77473

Rules and Regulations Federal Register Vol. 73, No. 245

Friday, December 19, 2008

This section of the FEDERAL REGISTER of entry. This rule also finalizes that J. Privacy contains regulatory documents having general interim final rule and addresses public K. Fees applicability and legal effect, most of which comments received during that IV. Statutory and Regulatory Review are keyed to and codified in the Code of rulemaking action. A. Regulatory Flexibility Act Federal Regulations, which is published under B. Executive Order 12866—Regulatory 50 titles pursuant to 44 U.S.C. 1510. DATES: This final rule is effective Planning and Review January 18, 2009. C. Executive Order 13132—Federalism The Code of Federal Regulations is sold by FOR FURTHER INFORMATION, CONTACT: D. Unfunded Mandates Reform Act the Superintendent of Documents. Prices of Helen deThomas, Senior Policy Analyst, E. Small Business Regulatory Enforcement new books are listed in the first FEDERAL US–VISIT, Department of Homeland and Fairness Act REGISTER issue of each week. F. Trade Impact Assessment Security, 1616 Fort Myer Drive, 18th G. National Environmental Policy Act Floor, Arlington, Virginia 22209, (202) H. Paperwork Reduction Act 298–5200. DEPARTMENT OF HOMELAND I. Public Privacy Interests SUPPLEMENTARY INFORMATION: SECURITY I. Background Table of Contents 8 CFR Parts 215 and 235 A. Program Development I. Background The Department of Homeland [DHS–2005–0037] A. Program Development B. Program Operation Security (DHS) established the United RIN 1601–AA35; RIN 1600–AA00 C. Notice of Proposed Rulemaking States Visitor and Immigrant Status II. Comments on the Notice of Proposed Indicator Technology Program (US– United States Visitor and Immigrant Rulemaking VISIT) in accordance with several Status Indicator Technology Program A. Status of LPRs in US–VISIT statutory mandates that collectively (‘‘US–VISIT’’); Enrollment of Additional 1. Past Security Checks require DHS to create an integrated, Aliens in US–VISIT; Authority To 2. Relationship to United States Citizens automated biometric entry and exit Collect Biometric Data From Additional 3. Relationship to Canadian Citizens system that records the arrival and Travelers and Expansion to the 50 4. Travel Concerns in United States Air departure of aliens; biometrically Most Highly Trafficked Land Border and Sea Ports 5. Travel Concerns at Land Border compares the identities of aliens; and Ports of Entry Inspections authenticates travel documents presented by such aliens through the AGENCY: 6. Privacy Concerns of LPRs National Protection and comparison of biometric identifiers. Programs Directorate, DHS. 7. Ten-Print Enrollment B. Canadian Citizens Aliens subject to US–VISIT may be ACTION: Final rule. 1. Western Hemisphere Travel Initiative required to provide fingerscans, 2. Preclearance Sites in Canada photographs, or other biometric SUMMARY: The Department of Homeland 3. Canadians Requiring a Waiver of identifiers upon arrival in, or departure Security (DHS) established the United Inadmissibility from, the United States. DHS views US– States Visitor and Immigrant Status 4. Canadians in Transit through the United VISIT as a biometrically-driven program States Indicator Technology Program (US– designed to enhance the security of VISIT) in 2003 to verify the identities 5. Crew Members C. Mexican Citizens United States citizens and visitors, and travel documents of aliens. Aliens while expediting legitimate travel and subject to US–VISIT may be required to D. Operational Issues 1. Clarification of Procedures for Returning trade, ensuring the integrity of the provide fingerscans, photographs, or Nonimmigrants immigration system, and protecting the other biometric identifiers upon arrival 2. REAL ID Act of 2005 privacy of our visitors’ personal at the United States. Currently, aliens 3. Advance Passenger Information System information. arriving at a United States port of entry 4. Connection to IDENT/IAFIS The statutes that authorize DHS to with a nonimmigrant visa, or those Interoperability establish US–VISIT include, but are not traveling without a visa as part of the 5. Biometric Identifiers limited to: Visa Waiver Program, are subject to US– 6. Age Restrictions • Section 2(a) of the Immigration and 7. Exemption of Individual Aliens VISIT requirements with certain limited Naturalization Service Data exceptions. This final rule expands the E. Privacy and Information Retention F. International Conventions Management Improvement Act of 2000 population of aliens who will be subject G. United States Citizen Voluntary (DMIA), Public Law 106–215, 114 Stat. to US–VISIT requirements to nearly all Enrollment 337 (June 15, 2000); aliens, including lawful permanent H. Economic Impact • Section 205 of the Visa Waiver residents. Exceptions include Canadian I. Attorney Representation Permanent Program Act of 2000, Public citizens seeking short-term admission J. Pacific Rim Issues Law 106–396, 114 Stat. 1637, 1641 (Oct. for business or pleasure under B visas III. Comments on the August 31, 2004 Interim 30, 2000); and individuals traveling on A and G Rule • Section 414 of the Uniting and visas, among others. A. General Strengthening America by Providing On August 31, 2004, the Department B. Outreach to the Affected Public C. Use of Interim Rules Appropriate Tools Required to Intercept promulgated an interim final rule that D. Facilities and Obstruct Terrorism Act of 2001 expanded the US–VISIT program to E. Interaction With Existing Programs (USA PATRIOT Act), Public Law 107– include aliens seeking admission under G. Travel and Delays 56, 115 Stat. 271, 353 (Oct. 26, 2001); the Visa Waiver Program and travelers H. Health Risks • Section 302 of the Enhanced Border arriving at designated land border ports I. Program Exemptions Security and Visa Entry Reform Act of

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2002 (Border Security Act) Public Law 8 CFR 235.1(f)(1)(iv).2 In addition, the • Denied admission, placed in 107–173, 116 Stat. 543, 552 (May 14, Secretary of State and Secretary of expedited removal, or returned to the 2002); Homeland Security may jointly exempt country of last departure; or • Section 7208 of the Intelligence classes of aliens from US–VISIT. The • Otherwise detained and denied Reform and Terrorism Prevention Act of Secretaries of State and Homeland admission to the United States. 2004 (IRTPA), Public Law 108–458, 118 Security, as well as the Director of the In addition, by quickly verifying Stat. 3638, 3817 (December 17, 2004); Central Intelligence Agency, also may identity and validity of documents, US– and exempt any individual from US–VISIT. VISIT has expedited the travel of • Section 711 of the Implementing 8 CFR 235.1(f)(1)(iv)(B). millions of legitimate entrants. Recommendations of the 9/11 Expanding the population of aliens Commission Act of 2007, Public Law B. Program Operation required subject to US–VISIT 110–52, 121 Stat. 266 (Aug. 3, 2007). The US–VISIT program, through U.S. requirements will allow DHS to identify DHS provided detailed abstracts of additional aliens who are inadmissible the particular sections of the statutes Customs and Border Protection (CBP) officers, collects biometrics (digital or who otherwise may present security that established and authorized the US– and criminal threats, including those VISIT program in prior rulemakings and fingerprints and photographs) from aliens seeking admission to the United who may be traveling improperly on the proposed rule. See 69 FR 468 (Jan. previously established identities. 5, 2004); 69 FR 53318 (Aug. 31, 2004); States. 73 FR 22066. The US–VISIT 71 FR 42605 (July 27, 2006); 73 FR program also receives biometric data C. Notice of Proposed Rulemaking 22065 (Apr. 24, 2008). collected by Department of State (DOS) consular offices in the visa application On July 27, 2006, DHS published a On January 5, 2004, DHS notice of proposed rulemaking (NPRM process. DHS checks biometric data on implemented the first phase of the US– or proposed rule) proposing to expand those applying for admission to the VISIT biometric component by the population of aliens subject to US– United States against government publishing an interim final rule in the VISIT requirements. The NPRM databases to identify suspected Federal Register providing that aliens proposed to require enrollment of any terrorists, known criminals, or seeking admission into the United alien in US–VISIT, with the exception individuals who have previously States through nonimmigrant visas must of those Canadian citizens applying for violated U.S. immigration laws. These provide fingerprints, photographs, or admission as B–1/B–2 visitors for procedures assist DHS in determining other biometric identifiers upon arrival business or pleasure, and those whether an alien seeking to enter the in, or departure from, the United States specifically exempted under DHS United States is, in fact, admissible to at air and sea ports of entry. 69 FR 468 regulations. Under the proposed rule, (Jan. 5, 2004). Effective September 30, the United States under existing law. the following classes of aliens, among 2004, nonimmigrants seeking to enter Biometric data collected by US–VISIT others, would become subject to US– the United States without visas under assists DOS consular officers in the VISIT requirements: the Visa Waiver Program (VWP) 1 also verification of the identity of a visa • Lawful Permanent Residents are required to provide biometric applicant and the determination of the (LPRs). 3 information to US–VISIT. 69 FR 53318 applicant’s eligibility for a visa. DHS’s • Aliens seeking admission on (Aug. 31, 2004). US–VISIT is now ability to establish and verify the immigrant visas. operational for entry at 115 airports, 15 identity of an alien and to determine • Refugees and asylees. seaports, and 154 land border ports of whether that alien is admissible to the • Certain Canadian citizens who entry. The following categories of aliens United States is critical to the security receive a Form I–94 at inspection or currently are expressly exempt from of the United States and the who require a waiver of inadmissibility. US–VISIT requirements by DHS enforcement of the laws of the United • Aliens paroled into the United regulations: States. By linking the alien’s biometric States. • Aliens admitted on an A–1, A–2, C– information with the alien’s travel • Aliens applying for admission 3 (except for attendants, servants, or documents, DHS reduces the likelihood under the Guam Visa Waiver Program. personal employees of accredited that another individual could assume officials), G–1, G–2, G–3, G–4, NATO– the identity of an alien already recorded DHS received 69 comments on the 2004 1, NATO–2, NATO–3, NATO–4, NATO– in US–VISIT or use an existing recorded interim final rule during the 30-day 5, or NATO–6 visa; notice and comment period. DHS has • identity to gain admission to the United Children under the age of 14; States. considered the comments received in • Persons over the age of 79; the development of this final rule. This • Taiwan officials admitted on an E– From its inception on January 5, 2004 final rule adopts the proposed rule 1 visa and members of their immediate to the present, US–VISIT has without change. families admitted on E–1 visas. biometrically screened more than 130 This rule also addresses comments million aliens at the time they applied received on the August 31, 2004, 1 Pursuant to section 217 of the Immigration and for admission to the United States. DHS interim final rule and finalizes that rule. Nationality Act (INA), 8 U.S.C. 1187, the Secretary has taken adverse action against more For ease of reference, DHS responds of Homeland Security (the Secretary), in than 3,800 aliens based on information consultation with the Secretary of State, may separately to the comments submitted designate certain countries as Visa Waiver Program obtained through the US–VISIT on the interim rule and the proposed (VWP) countries if certain requirements are met. biometric screening process. By rule. Citizens and eligible nationals of VWP countries ‘‘adverse action,’’ DHS means that the may apply for admission to the United States at a alien was: U.S. port of entry as nonimmigrant aliens for a 3 The authorizing statutes, which all refer to period of ninety (90) days or less for business or • Arrested pursuant to a criminal ‘‘aliens’’ without differentiation, support the pleasure without first obtaining a nonimmigrant arrest warrant; inclusion of lawful permanent residents (LPRs) into visa, provided that they are otherwise eligible for the US–VISIT program. See section 101(a)(3) of the admission under applicable statutory and Immigration and Nationality Act of 1952, as regulatory requirements. The list of countries which 2 Effective January 23, 2007, 8 CFR 235(d)(1)(iv) amended, 8 U.S.C. 1101(a)(3) (‘‘The term ‘alien’ currently are eligible to participate in VWP is set was redesignated as 8 CFR 235.1(f)(1)(iv). 71 FR means any person not a citizen or national of the forth in 8 CFR 217.2(a). 68412 (Nov. 24, 2006). United States’’).

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II. Comments on the Notice of Proposed have previously been subject to who attempt fraud through the Rulemaking significant security checks in order to biometric match of the person DHS received 71 comments on the obtain LPR status. Similarly, some presenting the Form I–551 against the July 27, 2006, notice of proposed commenters stated that there is no record of the person to whom that card rulemaking. Some comments were evidence that LPRs pose a threat to the was issued. Accordingly, the inclusion positive, while other comments were level that they ‘‘should be grouped of LPRs within US–VISIT is consistent negative or asked that the regulation be with’’ nonimmigrants who are subject to with other security programs initiated withdrawn. The comments raised a US–VISIT. One commenter stated that by DHS. number of issues, including the DHS has a flawed process in that it is LPRs are still subject to entry, relationship with other DHS initiatives, willing to trust in an LPR’s first use of documentation, and removability suggesting that US–VISIT should not US–VISIT for initial capture of requirements to the United States. LPRs proceed until other initiatives have been fingerprints, rather than compare are aliens. See sections 101, 212, 237 of completed. One commenter noted that against the records captured during the the INA (8 U.S.C. 1101, 1182, 1227) and there have been several GAO reports initial adjustment of status process. 8 CFR 235.1(b), (f)(1)(i). Although LPRs that have been critical of US–VISIT and DHS agrees that LPRs receive an are not technically regarded as seeking DHS has addressed those concerns as extensive background check to become admission to the United States if they discussed in the published reports. DHS LPRs, including a criminal background are returning from a stay of less than continues to address all of these check using the applicant’s fingerprints. 180 days under section 101(a)(13)(C)(ii) concerns and recommendations as US– United States Citizenship and of the INA (8 U.S.C. 1101(a)(13)(C)(ii)), VISIT is developed. The most common Immigration Services (USCIS) conducts they remain subject to the admissibility issue raised by the comments was the an extensive investigation prior to requirements of section 212 of the INA inclusion of lawful permanent residents granting adjustment of status to that of (8 U.S.C. 1182) because of their status as (LPRs) in US–VISIT enrollment and an LPR, and the DOS undertakes an alien and not a United States citizen. verification. significant investigation of an alien Accordingly, DHS must determine Some comments were very general, applying for an immigrant visa. Also, whether an LPR is admissible to the such as those suggesting that DHS DHS agrees that there is not necessarily United States whenever the LPR arrives concentrate on removing illegal aliens evidence to support the notion that at a port of entry, as well as determine present in the United States. DHS LPRs—as a class—pose risks not posed whether an LPR is removable from the believes that US–VISIT plays an by nonimmigrants—as a class. United States based on intervening facts important role in preventing illegal DHS does not, however, believe that since the time LPR status was granted, immigration in the first place by this point is entirely relevant for the and initial background checks purposes of this rule for several requiring biometric information from conducted, which may have been many significant reasons. DHS and DOJ travelers seeking to enter the United years ago. US–VISIT enables DHS to continue to uncover significant States. DHS continues to concentrate on determine if an LPR seeking entry has immigration document fraud, intercepting aliens who are in the been convicted of any crime that would particularly in relation to permanent United States without authorization. render him or her subject to removal resident cards (Form I–551). Common These priorities do not conflict. from the United States. In addition, DHS Similarly, a commenter asked how examples include giving or selling a is concerned about attempts by terrorist DHS is benchmarking or measuring the permanent resident card to someone and transnational criminal organizations else, altering a lost permanent resident success of US–VISIT. DHS provides to recruit LPRs, who are perceived to be card, and using a fraudulently created performance measures to the Executive subject to less scrutiny in travel. See permanent resident card. DHS has Office of the President and to the Office section 101(a)(13)(C)(v) of the INA (8 substantially increased the security of Management and Budget (OMB) using U.S.C. 1101(a)(13)(C)(v). Accordingly, features on permanent resident cards in OMB’s Program Assessment Rating Tool the processing of LPRs through US– recent years, but security features are (PART). Some of the factors included in VISIT serves an important purpose: not foolproof. the Fiscal Year (FY) 2006 PART Identifying aliens who pose a security The Immigration and Naturalization risk, have a disqualifying criminal or assessment were: Cumulative and Service (INS), predecessor to a number immigration violation, or are otherwise annual percentage baseline cost and of DHS functions, issued resident alien inadmissible at the time that they schedule overrun on US–VISIT cards without expiration dates until present themselves for entry into the Increment Development and 1989. Permanent resident cards issued United States as LPRs. Deployment, Reduction in Review Time after 1989 are valid only for ten years. DHS compares the fingerprints for Privacy Redress, Ratio of Adverse Additionally, INS upgraded the Form I– collected as part of the adjustment of Actions to Total Biometric Watch List 551 significantly, including more secure status or immigrant visa process with Hits at Ports of Entry, Percentage of Exit features, in September 1997. 62 FR the fingerscans of the LPR seeking entry, Records Matched to Entry Records, and 44146 (Aug. 19, 1997). Many LPRs when those fingerprints are available in other factors. OMB rated US–VISIT as possess permanent resident cards that DHS’s Automated Biometric ‘‘moderately effective.’’ DHS accepts have limited security features and no Identification System (IDENT). The OMB’s view on these performance expiration date. Trafficking in these addition of data from adjustment of measures and is taking steps to achieve cards is inhibited by the fact that the status and immigrant visa applications better results. The comment, however, card must appear to be aged to the date to the IDENT system will substantially does not raise issues relating to the of its issue, but otherwise these cards reduce the initial enrollment of LPRs, proposed rule. provide limited security from assumed but LPRs, as aliens, should be enrolled A. Status of LPRs in US–VISIT identity. DHS is taking steps to recall all in US–VISIT. such cards. 72 FR 46922 (Aug. 22, Finally, the statutes underlying the 1. Past Security Checks 2007). development of US–VISIT have never Thirty-two commenters urged that Including LPRs within the scope of distinguished between immigrants and LPRs be exempt from US–VISIT, based US–VISIT processing will enable DHS nonimmigrants. For the purpose of data on their status as LPRs, because they to detect, deter, and act against those collection and biometric comparison,

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

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

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Treasury Enforcement Communications and Mexico premised on the mutual for admission to the United States as System (TECS) that was transferred to reinforcement of our security and visitors for business or pleasure—are DHS in 2003. See 66 FR 52984, at 53029 economic prosperity. See http:// not required to be processed in US– (Notice of Privacy Act systems of www.spp.gov/Security_Fact_Sheet.pdf. VISIT. Accordingly, the increased record). Per DHS regulations, an LPR Through this effort and others, the volume of preclearance travelers in US– can be deemed to have abandoned his United States and Canada are engaged VISIT may not be as high as the or her status if he or she stays outside in greater cooperation and information commenters suggest. Nonetheless, DHS of the United States for longer than one sharing, while being mindful of the has existing mitigation strategies in year. See 8 CFR 211.1(a), (b)(3) privacy laws of each country. Together, effect to respond to overcrowded (imposing certain documentary the United States and Canada are inspection facilities. DHS will pay close requirements or waiver applications on exploring ways to facilitate legitimate attention to these preclearance locations LPRs only if returning from a temporary travel and trade while assuring the to determine whether implementing absence of less than a year). security of our border. All of these these strategies is appropriate, efforts were considered in the especially during the first few weeks 7. Ten-Print Enrollment promulgation of this rule. after this final rule becomes effective. One commenter inquired whether Another commenter suggested that 3. Canadians Requiring a Waiver of LPRs for whom DHS has no electronic the NPRM fails to consider the impact Inadmissibility biometric record will have ten-print or of WHTI and this US–VISIT expansion two-print fingerscan enrollment upon at the same time. This rule is being One commenter expressed concern being processed in US–VISIT in the implemented on January 18, 2009, and about Canadian B–1/B–2 travelers who primary lane. DHS began transitioning the first phase of WHTI (requiring a frequently travel over the land border to a ten-print enrollment process in passport or other document to and require a waiver of inadmissibility December 2007. These processes will demonstrate identity and citizenship at under section 212 of the INA (8 U.S.C. not be limited to LPRs, however, and air ports of entry) began on January 23, 1182) to be admitted to the United DHS is confident that it can use 2007. The second phase of WHTI (land States. DHS is currently considering technology to minimize the potential for borders and sea ports) was published as alternative administrative processes for delay as a result of the change. a final rule on April 3, 2008, and will simplified handling of waivers and their be effective June 1, 2009. 73 FR 18384. application to US–VISIT, but until DHS B. Canadian Citizens This expansion of US–VISIT implements these processes, DHS will 1. Western Hemisphere Travel Initiative procedures deals with the type of maintain the same procedures for immigration processing certain aliens Canadian B–1/B–2 travelers requiring a The Western Hemisphere Travel will require at all ports of entry, with waiver of inadmissibility as it has with Initiative (WHTI) requires that the the differences described elsewhere all Canadians requiring a waiver of Secretary of Homeland Security, in based on the type of port of entry. One inadmissibility and given a multiple consultation with the Secretary of State, of the main reasons for exempting entry Form I–94: US–VISIT secondary develop and implement a plan to Canadians who do not require a separate processing every six months or when require travelers entering the United admissibility determination through sent to secondary by a CBP officer. States to present a passport, other Form I–94 in this rulemaking is to Canadian B–1/B–2 applicants for document, or combination of documents coordinate the timing of the WHTI land admission requiring a waiver of which is ‘‘deemed by the Secretary of border port of entry procedures, before admissibility will not be required to be Homeland Security to be sufficient to DHS can determine what, if any, processed in US–VISIT every time they denote identity and citizenship’’ by June additional steps should be taken for US– cross a United States land border. 1, 2009. See section 7209 of IRTPA, VISIT processing of these aliens at land Public Law 108–458, 118 Stat. at 3823, 4. Canadians in Transit Through the border ports of entry. DHS and DOS are United States as amended by the Department of carefully coordinating the Homeland Security Appropriations Act, implementation of multiple initiatives Three commenters raised concerns 2007, Public Law 109–295, sec. 546, 120 to improve the security of the United about Canadians in transit through the Stat. 1355, 1386 (Oct. 4, 2006), found at States and ensure efficient border United States, two in the land context 8 U.S.C. 1185 note. DHS and DOS have management. and one in the air context. In the air implemented this requirement effective context, one commenter suggested that January 23, 2007, for air ports of entry. 2. Preclearance Sites in Canada Canadian B–1/B–2 travelers will be 70 FR 52037 (Sept. 1, 2005) (Western Three commenters expressed concern exempt from US–VISIT processing if Hemisphere Travel Initiative, ANPRM); that the preclearance sites in Canada flying to the United States, but not if 71 FR 46155 (Aug. 11, 2006) (same, would see a dramatic increase in the they are flying through the United NPRM); 71 FR 68412 (Nov. 24, 2006) numbers of aliens subject to US–VISIT States. DHS agrees with the commenter (same; air ports of entry; Final Rule). and be unable to handle the increase in that this would be an illogical result if One commenter to this rule asked time and traffic. One commenter also this were in fact what had been whether the Canadian border issues that noted that unlike the traditional proposed. The proposed rule provided have been addressed through WHTI environment of immigration processing that Canadians are subject to US–VISIT were being taken into account in the where the flights have already landed, procedures only if they are required to promulgation of this rule. DHS has been in the preclearance environment, obtain a visa or be issued a Form I–94. working very closely with Canadian persons are trying to board a flight Typically, Canadians may transit authorities in order to secure better the before it is too late, and that, therefore, through the United States by air without border between the United States and the delays would be much more costly. a visa and are not required to obtain a Canada without sacrificing the close ties DHS acknowledges the concerns with Form I–94. See 8 CFR 212.1(a)(1) (no between the two countries. In March preclearance flight locations in Canada. visa required); 8 CFR 235.1(h)(1)(i) (no 2005, the Administration launched the However, DHS notes that Canadians not Form I–94 required). Canadians needing Security and Prosperity Partnership requiring visas—which include those a waiver of inadmissibility are required (SPP) as a trilateral effort with Canada transiting the United States or applying to obtain a visa even if transiting the

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United States. Thus, only these years that US–VISIT has been ports of entry, will be processed in US– Canadians transiting the United States operational, DHS does not believe that VISIT. Thus, this rule places LPRs and but needing such a waiver and visa are any delay for crew travel has been so BCC holders in equivalent subject to US–VISIT as a result of significant as to justify continuing to not circumstances. publication of this final rule. process airline crews through US–VISIT D. Operational Issues Accordingly, the number of Canadians based on country of origin or transiting the United States by air who nationality. Second, DHS does not 1. Clarification of Procedures for will be subject to US–VISIT is small. believe that the connection to Canadian Returning Nonimmigrants In the land context, another B1/B2 travelers is equivalent, as the One commenter professed confusion commenter suggested essentially the exemption for those travelers is meant with the proposed regulation’s same point, explaining a scenario in to account for the unique operational treatment of nonimmigrants returning which a Canadian truck driver entering concerns of the land border through a land border port of entry, the United States as a visitor for environment. In addition, the extra suggesting that DHS should clearly state business (and who is thus visa-exempt) checks that are mentioned by the whether it plans to conduct US–VISIT would not be subject to US–VISIT commenter are biographic checks, and processing of all returning processing, but where the same person not the biometric checks that US–VISIT nonimmigrants arriving at a land port transiting through the United States to processing would provide. Mexico would be subject to US–VISIT However, the commenter also who, during primary inspection, present processing. The commenter conceded identifies an inequity faced by Canadian a valid visa and a current, multiple- that this was not currently a concern crew with respect to biometric exit entry Form I–94. Nonimmigrant visa holders have been due to restrictions in hauling cargo procedures. Because of the large number subject to US–VISIT processing in between the three countries, but that it of United States preclearance sites in secondary inspection at the 50 most could be a concern in the future. DHS Canada, Canadian airlines often fly into does not believe this scenario requires United States domestic airport trafficked land border ports of entry US–VISIT processing for the same terminals. The commenter states that if since December 2004, and at all land reason as in the air environment. The one of these airlines were to fly into a border ports of entry since December driver in the scenario posed above—a United States airport where biometric 2005. These procedures have been in truck driver taking cargo from Canada to exit processing were operational, the place for three years, and the additional Mexico—would not require a visa to Canadian crewmember would be alien classifications added by this final enter the United States, nor would he be required to leave the domestic terminal, rule do not change any existing land issued a Form I–94, regardless of go to the international terminal, record border procedures. Nonimmigrant aliens whether he is ultimately driving to his exit biometrically, and then return to requiring completion of a Form I–94 Mexico. Thus, transiting aliens who do the domestic terminal for the next flight. may be referred to secondary inspection not otherwise require US–VISIT DHS agrees with the commenter that at any time at the discretion of the CBP processing would not be subject to US– under these specific circumstances it officer at primary inspection, but at least VISIT processing as a result of this final may be unreasonable for Canadian every six to eight months for renewal of rule. airline crew members to biometrically the Form I–94, regardless of the time register their departure. The exit pilot remaining on the validity of the 5. Crew Members program has been terminated and, document or whether it is issued for Two commenters suggested that therefore, no pilots are being required to duration of status (D/S). Forms I–94 Canadian airline crew members be provide to register their departure. issued following US–VISIT processing exempt from US–VISIT requirements. are marked with the date on which the These commenters stated that crew C. Mexican Citizens alien’s period of admission expires (or members are subject to significant levels Two commenters stated there should duration of status, if applicable) and the of scrutiny to begin with, including be no continued exemption for Mexican date on which the person was processed checks made by Transport Canada and citizens, as the BCC and Form I–551 are in US–VISIT. At primary inspection, the placement on the Master Crew lists the same. Currently, Mexican citizens alien is referred to secondary inspection provided to CBP 48 hours prior to who use a BCC to meet the documentary for US–VISIT processing if six to eight departure. They also stated that the requirements of 8 CFR 212.1, if staying months have passed since the last time same reasoning applied to the in the United States for 72 hours or less the alien was processed in US–VISIT continuing exemption for Canadian B1/ within a specified distance from the (depending on the level of activity at the B2 travelers appears to apply here, as United States/Mexico border, are not port of entry at that moment, the each group is staying for a limited required to obtain Form I–94 and, capacity to efficiently process the alien, period of time. Finally, they said that therefore, are not subject to US–VISIT. and other factors). If no adverse any security benefits from these checks See 8 CFR 235.1(h)(1)(iii), (v). The information is found relating to that are insignificant compared to the costs commenter is correct that, from a alien, the alien is admitted under the that Canadian airlines would incur as a security standpoint, BCCs are equivalent existing terms of the original Form I–94. result of the inclusion of crew members to Forms I–551 carried by LPRs. DHS The commenter characterizes this in US–VISIT. anticipates that procedures for procedure as ‘‘recurrent readjudication In promulgating this final rule, DHS is interacting with these two populations of previously approved nonimmigrant attempting to treat all aliens as equally will be very similar. At air or sea ports status.’’ DHS does not agree with this as operationally possible in US–VISIT of entry, both populations will be characterization. Under the INA, each processing. In other words, crew from biometrically checked on every nonimmigrant alien applies for all other foreign carriers (D visa holders) encounter. At land borders, under this admission to the United States by currently are required to be processed in final rule, LPRs and BCC holders will be approaching a port of entry and US–VISIT, and in nearly all airports checked as appropriate by CBP officers. presenting identification for inspection, there is a special crew lane designated This final rule adds LPRs to the list of and DHS determines whether that especially for air crew members’ use. travelers who, upon being referred to nonimmigrant alien is admissible to the Based on observations from the four secondary inspection at land border United States. See sections 101(a)(13),

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

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and sex offenders, as well as serious criminal or terrorist acts that bar matter of policy, has considered all immigration violators. admission. aliens subject to US–VISIT as warranting Privacy Act analysis. DHS It is unclear from the comments why 6. Age Restrictions the proposal to expand the has published numerous PIAs and classifications of aliens subject to US– One commenter stated that the age System of Record Notices (SORNs) for VISIT should wait for full IDENT/IAFIS limitations on the requirement to be the systems making up US–VISIT. The interoperability. DHS currently receives processed in US–VISIT were too PIAs published by US–VISIT list the substantial benefits from screening narrow, saying the program should be principal users for, and uses of, the data without interoperability because US– applicable to no one over the age of 60 contained within US–VISIT/DHS VISIT identifies existing aliens requiring years old, as opposed to over the age of systems. The PIAs also identify the further review (e.g. criminal warrants, 79. Another commenter suggested the extent that the information may be prior deportations, etc.). opposite, saying that the age range shared with other law enforcement Whether immigration violations are should be expanded to cover those agencies of the United States, State, made available to law enforcement between the ages of 10 and 85. local, foreign or tribal governments, officers through IAFIS is not germane to US–VISIT processing is currently who, in accordance with their this final rule. As IDENT/IAFIS required of aliens who are between the responsibilities, are lawfully engaged in interoperability moves forward, any ages of 14 and 79 and otherwise collecting law enforcement intelligence such determination will be discussed in required to enroll and be verified in US– information and/or investigating, the appropriate PIAs by the appropriate VISIT. Technically, it is possible to prosecuting, enforcing or implementing Department if and when contemplated. include more individuals who are civil and/or criminal laws, related rules, younger and older than these age Finally, although not germane to the regulations, or orders. DHS has limitations. However, this age range is rulemaking, DHS notes that biographic published the PIAs (www.dhs.gov/ consistent with longstanding DHS and data from USCIS are transmitted to the privacy) and provided links to the legacy INS policy concerning the Arrival Departure Information System system of records notices for the US– fingerprinting of those seeking (ADIS) so that changes to immigration VISIT program. See, e.g., 68 FR 69412 immigration benefits, including status are reflected in US–VISIT in near- (Dec. 12, 2003); 68 FR 69414 (Dec. 12, adjustment of status to permanent real time. Accordingly, US–VISIT has 2003); 69 FR 482 (Jan. 5, 2004); 69 FR resident and naturalization. DHS uses 57036 (Sept. 23, 2004); 70 FR 35110 the capability to ensure that aliens who exemptions consistent with these (Jun. 16, 2005); 70 FR 38699 (July 5, are in lawful status are not determined limitations. DHS may reconsider these 2005); 70 FR 39300 (July 7, 2005); 71 FR to have stayed past their original age ranges in the future, but does not do 3873 (Jan. 24, 2006); 71 FR 13987 (Mar. periods of admission if that period has so as part of this regulation. The current 20, 2006); 71 FR 42653 (July 27, 2006); been extended by USCIS. exemptions will continue to apply 71 FR 42651 (July 27, 2006). 5. Biometric Identifiers equally to all of the aliens enrolled in One commenter objected to the data US–VISIT. retention policies of the US–VISIT One commenter inquired about the system, stating that DHS does not have language in the proposed rule that 7. Exemption of Individual Aliens adequate justification for taking new reserves the ability for DHS to collect One commenter objected to language photographs and fingerprints of aliens at ‘‘other biometric identifiers’’ in addition in the proposed 8 CFR 215.8(a)(2)(iv) each encounter. Another commenter to photograph and fingerprints. This and 8 CFR 235.1(f)(1)(iv)(D) that allows questioned whether DHS should retain language is prophylactic. At this time, the Secretary of Homeland Security, the identification information perpetually, DHS has no plans to collect biometric Secretary of State, or the Director of even if the alien later became a United identifiers in addition to photographs Central Intelligence to exempt any States citizen. DHS is currently and fingerprints. However, DHS also individual alien from the biometric reviewing the retention policy for the recognizes that historically, other entry or exit processes. Each of these Arrival Departure Information System biometric identifiers such as height, three departments has specific reasons (ADIS) and plans to adjust that policy to weight, color of hair, color of eyes, etc., why a particular person should be be consistent with the retention policy have been recorded, and this language exempt from the biometric collection for IDENT, which is part of US–VISIT. continues to reflect that historic fact. process that is integral for their core IDENT is an encounter-based system Moreover, technological development mission. The individualized decision to compiling a complete travel history to may provide the capacity for use of exempt an alien is based on the interests permit DHS to prevent fraud and other biometric identifiers in the future. of the United States in managing its provide evidence of each particular DHS will make, as appropriate, changes foreign and military affairs and poses no encounter. DHS disagrees with the in Privacy Impact Assessments and risk to the security of the United States. commenters’ conclusion that Systems of Records Notices for these insufficient justification exists for this systems. E. Privacy and Information Retention system. Another commenter suggested that Several commenters raised concerns In addition, DHS uses the historical visual comparison of photographs is relating to privacy, particularly the fingerscans to ensure that the best sufficient for identification. DHS privacy of particular groups of aliens quality prints are matched against disagrees. Document fraud, in some and DHS compliance with the Privacy watchlists. This ‘‘best print forward’’ instances, has been effective in creating Act, 5 U.S.C. 552a. process involves evaluating the quality a false identity that defeats simple One commenter stated that DHS has of the prints each time DHS encounters visual inspection of photographs with not met its responsibilities under the an alien and using the best quality print the face of the bearer. In addition, the Privacy Act by failing to publish a from that point on. DHS is less and less commenter’s suggestion overlooks the Privacy Impact Assessment (PIA). DHS likely to receive a ‘‘false positive,’’ as purpose of positive freezing of an has published a PIA. 71 FR 42653 (July the quality of prints will improve over identity with fingerscans to determine 27, 2006). Though not legally required a lifetime of encounters—both because whether the individual is admissible to to do so because nonimmigrants are not of this quality selection process and the United States or has committed covered by the Privacy Act, DHS, as a because of improvements in the

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hardware and software used in the Pertaining to Human Rights, Feb. 23, G. United States Citizen Voluntary process. 1978, S. Exec. Docs. C, D, E, and F, 95th Enrollment Another commenter questioned how Cong., 2d Sess. (1978); as reported S. Three commenters stated that US– many adverse actions were based on Exec. Rep. No. 23, 102d Cong., 2d Sess. VISIT should be applied to all travelers, ‘‘false positives.’’ None of the adverse 2 (1992); as considered and ratified in regardless of citizenship, for security actions were based on false positives. the Senate 138 Cong. Rec. 8070—8071 reasons. Three commenters stated DHS is aware of the potential of false (1992); see Multilateral Treaties explicitly that they were opposed to this positive ‘‘hits’’ against immigration and Deposited with the Secretary-General: in the context that application of US– criminal databases and has taken Status as of 31 Dec. 1995, at 122, 130, VISIT to LPRs would mean the eventual documented steps to address this U.N. Doc. ST/LEG/SER.E/14 (1996); application to United States citizens. potential. Currently, US–VISIT uses a Sosa v. Alvarez-Machain, 542 U.S. 692, One commenter stated that there should series of matching algorithms and 734–35 (2004) (stating that the ICCPR is be provisions through which United thresholds developed in consultation not self-executing). The United States and testing with the United States States citizens could voluntarily be takes its international obligations National Institute of Standards and biometrically identified through US– seriously, and this rule violates no Technology (NIST). An automated VISIT as a means of getting through provision of the ICCPR. fingerprint comparison establishes security faster at airports. On the first mathematical scores of matching and Article 10 of the ICPPR is not point, DHS is limited by statute and non-matching, and a non-conclusive applicable to the border management regulation to apply US–VISIT to aliens. score is checked manually by a process by definition—Article 10 On the second point, DHS is exploring fingerprint examiner located at the DHS applies to the detention of persons for several types of ‘‘registered traveler’’ Biometric Support Center. The violation of the criminal laws of a programs which may accomplish the Biometric Support Center manually signatory country. Although the ICCPR same goal. Overall, this objective could determines whether any ‘‘close’’ match does not apply to this rule, DHS also be accomplished in the future, and DHS is a ‘‘false positive’’ on a 24-hour, seven- does not believe there is anything is exploring it, just not through US– day-per-week basis. inherently degrading or inhuman about VISIT. Three commenters stated that what the current US–VISIT process. H. Economic Impact they perceived to be low numbers of Moreover, individuals often provide One commenter stated that DHS ‘‘adverse actions’’ against those being pictures for the purpose of obtaining a matched against biometric databases incorrectly certified that it was not benefit—most notably in the context of required to conduct a Regulatory provided evidence that the program obtaining a driver’s license, a passport, should be scaled back instead of Flexibility Analysis, as required by 5 or some other form of identification and U.S.C. 603. In the NPRM, DHS did expanded. DHS does not agree and does associated benefit. Photographs and not measure the success of the program certify that such an analysis was not fingerscans are common commercial required, pursuant to the provisions of solely by the specific number of adverse identifying events. actions. Further, the number of adverse 5 U.S.C. 605(b), which provides that the actions pertains to those in which the Article 12 permits freedom to depart requirement for an analysis does not person was identified solely by a country and limits any restrictions to apply if the head of the agency certifies biometric information. It also excludes those that are provided by law; are that the rule will not have a substantial those who were identified but necessary to protect national security, affect on small entities as that term is ultimately admitted. Finally, it public order, public health or morals, or defined at 5 U.S.C. 601(6). See 71 FR at obviously does not include those who the rights and freedoms of others; and 42608. were deterred by the system in the first are consistent with the other rights The definitions for the Regulatory place. Overall, measuring a program’s recognized by the present ICCPR. US– Flexibility Act provide that the term success by the detection of the things it VISIT does not unduly restrict departure ‘‘small entity’’ is the composite of the is designed to prevent does not from the United States—it merely terms ‘‘small business,’’ ‘‘small necessarily lead to significant records departure. Many signatory organization,’’ and ‘‘small governmental conclusions. countries to the ICCPR use some exit jurisdiction.’’ 5 U.S.C. 601(6). Normally a ‘‘small business’’ has the same F. International Conventions registration, and exit registration is generally considered to be consistent meaning as the term ‘‘small business One commenter argued that the with the ICCPR. concern’’ under section 3 of the Small proposed rule would violate the Business Act, 15 U.S.C. 632. A ‘‘small obligations of the United States under Article 21 provides for the right of organization’’ generally means any not- Articles 10, 12, and 21 of the peaceful assembly, except that for-profit enterprise which is International Covenant on Civil and restrictions may be placed on the independently owned and operated and Political Rights (ICCPR) of 1966 relating exercise of this right which are is not dominant in its field. And, finally, to detention, freedom to leave a country, necessary in a democratic society in the a ‘‘small governmental jurisdiction’’ and assembly. The commenter suggests interests of national security, public generally means governments of cities, that these provisions apply in the border safety, public order, the protection of counties, towns, townships, villages, management process when a person public health or morals, or the school districts, or special districts with requests admission at a port of entry. [I protection of the rights and freedoms of a population of less than fifty thousand. sent question to Nina and others. However, nearly all governments Although the statute permits deviation Elizabeth]DHS disagrees. The ICCPR is can, and do, inspect people traveling from these terms by following an not self-executing and was ratified with across their international borders, and established statutory procedure, DHS limitations and understandings. See they do so in every country every day. does not apply any different definition International Covenant on Civil and Accordingly, DHS does not believe this for this purpose. 5 U.S.C. 601 (3), (4), Political Rights, Dec. 16, 1966, 999 rule violates or impacts any of the (5). U.N.T.S. 171, 6 I.L.M. 368, as signed obligations of the United States under The Regulatory Flexibility Act applies and submitted see Four Treaties the ICCPR. to individuals only to the extent that

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they are sole proprietors of businesses security, and technology costs. As Inspection of aliens and accompanying that are small entities; for example, an discussed above, in the proposed rule, luggage is conducted very rapidly in a independent trucker. The Regulatory and in previous rulemakings and secured inspection environment for a Flexibility Act does not apply to notices, DHS has already deployed US– number of different purposes. Facilities individuals, but to small businesses (for VISIT technological capability into for detailed questioning in secondary profit or not for profit), whether a sole virtually all primary lanes at air and sea inspection are limited. No evidence has proprietorship, a partnership, or a ports of entry and in all secondary been presented to DHS that suggests that corporation, and small governmental inspection environments in land border any benefit accrues from permitting entities, not the individuals who may ports of entry. Therefore, the counsel to consult with clients in this own or belong to those organizations. deployment costs, space, and environment when they are free to One commenter stated that DHS was technology issues are virtually consult prior to seeking admission to incorrect to include in its Executive nonexistent. Similarly, all CBP officers the United States or if they are placed Order 12866 benefit/cost statements of in air and sea primary inspection, and in removal proceedings. the proposed rule that there are no in secondary land inspection, are Accordingly, DHS’ regulations potential costs or consequences trained on the existing US–VISIT provide that: associated with this rule that would equipment and are already familiar with impede the free flow of commerce and [n]othing in this paragraph shall be construed its use. Finally, DHS believes that to provide any applicant for admission in trade. The commenter suggests that expanding a biometric entry-exit system either primary or secondary inspection the Executive Order 12866 requires DHS to is more likely to increase security for right to representation, unless the applicant publish a thorough explanation as to the United States. Security, as the for admission has become the focus of a how US–VISIT will benefit the efficient foundation for the US–VISIT program, is criminal investigation and has been taken functioning of the economy and private a point made numerous times by the into custody. markets and a full assessment of the 9/11 Commission Report and Congress. 8 CFR 292.5(b). costs of US–VISIT. DHS believes that the commenter I. Attorney Representation Additionally, DHS does not believe relies heavily on the notion that DHS One commenter suggests that that the expansion of US–VISIT requires plans to enact user fees to finance the attorneys should be permitted to a change to the existing regulation US–VISIT program. As noted above, represent applicants for admission to because US–VISIT does not significantly US–VISIT is funded by appropriations. the United States in the inspection area. alter the inspection or admission DHS has no plans to charge a user fee As an initial matter, this suggestion is process for aliens. Accordingly, DHS to those seeking admission to the United not germane to the issues presented by declines to expand the privilege of States to finance US–VISIT. the proposed rule. Any affirmative counsel into the secure inspection DHS is required to weigh the benefits response to the comment would require environment. and costs of the changes of this substantial changes in regulations and J. Pacific Rim Issues particular rule. US–VISIT has, by procedures not addressed by the design, been implemented in stages—for proposed rule to expand the A commenter expressed concern that technology, operational, and cost implementation of US–VISIT. DHS, the inclusion of those applying for reasons. This expansion of the however, wishes to be responsive to the admission under the Guam Visa Waiver classifications is another step for the comment. Program could impair overall processing program, and one in which DHS has DHS has considered this proposal in times at the Guam port of entry, noting weighed the benefits and costs. First, as the past and will not implement this that this specific inclusion affected a stated previously, no additional proposal because it is neither required large number of individuals applying for individuals will be processed as part of by law nor good policy. Congress has admission in a port of entry that has US–VISIT at a land border without specifically provided for the expedited limited capacity. The commenter being sent to secondary inspection. The removal of aliens seeking admission suggested that DHS should be sure to only aliens being added to land border who are inadmissible to the United adequately staff that port of entry and secondary inspection under this rule are States because of misrepresentation or have a robust outreach strategy for those Canadian visa holders with a multiple on deficient or non-existent entering Guam. entry Form I–94, and only once every documentation. Section 235(b) of the The Guam Visa Waiver Program was six to eight months. In these instances, Act, 8 U.S.C. 1225(b)(3). An applicant established by section 14 of the a Canadian being processed in for admission to the United States may Omnibus Territories Act, Public Law secondary inspection may experience a be permitted to withdraw his or her 99–396, sec. 14(a), 100 Stat. 837, 842 fifteen second US–VISIT processing application for admission to the United (Aug. 27, 1986) (adding section 212(l) to time, but this would be part of a several States and depart immediately from the the INA, 8 U.S.C. 1182(l)), and is minute processing time in secondary United States. Section 235(a)(4) of the reflected in the regulations at 8 CFR inspection for reissuance of a Form I– Act, 8 U.S.C. 1225(a)(4). Removal 212.1(e). Citizens of many Pacific 94. Further, there is ample evidence, proceedings for other aliens seeking nations are exempt from the discussed in the proposed rule, that US– admission to the United States are requirement of a visa if they are entering VISIT has actually reduced waiting conducted before an immigration judge Guam as a visitor for business or times in the secondary environment at and the alien has the privilege of pleasure, are staying for 15 days or less, the land borders. DHS does not have counsel during those proceedings. and waive the right to contest any any empirical evidence that the Sections 292, 240(b)(4)(A) of the Act, 8 removal decision. To date, those economies of land border communities U.S.C. 1362, 1229a(b)(4)(A). entering under the Guam Visa Waiver will be adversely affected by expansion The introduction of the concept of Program have not been required to be of US–VISIT. Moreover the commenters legal counsel into a secured processed in US–VISIT. have not cited any empirical evidence international inspection area would DHS shares the commenter’s concern supporting such an adverse effect. severely disrupt the efficient processing and understands that inclusion of those Additionally, commenters raised of the vast majority of international seeking admission to Guam under the questions relating to staffing, space, travelers for little, if any, benefit. Guam Visa Waiver Program will impact

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that particular port disproportionately. The scope of the US–VISIT program, ongoing strategy to facilitate dialogue DHS will make significant efforts to under the authorizing statutes discussed with land border communities in the ensure that the outreach plan to nations above, is, however, properly within the United States, Mexico, and Canada, in the Pacific is equivalent to the scope of the rulemaking. The 9/11 engaging stakeholders in two-way outreach when US–VISIT began and Commission pointed out that ‘‘targeting discussions that allowed US–VISIT to that the Guam port of entry has the travel is at least as powerful a weapon learn and understand the specific issues resources it needs to process aliens in a against terrorists as targeting their and concerns related to border timely manner. In addition, DHS has money’’ and recommended a biometric management in those communities. At existing mitigation strategies in place for entry-exit screening system as a result. the same time, this dialogue has created instances of excessively long wait times T. Kean, et al., Final Report of the opportunities to educate stakeholders at immigration inspection and will National Commission on Terrorist about the US–VISIT program, informing monitor carefully the Guam port of Attacks Upon the United States (9/11 them of developments in program entry to determine whether to invoke Commission Report) (Government implementation, and gaining their those procedures. Printing Office, 2004) at 389. In assistance in reaching out to inform Another commenter suggested that successive enactments before and after their own constituents about the aliens from the Federated States of the 9/11 Commission Report, Congress program. Since February 2004, DHS has hosted Micronesia need to be added to the US– has insisted that DHS establish a or participated in over 100 meetings VISIT program. DHS agrees; Micronesia comprehensive entry-exit data entry system. Accordingly, DHS has with land border stakeholders in nationals would be covered under the established the US–VISIT program and communities along the borders of, and definition in 8 CFR 235.1 in the will, as practicable and subject to in the interiors of, the United States, proposed rule and in this final rule. certain limited exceptions, expand the Mexico, and Canada. These meetings III. Comments on the August 31, 2004 program to record the entry of all aliens. occurred in Texas, Arizona, New Interim Rule DHS recognizes that many individuals Mexico, California, Washington, perceive distinctions within the Minnesota, Michigan, New York, A. General universe of non-U.S. citizens as unfair, Vermont, and Maine. In Canada, DHS received a number of general but most of these distinctions are made outreach was coordinated in Toronto, comments on the US–VISIT program as by Congress as a matter of law and Vancouver, Montreal, Windsor, Sarnia, a whole. These comments were mixed, cannot be changed by DHS. Distinctions Ottawa, and Winnipeg. In Mexico, and many expressed strong feelings within the universe of non-United outreach activities were held in Mexico about the program. Some commenters States citizens made by DHS in the US– City, Reynosa, Tijuana, Ciudad Jaurez, raised general immigration issues, such VISIT program reflect assessments of Monterrey, Nuevo Laredo, and as whether the United States admitted risk and threat, practicality of Matamoros. DHS has placed numerous the appropriate number of immigrants, implementation based on international advertisements in publications serving whether treatment of Mexicans and relations, capacity to implement border communities in the United States Canadians was inequitable, and whether universal alien data capture, and and Mexico to advise the public directly the program amounted to a stigma technological and other limitations. of the US–VISIT process. DHS and US–VISIT have coordinated against the presumption of innocence. B. Outreach to the Affected Public extensively with Canada on issues These comments are beyond the scope Six commenters raised concerns about relating to the approximately 5,500-mile of the regulation and raise questions of US–VISIT in terms of sharing mutual border, through forums such as whether Congress should alter the information, most notably the concerns the Bi-National Technical Working immigration laws of the United States. of the border communities. Three Group, the Security and Prosperity These comments, however, indicate a commenters raised the concerns of Partnership (SPP), and participation in misunderstanding of some of the basic small businesses generally—that US– the Shared Border Accord meetings. The laws that underlie the regulations. Every VISIT would result in fewer travelers SPP is a trilateral effort to increase person arriving at the border of the and tourism and hurt the economy (and security and enhance prosperity among United States must be inspected and small businesses) as a whole. These the United States, Canada, and Mexico every alien’s admissibility to the United commenters encouraged outreach to the through greater cooperation and States must be determined. Under the affected communities and suggested that information sharing. Through SPP, the immigration laws of the United States, substantial notice be given to the public United States and Canada have explored the person seeking admission to the before changes to the program take options for lower-cost, secure proof of United States must establish that they place. status and nationality documents to are a United States citizen or a foreign DHS disagrees with the notion that facilitate cross-border travel, and have national eligible for admission. See US–VISIT will result in fewer travelers tested technology and made sections 212, 235 of the Immigration and tourism. DHS is aware of no recommendations to enhance the use of and Nationality Act (INA) (8 U.S.C. empirical evidence, and the comments biometrics in screening travelers. 1182, 1225). Inspection and have provided no empirical evidence, DHS and US–VISIT have coordinated admissibility upon arrival to the United that the recordation of fingerscans in extensively with Mexico on issues States involves verification of the US–VISIT and verification of identities relating to the 1,951-mile mutual border, identity of the alien and a determination has an adverse impact on the number of including the Bi-National Technical that the alien is admissible to the United travelers or tourists seeking admission Working Group. Mexico’s National States, i.e., that the alien has established to the United States, or that the Institute of Immigration (INM) has that the alien has permission to be development of US–VISIT will harm helped to ensure that US–VISIT’s admitted and is not ineligible for small businesses or the economy. education efforts are culturally admission by reason of any of the DHS, though US–VISIT, is committed appropriate so they can successfully disqualifying provisions in the to ensuring effective outreach to all reach, educate, and inform key Immigration and Nationality Act, as persons affected by the program. Since population groups or communities in enacted and amended by Congress. 2004, US–VISIT has implemented an Mexico.

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The effort to educate and engage the VISIT through an interim rule that D. Facilities diverse border communities contributed expanded the US–VISIT program to Five commenters suggested that significantly to US–VISIT’s ability to land border ports of entry in the United existing inspection facilities could not implement the program at the 50 most States. That interim rule also further handle, without significant delays, any trafficked land border ports of entry in refined the population of aliens who are broad changes to the existing inspection 2004 and to deploy US–VISIT at the required to enroll in US–VISIT to procedures. One commenter suggested remaining 104 land border ports of entry include VWP travelers and ship the need to create expedited lanes for where aliens are processed in 2005. The crewmembers, and it exempted Mexican frequent travelers, believing that the outreach efforts were critical to the nationals who present a Border Crossing existing infrastructure was inadequate smooth pilot testing and deployment of Card (Form DSP–150, or BCC), aliens to make these types of changes. US–VISIT entry procedures at land who are not required to be issued a To date, US–VISIT implementation at border ports of entry. Form I–94 Arrival/Departure Record, the land borders has not caused any DHS and US–VISIT recognize that and certain officials of the Taipei significant delays and has actually outreach benefits not just the public, but Economic and Cultural Representative decreased processing time at many ports the government as well. The success of Office. This interim rule is being due to the implementation of an the US–VISIT program is contingent on finalized in this final rule. automated Form I–94 issuance process effective outreach. DHS and US–VISIT Subsequently, DHS has published at secondary inspection. As indicated in are committed to continue this outreach notices applying US–VISIT to all land the proposed rule, US–VISIT has effort for future steps in the program. border ports of entry, implemented at significantly decreased entry timing at C. Use of Interim Rules secondary inspection. certain monitored land border ports of DHS appreciates and understands the Three commenters suggested that the entry. 71 FR at 42609. concern expressed by the commenters While land border infrastructure is use of interim rules by DHS in the on the use of interim rules to implement previous two US–VISIT rules was constrained, DHS has taken steps to the US–VISIT program. Consistent with alleviate congestion, such as inappropriate. the Administrative Procedure Act, DHS DHS has used interim rules twice in implementing frequent traveler publishes proposed rules for public the development of US–VISIT. In a programs and dedicated lanes for their notice and comment whenever possible. January 5, 2004, interim rule, DHS travel, where possible. 5 U.S.C. 553. Where DHS determines implemented the first phase of US– One commenter specifically suggested that expedited promulgation of a rule is VISIT and provided that aliens seeking that including a broad number of required and has good cause to publish admission into the United States Canadians in US–VISIT would have a and make effective an interim final rule through nonimmigrant visas must detrimental effect on northern border before receiving and considering public provide fingerprints, photographs, or facilities. This final rule and the July 27, comments because delay would be other biometric identifiers upon arrival 2006, proposed rule describe how DHS impractical, unnecessary, or contrary to in, or departure from, the United States will include some Canadians in US– the public interest, DHS provides a clear at air and sea ports of entry. The rule VISIT processing at land border statement to that effect. 5 U.S.C. exempted several groups of aliens: inspection. DHS agrees that there are • Those with diplomatic recognition 553(b)(B). DHS is committed to significant technological difficulties (A–1, A–2, C–3 (except for attendants, providing the public with an associated with implementing US– servants or personal employees of opportunity to comment on its rules and VISIT at land borders for all aliens’ accredited officials), G–1, G–2, G–3, G– to considering public comments in entry and exit through primary 4, NATO–1, NATO–2, NATO–3, NATO– making final decisions in promulgating inspection. Whether expansion of US– 4, NATO–5, or NATO–6 visas, unless rules. VISIT will include installation at all the Secretary of State and the Secretary One commenter questioned whether primary inspection booths is, at this of Homeland Security jointly determine the August 31, 2004, interim rule point, unclear. This rule establishes that that a class of such aliens should be contained sufficient information to only a small number, and not all, subject to the rule); permit the public comment on the Canadians will be processed in US– • Children under the age of 14; second phase of US–VISIT. The scope VISIT at secondary inspection. DHS, • Persons over the age of 79; and content of the comments received thus, believes that the impact on • Classes of aliens the Secretary of indicate that DHS provided ample northern border facilities will be Homeland Security and the Secretary of information to support the interim rule, minimal. State jointly determine shall be exempt; and DHS is responding to those • And an individual alien whom the comments in this final rule. E. Interaction With Existing Programs Secretary of Homeland Security, the That interim rule included a sixty-day Ten comments discussed US–VISIT Secretary of State, or the Director of comment period. Additionally, the interoperability with other existing Central Intelligence determines shall be comment period was extended to 90 programs that collect biometric or exempt. days (expiring on December 1, 2004) to biographic information, most often 69 FR 468 (Jan. 5, 2004). At the same provide an opportunity for commenters those that impact the land borders, such time, DHS published a notice in the to observe and comment on the land as the Secure Electronic Network for Federal Register setting forth the classes border implementation (which began Travelers Rapid Inspection (SENTRI), of aliens subject to US–VISIT and the air November 15, 2004). 69 FR 64477 (Nov. Free and Secure Trade (FAST), and and sea ports where US–VISIT would be 5, 2004). NEXUS. Some commenters were applicable. 69 FR 482 (Jan. 5, 2004). DHS is committed to ensuring that the concerned that multiple checks were DHS received 21 comments on that public is able to comment on all aspects repetitive and would not contribute to interim rule and responded to those of the US–VISIT program. DHS is also security, although they would slow comments in the August 31, 2004, committed to providing as much down processing at the borders and interim rule. 69 FR at 53323–53329. information as possible to permit public airports. Other commenters noted that On August 31, 2004, DHS comment on the implementation of other programs have already vetted implemented the second phase of US– rulemaking. specific travelers and that further

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security checks through US–VISIT are as possible while accomplishing its southern border. One suggested that a redundant. mission and understands that strict interpretation of the existing DHS is committed to ensuring that facilitating legitimate travel and trade is regulations would require an alien who international travel is both secure and one of the program’s core goals. DHS is not Mexican, but who has a multiple- efficient, and, therefore, is exploring attempts to ensure that there are entry Form I–94 and is a frequent border ways to appropriately integrate US– adequate numbers of CBP officers to crosser (such as a person living on one VISIT, SENTRI, FAST, NEXUS, and clear flights as expeditiously as side of the border and working on the other border screening and credentialing possible. While DHS believes that it other), to be processed in US–VISIT for programs. DHS acknowledges the largely succeeds in this mission, it every entry. DHS has not implemented validity of the commenters’ concern that acknowledges that there are times when such a policy. Those with multiple- multiple systems can create unnecessary international passengers are not entry Forms I–94 are required to redundancy. DHS is committed to inspected as quickly as they or DHS undergo US–VISIT processing upon the ensuring that any unnecessary would like. DHS is responsible for expiration of their existing Form I–94, redundancy and inefficiencies are not ensuring that all international travelers or every six to eight months. perpetuated and that all border crossing seeking admission to the United States programs are appropriately integrated are who they claim to be and are eligible H. Health Risks over time. for admission. The balancing of these Citing the United States Department F. Staffing and Training responsibilities can occasionally cause of Health and Human Services’ Bureau delays. of Primary Health Care, two commenters Five commenters suggested that US– DHS takes steps to increase CBP suggested that southern border VISIT could have a negative impact if officer presence during peak hours. In communities have a higher rate of other areas of DHS did not support the addition, DHS has taken steps at various communicable diseases, such as program. For example, a few ports to attempt to improve the ability tuberculosis. The commenters suggested commenters stated that too few CBP to read fingerprints quickly. For that biometric fingerprinting could officers were knowledgeable about example, DHS has been experimenting exacerbate this incidence and create issues surrounding US–VISIT and how with attaching a silicon film to the exposure to both the CBP officers it could affect admissibility. fingerscan reader to get more accurate Following the initial rollout of US– working on the southern border and readings, and this process has yielded United States citizens living in the VISIT, DHS has taken additional steps good results thus far. DHS will continue to address this issue. For example, DHS border communities. Another to ensure that the US–VISIT process commenter raised similar health sent training teams to all 50 land border does not unduly delay the inspection ports of entry to instruct officers about concerns regarding the US–VISIT process. process in the air and sea environment. the process changes as a result of US– At the land border ports of entry, the VISIT implementation. In addition, DHS current process for land border DHS is aware of these health concerns set up a telephone call center through inspection remains largely the same as and believes that they are not the rollout of the 50 busiest ports of it was prior to the implementation of influenced by US–VISIT. Tuberculosis entry in November and December of US–VISIT. Aliens who must acquire is an airborne bacterial infection 2004. In the Summer and Fall of 2005, Form I–94 as evidence of admission are transmitted by air, and to become other training steps were taken in referred to secondary inspection rather infected, an individual must usually be conjunction with the rollout of the than being processed in the primary exposed to an infection source for an additional 104 land border ports of inspection lanes. This process will extended period in a closed entry, including sending field trainers to continue following the publication of environment. In 2005, 14,097 each additional port implementing US– this final rule. tuberculosis (TB) cases were reported to VISIT and providing on-line refresher Another commenter raised the issue the Centers for Disease Control and courses on US–VISIT policies and of implementing US–VISIT at the 50 Prevention (CDC) from the fifty states procedures. US–VISIT procedures are most highly trafficked land borders in and the District of Columbia. CDC, implemented through the CBP November and December of 2004, Reported Tuberculosis in the United management, training of officers, policy stating that this was the busiest time of States, 2005, Sept. 2006, at 3, available memoranda, and operational direction. the year due to the holidays, and at http://www.cdc.gov/nchstp/tb/surv/ suggested waiting until January 2005. surv2005/PDF/TBSurvFULLReport.pdf. G. Travel and Delays DHS understands this concern, but DHS DHS believes that fingerprint scans do Six commenters expressed concern was required to implement US–VISIT at not impact the chances of transmitting over the waiting periods in the the 50 busiest land borders by December tuberculosis, as the disease is spread inspection process that they claimed 31, 2004. DHS sought to avoid this issue through the air and transmission were caused by US–VISIT. These when expanding US–VISIT to all other requires an extended period of contact comments covered both past events in land border ports of entry in 2005. See with a person carrying it, not the short the air and sea context and concerns 70 FR 54398 (Sept. 14, 2005) (additional period of time required for enrollment. over future land border processes, and ports being added prior to December 31, Similarly, there is no risk that US–VISIT attributed delays to too few inspection 2005). In future expansions of US– contacts will cause contraction or booths and the inability of scanners to VISIT, DHS plans to avoid transmission of viral haemorhagic fevers read fingerprints on the first try. Other implementing changes during the peak (such as Ebola, Lassa, Marburg, Congo- commenters acknowledged shortened travel times of the year. However DHS Crimean), bioterrorism diseases (plague, processing times due to the increase in must reserve the decision on timing of anthrax, tularemia), bloodborne diseases the number of CBP officers available, future implementation until decisions (HIV, hepatitis B and C virus), soil- but noted delays attributed to are made based on all requirements at transmitted diseases (worms, fingerprints not always being effectively that time. dermatophytes, sporeforming bacteria), scanned on the first try. Two commenters raised concerns or vectorborne diseases (malaria, DHS is committed to ensuring that involving third-party nationals crossing dengue, leishamaniasis, US–VISIT will be as least burdensome at land borders, specifically the trypansomiasis).

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CBP officers clean the fingerscan Another commenter focused its border security databases, DHS will machines periodically using lint-free specifically on the northern border with reassess the privacy impact of such wipes and rubbing alcohol to mitigate Canada, stating that there is not, in integration, and the public will be the public’s legitimate health concerns. writing, a permanent exemption for invited to provide further comment. This periodic cleaning helps DHS Canadians. The comment is correct. No One commenter stated, however, that capture better quality fingerscans on the nationality was ever planned to be the statements in the PIA on the first try and reduces inspection wait permanently exempt from US–VISIT. purposes of information collection and to whom the information must be times. J. Privacy Finally, the DHS Chief Medical shared conflicted with the language of Officer (CMO) oversees and coordinates Twelve commenters raised privacy the August 31, 2004 interim rule, all medical activities of DHS to ensure concerns in the collection of US–VISIT quoting that language where the interim appropriate preparation for, and information, although these comments rule stated: were about varying specific points of the response to, incidents having medical the [collected] information may also be significance. The DHS CMO also program. DHS is required to protect the shared with other law enforcement agencies coordinates the biodefense activities of privacy of the individuals from whom at the federal, state, local, foreign, or tribal DHS, including its pandemic influenza DHS collects information through the level, who, in accordance with their portfolio, and ensures that DHS has a US–VISIT process in accordance with responsibilities, are lawfully engaged in collecting law enforcement intelligence unified approach to medical the Privacy Act, 5 U.S.C. 552a. As part of this responsibility, DHS has information and/or investigating, preparedness. Accordingly, any medical published a series of Privacy Impact prosecuting, enforcing, or implementing civil direction from the DHS CMO will be Assessments (PIAs) to explain the and/or criminal laws, related rules, implemented to prevent transmission of regulations, or orders. program, changes to the program, risks pathogens through US–VISIT. that have been identified to privacy, and 69 FR at 53324. The relevant PIA, I. Program Exemptions steps undertaken to mitigate that risk. however, contains the same language The PIAs affecting US–VISIT list the (section 4, p. 7). DHS received many comments principal users of the data within DHS The commenter also suggested that concerning the populations of aliens and notes that the information may also the purposes for which the PIA states who were, or should be, included in be shared with other law enforcement that the information is being collected US–VISIT. A few discussed issues that agencies at the federal, state, local, conflicts with the sharing of the data did not directly involve US–VISIT, such foreign, or tribal level who, in with the FBI and other law enforcement as extension of the time period per visit accordance with their responsibilities, agencies. One of the stated purposes of for holders of a B–1/B–2 visa or BCC, or are lawfully engaged in collecting law US–VISIT in the PIA is, however, to more parity between Mexican and enforcement intelligence information provide information on whether a Canadian visitors. See 70 FR 52037 and/or investigating, prosecuting, person ‘‘should be apprehended or (Sept. 1, 2005) (Western Hemisphere enforcing, or implementing civil and/or detained for law enforcement action.’’ Travel Initiative, ANPRM); 71 FR 46155 criminal laws, related rules, regulations, DHS believes that this purpose is not (Aug. 11, 2006) (same, NPRM); 71 FR or orders. DHS has made available inconsistent with sharing data with law 68412 (Nov. 24, 2006) (same; airports; several PIAs and revisions for the US– enforcement entities. DHS also Final Rule). VISIT program and noted that published a revised PIA prior to the Four commenters expressed support availability on the public record. See 71 interim rule becoming effective on for the Canadian exemption and FR 42653 (July 27, 2006); 71 FR 3873 September 30, 2004. 69 FR 57036 (Sept. requested it be made permanent, (Jan. 24, 2006); 70 FR 39300 (July 7, 23, 2004). Further, DHS published whereas one commenter suggested 2005); 70 FR 35110 (June 16, 2005); 70 additional PIAs as necessary for eliminating the exemption. Creating a FR 17857 (Apr. 7, 2005) (Advanced additional steps in the program. permanent US–VISIT exemption for Passenger Information System); 69 FR Finally, the commenter stated that applicants for admission from Mexico 57036 (Sept. 23, 2004); 69 FR 2608 (Jan. DHS should recognize a right of judicial and Canada, or for some other 16, 2004). All of the assessments and review for individuals adversely nationality, is inconsistent with the revisions are available on the DHS Web affected by US–VISIT. DHS has statutory obligations of DHS to create a site at http://www.dhs.gov/us-visit. DHS interpreted ‘‘adversely affected’’ to refer complete biometric entry-exit system. continually considers the impact of US– to inaccurate or incorrect information Moreover, no regulatory provision VISIT on privacy interests and updates maintained by US–VISIT or a dealing with security can be considered its assessments as the program is determination of inadmissibility. These permanent—programmatic requirements developed. situations have been excluded from and implementing regulatory Two comments raised the issue of judicial review per DHS and requirements and limitations must be ‘‘scope creep’’ or ‘‘mission creep,’’ Department of Justice (DOJ) policy for adjusted to respond as security stating fears that the information many years, and the implementation of requirements change. DOS security collected in US–VISIT will be used for US–VISIT does not warrant reopening measures in the issuance of a BCC do purposes not connected to the program. this issue. Moreover, a determination not relieve DHS of its statutory DHS believes that the PIAs, which that the alien is inadmissible is obligations. However, DHS considers identify the specific purposes for which reviewable only pursuant to other the impact of processing additional the information is being collected, the statutory and regulatory provisions. See, alien classifications in US–VISIT and intended use of the information, with e.g., section 240 of the INA (8 U.S.C. attempts to minimize negative impacts whom the information will be shared, 1229a) (removal proceedings to deciding prior to implementation. DHS and how the information will be inadmissibility). understands the economic ramifications secured, protect the public from If an individual believes that there is of transborder travel and commerce and ‘‘mission creep.’’ The PIA process is an error in the information contained in will implement large-scale changes also a transparent one, with the public DHS systems and collected through the through technology and processes to being able to access it and comment on US–VISIT process, US–VISIT has minimize their overall impact. it. As DHS further considers integrating provided a three-step redress process to

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have records reviewed and amended or K. Fees action’’ because there is a significant corrected based on accuracy, relevancy, One commenter stated that it would public interest in issues pertaining to timeliness, or completeness. This be inappropriate for DHS to raise national security, immigration policy, process includes confirming that traveler fees to fund the US–VISIT and international travel and trade mismatches and other errors are not program because the commenter related to this final rule. Accordingly, retained as part of an alien’s record. The believed that US–VISIT provides no this rule has been submitted to the first opportunity for data correction direct benefit to the international Office of Management and Budget occurs at the port of entry where the traveler at the time of inspection. This (OMB) for review and approval. CBP officer has the ability to correct comment misapprehends the source of DHS currently processes through US– manually most biographic-related funding for US–VISIT. US–VISIT is VISIT, using biometrics, all aliens errors, such as name, date of birth, flight funded through appropriations. See entering the United States with a information, and document errors. All Department of Homeland Security nonimmigrant visa or under the VWP at of this process occurs without any Appropriations Act, 2007, Public Law any air, sea, or land port of entry. US– VISIT biometric screening has resulted action required by the individual. 109–295, tit. II, 120 Stat. 1355, 1357 (Oct. 4, 2006). The commenter is correct in the ability of DHS to take adverse If the individual still has questions action against more than 3800 aliens about the travel record, he or she may in citing one of the factors in determining whether a fee should be who posed a security threat to the contact the US–VISIT Privacy Officer. charged under the Chief Financial United States or whose prior criminal As of March 2007, US–VISIT’s Privacy Officers Act, 31 U.S.C. 902(a)(8); the actions rendered them ineligible for Office has received 175 requests for Independent Offices Appropriations admission. This final rule will redress from the more than 78.5 million Act, 1952, 31 U.S.C. 9701; and Office of strengthen the ability of CBP officers to encounters through the US–VISIT Management and Budget Circular A–25, identify and take action against persons process. The US–VISIT Privacy Officer User Charges (Revised), section 6, 58 FR whose conduct renders them a security will review the travel record, amend or 38142 (July 15, 1993). DHS is not, threat and therefore ineligible for correct it as necessary, and send a however, considering establishing a fee admission. For example, DHS expects response to the traveler describing the to support funding of US–VISIT at this that, just as 3,382 nonimmigrants have been intercepted by DHS using the action taken within 20 business days of time, and the proposed rule did not biometric screening of US–VISIT, receipt of the inquiry. If the individual suggest that such a fee was being additional individuals applying for is not satisfied with the action taken, he considered. or she can appeal to the DHS Chief admission with permanent resident Privacy Officer, who will review the IV. Statutory and Regulatory Reviews cards or reentry permits will be found, through the comparison of biometric appeal, conduct an investigation, and A. Regulatory Flexibility Act make a final decision on the action to identifiers, to have violated the terms of The Regulatory Flexibility Act (RFA) be taken. This redress policy is their permanent resident status. Such (5 U.S.C. 605(b)), as amended by the published on the DHS Web site at violations may be the result of the Small Business Regulatory Enforcement commission of various crimes, http://www.dhs.gov/us-visit. The US– and Fairness Act of 1996 (SBREFA), VISIT Privacy Officer can also be tampering with the actual permanent requires an agency to prepare, and make resident card, or attempting to gain contacted by e-mail at available to the public, a regulatory entry by assuming the identity of [email protected]. flexibility analysis that describes the another LPR. Such violations could One commenter suggested that aliens effect of the rule on small entities (i.e., ultimately result in the loss of sent to secondary inspection for small businesses, small organizations, permanent resident status and possible purposes related to US–VISIT be and small governmental jurisdictions). removal from the United States or the included in a line separate and apart DHS has considered the impact of this exclusion or removal of an individual from those sent to secondary for any rule on small entities and certifies that from the United States for fraud. Based other purpose. Unfortunately, this this rule will not have a significant on the number of permanent resident comment cannot be adopted. At the economic impact on a substantial cards that are seized by CBP officers at time a traveler is sent to secondary, the number of small entities. The individual ports of entry (approximately 15,000 in CBP officer does not know definitively aliens to whom this rule applies are not FY 2005) and the number of DHS whether the reason is a mismatched small entities as that term is defined in Forensic Document Laboratory analyses fingerprint (false positive) or some other 5 U.S.C. 601(6). There is no change each month (approximately 250), DHS reason, such as a passport substitution. expected in any process as a result of estimates that US–VISIT biometric Initial studies have determined, this rule that would have a direct effect, screening has the potential to identify a however, that the incidence of a traveler either positive or negative, on a small significant number of aliens each month being identified incorrectly as a entity. Accordingly, this rule will not in need of additional investigation prior ‘‘watchlist hit’’ by US–VISIT and being have a significant economic impact on to being admitted to the United States. referred to secondary as a result is low, a substantial number of small entities, In addition, based on the numbers of less than one-tenth of one percent. and DHS does not believe that US– refugee travel documents (519) and VISIT processing will impede the free immigrant visas (2,287) that CBP Another commenter discussed the flow of travel and trade, especially officers intercepted in attempts to use impact of ‘‘false hits’’ and the need to travel and trade related to small entities. the documents fraudulently by aliens eliminate them. DHS is actively during FY 2005, US–VISIT estimates attempting to decrease the likelihood of B. Executive Order 12866—Regulatory that interception of fraudulently used a false match—where one alien is Planning and Review documents will increase with the incorrectly matched to a watchlist hit— Under section 3(f) of Executive Order introduction of biometric verification of with frequent upgrades of our matching 12866, ‘‘Regulatory Planning and identity. algorithms. Further, DHS is constantly Review’’ (58 FR 51735 (Sept. 30, 1993) DHS expects similar results—an seeking ways to reduce the incidence of (as amended), DHS has determined that increase in the number of aliens false hits. this final rule is a ‘‘significant regulatory identified with possible admission-

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related or immigration problems—by application for admission to the United the visa requirements. These ports of including the other groups of aliens States with the biometrics that were entry handle over 99% of all air and sea highlighted in this final rule into the already collected during the initial border traffic and over 95% of all land US–VISIT biometric screening protocol. refugee or asylee adjudication process. border traffic for these alien For example, aliens holding immigrant Similarly, aliens paroled into the classifications. DHS, through CBP, has visas have a six-month validity window United States warrant the additional carefully monitored the impact of US– from the date that the visa is issued to screening derived by using US–VISIT. VISIT biometric data collection on the arrive in the United States. Events could While the majority of these aliens have inspection of applicants for admission occur during this time period that could been screened overseas in order to at air, sea, and land borders. At air and result in the alien being found determine whether a parole should be sea ports, internal studies have inadmissible to the United States, and granted, it is in the security interests of established that the biometric collection such inadmissibility might only be the United States to verify that the adds no more than 15 seconds on discovered as the result of biometric individuals who arrive at the border are average to the inspection processing comparisons. Over the last several years, the same individuals originally screened time at primary inspection. At land over 365,000 aliens have entered the for parole. Approximately 150,000 border ports, internal studies have United States annually on immigrant aliens are granted parole into the United shown positive results, and in some visas. States each year. ports of entry the amount of time to Refugees and asylees—appearing The costs associated with process an alien for admission using the before government officers in many implementation of this final rule for US–VISIT process was actually shorter instances without the benefit of even the select travelers not otherwise exempt than it had been previously due to the most basic form of identity from US–VISIT requirements include an automation of data collection and documentation—potentially pose a risk increase of approximately 15 seconds in implementation of a standard process. A to public safety and security. In many initial inspection processing time close examination of the first three land instances, the United States Government (additional biometric collection) per ports of entry to begin US–VISIT is providing these individuals with a applicant over the current average biometric collection as part of new identity. It is important to inspection time. No significant admission found that the average recognize that for refugees and asylees, difference is anticipated in the processing time for applicants requiring US–VISIT will be verifying the identity processing of an alien traveling with a a Form I–94 or Form I–94W actually of these aliens by comparing the visa or under the VWP, as compared to decreased and sometimes resulted in biometrics collected at the time of an any other alien who is exempted from significantly reduced processing times.

Average form I–94 processing Port of entry time before implementing US– Average form I–94 processing VISIT time after implementing US–VISIT

Port Huron, MI ...... 11 minutes, 42 seconds ...... 9 minutes, 58 seconds. Douglas, AZ ...... 4 minutes, 16 seconds ...... 3 minutes, 12 seconds. Laredo, TX ...... 12 minutes, 10 seconds ...... 2 minutes, 18 seconds.

Accordingly, DHS does not believe C. Executive Order 13132—Federalism identifiers from certain aliens seeking to that US–VISIT processing impedes the enter or depart from the United States, free flow of travel and trade. Executive Order 13132 requires DHS for the purpose of improving the to develop a process to ensure administration of federal immigration In addition, over time, the efficiency ‘‘meaningful and timely input by State with which the process is employed laws and for national security. States do and local officials in the development of not conduct activities with which the will increase, and the process can be regulatory policies that have federalism provisions of this specific rule would expected to further improve. DHS will implications.’’ Such policies are defined interfere. not apply this rule to all aliens crossing in the Executive Order to include rules land borders until technological that have ‘‘substantial direct effects on D. Unfunded Mandates Reform Act advancements are identified, tested, and the States, on the relationship between Section 202 of the Unfunded implemented to ensure that the land the national government and the States, Mandates Reform Act of 1995 (UMRA), border commerce and traffic concerns or on the distribution of power and Public Law 104–4, 109 Stat. 48 (March are significantly mitigated. DHS may responsibilities among the various 22, 1995) (2 U.S.C. 1501 et seq.), choose to implement this rule in the air levels of government.’’ requires federal agencies to prepare a and sea environment before the land DHS has analyzed this final rule in written assessment of the costs, benefits, border environment. As mentioned in accordance with the principles and and other effects of proposed or final the August 31, 2004, rule, DHS has criteria in the Executive Order and has rules that include a federal mandate developed a number of mitigation determined that this rule would not likely to result in the expenditure by strategies, not unlike those already have a substantial direct effect on the state, local, or tribal governments, in the available to CBP under other conditions States, on the relationship between the aggregate, or by the private sector of to mitigate delays. DHS, while not national government and the States, or more than $100 million in any one year anticipating significant delays for on the distribution of power and (adjusted for inflation with 1995 base travelers, will nevertheless develop responsibilities among the various year). Before promulgating a rule for procedures and strategies to deal with levels of government. Therefore, DHS which a written statement is needed, any significant delays that may occur has determined that this rule does not section 205 of the UMRA requires DHS through unanticipated and unusually have federalism implications. This rule to identify and consider a reasonable heavy travel periods. codifies procedures for the collection by number of regulatory alternatives and to the federal government of biometric adopt the least costly, most cost-

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effective, or least burdensome option use of the categorical exclusion. 40 CFR 53318) interim final rules and the July that achieves the objective of the rule. 1508.4. DHS analyzed the interim final 27, 2006 NPRM (71 FR 42605), US– Section 205 allows DHS to adopt an rule published on August 31, 2004, and VISIT records will be protected alternative, other than the least costly, concluded that there were no factors in consistent with all applicable privacy most cost-effective, or least burdensome the expansion of US–VISIT pursuant to laws and regulations. See also Parts II.K option if DHS publishes an explanation this final rule that would limit the use and III.E. Personal information will be with the final rule. This final rule will of a categorical exclusion under 28 CFR kept secure and confidential and will not result in the expenditure, by state, part 61 App. C, as authorized under 6 not be discussed with, nor disclosed to, local or tribal governments, or by the U.S.C. 552(a). In the July 27, 2006 any person within or outside US–VISIT private sector, of more than $100 NPRM, DHS stated that it would analyze other than as authorized by law and as million annually. Thus, DHS is not the environmental impacts to conduct required for the performance of official required to prepare a written assessment the appropriate level of analysis in duties. In addition, careful safeguards, under the UMRA. accordance with NEPA. DHS has done including appropriate security controls, such an analysis and has concluded that E. Small Business Regulatory will ensure that the data are not used or there are no factors in the expansion of Enforcement Fairness Act accessed improperly. The DHS Chief US–VISIT that would limit the use of a Privacy Officer will review pertinent This final rule is not a major rule as categorical exclusion, for similar aspects of the program to ensure that defined by section 251 of the Small reasons—that the impact to the land these proper safeguards and security Business Regulatory Enforcement border ports of entry would be largely controls are in place. The information Fairness Act of 1996, 5 U.S.C. 804, as unnoticed since US–VISIT processing this rule will not result in an annual will also be protected in accordance would take place in secondary with the DHS published privacy policy effect on the economy of $100 million inspection only. In addition, DHS will or more. for US–VISIT. Affected persons will not implement US–VISIT processing at have a three-stage process for redress if primary inspection locations at land F. Trade Impact Assessment there is concern about the accuracy of border ports of entry without at least information. An individual may request The Trade Agreement Act of 1979, one additional round of notice and a review or change, or a DHS officer Public Law 96–39, tit. IV, secs. 401–403, comment rulemaking. Since this final may determine that an inaccuracy exists 93 Stat. 144, 242 (July 26, 1979), as rule makes only minor changes to the in a record. A DHS officer can modify amended (19 U.S.C. 2531–2533), existing regulations, and because DHS prohibits federal agencies from engaging will not expand US–VISIT processing in the record. If the individual remains in any standards or related activities the primary environment at land border dissatisfied with this response, he or she that create unnecessary obstacles to the ports of entry without additional notice can request assistance from the US– foreign commerce of the United States. and comment rulemaking, DHS finds VISIT Privacy Officer and can ask that Legitimate domestic objectives, such as that this final rule is also categorically the DHS Privacy Officer review the safety, are not considered unnecessary excluded from further environmental record and address any remaining obstacles. The statute also requires documentation. concerns. consideration of international standards The DHS Privacy Office will advise H. Paperwork Reduction Act and, where appropriate, that they be the US–VISIT to further ensure that the basis for United States standards. DHS This final rule establishes the process information collected and stored in has determined that this final rule will by which DHS will require certain IDENT and other systems associated not create unnecessary obstacles to the aliens who cross the borders of the with US–VISIT is being properly foreign commerce of the United States United States to provide fingerprints, protected under privacy laws and and that any minimal impact on trade photograph(s), and potentially other guidance. US–VISIT also has a program- that may occur is legitimate in light of biometric identifiers upon their arrival dedicated Privacy Officer to handle this rule’s benefits for the national and departure at designated ports. These specific inquiries and to provide security and public safety interests of requirements constitute an information additional advice concerning the the United States. In addition, DHS collection under the Paperwork program. notes that this effort considers and Reduction Act (PRA), 44 U.S.C. 507 et utilizes international standards seq. OMB, in accordance with the Finally, DHS will maintain secure concerning biometrics, and DHS will Paperwork Reduction Act, has computer systems that will ensure that continue to consider these standards previously approved this information the confidentiality of an individual’s when monitoring and modifying the collection for use. The OMB Control personal information is maintained. In program. Number for this collection is 1600– doing so, DHS and its information technology personnel will comply with G. National Environmental Policy Act 0006. Since this rule provides a mechanism all laws and regulations applicable to DHS is required to analyze the for the addition of new aliens by Notice government systems, such as the proposed actions contained in this final in the Federal Register who may be Federal Information Security rule for purposes of complying with the photographed and fingerprinted and Management Act of 2002, Title X, Public National Environmental Policy Act of who may be required to provide other Law 107–296, 116 Stat. 2259–2273 1969 (NEPA), 42 U.S.C. 4321 et seq., biometric identifiers, DHS has (Nov. 25, 2002) (codified in scattered and Council on Environmental Quality submitted the required Paperwork sections of titles 6, 10, 15, 40, and 44 (CEQ) regulations, 40 CFR parts 1501– Reduction Change Worksheet (OMB– U.S.C.); Information Management 1508. An agency is not required to 83C) to OMB reflecting the increase in Technology Reform Act (Clinger-Cohen prepare either an environmental impact burden hours, and OMB has approved Act), 40 U.S.C. 11101 et seq.; Computer statement (EIS) or environmental the changes. Security Act of 1987, 40 U.S.C. 1441 et assessment (EA) under NEPA if in fact seq. (as amended); Government the proposed action falls within a I. Public Privacy Interests Paperwork Elimination Act, 44 U.S.C. categorical exclusion, and no As discussed in the January 5, 2004 101, 3504; and Electronic Freedom of extraordinary circumstances preclude (69 FR 468) and August 31, 2004 (69 FR Information Act of 1996, 5 U.S.C. 552.

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List of Subjects ■ 4. Section 235.1 is amended by DATES: The final rule will become revising paragraph (f)(1)(ii) to read as effective on February 21, 2009. 8 CFR Part 215 follows: FOR FURTHER INFORMATION CONTACT: Jeffrey S. H. Yeganeh, Financial Services Administrative practice and § 235.1 Scope of examination. procedure, Aliens, Travel restrictions. Manager (202/728–5801), or Joseph P. * * * * * Baressi, Financial Services Project 8 CFR Part 235 (f) * * * Leader (202/452–3959), Division of (1) * * * Aliens, Immigration, Registration, Reserve Bank Operations and Payment (ii) The Secretary of Homeland Reporting and recordkeeping Systems; or Sophia H. Allison, Senior Security or his designee may require requirements. Counsel (202/452–3565), Legal Division. any alien seeking admission to or parole For users of Telecommunications ■ Accordingly, chapter I of title 8 of the into the United States, other than aliens Devices for the Deaf (TDD) only, contact Code of Federal Regulations is amended exempted under paragraph (f)(1)(iv) of 202/263–4869. as follows: this section or Canadian citizens under SUPPLEMENTARY INFORMATION: Regulation section 101(a)(15)(B) of the Act who are PART 215—CONTROL OF ALIENS CC establishes the maximum period a not otherwise required to present a visa depositary bank may wait between DEPARTING FROM THE UNITED or be issued Form I–94 or Form I–95 for STATES receiving a deposit and making the admission or parole into the United deposited funds available for States, to provide fingerprints, 1 ■ withdrawal. A depositary bank 1. The authority citation for part 215 photograph(s) or other specified continues to read as follows: generally must provide faster biometric identifiers, documentation of availability for funds deposited by a Authority: 8 U.S.C. 1104; 1184; 1185 his or her immigration status in the ‘‘local check’’ than by a ‘‘nonlocal (pursuant to E.O. 13323, published January 2, United States, and such other evidence check.’’ A check is considered local if it 2004), 1365a and note, 1379, 1731–32. as may be requested to determine the is payable by or at or through a bank alien’s identity and whether he or she ■ 2. Section 215.8 is amended by located in the same Federal Reserve has properly maintained his or her revising paragraph (a)(1) to read as check-processing region as the status while in the United States. The follows: depositary bank. failure of an applicant for admission to Appendix A to Regulation CC § 215.8 Requirements for biometric comply with any requirement to provide contains a routing number guide that identifiers from aliens on departure from biometric identifiers may result in a assists banks in identifying local and the United States. determination that the alien is nonlocal banks and thereby determining (a)(1) The Secretary of Homeland inadmissible under section 212(a) of the the maximum permissible hold periods Security, or his designee, may establish Immigration and Nationality Act or any for most deposited checks. The pilot programs at land border ports of other law. appendix includes a list of each Federal entry, and at up to fifteen air or sea ports * * * * * Reserve check-processing office and the first four digits of the routing number, of entry, designated through notice in Paul A. Schneider, the Federal Register, through which the known as the Federal Reserve routing Deputy Secretary. Secretary or his delegate may require an symbol, of each bank that is served by alien admitted to or paroled into the [FR Doc. E8–30095 Filed 12–18–08; 8:45 am] that office for check-processing United States, other than aliens BILLING CODE 9111–97–P purposes. Banks whose Federal Reserve exempted under paragraph (a)(2) of this routing symbols are grouped under the section or Canadian citizens under same office are in the same check- section 101(a)(15)(B) of the Act who FEDERAL RESERVE SYSTEM processing region and thus are local to were not otherwise required to present one another. a visa or have been issued Form I–94 or 12 CFR Part 229 On February 21, 2009, the Reserve Form I–95 upon arrival at the United Banks will transfer the check-processing States, who departs the United States [Regulation CC; Docket No. R–1344] operations of the head office of the from a designated port of entry, to Federal Reserve Bank of St. Louis to the Availability of Funds and Collection of provide fingerprints, photograph(s) or head office of the Federal Reserve Bank Checks other specified biometric identifiers, of Atlanta. As a result of this change, some checks that are drawn on and documentation of his or her AGENCY: Board of Governors of the immigration status in the United States, Federal Reserve System. deposited at banks located in the St. and such other evidence as may be Louis and Atlanta check-processing ACTION: Final rule; technical regions and that currently are nonlocal requested to determine the alien’s amendment. identity and whether he or she has checks will become local checks subject properly maintained his or her status SUMMARY: The Board of Governors to faster availability schedules. To assist while in the United States. (Board) is amending the routing number banks in identifying local and nonlocal checks and making funds availability * * * * * guide to next-day availability checks and local checks in Regulation CC to decisions, the Board is amending the list PART 235—INSPECTION OF PERSONS delete the reference to the head office of of routing symbols in appendix A APPLYING FOR ADMISSION the Federal Reserve Bank of St. Louis associated with the Federal Reserve and to reassign the Federal Reserve Banks of St. Louis and Atlanta to reflect ■ 3. The authority citation for part 235 routing symbols currently listed under the transfer of check-processing continues to read as follows: that office to the head office of the operations from the head office of the Federal Reserve Bank of Atlanta. These Authority: 8 U.S.C. 1101 and note, 1103, 1 For purposes of Regulation CC, the term ‘‘bank’’ 1183, 1185 (pursuant to E.O. 13323 amendments reflect the restructuring of refers to any depository institution, including published on January 2, 2004), 1201, 1224, check-processing operations within the commercial banks, savings institutions, and credit 1225, 1226, 1228, 1365a note, 1379, 1731–32. Federal Reserve System. unions.

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