[Federal Register Volume 81, Number 247 (Friday, December 23, 2016)]
[Rules and Regulations]
[Pages 94231-94234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30885]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 264


Removal of Regulations Relating to Special Registration Process 
for Certain Nonimmigrants

AGENCY: Department of Homeland Security.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security (DHS) is removing outdated 
regulations relating to an obsolete special registration program for 
certain nonimmigrants. DHS ceased use of the National Security Entry-
Exit Registration System (NSEERS) program in 2011 after finding that 
the program was redundant, captured data manually that was already 
captured through automated systems, and no longer provided an increase 
in security in light of DHS's evolving assessment of the threat posed 
to the United States by international terrorism. The regulatory 
structure pertaining to NSEERS no longer provides a discernable public 
benefit as the program has been rendered obsolete. Accordingly, DHS is 
removing the special registration program regulations.

DATES: This rule is effective December 23, 2016.

FOR FURTHER INFORMATION CONTACT: Mr. Kekoa Koehler, Office of Policy, 
U.S. Department of Homeland Security. Phone: 202-447-4125. Email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

History of the Special Registration Program

    In 1991, the legacy Immigration and Naturalization Service (INS), 
then part of the Department of Justice (DOJ), published a final rule 
requiring the registration and fingerprinting of certain nonimmigrants 
bearing Iraqi and Kuwaiti travel documents, due to various factors, 
including concerns about misuse of Kuwaiti passports.\1\ In 1993, INS 
removed the regulations specific to such nonimmigrants, but added to 
the regulations at 8 CFR 264.1(f) a provision that allowed the Attorney 
General to require certain nonimmigrants of specific countries to be 
registered and fingerprinted upon arrival to the United States, 
pursuant to section 263(a) of the Immigration and Nationality Act 
(INA), 8 U.S.C. 1303(a).\2\ Pursuant to the amendment, the Attorney 
General could designate countries by Federal Register notice.\3\
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    \1\ 56 FR 1566 (Jan. 16, 1991). Those regulations were at 8 CFR 
264.3.
    \2\ 58 FR 68024 (Dec. 23, 1993).
    \3\ The Attorney General initially required nonimmigrants from 
Iraq and Sudan to be registered and fingerprinted under the new 
provision and later added Iran and Libya. See 58 FR 68157 (Dec. 23, 
1993) (Iraq and Sudan) and 61 FR 46829 (Sept. 5, 1996) (Iran and 
Libya). The INS consolidated the two notices in 1998. 63 FR 39109 
(July 21, 1998).
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    In June 2002, after the September 11, 2001 terrorist attacks, INS 
proposed to expand the existing registration and fingerprinting program 
at 8 CFR 264.1(f) to require certain nonimmigrants to report to INS 
upon arrival, approximately 30 days after arrival, every 12 months 
after arrival, upon certain events such as a change of address, and at 
the time of departure from the United States.\4\ The proposed rule 
provided that the program would apply to nonimmigrants from countries 
that INS would designate in Federal Register notices and to individual 
nonimmigrants designated by either a U.S. consular officer or 
immigration officer at a U.S. port-of-entry as indicating a need for 
closer monitoring. Under the proposed rule, designated nonimmigrants 
would be required to be fingerprinted and photographed and to provide 
additional biographical information. The proposed rule also authorized 
INS to designate certain ports of departure for nonimmigrants subject 
to the program. In addition, INS proposed to amend 8 CFR 214.1 to 
require nonimmigrants selected for special registration to comply with 
8 CFR 264.1(f) as a condition of maintaining nonimmigrant status.
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    \4\ 67 FR 40581 (June 13, 2002).
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    The INS received 14 comments on the proposed rule, some in support 
of the proposed program and others opposed to it. In August 2002, INS 
finalized the proposed program, which became known as the National 
Security Entry-Exit Registration System (NSEERS), without substantial 
change.\5\ In September 2002, INS announced by Federal Register notice 
that the new program would be applied to those who were subject to the 
earlier registration program--nonimmigrants from Iraq, Iran, Libya, and 
Sudan--and added nonimmigrants from Syria.\6\ INS announced in November 
2002 that only males 16 years of age and older from designated 
countries would be required to register under the program.\7\ Between 
November 2002 and January 2003, INS added another 20 countries to the 
compliance list, bringing the total to 25 countries.\8\ The 
responsibility for administering NSEERS was transferred to the 
Department of Homeland Security (DHS) in 2003 as part of the Homeland 
Security Act of 2002.\9\
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    \5\ 67 FR 52584 (Aug. 12, 2002).
    \6\ 67 FR 57032 (Sept. 6, 2002).
    \7\ 67 FR 67766 (Nov. 6, 2002).
    \8\ See 67 FR 70526 (Nov. 22, 2002); 67 FR 77642 (Dec. 18, 
2002); and 68 FR 2363 (Jan. 16, 2003). The 25 countries ultimately 
included in the compliance list were: Afghanistan, Algeria, Bahrain, 
Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, 
Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi 
Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and 
Yemen.
    \9\ See Homeland Security Act of 2002, Public Law 107-296, secs. 
402, 441, 442, 451, 1512(d), 1517, 116 Stat. 2135 (6 U.S.C. 202, 
251, 252, 271, 552(d), 557); Homeland Security Act of 2002 
Amendments, Public Law 108-7, div. L, sec. 105 (2003); see also 6 
U.S.C. 542 note; 8 U.S.C. 1103(a), 1551 note.
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    In December 2003, DHS amended the NSEERS regulations by interim 
final rule to suspend the 30-day post-arrival

[[Page 94232]]

and annual re-registration requirements.\10\ DHS determined that 
automatically requiring 30-day and annual re-registration for 
designated nonimmigrants was no longer necessary as DHS was 
implementing other systems to help ensure that all nonimmigrants remain 
in compliance with the terms of their visa and admission.\11\ The 
interim final rule provided that DHS would utilize a more tailored 
system in which, as a matter of discretion and on a case-by-case basis, 
the Department would notify nonimmigrants subject to the program to 
appear for re-registration interviews where DHS deemed it necessary to 
determine whether they were complying with the conditions of their 
status and admission. The interim final rule did not affect the 
procedures at ports-of-entry for nonimmigrants subject to the program.
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    \10\ 68 FR 67578 (Dec. 2, 2003).
    \11\ Id. at 67579.
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    In 2011, DHS published a notice in the Federal Register indicating 
that DHS would no longer register nonimmigrants under NSEERS and 
removing all countries from the NSEERS compliance list.\12\ DHS had 
added no new countries to the compliance list since 2003, and it had 
since implemented multiple new automated systems that capture 
information of nonimmigrant travelers to the United States and support 
individualized determinations of admissibility.\13\ Among the new 
programs and practices that had been implemented by that time were the 
United States Visitor and Immigrant Status Indicator Technology Program 
(US-VISIT), which stores and manages the fingerprint scans and 
photographs required upon entry to the United States,\14\ and the 
Advance Passenger Information System (APIS), which requires that 
commercial vessels and commercial and private aircraft arriving in or 
departing the United States submit advance passenger and crew manifest 
information to U.S. Customs and Border Protection (CBP).\15\ In light 
of these and other improved programs and practices, as well as improved 
information sharing with foreign counterparts, DHS determined that the 
data captured by NSEERS, which DHS personnel entered manually, had 
become redundant and no longer provided any increase in security.\16\ 
Although the 2011 notice announced that DHS would no longer use the 
program for any countries, the notice did not remove the regulatory 
framework for NSEERS from the DHS regulations.
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    \12\ 76 FR 23830 (Apr. 28, 2011).
    \13\ Id. at 23831 (stating that since the establishment of 
NSEERS, ``DHS has developed substantial infrastructure and adopted 
more universally applicable means to verify the entry and exit of 
aliens into and out of the United States'').
    \14\ See 8 CFR 235.1(f)(1)(ii).
    \15\ See 19 CFR 4.7b, 4.64(b), 122.22, 122.26, 122.31, 122.49a, 
122.49b, 122.75a, and 122.75b.
    \16\ The manual collection of information required by NSEERS had 
also become a significant resource drain for CBP, particularly at 
its busiest ports of entry.
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2012 DHS Office of Inspector General Report

    In 2012, the DHS Office of the Inspector General (OIG) issued a 
report on border security information sharing within DHS that, among 
other things, recommended DHS fully eliminate NSEERS by removing the 
regulatory structure for the program.\17\ The OIG report found that 
processing NSEERS registrations constituted a significant portion of 
CBP's workload at ports-of-entry while the program was in operation, 
and that the NSEERS database often did not function properly. The 
report noted that CBP officers believed NSEERS reporting to be of 
little utility and that the time spent processing registrations 
constituted an inefficient use of resources. The OIG report found that 
DHS's newer automated targeting systems enabled more sophisticated data 
analysis and intelligence-driven targeting than under NSEERS, as the 
newer targeting systems consolidate passenger data from various 
systems, can search across those systems for certain trends or 
patterns, and can be updated quickly without the need for public 
notification in the Federal Register. The OIG report also found US-
VISIT to be the more logical system for capturing biometric information 
at ports-of-entry due to US-VISIT's superior functionality. The OIG 
report concluded that advancements in information technology had 
rendered NSEERS obsolete and that leaving the program in place did not 
provide any discernable public benefit.\18\ The OIG report thus 
recommended removing the regulatory structure of NSEERS from DHS 
regulations.
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    \17\ Department of Homeland Security, Office of Inspector 
General, Information Sharing on Foreign Nationals: Border Security, 
OIG-12-39 (Feb. 2012).
    \18\ See id. at p. 35 (``The availability of newer, more capable 
DHS data systems argues against ever utilizing the NSEERS data 
system again.'').
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Removal of the NSEERS Framework Regulations

    Although DHS retained the regulations that provide the NSEERS 
framework, subsequent experience has confirmed that NSEERS is obsolete, 
that deploying it would be inefficient and divert personnel and 
resources from alternative effective measures, and that the regulation 
authorizing NSEERS is unnecessary. Since the suspension of NSEERS in 
2011, DHS has not found any need to revive or consider the use of the 
program. Indeed, during this period, DHS's other targeting, data 
collection, and data management systems have become even more 
sophisticated. DHS now engages in security and law enforcement efforts 
that were not possible when NSEERS was established in 2002, and the 
Department continues to make significant progress in its abilities to 
identify, screen, and vet all travelers arriving to the United States; 
to collect and analyze biometric and biographic data; to target high-
risk travelers for additional examination; and to track nonimmigrants' 
entry, stay, and exit from the country.
    The information that was previously captured through NSEERS is now 
generally captured from nonimmigrants through other, more comprehensive 
and efficient systems. Below we describe several of DHS's data 
collections, systems, and procedures relating to nonimmigrants and 
their relation to the NSEERS program.
     Biometric Information. At the time of NSEERS' 
implementation in 2002, most nonimmigrants were admitted to the United 
States without being either photographed or fingerprinted.\19\ Today, 
in contrast, CBP fingerprints and photographs nearly all nonimmigrants, 
regardless of nationality, at the time of entry into the United States. 
Furthermore, systems such as the Automated Biometric Identification 
System (IDENT), which were initially implemented by US-VISIT, are now 
used throughout DHS.\20\ IDENT is the central DHS-wide system for 
storage and processing of biometric and associated biographic 
information for a wide range of uses including national security, law 
enforcement, immigration and border management, intelligence, and 
background investigations. IDENT stores and processes biometric data--
digital fingerprints, photographs, iris scans, and facial images--and 
links biometrics with biographic information to establish

[[Page 94233]]

and verify identities. As noted above, these systems and procedures 
were not in place in 2002.
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    \19\ See 67 FR at 40581-82 (June 13, 2002) (noting in 2002 that 
``current procedures do not provide for the collection of 
fingerprints at the port of entry from many aliens''); 67 FR at 
52586 (Aug. 12, 2002).
    \20\ The Consolidated and Further Continuing Appropriations Act 
of 2013, Public Law 113-6, enacted on March 26, 2013, made dramatic 
changes to US-VISIT's mission set and organization. The 2013 Act 
transferred activities such as entry-exit policy and operations and 
overstay analysis to operational components within DHS. 
Responsibility for the DHS's Automated Biometric Identification 
System was given to the newly-created Office of Biometric Identity 
Management, a subcomponent of the National Protection and Programs 
Directorate.
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     Arrival and Departure Information. CBP receives arrival 
and departure data from commercial vessel and aircraft carriers, as 
well as private aircraft, through APIS. CBP tracks this information, 
which is vetted against various law enforcement databases, in its 
Arrival and Departure Information System. CBP confirms the accuracy of 
this data information as part of the interview process for travelers 
arriving in the United States. And the available biographic departure 
data are matched against arrival data to determine who has complied 
with the terms of admission and who has overstayed. These systems and 
procedures did not exist in their current form in 2002.
     Visa Information. Visa data is automatically vetted 
through various mechanisms through a joint coordination effort 
involving CBP, U.S. Immigration and Customs Enforcement, and the 
Department of State. This effort permits the relevant agency to take 
appropriate action, such as revoking visas or requiring additional 
scrutiny. These information sharing systems and procedures were not in 
place in 2002.
     Nonimmigrant Students. Data on nonimmigrant students is 
now entered into the Student and Exchange Visitor Information System 
(SEVIS) by designated school officials at certified institutions and 
responsible officials in the Exchange Visitor Program. CBP officers at 
ports-of-entry can interface with SEVIS in real time to determine 
whether a student or exchange visitor has a current and valid 
certificate of eligibility to enter the United States. SEVIS did not 
exist when NSEERS was created.
     Visa Waiver Program. The Electronic System for Travel 
Authorization (ESTA) now captures information used to determine the 
eligibility of visitors seeking to travel to the United States without 
a visa under the Visa Waiver Program (VWP). All travelers who intend to 
apply for entry under the VWP are now required to obtain an ESTA 
approval prior to boarding a carrier to travel by air or sea to the 
United States.\21\ CBP continuously vets ESTA applications against law 
enforcement databases for new information throughout the validity 
period and takes additional action as needed, including revocation of 
an ESTA approval. In November 2014, February 2016 and June 2016, DHS 
strengthened the VWP's security by adding additional elements on the 
ESTA application and revising the eligibility questions.\22\ The Visa 
Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, 
enacted on December 18, 2015, prohibits certain travelers who have been 
present in or are nationals of certain countries to travel or be 
admitted to the United States under the VWP.\23\ None of these measures 
related to the VWP were in place when NSEERS was promulgated.
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    \21\ See 8 U.S.C. 1187(a)(11), (h)(3); 8 CFR 217.5.
    \22\ 79 FR 65414 (Nov. 4, 2014); 81 FR 8979 (Feb. 23, 2016); 81 
FR 39681 (June 17, 2016).
    \23\ The Visa Waiver Program Improvement and Terrorist Travel 
Prevention Act of 2015, sec. 203, enacted as part of Division O, 
Title II of the Consolidated Appropriations Act of 2016, Public Law 
114-113, applies to nationals of VWP countries who have been present 
in Iraq, Syria, countries listed under specified designation lists 
(currently Syria, Iran, and Sudan), or countries designated by the 
Secretary of Homeland Security (currently Libya, Somalia, and Yemen) 
at any time on or after March 1, 2011 (with limited government/
military exceptions) and to nationals of VWP countries who are also 
nationals of Iran, Iraq, Sudan, or Syria. See 8 U.S.C. 1187(a)(12). 
CBP modified the ESTA application on February 23, 2016 to include 
questions pertaining to dual citizenship or nationality, and travel 
to restricted countries. 81 FR 8979 (Feb. 23, 2016). CBP updated the 
ESTA application again on June 17, 2016 with new questions 
pertaining to the applicant's participation in the Global Entry 
Program and travel on or after March 1, 2011 to Libya, Somalia or 
Yemen. 81 FR 39680 (June 17, 2016).
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     Electronic Visa Update System: The Electronic Visa Update 
System (EVUS), which became effective on October 20, 2016, is an online 
system that allows for the collection of biographic and other 
information from nonimmigrants who hold a passport issued by an 
identified country containing a U.S. nonimmigrant visa of a designated 
category.\24\ Nonimmigrants subject to these regulations must 
periodically enroll in EVUS and obtain a notification of compliance 
with EVUS prior to travel to the United States. Though currently 
limited to nonimmigrants who hold a B1, B2, or B-1/B-2 visa issued 
without restriction for maximum validity contained in a passport issued 
by the People's Republic of China,\25\ additional countries could be 
added to address emerging national security issues.
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    \24\ 8 CFR 215.23-215.24; 81 FR 72481 (Oct. 20, 2016).
    \25\ See 81 FR 72600 (Oct. 20, 2016).
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    Due to such changes, DHS has determined that the NSEERS model for 
border vetting and security, which focused on designated nationalities 
for special processing, is outmoded. Since the implementation of NSEERS 
in 2002, DHS has increasingly moved away from the NSEERS model and 
instead focused on a targeted, intelligence-driven border security 
model that identifies current and emerging threats in real time. For 
these reasons, DHS has concluded that NSEERS is obsolete and 
inefficient; that its implementation would be counterproductive to the 
Department's comprehensive security measures; and that the regulatory 
authority for NSEERS should thus be rescinded. For these reasons, DHS 
is removing the special registration program regulations found in 8 CFR 
264.1(f).

Conforming Amendment

    DHS is making a conforming amendment to 8 CFR 214.1(f) to remove 
the specific reference to 8 CFR 264.1(f), which INS added when it 
implemented NSEERS in 2002. The amendment reinstates the text of 8 CFR 
214.1(f) prior to the implementation of NSEERS, with a minor change to 
reflect the transfer of duties from INS to DHS.

Statutory and Regulatory Requirements

Administrative Procedure Act

    The Administrative Procedure Act (APA) generally requires agencies 
to publish a notice of proposed rulemaking in the Federal Register and 
provide interested persons the opportunity to submit comments.\26\ The 
APA provides an exception to this prior notice and comment requirement 
for ``rules of agency organization, procedure, or practice.'' \27\ This 
final rule is a procedural rule promulgated for agency efficiency 
purposes. DHS is removing regulations related to an outdated, 
inefficient, and decommissioned program. Thus, removing these 
regulations, which have not been used since 2011, reflects the current 
practice and procedure of DHS and will not affect the substantive 
rights or interests of the public.
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    \26\ See 5 U.S.C. 553(b) and (c).
    \27\ 5 U.S.C. 553(b)(A).
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    The APA also provides an exception from notice and comment 
procedures when an agency finds for good cause that those procedures 
are ``impracticable, unnecessary, or contrary to the public interest.'' 
\28\ DHS finds good cause to issue this rule without prior notice or 
comment, as such procedures are unnecessary. The removal of these 
regulations will have no substantive effect on the public because the 
regulations relate to a program which has not been utilized since 2011 
and which has been made obsolete by DHS's more advanced and efficient 
processes, programs, and systems.
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    \28\ 5 U.S.C. 553(b)(3)(B).
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    Further, the APA generally requires that substantive rules 
incorporate a 30-day delayed effective date.\29\ This rule, however, is 
merely procedural and does not impose substantive requirements;

[[Page 94234]]

thus DHS finds that a delayed effective date is unnecessary.
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    \29\ 5 U.S.C. 553(d).
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Executive Orders 12866 and 13563

    This regulation has been drafted and reviewed in accordance with 
Executive Orders 12866 and 13563. This rule is not a significant 
regulatory action under Executive Order 12866, and accordingly this 
rule has not been reviewed by the Office of Management and Budget.

Regulatory Flexibility Act

    Because DHS is of the opinion that this rule is not subject to the 
notice and comment requirements of 5 U.S.C. 553, DHS does not consider 
this rule to be subject to the provisions of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 is intended, among other 
things, to curb the practice of imposing unfunded Federal mandates on 
State, local, and tribal governments. Title II of the Act requires each 
Federal agency to prepare a written statement assessing the effects of 
any Federal mandate in a proposed or final agency rule that may result 
in a $100 million or more expenditure (adjusted annually for inflation) 
in any one year by State, local, and tribal governments, in the 
aggregate, or by the private sector.
    This rule does not include any unfunded mandates. The requirements 
of Title II of the Act, therefore, do not apply, and DHS has not 
prepared a statement under the Act.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more, a 
major increase in costs or prices, or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States companies to compete with foreign-based 
companies in domestic and export markets.

Executive Order 13132--Federalism

    This rule would not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988--Civil Justice Reform

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

Regulatory Amendments

List of Subjects

8 CFR Part 214

    Administrative practice and procedure, Aliens, Cultural exchange 
programs, Employment, Foreign officials, Health professions, Reporting 
and recordkeeping requirements, Students.

8 CFR Part 264

    Aliens, Reporting and recordkeeping requirements.

Amendments to the Regulations

    For the reasons stated in the preamble, DHS amends chapter 1 of 
title 8 of the Code of Federal Regulations as set forth below.

8 CFR CHAPTER 1

PART 214--NONIMMIGRANT CLASSES

0
1. The general authority for part 214 continues to read as follows:

    Authority:  6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643, 
Public Law 104-208, 110 Stat. 3009-708; Public Law 106-386, 114 
Stat. 1477-1480; section 141 of the Compacts of Free Association 
with the Federated States of Micronesia and the Republic of the 
Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 
note, and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2.


0
2. Amend Sec.  214.1 by revising paragraph (f) to read as follows:


Sec.  214.1   Requirements for admission, extension, and maintenance of 
status.

* * * * *
    (f) False information. A condition of a nonimmigrant's admission 
and continued stay in the United States is the full and truthful 
disclosure of all information requested by DHS. A nonimmigrant's 
willful failure to provide full and truthful information requested by 
DHS (regardless of whether or not the information requested was 
material) constitutes a failure to maintain nonimmigrant status under 
section 237(a)(1)(C)(i) of the Act.
* * * * *

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

0
3. The general authority citation for part 264 continues to read as 
follows:

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


Sec.  264.1  [Amended]

0
4. In Sec.  264.1, remove and reserve paragraph (f).

Jeh Charles Johnson,
Secretary.
[FR Doc. 2016-30885 Filed 12-22-16; 8:45 am]
 BILLING CODE 9110-9M-P