--most notably in the context of obtaining a
driver's license, a passport, or some other form of identification and
associated benefit. Photographs and fingerscans are common commercial
identifying events.
Article 12 permits freedom to depart a country and limits any
restrictions to those that are provided by law; are necessary to
protect national security, public order, public health or morals, or
the rights and freedoms of others; and are consistent with the other
rights recognized by the present ICCPR. US-VISIT does not unduly
restrict departure from the United States--it merely records departure.
Many signatory countries to the ICCPR use some exit registration, and
exit registration is generally considered to be consistent with the
ICCPR.
Article 21 provides for the right of peaceful assembly, except that
restrictions may be placed on the exercise of this right which are
necessary in a democratic society in the interests of national
security, public safety, public order, the protection of public health
or morals, or the protection of the rights and freedoms of others.
However, nearly all governments can, and do, inspect people traveling
across their international borders, and they do so in every country
every day. Accordingly, DHS does not believe this rule violates or
impacts any of the obligations of the United States under the ICCPR.

G. United States Citizen Voluntary Enrollment

Three commenters stated that US-VISIT should be applied to all
travelers, regardless of citizenship, for security reasons. Three
commenters stated explicitly that they were opposed to this in the
context that application of US-VISIT to LPRs would mean the eventual
application to United States citizens. One commenter stated that there
should be provisions through which United States citizens could
voluntarily be biometrically identified through US-VISIT as a means of
getting through security faster at airports. On the first point, DHS is
limited by statute and regulation to apply US-VISIT to aliens. On the
second point, DHS is exploring several types of ``registered traveler''
programs which may accomplish the same goal. Overall, this objective
could be accomplished in the future, and DHS is exploring it, just not
through US-VISIT.

H. Economic Impact

One commenter stated that DHS incorrectly certified that it was not
required to conduct a Regulatory Flexibility Analysis, as required by 5
U.S.C. 603. In the NPRM, DHS did certify that such an analysis was not
required, pursuant to the provisions of 5 U.S.C. 605(b), which provides
that the requirement for an analysis does not apply if the head of the
agency certifies that the rule will not have a substantial affect on
small entities as that term is defined at 5 U.S.C. 601(6). See 71 FR at
42608.
The definitions for the Regulatory Flexibility Act provide that the
term ``small entity'' is the composite of the terms ``small business,''
``small organization,'' and ``small governmental jurisdiction.'' 5
U.S.C. 601(6). Normally a ``small business'' has the same meaning as
the term ``small business concern'' under section 3 of the Small
Business Act, 15 U.S.C. 632. A ``small organization'' generally means
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field. And, finally, a ``small governmental
jurisdiction'' generally means governments of cities, counties, towns,
townships, villages, school districts, or special districts with a
population of less than fifty thousand. Although the statute permits
deviation from these terms by following an established statutory
procedure, DHS does not apply any different definition for this
purpose. 5 U.S.C. 601 (3), (4), (5).
The Regulatory Flexibility Act applies to individuals only to the
extent that

[[Page 77483]]

they are sole proprietors of businesses that are small entities; for
example, an independent trucker. The Regulatory Flexibility Act does
not apply to individuals, but to small businesses (for profit or not
for profit), whether a sole proprietorship, a partnership, or a
corporation, and small governmental entities, not the individuals who
may own or belong to those organizations.
One commenter stated that DHS was incorrect to include in its
Executive Order 12866 benefit/cost statements of the proposed rule that
there are no potential costs or consequences associated with this rule
that would impede the free flow of commerce and trade. The commenter
suggests that Executive Order 12866 requires DHS to publish a thorough
explanation as to how US-VISIT will benefit the efficient functioning
of the economy and private markets and a full assessment of the costs
of US-VISIT.
DHS believes that the commenter relies heavily on the notion that
DHS plans to enact user fees to finance the US-VISIT program. As noted
above, US-VISIT is funded by appropriations. DHS has no plans to charge
a user fee to those seeking admission to the United States to finance
US-VISIT.
DHS is required to weigh the benefits and costs of the changes of
this particular rule. US-VISIT has, by design, been implemented in
stages--for technology, operational, and cost reasons. This expansion
of the classifications is another step for the program, and one in
which DHS has weighed the benefits and costs. First, as stated
previously, no additional individuals will be processed as part of US-
VISIT at a land border without being sent to secondary inspection. The
only aliens being added to land border secondary inspection under this
rule are Canadian visa holders with a multiple entry Form I-94, and
only once every six to eight months. In these instances, a Canadian
being processed in secondary inspection may experience a fifteen second
US-VISIT processing time, but this would be part of a several minute
processing time in secondary inspection for reissuance of a Form I-94.
Further, there is ample evidence, discussed in the proposed rule, that
US-VISIT has actually reduced waiting times in the secondary
environment at the land borders. DHS does not have any empirical
evidence that the economies of land border communities will be
adversely affected by expansion of US-VISIT. Moreover the commenters
have not cited any empirical evidence supporting such an adverse
effect.
Additionally, commenters raised questions relating to staffing,
space, security, and technology costs. As discussed above, in the
proposed rule, and in previous rulemakings and notices, DHS has already
deployed US-VISIT technological capability into virtually all primary
lanes at air and sea ports of entry and in all secondary inspection
environments in land border ports of entry. Therefore, the deployment
costs, space, and technology issues are virtually nonexistent.
Similarly, all CBP officers in air and sea primary inspection, and in
secondary land inspection, are trained on the existing US-VISIT
equipment and are already familiar with its use. Finally, DHS believes
that expanding a biometric entry-exit system is more likely to increase
security for the United States. Security, as the foundation for the US-
VISIT program, is a point made numerous times by the 9/11 Commission
Report and Congress.

I. Attorney Representation

One commenter suggests that attorneys should be permitted to
represent applicants for admission to the United States in the
inspection area. As an initial matter, this suggestion is not germane
to the issues presented by the proposed rule. Any affirmative response
to the comment would require substantial changes in regulations and
procedures not addressed by the proposed rule to expand the
implementation of US-VISIT. DHS, however, wishes to be responsive to
the comment.
DHS has considered this proposal in the past and will not implement
this proposal because it is neither required by law nor good policy.
Congress has specifically provided for the expedited removal of aliens
seeking admission who are inadmissible to the United States because of
misrepresentation or on deficient or non-existent documentation.
Section 235(b) of the Act, 8 U.S.C. 1225(b)(3). An applicant for
admission to the United States may be permitted to withdraw his or her
application for admission to the United States and depart immediately
from the United States. Section 235(a)(4) of the Act, 8 U.S.C.
1225(a)(4). Removal proceedings for other aliens seeking admission to
the United States are conducted before an immigration judge and the
alien has the privilege of counsel during those proceedings. Sections
292, 240(b)(4)(A) of the Act, 8 U.S.C. 1362, 1229a(b)(4)(A).
The introduction of the concept of legal counsel into a secured
international inspection area would severely disrupt the efficient
processing of the vast majority of international travelers for little,
if any, benefit. Inspection of aliens and accompanying luggage is
conducted very rapidly in a secured inspection environment for a number
of different purposes. Facilities for detailed questioning in secondary
inspection are limited. No evidence has been presented to DHS that
suggests that any benefit accrues from permitting counsel to consult
with clients in this environment when they are free to consult prior to
seeking admission to the United States or if they are placed in removal
proceedings.
Accordingly, DHS' regulations provide that:

[n]othing in this paragraph shall be construed to provide any
applicant for admission in either primary or secondary inspection
the right to representation, unless the applicant for admission has
become the focus of a criminal investigation and has been taken into
custody.

8 CFR 292.5(b).

Additionally, DHS does not believe that the expansion of US-VISIT
requires a change to the existing regulation because US-VISIT does not
significantly alter the inspection or admission process for aliens.
Accordingly, DHS declines to expand the privilege of counsel into the
secure inspection environment.

J. Pacific Rim Issues

A commenter expressed concern that the inclusion of those applying
for admission under the Guam Visa Waiver Program could impair overall
processing times at the Guam port of entry, noting that this specific
inclusion affected a large number of individuals applying for admission
in a port of entry that has limited capacity. The commenter suggested
that DHS should be sure to adequately staff that port of entry and have
a robust outreach strategy for those entering Guam.
The Guam Visa Waiver Program was established by section 14 of the
Omnibus Territories Act, Public Law 99-396, sec. 14(a), 100 Stat. 837,
842 (Aug. 27, 1986) (adding section 212(l) to the INA, 8 U.S.C.
1182(l)), and is reflected in the regulations at 8 CFR 212.1(e).
Citizens of many Pacific nations are exempt from the requirement of a
visa if they are entering Guam as a visitor for business or pleasure,
are staying for 15 days or less, and waive the right to contest any
removal decision. To date, those entering under the Guam Visa Waiver
Program have not been required to be processed in US-VISIT.
DHS shares the commenter's concern and understands that inclusion
of those seeking admission to Guam under the Guam Visa Waiver Program
will impact

[[Page 77484]]

that particular port disproportionately. DHS will make significant
efforts to ensure that the outreach plan to nations in the Pacific is
equivalent to the outreach when US-VISIT began and that the Guam port
of entry has the resources it needs to process aliens in a timely
manner. In addition, DHS has existing mitigation strategies in place
for instances of excessively long wait times at immigration inspection
and will monitor carefully the Guam port of entry to determine whether
to invoke those procedures.
Another commenter suggested that aliens from the Federated States
of Micronesia need to be added to the US-VISIT program. DHS agrees;
Micronesia nationals would be covered under the definition in 8 CFR
235.1 in the proposed rule and in this final rule.

III. Comments on the August 31, 2004 Interim Rule

A. General

DHS received a number of general comments on the US-VISIT program
as a whole. These comments were mixed, and many expressed strong
feelings about the program. Some commenters raised general immigration
issues, such as whether the United States admitted the appropriate
number of immigrants, whether treatment of Mexicans and Canadians was
inequitable, and whether the program amounted to a stigma against the
presumption of innocence. These comments are beyond the scope of the
regulation and raise questions of whether Congress should alter the
immigration laws of the United States.
These comments, however, indicate a misunderstanding of some of the
basic laws that underlie the regulations. Every person arriving at the
border of the United States must be inspected and every alien's
admissibility to the United States must be determined. Under the
immigration laws of the United States, the person seeking admission to
the United States must establish that they are a United States citizen
or a foreign national eligible for admission. See sections 212, 235 of
the Immigration and Nationality Act (INA) (8 U.S.C. 1182, 1225).
Inspection and admissibility upon arrival to the United States involves
verification of the identity of the alien and a determination that the
alien is admissible to the United States, i.e., that the alien has
established that the alien has permission to be admitted and is not
ineligible for admission by reason of any of the disqualifying
provisions in the Immigration and Nationality Act, as enacted and
amended by Congress.
The scope of the US-VISIT program, under the authorizing statutes
discussed above, is, however, properly within the scope of the
rulemaking. The 9/11 Commission pointed out that ``targeting travel is
at least as powerful a weapon against terrorists as targeting their
money'' and recommended a biometric entry-exit screening system as a
result. T. Kean, et al., Final Report of the National Commission on
Terrorist Attacks Upon the United States (9/11 Commission Report)
(Government Printing Office, 2004) at 389. In successive enactments
before and after the 9/11 Commission Report, Congress has insisted that
DHS establish a comprehensive entry-exit data entry system.
Accordingly, DHS has established the US-VISIT program and will, as
practicable and subject to certain limited exceptions, expand the
program to record the entry of all aliens. DHS recognizes that many
individuals perceive distinctions within the universe of non-U.S.
citizens as unfair, but most of these distinctions are made by Congress
as a matter of law and cannot be changed by DHS. Distinctions within
the universe of non-United States citizens made by DHS in the US-VISIT
program reflect assessments of risk and threat, practicality of
implementation based on international relations, capacity to implement
universal alien data capture, and technological and other limitations.

B. Outreach to the Affected Public

Six commenters raised concerns about US-VISIT in terms of sharing
information, most notably the concerns of the border communities. Three
commenters raised the concerns of small businesses generally--that US-
VISIT would result in fewer travelers and tourism and hurt the economy
(and small businesses) as a whole. These commenters encouraged outreach
to the affected communities and suggested that substantial notice be
given to the public before changes to the program take place.
DHS disagrees with the notion that US-VISIT will result in fewer
travelers and tourism. DHS is aware of no empirical evidence, and the
comments have provided no empirical evidence, that the recordation of
fingerscans in US-VISIT and verification of identities has an adverse
impact on the number of travelers or tourists seeking admission to the
United States, or that the development of US-VISIT will harm small
businesses or the economy.
DHS, though US-VISIT, is committed to ensuring effective outreach
to all persons affected by the program. Since 2004, US-VISIT has
implemented an ongoing strategy to facilitate dialogue with land border
communities in the United States, Mexico, and Canada, engaging
stakeholders in two-way discussions that allowed US-VISIT to learn and
understand the specific issues and concerns related to border
management in those communities. At the same time, this dialogue has
created opportunities to educate stakeholders about the US-VISIT
program, informing them of developments in program implementation, and
gaining their assistance in reaching out to inform their own
constituents about the program.
Since February 2004, DHS has hosted or participated in over 100
meetings with land border stakeholders in communities along the borders
of, and in the interiors of, the United States, Mexico, and Canada.
These meetings occurred in Texas, Arizona, New Mexico, California,
Washington, Minnesota, Michigan, New York, Vermont, and Maine. In
Canada, outreach was coordinated in Toronto, Vancouver, Montreal,
Windsor, Sarnia, Ottawa, and Winnipeg. In Mexico, outreach activities
were held in Mexico City, Reynosa, Tijuana, Ciudad Jaurez, Monterrey,
Nuevo Laredo, and Matamoros. DHS has placed numerous advertisements in
publications serving border communities in the United States and Mexico
to advise the public directly of the US-VISIT process.
DHS and US-VISIT have coordinated extensively with Canada on issues
relating to the approximately 5,500-mile mutual border, through forums
such as the Bi-National Technical Working Group, the Security and
Prosperity Partnership (SPP), and participation in the Shared Border
Accord meetings. The SPP is a trilateral effort to increase security
and enhance prosperity among the United States, Canada, and Mexico
through greater cooperation and information sharing. Through SPP, the
United States and Canada have explored options for lower-cost, secure
proof of status and nationality documents to facilitate cross-border
travel, and have tested technology and made recommendations to enhance
the use of biometrics in screening travelers.
DHS and US-VISIT have coordinated extensively with Mexico on issues
relating to the 1,951-mile mutual border, including the Bi-National
Technical Working Group. Mexico's National Institute of Immigration
(INM) has helped to ensure that US-VISIT's education efforts are
culturally appropriate so they can successfully reach, educate, and
inform key population groups or communities in Mexico.

[[Page 77485]]

The effort to educate and engage the diverse border communities
contributed significantly to US-VISIT's ability to implement the
program at the 50 most trafficked land border ports of entry in 2004
and to deploy US-VISIT at the remaining 104 land border ports of entry
where aliens are processed in 2005. The outreach efforts were critical
to the smooth pilot testing and deployment of US-VISIT entry procedures
at land border ports of entry.
DHS and US-VISIT recognize that outreach benefits not just the
public, but the government as well. The success of the US-VISIT program
is contingent on effective outreach. DHS and US-VISIT are committed to
continue this outreach effort for future steps in the program.

C. Use of Interim Rules

Three commenters suggested that the use of interim rules by DHS in
the previous two US-VISIT rules was inappropriate.
DHS has used interim rules twice in the development of US-VISIT. In
a January 5, 2004, interim rule, DHS implemented the first phase of US-
VISIT and provided 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. The rule exempted several
groups of aliens:
Those with diplomatic recognition (A-1, A-2, C-3 (except
for attendants, servants or personal employees of accredited
officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5,
or NATO-6 visas, unless the Secretary of State and the Secretary of
Homeland Security jointly determine that a class of such aliens should
be subject to the rule);
Children under the age of 14;
Persons over the age of 79;
Classes of aliens the Secretary of Homeland Security and
the Secretary of State jointly determine shall be exempt;
And an individual alien whom the Secretary of Homeland
Security, the Secretary of State, or the Director of Central
Intelligence determines shall be exempt.

69 FR 468 (Jan. 5, 2004). At the same time, DHS published a notice in
the Federal Register setting forth the classes of aliens subject to US-
VISIT and the air and sea ports where US-VISIT would be applicable. 69
FR 482 (Jan. 5, 2004). DHS received 21 comments on that interim rule
and responded to those comments in the August 31, 2004, interim rule.
69 FR at 53323-53329.
On August 31, 2004, DHS implemented the second phase of US-VISIT
through an interim rule that expanded the US-VISIT program to land
border ports of entry in the United States. That interim rule also
further refined the population of aliens who are required to enroll in
US-VISIT to include VWP travelers and ship crewmembers, and it exempted
Mexican nationals who present a Border Crossing Card (Form DSP-150, or
BCC), aliens who are not required to be issued a Form I-94 Arrival/
Departure Record, and certain officials of the Taipei Economic and
Cultural Representative Office. This interim rule is being finalized in
this final rule. Subsequently, DHS has published notices applying US-
VISIT to all land border ports of entry, implemented at secondary
inspection.
DHS appreciates and understands the concern expressed by the
commenters on the use of interim rules to implement the US-VISIT
program. Consistent with the Administrative Procedure Act, DHS
publishes proposed rules for public notice and comment whenever
possible. 5 U.S.C. 553. Where DHS determines that expedited
promulgation of a rule is required and has good cause to publish and
make effective an interim final rule before receiving and considering
public comments because delay would be impractical, unnecessary, or
contrary to the public interest, DHS provides a clear statement to that
effect. 5 U.S.C. 553(b)(B). DHS is committed to providing the public
with an opportunity to comment on its rules and to considering public
comments in making final decisions in promulgating rules.
One commenter questioned whether the August 31, 2004, interim rule
contained sufficient information to permit the public comment on the
second phase of US-VISIT. The scope and content of the comments
received indicate that DHS provided ample information to support the
interim rule, and DHS is responding to those comments in this final
rule.
That interim rule included a sixty-day comment period.
Additionally, the comment period was extended to 90 days (expiring on
December 1, 2004) to provide an opportunity for commenters to observe
and comment on the land border implementation (which began November 15,
2004). 69 FR 64477 (Nov. 5, 2004).
DHS is committed to ensuring that the public is able to comment on
all aspects of the US-VISIT program. DHS is also committed to providing
as much information as possible to permit public comment on the
implementation of rulemaking.

D. Facilities

Five commenters suggested that existing inspection facilities could
not handle, without significant delays, any broad changes to the
existing inspection procedures. One commenter suggested the need to
create expedited lanes for frequent travelers, believing that the
existing infrastructure was inadequate to make these types of changes.
To date, US-VISIT implementation at the land borders has not caused
any significant delays and has actually decreased processing time at
many ports due to the implementation of an automated Form I-94 issuance
process at secondary inspection. As indicated in the proposed rule, US-
VISIT has significantly decreased entry timing at certain monitored
land border ports of entry. 71 FR at 42609.
While land border infrastructure is constrained, DHS has taken
steps to alleviate congestion, such as implementing frequent traveler
programs and dedicated lanes for their travel, where possible.
One commenter specifically suggested that including a broad number
of Canadians in US-VISIT would have a detrimental effect on northern
border facilities. This final rule and the July 27, 2006, proposed rule
describe how DHS will include some Canadians in US-VISIT processing at
land border inspection. DHS agrees that there are significant
technological difficulties associated with implementing US-VISIT at
land borders for all aliens' entry and exit through primary inspection.
Whether expansion of US-VISIT will include installation at all primary
inspection booths is, at this point, unclear. This rule establishes
that only a small number, and not all, Canadians will be processed in
US-VISIT at secondary inspection. DHS, thus, believes that the impact
on northern border facilities will be minimal.

E. Interaction With Existing Programs

Ten comments discussed US-VISIT interoperability with other
existing programs that collect biometric or biographic information,
most often those that impact the land borders, such as the Secure
Electronic Network for Travelers Rapid Inspection (SENTRI), Free and
Secure Trade (FAST), and NEXUS. Some commenters were concerned that
multiple checks were repetitive and would not contribute to security,
although they would slow down processing at the borders and airports.
Other commenters noted that other programs have already vetted specific
travelers and that further

[[Page 77486]]

security checks through US-VISIT are redundant.
DHS is committed to ensuring that international travel is both
secure and efficient, and, therefore, is exploring ways to
appropriately integrate US-VISIT, SENTRI, FAST, NEXUS, and other border
screening and credentialing programs. DHS acknowledges the validity of
the commenters' concern that multiple systems can create unnecessary
redundancy. DHS is committed to ensuring that any unnecessary
redundancy and inefficiencies are not perpetuated and that all border
crossing programs are appropriately integrated over time.

F. Staffing and Training

Five commenters suggested that US-VISIT could have a negative
impact if other areas of DHS did not support the program. For example,
a few commenters stated that too few CBP officers were knowledgeable
about issues surrounding US-VISIT and how it could affect
admissibility.
Following the initial rollout of US-VISIT, DHS has taken additional
steps to address this issue. For example, DHS sent training teams to
all 50 land border ports of entry to instruct officers about the
process changes as a result of US-VISIT implementation. In addition,
DHS set up a telephone call center through the rollout of the 50
busiest ports of entry in November and December of 2004. In the Summer
and Fall of 2005, other training steps were taken in conjunction with
the rollout of the additional 104 land border ports of entry, including
sending field trainers to each additional port implementing US-VISIT
and providing on-line refresher courses on US-VISIT policies and
procedures. US-VISIT procedures are implemented through the CBP
management, training of officers, policy memoranda, and operational
direction.

G. Travel and Delays

Six commenters expressed concern over the waiting periods in the
inspection process that they claimed were caused by US-VISIT. These
comments covered both past events in the air and sea context and
concerns over future land border processes, and attributed delays to
too few inspection booths and the inability of scanners to read
fingerprints on the first try. Other commenters acknowledged shortened
processing times due to the increase in the number of CBP officers
available, but noted delays attributed to fingerprints not always being
effectively scanned on the first try.
DHS is committed to ensuring that US-VISIT will be as least
burdensome as possible while accomplishing its mission and understands
that facilitating legitimate travel and trade is one of the program's
core goals. DHS attempts to ensure that there are adequate numbers of
CBP officers to clear flights as expeditiously as possible. While DHS
believes that it largely succeeds in this mission, it acknowledges that
there are times when international passengers are not inspected as
quickly as they or DHS would like. DHS is responsible for ensuring that
all international travelers seeking admission to the United States are
who they claim to be and are eligible for admission. The balancing of
these responsibilities can occasionally cause delays.
DHS takes steps to increase CBP officer presence during peak hours.
In addition, DHS has taken steps at various ports to attempt to improve
the ability to read fingerprints quickly. For example, DHS has been
experimenting with attaching a silicon film to the fingerscan reader to
get more accurate readings, and this process has yielded good results
thus far. DHS will continue to ensure that the US-VISIT process does
not unduly delay the inspection process.
At the land border ports of entry, the current process for land
border inspection remains largely the same as it was prior to the
implementation of US-VISIT. Aliens who must acquire Form I-94 as
evidence of admission are referred to secondary inspection rather than
being processed in the primary inspection lanes. This process will
continue following the publication of this final rule.
Another commenter raised the issue of implementing US-VISIT at the
50 most highly trafficked land borders in November and December of
2004, stating that this was the busiest time of the year due to the
holidays, and suggested waiting until January 2005. DHS understands
this concern, but DHS was required to implement US-VISIT at the 50
busiest land borders by December 31, 2004. DHS sought to avoid this
issue when expanding US-VISIT to all other land border ports of entry
in 2005. See 70 FR 54398 (Sept. 14, 2005) (additional ports being added
prior to December 31, 2005). In future expansions of US-VISIT, DHS
plans to avoid implementing changes during the peak travel times of the
year. However DHS must reserve the decision on timing of future
implementation until decisions are made based on all requirements at
that time.
Two commenters raised concerns involving third-party nationals
crossing at land borders, specifically the southern border. One
suggested that a strict interpretation of the existing regulations
would require an alien who is not Mexican, but who has a multiple-entry
Form I-94 and is a frequent border crosser (such as a person living on
one side of the border and working on the other), to be processed in
US-VISIT for every entry. DHS has not implemented such a policy. Those
with multiple-entry Forms I-94 are required to undergo US-VISIT
processing upon the expiration of their existing Form I-94, or every
six to eight months.

H. Health Risks

Citing the United States Department of Health and Human Services'
Bureau of Primary Health Care, two commenters suggested that southern
border communities have a higher rate of communicable diseases, such as
tuberculosis. The commenters suggested that biometric fingerprinting
could exacerbate this incidence and create exposure to both the CBP
officers working on the southern border and United States citizens
living in the border communities. Another commenter raised similar
health concerns regarding the US-VISIT process in the air and sea
environment.
DHS is aware of these health concerns and believes that they are
not influenced by US-VISIT. Tuberculosis is an airborne bacterial
infection transmitted by air, and to become infected, an individual
must usually be exposed to an infection source for an extended period
in a closed environment. In 2005, 14,097 tuberculosis (TB) cases were
reported to the Centers for Disease Control and Prevention (CDC) from
the fifty states and the District of Columbia. CDC, Reported
Tuberculosis in the United States, 2005, Sept. 2006, at 3, available at
http://www.cdc.gov/nchstp/tb/surv/surv2005/PDF/TBSurvFULLReport.pdf.
DHS believes that fingerprint scans do not impact the chances of
transmitting tuberculosis, as the disease is spread through the air and
transmission requires an extended period of contact with a person
carrying it, not the short period of time required for enrollment.
Similarly, there is no risk that US-VISIT contacts will cause
contraction or transmission of viral haemorhagic fevers (such as Ebola,
Lassa, Marburg, Congo-Crimean), bioterrorism diseases (plague, anthrax,
tularemia), bloodborne diseases (HIV, hepatitis B and C virus), soil-
transmitted diseases (worms, dermatophytes, sporeforming bacteria), or
vectorborne diseases (malaria, dengue, leishamaniasis, trypansomiasis).

[[Page 77487]]

CBP officers clean the fingerscan machines periodically using lint-
free wipes and rubbing alcohol to mitigate the public's legitimate
health concerns. This periodic cleaning helps DHS capture better
quality fingerscans on the first try and reduces inspection wait times.
Finally, the DHS Chief Medical Officer (CMO) oversees and
coordinates all medical activities of DHS to ensure appropriate
preparation for, and response to, incidents having medical
significance. The DHS CMO also coordinates the biodefense activities of
DHS, including its pandemic influenza portfolio, and ensures that DHS
has a unified approach to medical preparedness. Accordingly, any
medical direction from the DHS CMO will be implemented to prevent
transmission of pathogens through US-VISIT.

I. Program Exemptions

DHS received many comments concerning the populations of aliens who
were, or should be, included in US-VISIT. A few discussed issues that
did not directly involve US-VISIT, such as extension of the time period
per visit for holders of a B-1/B-2 visa or BCC, or more parity between
Mexican and Canadian visitors. See 70 FR 52037 (Sept. 1, 2005) (Western
Hemisphere Travel Initiative, ANPRM); 71 FR 46155 (Aug. 11, 2006)
(same, NPRM); 71 FR 68412 (Nov. 24, 2006) (same; airports; Final Rule).
Four commenters expressed support for the Canadian exemption and
requested it be made permanent, whereas one commenter suggested
eliminating the exemption. Creating a permanent US-VISIT exemption for
applicants for admission from Mexico and Canada, or for some other
nationality, is inconsistent with the statutory obligations of DHS to
create a complete biometric entry-exit system. Moreover, no regulatory
provision dealing with security can be considered permanent--
programmatic requirements and implementing regulatory requirements and
limitations must be adjusted to respond as security requirements
change. DOS security measures in the issuance of a BCC do not relieve
DHS of its statutory obligations. However, DHS considers the impact of
processing additional alien classifications in US-VISIT and attempts to
minimize negative impacts prior to implementation. DHS understands the
economic ramifications of transborder travel and commerce and will
implement large-scale changes through technology and processes to
minimize their overall impact.
Another commenter focused specifically on the northern border with
Canada, stating that there is not, in writing, a permanent exemption
for Canadians. The comment is correct. No nationality was ever planned
to be permanently exempt from US-VISIT.

J. Privacy

Twelve commenters raised privacy concerns in the collection of US-
VISIT information, although these comments were about varying specific
points of the program. DHS is required to protect the privacy of the
individuals from whom DHS collects information through the US-VISIT
process in accordance with the Privacy Act, 5 U.S.C. 552a. As part of
this responsibility, DHS has published a series of Privacy Impact
Assessments (PIAs) to explain the program, changes to the program,
risks that have been identified to privacy, and steps undertaken to
mitigate that risk. The PIAs affecting US-VISIT list the principal
users of the data within DHS and notes that the information may also be
shared with other law enforcement agencies at the federal, state,
local, foreign, or tribal level who, in accordance with their
responsibilities, are lawfully engaged in collecting law enforcement
intelligence information and/or investigating, prosecuting, enforcing,
or implementing civil and/or criminal laws, related rules, regulations,
or orders. DHS has made available several PIAs and revisions for the
US-VISIT program and noted that availability on the public record. See
71 FR 42653 (July 27, 2006); 71 FR 3873 (Jan. 24, 2006); 70 FR 39300
(July 7, 2005); 70 FR 35110 (June 16, 2005); 70 FR 17857 (Apr. 7, 2005)
(Advanced Passenger Information System); 69 FR 57036 (Sept. 23, 2004);
69 FR 2608 (Jan. 16, 2004). All of the assessments and revisions are
available on the DHS Web site at http://www.dhs.gov/us-visit. DHS
continually considers the impact of US-VISIT on privacy interests and
updates its assessments as the program is developed.
Two comments raised the issue of ``scope creep'' or ``mission
creep,'' stating fears that the information collected in US-VISIT will
be used for purposes not connected to the program. DHS believes that
the PIAs, which identify the specific purposes for which the
information is being collected, the intended use of the information,
with whom the information will be shared, and how the information will
be secured, protect the public from ``mission creep.'' The PIA process
is also a transparent one, with the public being able to access it and
comment on it. As DHS further considers integrating its border security
databases, DHS will reassess the privacy impact of such integration,
and the public will be invited to provide further comment.
One commenter stated, however, that the statements in the PIA on
the purposes of information collection and to whom the information must
be shared conflicted with the language of the August 31, 2004 interim
rule, quoting that language where the interim rule stated:

the [collected] information may also be shared with other law
enforcement agencies at the federal, state, local, foreign, or
tribal level, who, in accordance with their responsibilities, are
lawfully engaged in collecting law enforcement intelligence
information and/or investigating, prosecuting, enforcing, or
implementing civil and/or criminal laws, related rules, regulations,
or orders.

69 FR at 53324. The relevant PIA, however, contains the same language
(section 4, p. 7).
The commenter also suggested that the purposes for which the PIA
states that the information is being collected conflicts with the
sharing of the data with the FBI and other law enforcement agencies.
One of the stated purposes of US-VISIT in the PIA is, however, to
provide information on whether a person ``should be apprehended or
detained for law enforcement action.'' DHS believes that this purpose
is not inconsistent with sharing data with law enforcement entities.
DHS also published a revised PIA prior to the interim rule becoming
effective on September 30, 2004. 69 FR 57036 (Sept. 23, 2004). Further,
DHS published additional PIAs as necessary for additional steps in the
program.
Finally, the commenter stated that DHS should recognize a right of
judicial review for individuals adversely affected by US-VISIT. DHS has
interpreted ``adversely affected'' to refer to inaccurate or incorrect
information maintained by US-VISIT or a determination of
inadmissibility. These situations have been excluded from judicial
review per DHS and Department of Justice (DOJ) policy for many years,
and the implementation of US-VISIT does not warrant reopening this
issue. Moreover, a determination that the alien is inadmissible is
reviewable only pursuant to other statutory and regulatory provisions.
See, e.g., section 240 of the INA (8 U.S.C. 1229a) (removal proceedings
to deciding inadmissibility).
If an individual believes that there is an error in the information
contained in DHS systems and collected through the US-VISIT process,
US-VISIT has provided a three-step redress process to

[[Page 77488]]

have records reviewed and amended or corrected based on accuracy,
relevancy, timeliness, or completeness. This process includes
confirming that mismatches and other errors are not retained as part of
an alien's record. The first opportunity for data correction occurs at
the port of entry where the CBP officer has the ability to correct
manually most biographic-related errors, such as name, date of birth,
flight information, and document errors. All of this process occurs
without any action required by the individual.
If the individual still has questions about the travel record, he
or she may contact the US-VISIT Privacy Officer. As of March 2007, US-
VISIT's Privacy Office has received 175 requests for redress from the
more than 78.5 million encounters through the US-VISIT process. The US-
VISIT Privacy Officer will review the travel record, amend or correct
it as necessary, and send a response to the traveler describing the
action taken within 20 business days of receipt of the inquiry. If the
individual is not satisfied with the action taken, he or she can appeal
to the DHS Chief Privacy Officer, who will review the appeal, conduct
an investigation, and make a final decision on the action to be taken.
This redress policy is published on the DHS Web site at http://www.dhs.gov/us-visit. The US-VISIT Privacy Officer can also be
contacted by e-mail at [email protected].
One commenter suggested that aliens sent to secondary inspection
for purposes related to US-VISIT be included in a line separate and
apart from those sent to secondary for any other purpose.
Unfortunately, this comment cannot be adopted. At the time a traveler
is sent to secondary, the CBP officer does not know definitively
whether the reason is a mismatched fingerprint (false positive) or some
other reason, such as a passport substitution. Initial studies have
determined, however, that the incidence of a traveler being identified
incorrectly as a ``watchlist hit'' by US-VISIT and being referred to
secondary as a result is low, less than one-tenth of one percent.
Another commenter discussed the impact of ``false hits'' and the
need to eliminate them. DHS is actively attempting to decrease the
likelihood of a false match--where one alien is incorrectly matched to
a watchlist hit--with frequent upgrades of our matching algorithms.
Further, DHS is constantly seeking ways to reduce the incidence of
false hits.

K. Fees

One commenter stated that it would be inappropriate for DHS to
raise traveler fees to fund the US-VISIT program because the commenter
believed that US-VISIT provides no direct benefit to the international
traveler at the time of inspection. This comment misapprehends the
source of funding for US-VISIT. US-VISIT is funded through
appropriations. See Department of Homeland Security Appropriations Act,
2007, Public Law 109-295, tit. II, 120 Stat. 1355, 1357 (Oct. 4, 2006).
The commenter is correct in citing one of the factors in determining
whether a fee should be charged under the Chief Financial Officers Act,
31 U.S.C. 902(a)(8); the Independent Offices Appropriations Act, 1952,
31 U.S.C. 9701; and Office of Management and Budget Circular A-25, User
Charges (Revised), section 6, 58 FR 38142 (July 15, 1993). DHS is not,
however, considering establishing a fee to support funding of US-VISIT
at this time, and the proposed rule did not suggest that such a fee was
being considered.

IV. Statutory and Regulatory Reviews

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 certifies 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 travel and trade related to small
entities.

B. Executive Order 12866--Regulatory Planning and Review

Under section 3(f) of Executive Order 12866, ``Regulatory Planning
and Review'' (58 FR 51735 (Sept. 30, 1993) (as amended), DHS has
determined that this final rule is a ``significant regulatory action''
because there is a significant public interest in issues pertaining to
national security, immigration policy, and international travel and
trade related to this final rule. Accordingly, this rule has been
submitted to the Office of Management and Budget (OMB) for review and
approval.
DHS currently processes through US-VISIT, using biometrics, all
aliens entering the United States with a nonimmigrant visa or under the
VWP at any air, sea, or land port of entry. US-VISIT biometric
screening has resulted in the ability of DHS to take adverse action
against more than 3800 aliens who posed a security threat to the United
States or whose prior criminal actions rendered them ineligible for
admission. This final rule will strengthen the ability of CBP officers
to identify and take action against persons whose conduct renders them
a security threat and therefore ineligible for admission. For example,
DHS expects that, just as 3,382 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, through 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
assuming the identity of another LPR. Such violations could ultimately
result in the loss of 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 the number of 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 FY 2005, 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-

[[Page 77489]]

related or immigration problems--by including the other groups of
aliens highlighted in this final rule into the US-VISIT biometric
screening protocol. For example, aliens holding immigrant visas have a
six-month validity window from the date that 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, and such inadmissibility might only be discovered as the result
of biometric comparisons. Over the last several years, over 365,000
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 interests of the
United States to verify that the individuals who arrive at the border
are the same individuals originally screened for parole. Approximately
150,000 aliens are granted parole into the United States each year.
The costs associated with implementation of this final 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 handle 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 ports of entry 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 time Average form I-94
Port of entry before processing time
implementing US- after implementing
VISIT US-VISIT
------------------------------------------------------------------------
Port Huron, MI.................. 11 minutes, 42 9 minutes, 58
seconds. seconds.
Douglas, AZ..................... 4 minutes, 16 3 minutes, 12
seconds. seconds.
Laredo, TX...................... 12 minutes, 10 2 minutes, 18
seconds. 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--Federalism

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 final rule in accordance with the principles
and criteria in the Executive Order and has determined that this 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 rule does not have
federalism implications. This rule codifies procedures 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. Unfunded Mandates Reform Act

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA),
Public Law 104-4, 109 Stat. 48 (March 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-

[[Page 77490]]

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 final 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 the UMRA.

E. Small Business Regulatory Enforcement Fairness Act

This final 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 rule will not result in an annual effect on the
economy of $100 million or more.

F. Trade Impact Assessment

The Trade Agreement Act of 1979, Public Law 96-39, tit. IV, secs.
401-403, 93 Stat. 144, 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 final 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 DHS
will continue to consider these standards when monitoring and modifying
the program.

G. National Environmental Policy Act

DHS is required to analyze the proposed actions contained in this
final 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. An
agency is not required to prepare either an environmental impact
statement (EIS) or environmental assessment (EA) under NEPA if in fact
the proposed action falls within a categorical exclusion, and no
extraordinary circumstances preclude use of the categorical exclusion.
40 CFR 1508.4. DHS analyzed the interim final rule published on August
31, 2004, and concluded that there were no factors in the expansion of
US-VISIT pursuant to this final rule that would limit the use of a
categorical exclusion under 28 CFR part 61 App. C, as authorized under
6 U.S.C. 552(a). In the July 27, 2006 NPRM, DHS stated that it would
analyze the environmental impacts to conduct the appropriate level of
analysis in accordance with NEPA. DHS has done such an analysis and has
concluded that there are no factors in the expansion of US-VISIT that
would limit the use of a categorical exclusion, for similar reasons--
that the impact to the land border ports of entry would be largely
unnoticed since US-VISIT processing would take place in secondary
inspection only. In addition, DHS will not implement US-VISIT
processing at primary inspection locations at land border ports of
entry without at least one additional round of notice and comment
rulemaking. Since this final rule makes only minor changes to the
existing regulations, and because DHS will not expand US-VISIT
processing in the primary environment at land border ports of entry
without additional notice and comment rulemaking, DHS finds that this
final rule is also categorically excluded from further environmental
documentation.

H. Paperwork Reduction Act

This final 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 OMB reflecting the increase in burden hours, and
OMB has approved the changes.

I. Public Privacy Interests

As discussed in the January 5, 2004 (69 FR 468) and August 31, 2004
(69 FR 53318) interim final rules and the July 27, 2006 NPRM (71 FR
42605), US-VISIT records will be protected consistent with all
applicable privacy laws and regulations. See also Parts II.K and III.E.
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 are
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 DHS 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 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, DHS 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.

[[Page 77491]]

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.

0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is
amended as follows:

PART 215--CONTROL OF ALIENS DEPARTING FROM THE UNITED STATES

0
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.

0
2. Section 215.8 is amended by revising paragraph (a)(1) to read 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

0
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.

0
4. Section 235.1 is amended by revising paragraph (f)(1)(ii) to read as
follows:

Sec. 235.1 Scope of examination.

* * * * *
(f) * * *
(1) * * *
(ii) The Secretary of Homeland Security or his designee may require
any alien seeking admission to or parole into the United States, other
than aliens exempted under paragraph (f)(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.
* * * * *

Paul A. Schneider,
Deputy Secretary.
[FR Doc. E8-30095 Filed 12-18-08; 8:45 am]
BILLING CODE 9111-97-P