United States Visitor and Immigrant Status Indicator Technology Program (“US-VISIT”); Enrollment of Additional Aliens in US-VISIT, 42605-42611 [E6-11993]

Agencies

• Office of the Secretary
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 71, Number 144 (Thursday, July 27, 2006)]
[Proposed Rules]
[Pages 42605-42611]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-11993]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

8 CFR Parts 215 and 235

[DHS 2005-0037]
RIN 1601-AA35


United States Visitor and Immigrant Status Indicator Technology 
Program (``US-VISIT''); Enrollment of Additional Aliens in US-VISIT

AGENCY: Office of the Secretary, DHS.

ACTION: Proposed rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security established the United 
States Visitor and Immigrant Status Technology (US-VISIT) program in 
2003 to verify the identities and travel documents of aliens. US-VISIT 
automates this verification by comparing biometric identifiers, and by 
comparing biometric identifiers with information drawn from 
intelligence and law enforcement watchlists and databases. Aliens 
subject to US-VISIT may be required to provide fingerscans, 
photographs, or other biometric identifiers upon arrival at, or 
departure from, the United States. Currently, aliens entering the 
United States pursuant to a nonimmigrant visa, or those traveling 
without a visa as part of the Visa Waiver Program, are subject to US-
VISIT requirements, with certain limited exceptions. Under this 
proposed rule, the Department of Homeland Security will be extending 
US-VISIT requirements to all aliens with the exception of aliens who 
are specifically exempted and Canadian citizens applying for admission 
as B1/B2 visitors for business or pleasure.

DATE: Written comments must be submitted on or before August 28, 2006.

ADDRESSES: You may submit comments identified by Docket Number DHS-
2005-0037 by one of the following methods:
     Federal Rulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting the comments. All submissions 
received must include the agency name and docket number for this 
rulemaking. All comments received will be posted without change to 
https://www.regulations.gov, including any personal information 
provided.
     Written comments may be submitted to Michael Hardin or 
Craig Howie, Senior Policy Advisors, US-VISIT, Department of Homeland 
Security; 1616 North Fort Myer Drive, 18th Floor, Arlington, VA 22209.

FOR FURTHER INFORMATION CONTACT: Michael Hardin or Craig Howie, Senior 
Policy Advisors, US-VISIT, Department of Homeland Security, 1616 Fort 
Myer Drive, 18th Floor, Arlington, Virginia 22209, (202) 298-5200.

SUPPLEMENTARY INFORMATION: 

I. Background and Purpose

    The Department of Homeland Security (DHS) established the United 
States Visitor and Immigrant Status Indicator Technology Program (US-
VISIT) in accordance with several statutory mandates that collectively 
require DHS to create an integrated, automated biometric entry and exit 
system that records the arrival and departure of aliens; verifies the 
identities of aliens; and authenticates travel documents presented by 
such aliens through the comparison of biometric identifiers. Aliens 
subject to US-VISIT may be required to provide fingerscans, 
photographs, or other biometric identifiers upon arrival at, or 
departure from, the United States. DHS views US-VISIT as a 
biometrically-driven program designed to enhance the security of United 
States citizens and visitors while expediting legitimate travel and 
trade, ensuring the integrity of the immigration system, and protecting 
visitors' personal information.
    The statutes that authorize DHS to establish US-VISIT include, but 
are not limited to:
     Section 2(a) of the Immigration and Naturalization Service 
Data Management Improvement Act of 2000, Public Law 106-215, 114 Stat. 
337 (June 15, 2000);
     Section 205 of the Visa Waiver Permanent Program Act of 
2000, Public Law 106-396, 114 Stat. 1637, 1641 (October 30, 2000);
     Section 414 of the Uniting and Strengthening America by 
Providing Appropriate Tools Required to Intercept and Obstruct 
Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107-56, 115 Stat. 
271, 353 (October 26, 2001);
     Section 302 of the Enhanced Border Security and Visa Entry 
Reform Act of 2002 (Border Security Act) Public Law 107-173, 116 Stat. 
543, 552 (May 14, 2002); and

[[Page 42606]]

     Section 7208 of the Intelligence Reform and Terrorism 
Prevention Act of 2004, Public Law 108-458 (December 17, 2004).
    DHS provided detailed abstracts of the particular sections of the 
statutes that established and authorized the US-VISIT program in two 
prior rulemakings. See 69 FR 468 (January 5, 2004); 69 FR 53318 (August 
31, 2004).
    On January 5, 2004, DHS implemented the first phase of the US-VISIT 
biometric component by publishing an interim final rule in the Federal 
Register providing that aliens seeking admission into the United States 
through nonimmigrant visas must provide fingerprints, photographs, or 
other biometric identifiers upon arrival in or departure from the 
United States at air and sea ports of entry. Effective September 30, 
2004, nonimmigrants seeking to enter the United States without visas 
under the Visa Waiver Program (VWP) also are required to provide 
biometric information under US-VISIT. 69 FR 53318 (August 31, 2004). 
US-VISIT is now operational for entry at 115 airports, 15 sea ports, 
and at 154 land border ports of entry. The most up-to-date list of 
ports of entry where US-VISIT is operational can be found at: https://
www.dhs.gov/usvisit.
    The following categories of aliens currently are expressly exempt 
from US-VISIT requirements:
     Aliens admitted on an A-1, A-2, C-3, G-1, G-2, G-3, G-4, 
NATO-1, NATO-3, NATO-4, NATO-5, or NATO-6 visa;
     Children under the age of 14;
     Persons over the age of 79; and
     Certain officials of the Taipei Economic and Cultural 
Representative Office and members of their immediate families seeking 
admission on E-1 visas.
    8 CFR 235.1(d)(1)(iv). In addition, the Secretary of State and 
Secretary of Homeland Security may jointly exempt classes of aliens 
from US-VISIT. The Secretaries of State and Homeland Security, as well 
as the Director of the Central Intelligence Agency, also may exempt any 
individual from US-VISIT. 8 CFR 235.1(d)(iv)(B).
    In many cases, US-VISIT begins overseas, at United States consular 
offices issuing visas, where aliens' biometrics (digital finger scans 
and photographs) are collected and checked against a database of known 
criminals, suspected terrorists, and those who have previously violated 
immigration laws. When the alien arrives at the port of entry, US-VISIT 
compares the biometrics of the person (finger scans and a digital 
photograph) to verify that the person at the port of entry is the same 
person who received the visa. For those whose biometrics were not 
captured overseas, a Customs and Border Protection (CBP) officer at the 
port of entry collects digital finger scans and a digital photograph of 
the alien. These biometrics may be
     Checked against watchlists and previous uses of the 
document;
     Verified at the time of exit; and
     Compared during subsequent interactions, such as a future 
admission.
    There are additional aliens that have not yet been subject to the 
requirements of US-VISIT, but who are not expressly exempt from US-
VISIT requirements. Through this proposed rule, DHS proposes to amend 
its regulations to expand DHS biometric collection and processing 
through the US-VISIT program to all aliens except those specifically 
exempted. DHS will implement this rule in a way that minimizes risk of 
impact to travel and trade.\1\
---------------------------------------------------------------------------

    \1\ Immediately following the introduction of US-VISIT in 
January 2004, CBP introduced a ``wait time mitigation strategy.'' In 
the event that wait times at air and sea primary inspection last 
longer than one hour, and if the threat level was at yellow, green, 
or blue, a port may incrementally relieve congestion by eliminating 
the fingerprinting requirement for successive classifications of 
people, for example, aliens aged 14-17 when accompanied by an adult, 
or aliens between the ages of 60-79. However, this mitigation 
strategy has rarely been needed even after the inclusion of Visa 
Waiver Program aliens. Nonetheless, the procedures remain in place 
and can be used following the inclusion of additional aliens, if 
necessary.
---------------------------------------------------------------------------

    DHS has determined that expanding US-VISIT to additional aliens 
will improve public safety, national security, and the integrity of the 
immigration process. Establishing and verifying the identity of an 
alien and whether that alien is admissible to the United States based 
on all relevant information is critical to the security of the United 
States and the enforcement of the United States immigration laws. 
Processing additional aliens in US-VISIT reduces the risk that an 
individual traveler's identity (and travel document) could be used by 
another individual to enter the United States. By linking the alien's 
biometric information with the alien's travel documents, DHS reduces 
the likelihood that another individual could later assume that identity 
or use that document to gain admission to the United States.
    At present, US-VISIT biometrically screens alien arrivals at all 
air and sea ports of entry at primary inspection. US-VISIT also screens 
alien arrivals at land border ports of entry during secondary 
inspection rather than primary inspection because of the volume and 
facility limitations of the land border ports. Referral of aliens to 
secondary inspection at the land border ports of entry is premised on 
processes that already require secondary inspection (e.g., Form I-94 
issuance) or an officer's indication that further investigation of the 
alien's identity or admissibility is needed to properly determine that 
the alien is admissible.
    Since US-VISIT biometric processing was initiated on January 5, 
2004, the program has successfully identified a number of aliens with 
criminal or immigration violations that would not otherwise have been 
known. Between January 5, 2004, and May 25, 2006, DHS took adverse 
action against more than 1160 individuals based on information obtained 
through the US-VISIT biometric screening process. By ``adverse 
action,'' DHS means that the alien was:
     Arrested pursuant to a criminal arrest warrant;
     Denied admission, placed in expedited removal, and 
returned to the country of last departure; or
     Otherwise detained and denied admission to the United 
States.
    Adding additional aliens to the US-VISIT program will likely result 
in DHS identifying additional aliens who are inadmissible or who 
otherwise present security and criminal threats, including those who 
may be traveling improperly on previously established identities and 
those who potentially pose a threat to the security interests of the 
United States.

II. Additional Aliens Subject to US-VISIT

A. Specific Groups of Aliens Proposed To Be Added

    Under existing regulations, DHS has been collecting and storing 
biometric data on specific classes of aliens in US-VISIT. Nonimmigrant 
aliens seeking admission to the United States pursuant to a 
nonimmigrant visa, B-1/B-2 Visa and Border Crossing Card (Form DSP 
150), or under the Visa Waiver Program, currently provide biometrics 
for processing in US-VISIT. 8 CFR 235.1(d)(1)(ii). This proposed change 
to the regulations would permit enrollment of any alien in US-VISIT, 
with the exception of those Canadian citizens applying for admission as 
B-1/B-2 visitors for business or pleasure, and those specifically 
exempted.
    Several large classes of aliens will be affected by this change in 
the regulations, including:
     Lawful Permanent Residents (LPRs).
     Aliens seeking admission on immigrant visas.
     Refugees and asylees.

[[Page 42607]]

     Certain Canadian citizens who receive a Form I-94 at 
inspection or who require a waiver of inadmissibility.
     Aliens paroled into the United States.
     Aliens applying for admission under the Guam Visa Waiver 
Program.
    The authorizing statutes, which all refer to ``aliens'' without 
differentiation, support the inclusion of lawful permanent residents 
(LPRs) into the US-VISIT program. See section 101(a)(3) of the 
Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 
1101(a)(3) (``The term `alien' means any person not a citizen or 
national of the United States''). For an LPR, a Form I-551, permanent 
resident card, serves as a travel or entry document. Pursuant to 8 CFR 
211.1(a)(2), a Form I-551 is a documentary substitute for an immigrant 
visa for readmission to the United States as a permanent resident. 
Accordingly, the US-VISIT biometric collection will now apply to LPRs.
    DHS is not proposing that LPRs submit any additional information 
above and beyond that which is currently required. As part of the 
adjustment of status process, under current regulations, an alien 
between the ages of 14 and 79 (the same age parameters as applied to 
US-VISIT enrollment and verification) must submit a set of 10 
fingerprints and photographs to DHS, Citizenship and Immigration 
Services (USCIS), as applicable. (See Form I-485, ``Application to 
Register Permanent Residence or Adjust Status''). As part of the 
immigrant visa BioVisa process, the Department of State has collected 
two index finger prints. Thus, many LPRs have already submitted 
fingerprints and, for US-VISIT purposes, taking finger scans at the 
time of admission will be a biometric verification of the LPR's 
identity against those prints previously collected. However, DHS does 
not have electronically-searchable fingerprints for all LPRs. When 
those LPRs are encountered, their finger scans will be collected for an 
initial electronic enrollment. The LPR will provide the same biometrics 
(finger scans, photograph), under either the ``verification'' or 
``enrollment'' scenario. There is no difference in what information is 
collected from the perspective of the LPR or in how other aliens are 
processed.
    Similarly, DHS already possesses biometric data through the USCIS 
application process for asylees and refugees. See, e.g., Form I-589 
(Application for Asylum). To the greatest extent practicable, DHS will 
use this existing information to initially ``enroll'' these aliens into 
US-VISIT. The US-VISIT process at ports of entry is generally therefore 
a verification against the biometric information previously submitted 
to DHS, to ensure that the alien is the person whom he or she claims to 
be.
    The inclusion of aliens being admitted with an immigrant visa is to 
ensure parity with LPRs and because an immigrant visa is a United 
States-issued travel document. As noted above, these aliens submitted 
fingerprints as part of the immigrant visa application process. Aliens 
applying for admission with an immigrant visa are currently submitting 
fingerprints and photographs as part of the admission process.
    Most Canadians traveling from within the Western Hemisphere do not 
require a visa or other documentation to enter the United States for 
short business or pleasure trips. This rule does not change 8 CFR 
212.1(a)(1), which exempts those Canadian citizens from the requirement 
to present a passport or nonimmigrant visa prior to admission into the 
United States. This will be addressed in upcoming rulemakings involving 
the Western Hemisphere Travel Initiative. See 70 FR 52037 (September 1, 
2005) (ANPRM). Canadians, other than those described below, will not be 
enrolled in, or verified against, US-VISIT at this time. Canadian 
citizens accustomed to border crossings for the purposes of shopping, 
visiting friends and family, or taking a holiday in the United States 
(typically activities encompassed by the nonimmigrant B-2, visitor for 
pleasure category) are not included in US-VISIT by the provisions of 
this proposed rule.
    Canadians who would be included in US-VISIT as a result of adoption 
of this proposed rule will be those issued a Form I-94, including:
    (1) Canadians applying for admission in the following nonimmigrant 
classifications:
     C, aliens in transit to or through the United States;
     D, alien crew members (Form I-95);
     F, all alien students and dependents;
     H, all alien specialty, nurse, temporary agricultural and 
nonagricultural workers, trainees and dependents;
     I, all representatives of foreign media and dependents;
     J, exchange visitors and dependents;
     L, intracompany transferees and dependents;
     M, vocational or nonacademic student and dependents;
     O, aliens of extraordinary ability or achievement, 
including assistants and dependents;
     P, aliens internationally recognized as athletes, 
entertainers or participants in a culturally unique program and 
dependents;
     Q-1 and Q-3, international cultural exchange program 
participant and dependents;
     R, religious workers and dependents;
     S, alien witnesses or informants and dependents;
     T, victims of trafficking and dependents;
     TN under the provisions of the North American Free Trade 
Agreement; and
    (2) Canadians who are granted a waiver of inadmissibility in order 
to enter the United States.
    Processing these Canadian citizens biometrically through US-VISIT 
will ensure parity with other aliens applying for admission to the 
United States, and it will increase security. Aliens who are currently 
required to present a valid nonimmigrant visa are required to provide 
biometrics as part of admission, including those Canadian citizens 
required to obtain either an E (Treaty Trader or Investor) nonimmigrant 
or K (fianc[eacute]/fianc[eacute]e or spouse of a United States 
citizen) nonimmigrant visa. Canadians who require a waiver of 
inadmissibility are already required to provide biometric data in 
secondary inspection at the port of entry as part of the waiver 
application. This change in regulations will permit DHS to better 
verify identity and determine if new derogatory information exists on 
subsequent encounters.
    DHS acknowledges that some Canadian citizens holding valid 
nonimmigrant status, such as an H-1B worker, commute into the United 
States daily for purposes of employment while continuing to reside in 
Canada. At northern land borders, CBP officers at ports of entry have 
existing protocols for this situation and will not refer Canadian 
commuter to secondary inspection for a biometric verification against 
the US-VISIT system. These Canadian citizens will be screened 
biometrically via US-VISIT when applying for a new multiple-entry Form 
I-94 which typically happens at approximately six month intervals or 
when referred to secondary inspection for other reasons.
    All aliens paroled into the United States will provide biometrics 
and be processed through US-VISIT. Parolees are aliens who are 
permitted to enter the United States at a port of entry without being 
legally admitted, and may be subject to specific terms as a condition 
of the parole. Section 212(d) of the Act, 8 U.S.C. 1182(d). Because 
these aliens

[[Page 42608]]

are ultimately allowed physically into the United States, they should 
be subject to the same requirements as other aliens admitted to the 
United States.

B. Mechanism for Enrolling Additional Aliens

    Operationally, these additional aliens will be processed through 
US-VISIT differently at the air and sea ports of entry than at the land 
ports of entry.
    At air and sea ports of entry, the controlled environment--where 
all arriving aliens and United States citizens are interviewed by a CBP 
officer--currently allows for biometric collection and US-VISIT 
processing at primary inspection for the majority of the arriving 
aliens addressed in this rulemaking. Therefore, DHS expects to be able 
to include all non-exempt aliens into US-VISIT almost immediately at 
the air and sea ports.
    At the land border ports of entry, where aliens arrive by vehicle 
and as pedestrians, the additional aliens will be processed through US-
VISIT somewhat differently at the time of initial application for 
admission to the United States. LPRs will go through biometric 
collection if they are referred to secondary inspection by the primary 
inspecting officer. The officer has the discretion to send any person 
to secondary inspection if the officer has any question as to the true 
identity of person bearing the document or of person's admissibility to 
the United States. The remaining aliens will be processed through US-
VISIT in secondary inspection the same way other aliens currently 
subject to US-VISIT (those that require a Form I-94) at the land ports 
of entry. This will not impose an additional imposition since these 
aliens are already processed in secondary since they generally require 
a Form I-94.
    DHS is including additional aliens into the US-VISIT program in the 
same way it has included aliens with Form DSP-150 Border Crossing Cards 
(BCCs). To date, at land borders only holders of BCCs who use the BCC 
as a visa and thus require a Form I-94 are generally required to be 
processed through US-VISIT. US-VISIT currently does not process, on a 
regular basis, applicants for admission with BCCs who wish to use the 
document simply as a BCC, which authorizes them to stay in the United 
States for up to 30 days, within 25 miles of the United States-Mexican 
border (75 miles in parts of Arizona). This policy has allowed DHS to 
take a measured approach to implementing US-VISIT at the land borders 
and to ensure that US-VISIT processing does not have a negative impact 
on the land border communities. However, even under this current 
policy, an alien seeking admission with a BCC and not obtaining a Form 
I-94 can still be required to undergo US-VISIT processing at the 
discretion of the inspecting officer.
    DHS requests public comment on all of these issues, but would 
regard as most helpful comments on the ramifications of adding 
additional classifications at land borders. DHS places a great deal of 
importance on input from the public concerning the performance and 
implementation of the US-VISIT program. In particular, DHS seeks input 
on specific steps or milestones that should take place prior to 
processing future additional classifications of aliens in US-VISIT at 
land borders.

III. Regulatory Requirements

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996 
(SBREFA), requires an agency to prepare and make available to the 
public a regulatory flexibility analysis that describes the effect of 
the rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions). DHS has 
considered the impact of this rule on small entities and has determined 
that this rule will not have a significant economic impact on a 
substantial number of small entities. The individual aliens to whom 
this rule applies are not small entities as that term is defined in 5 
U.S.C. 601(6). There is no change expected in any process as a result 
of this rule that would have a direct effect, either positive or 
negative, on a small entity. Accordingly, this rule will not have a 
significant economic impact on a substantial number of small entities 
and DHS does not believe that US-VISIT processing will impede the free 
flow of travel and trade, especially such travel and trade relating 
directly to small entities.

B. Executive Order 12866

    Under section 3(f) of Executive Order 12866, ``Regulatory Planning 
and Review,'' 58 FR 51735 (October 4, 1993) (as amended), DHS has 
determined that this proposed rule is a ``significant regulatory 
action'' because there is significant public interest in issues 
pertaining to national security, immigration policy, and international 
trade and travel relating to this proposed rule. Accordingly, this 
proposed rule has been submitted to the Office of Management and Budget 
(OMB) for review.
    DHS currently processes through US-VISIT, using biometrics, all 
aliens entering the United States with a nonimmigrant visa or under the 
Visa Waiver Program at any air, sea, or land port of entry. As of May 
25, 2006, US-VISIT biometric screening has resulted in DHS's ability to 
take adverse action against 1160 aliens whose prior criminal actions 
rendered the alien ineligible for admission or who pose a security 
threat to the United States. This proposed rule will strengthen the 
ability of CBP officers to identify and take action against persons 
whose conduct renders them security threat and therefore ineligible for 
admission. For example, DHS expects that, just as 1160 nonimmigrants 
have been intercepted by DHS using the biometric screening of US-VISIT, 
additional individuals applying for admission with permanent resident 
cards or reentry permits will be found, by the comparison of biometric 
identifiers, to have violated the terms of their permanent resident 
status. Such violations may be the result of the commission of various 
crimes, tampering with the actual permanent resident card, or 
attempting to gain entry by attempting to assume the identity of 
another LPR. Such violations could ultimately result in the LPR losing 
permanent resident status and possible removal from the United States, 
or the exclusion or removal of an individual from the United States for 
fraud. Based on the number of permanent resident cards that are seized 
by CBP officers at ports of entry (approximately 15,000 in FY 2005) and 
DHS Forensic Document Laboratory analyses each month (approximately 
250), DHS estimates that US-VISIT biometric screening has the potential 
to identify a significant number of aliens each month in need of 
additional investigation prior to being admitted to the United States. 
In addition, based on the numbers of refugee travel documents (519) and 
immigrant visas (2,287) that CBP officers intercepted in attempts to 
use the documents fraudulently by aliens during FY2005, US-VISIT 
estimates that interception of fraudulently used documents will 
increase with the introduction of biometric verification of identity.
    DHS expects similar results--an increase in the number of aliens 
identified with possible admission-related or immigration problems--by 
including the other groups of aliens highlighted in this proposed rule 
into the US-VISIT biometric screening protocol. For example, aliens 
holding immigrant visas have a six-month

[[Page 42609]]

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

----------------------------------------------------------------------------------------------------------------
                                        Average form I-94 processing
            Port of entry               time before implementing US-   Average form I-94  processing time after
                                                   VISIT                         implementing US-VISIT
----------------------------------------------------------------------------------------------------------------
Port Huron, MI.......................  11 minutes, 42 seconds.......  9 minutes, 58 seconds.
Douglas, AZ..........................  4 minutes, 16 seconds........  3 minutes, 12 seconds.
Laredo, TX...........................  12 minutes, 10 seconds.......  2 minutes, 18 seconds.
----------------------------------------------------------------------------------------------------------------

    Accordingly, DHS does not believe that US-VISIT processing impedes 
the free flow of travel and trade.
    In addition, over time, the efficiency with which the process is 
employed will increase, and the process can be expected to further 
improve. DHS will not apply this rule to all aliens crossing land 
borders until technological advancements are identified, tested, and 
implemented to ensure that the land border commerce and traffic 
concerns are significantly mitigated. DHS may choose to implement this 
rule in the air and sea environment before the land border environment. 
As mentioned in the August 31, 2004, rule, DHS has developed a number 
of mitigation strategies, not unlike those already available to CBP 
under other conditions to mitigate delays. DHS, while not anticipating 
significant delays for travelers, will nevertheless develop procedures 
and strategies to deal with any significant delays that may occur 
through unanticipated and unusually heavy travel periods.

C. Executive Order 13132

    Executive Order 13132 requires DHS to develop a process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
Such policies are defined in the Executive Order to include rules that 
have ``substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.''
    DHS has analyzed this proposed rule in accordance with the 
principles and criteria in the Executive Order and has determined that 
this proposed rule would not have a substantial direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, DHS has determined that this 
proposed rule does not have federalism implications. This rule provides 
for the collection by the Federal Government of biometric identifiers 
from certain aliens seeking to enter or depart from the United States, 
for the purpose of improving the administration of federal immigration 
laws and for national security. States do not conduct activities with 
which the provisions of this specific rule would interfere.

D. Executive Order 12988

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988. That Executive 
Order requires agencies to conduct reviews, before proposing 
legislation or promulgating regulations, to determine the impact of 
those proposals on civil justice and potential issues for litigation. 
The Order requires that agencies make reasonable efforts to ensure that 
the regulation clearly identifies preemptive effects, effects on 
existing federal laws and regulations, identifies any retroactive 
effects of the proposal, and other matters. DHS has determined that 
this regulation meets the requirements of Executive Order 12988 because 
it does not involve retroactive effects, preemptive effects, or other 
matters addressed in the Order.

E. Unfunded Mandates Reform Act of 1995

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

[[Page 42610]]

22, 1995) (2 U.S.C. 1501 et seq.), requires Federal agencies to prepare 
a written assessment of the costs, benefits, and other effects of 
proposed or final rules that include a Federal mandate likely to result 
in the expenditure by State, local, or tribal governments, in the 
aggregate, or by the private sector of more than $100 million in any 
one year (adjusted for inflation with 1995 base year). Before 
promulgating a rule for which a written statement is needed, section 
205 of the UMRA requires DHS to identify and consider a reasonable 
number of regulatory alternatives and to adopt the least costly, most 
cost-effective, or least burdensome option that achieves the objective 
of the rule. Section 205 allows DHS to adopt an alternative, other than 
the least costly, most cost-effective, or least burdensome option if 
DHS publishes an explanation with the final rule. This proposed rule 
will not result in the expenditure, by State, local or tribal 
governments, or by the private sector, of more than $100 million 
annually. Thus, DHS is not required to prepare a written assessment 
under UMRA.

F. Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by section 251 of 
the Small Business Regulatory Enforcement Fairness Act of 1996, 5 
U.S.C. 804, as this proposed rule will not result in an annual effect 
on the economy of $100 million or more.

G. Trade Impact Assessment

    The Trade Impact Agreement Act of 1979, Public Law 96-39, tit IV, 
secs. 401-403, 93 Stat. 242 (July 26, 1979), as amended (19 U.S.C. 
2531-2533), prohibits Federal agencies from engaging in any standards 
or related activities that create unnecessary obstacles to the foreign 
commerce of the United States. Legitimate domestic objectives, such as 
safety, are not considered unnecessary obstacles. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for United States standards. DHS 
has determined that this proposed rule will not create unnecessary 
obstacles to the foreign commerce of the United States and that any 
minimal impact on trade that may occur is legitimate in light of this 
rule's benefits for the national security and public safety interests 
of the United States. In addition, DHS notes that this effort considers 
and utilizes international standards concerning biometrics, and will 
continue to consider these standards when monitoring and modifying the 
program.

H. National Environmental Policy Act of 1969

    DHS will analyze the actions contained in this proposed rule for 
purposes of complying with the National Environmental Policy Act of 
1969 (NEPA), 42 U.S.C. 4321 et seq., and Council on Environmental 
Quality (CEQ) regulations, 40 CFR parts 1501-1508. Depending upon the 
environmental impacts, DHS will conduct the appropriate level of 
analysis in accordance with NEPA.

I. Paperwork Reduction Act

    This proposed rule establishes the process by which DHS will 
require certain aliens who cross the borders of the United States to 
provide fingerprints, photograph(s), and potentially other biometric 
identifiers upon their arrival and departure at designated ports. These 
requirements constitute an information collection under the Paperwork 
Reduction Act (PRA), 44 U.S.C. 507 et seq. OMB, in accordance with the 
Paperwork Reduction Act, has previously approved this information 
collection for use. The OMB Control Number for this collection is 1600-
0006.
    Since this rule provides a mechanism for the addition of new aliens 
by Notice in the Federal Register who may be photographed and 
fingerprinted, and who may be required to provide other biometric 
identifiers, DHS has submitted the required Paperwork Reduction Change 
Worksheet (OMB-83C) to the Office of Management and Budget (OMB) 
reflecting the increase in burden hours and OMB has approved the 
changes.

J. Public Privacy Interests

    As discussed in the January 5, 2004, (69 FR 468) and August 31, 
2004, (69 FR 53318) interim rules, US-VISIT records will be protected 
consistent with all applicable privacy laws and regulations. Personal 
information will be kept secure and confidential and will not be 
discussed with, nor disclosed to, any person within or outside US-VISIT 
other than as authorized by law and as required for the performance of 
official duties. In addition, careful safeguards, including appropriate 
security controls, will ensure that the data is not used or accessed 
improperly. The DHS Chief Privacy Officer will review pertinent aspects 
of the program to ensure that these proper safeguards and security 
controls are in place. The information will also be protected in 
accordance with the DHS published privacy policy for US-VISIT. Affected 
persons will have a three-stage process for redress if there is concern 
about the accuracy of information. An individual may request a review 
or change, or a DHS officer may determine that an inaccuracy exists in 
a record. A DHS officer can modify the record. If the individual 
remains dissatisfied with this response, he or she can request 
assistance from the US-VISIT Privacy Officer, and can ask that the 
Privacy Officer review the record and address any remaining concerns.
    The DHS Privacy Office will advise US-VISIT to further ensure that 
the information collected and stored in IDENT and other systems 
associated with US-VISIT is being properly protected under the privacy 
laws and guidance. US-VISIT also has a program-dedicated Privacy 
Officer to handle specific inquiries and to provide additional advice 
concerning the program.
    Finally, DHS will maintain secure computer systems that will ensure 
that the confidentiality of an individual's personal information is 
maintained. In doing so, the Department and its information technology 
personnel will comply with all laws and regulations applicable to 
government systems, such as the Federal Information Security Management 
Act of 2002, Title X, Public Law 107-296, 116 Stat. 2259-2273 (Nov. 25, 
2002) (codified in scattered sections of titles 6, 10, 15, 40, and 44 
U.S.C.); Information Management Technology Reform Act (Clinger-Cohen 
Act), 40 U.S.C. 11101 et seq.; Computer Security Act of 1987, 40 U.S.C. 
1441 et seq. (as amended); Government Paperwork Elimination Act, 44 
U.S.C. 101, 3504; and Electronic Freedom of Information Act of 1996, 5 
U.S.C. 552.

List of Subjects

8 CFR Part 215

    Administrative practice and procedure, Aliens, Travel restrictions.

8 CFR Part 235

    Aliens, Immigration, Registration, Reporting and recordkeeping 
requirements.

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

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

    1. The authority citation for part 215 continues to read as 
follows:

    Authority: 8 U.S.C. 1104; 1184; 1185 (pursuant to E.O. 13323, 
published January 2, 2004), 1365a and note, 1379, 1731-32.


[[Page 42611]]


    2. Section 215.8 is proposed to be amended by revising paragraph 
(a)(1) as follows:


Sec.  215.8  Requirements for biometric identifiers from aliens on 
departure from the United States.

    (a)(1) The Secretary of Homeland Security, or his designee, may 
establish pilot programs at land border ports of entry, and at up to 
fifteen air or sea ports of entry, designated through notice in the 
Federal Register, through which the Secretary or his delegate may 
require an alien admitted to or paroled into the United States, other 
than aliens exempted under paragraph (a)(2) of this section or Canadian 
citizens under section 101(a)(15)(B) of the Act who were not otherwise 
required to present a visa or have been issued Form I-94 or Form I-95 
upon arrival at the United States, who departs the United States from a 
designated port of entry, to provide fingerprints, photograph(s) or 
other specified biometric identifiers, documentation of his or her 
immigration status in the United States, and such other evidence as may 
be requested to determine the alien's identity and whether he or she 
has properly maintained his or her status while in the United States.
* * * * *

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

    3. The authority citation for part 235 continues to read as 
follows:

    Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to 
E.O. 13323 published on January 2, 2004), 1201, 1224, 1225, 1226, 
1228, 1365a note, 1379, 1731-32.

    4. Sections 235.1 is proposed to be amended by revising paragraphs 
(d)(1)(ii) as follows:


Sec.  235.1  Scope of examination.

* * * * *
    (d) * * *
    (1) * * *
    (ii) The Secretary of Homeland Security or his delegate may require 
any alien seeking admission to or parole into the United States, other 
than aliens exempted under paragraph (d)(1)(iv) of this section or 
Canadian citizens under section 101(a)(15)(B) of the Act who are not 
otherwise required to present a visa or be issued Form I-94 or Form I-
95 for admission or parole into the United States, to provide 
fingerprints, photograph(s) or other specified biometric identifiers, 
documentation of his or her immigration status in the United States, 
and such other evidence as may be requested to determine the alien's 
identity and whether he or she has properly maintained his or her 
status while in the United States. The failure of an applicant for 
admission to comply with any requirement to provide biometric 
identifiers may result in a determination that the alien is 
inadmissible under section 212(a) of the Immigration and Nationality 
Act or any other law.
* * * * *

    Dated: July 13, 2006.
Michael Chertoff,
Secretary.
 [FR Doc. E6-11993 Filed 7-26-06; 8:45 am]
BILLING CODE 4410-10-P