[Federal Register: August 31, 2004 (Volume 69, Number 168)]
[Rules and Regulations]               
[Page 53317-53333]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31au04-17]                         


[[Page 53317]]

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Part V





Department of Homeland Security





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8 CFR Parts 215, 235 and 252



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


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 215, 235 and 252

[DHS-2007-0002]
RIN 1650-AA00

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

AGENCY: Border and Transportation Security Directorate, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: The Department of Homeland Security (DHS) has established the 
United States Visitor and Immigrant Status Technology Program (US-
VISIT), an integrated, automated entry-exit system that records the 
arrival and departure of aliens; verifies aliens' identities; and 
authenticates aliens' travel documents through comparison of biometric 
identifiers. On January 5, 2004, DHS implemented the first phase of US-
VISIT by publishing an interim rule in the Federal Register at 69 FR 
468. The January 5, 2004 interim rule authorized DHS to require aliens 
seeking to be admitted to the United States pursuant to nonimmigrant 
visas to provide fingerprints, photographs, or other biometric 
identifiers upon arrival in, or departure from, the United States at 
air and sea ports of entry. This interim rule expands the US-VISIT 
program to the 50 most highly trafficked land border ports of entry in 
the United States. These 50 land borders will be integrated into the 
US-VISIT program following identification in Notices published in the 
Federal Register, with all 50 ports of entry to be identified no later 
than December 31, 2004.
    This interim rule also further defines the population of aliens who 
are required to provide biometric identifiers and other identifying 
information under the US-VISIT program. First, DHS may require 
biometric data collection from nonimmigrant aliens who are visa exempt 
under the Visa Waiver Program (VWP). While this interim rule provides 
that DHS has the authority to require Mexican nationals who present a 
Border Crossing Card to provide biometric data upon arrival in, or 
departure from, the United States, the Secretaries of DHS and the 
Department of State (DOS) have jointly determined that BCC travelers 
who are not required to be issued a Form I-94 Arrival/Departure Record 
at the time of admission are exempt from the US-VISIT biometric data 
collection requirements. Second, certain officials of the Taipei 
Economic and Cultural Representative Office are exempt from the US-
VISIT biometric data collection requirements. Third, crewmembers 
applying for landing privileges may be required to provide biometric 
data under US-VISIT.
    This interim rule also makes technical changes to US-VISIT as a 
result of comments received by DHS on the January 5, 2004 interim rule. 
Finally, DHS solicits public comment on all aspects of the operation of 
US-VISIT to date, as well as the expansion of US-VISIT pursuant to this 
interim rule.

DATES: Effective date: This interim rule is effective September 30, 
2004.
    Comment date: Written comments must be submitted on or before 
November 1, 2004.

ADDRESSES: Because DHS does not yet have electronic docketing 
capability, for the purposes of this rule, we are using the 
Environmental Protection Agency (EPA) Docket Management System for US-
VISIT. You may submit comments identified by RIN 1615-AA00 to the 
Docket Management Facility at the EPA. To avoid duplication, please use 
only one of the following methods:
    (1) Web site: http://www.epa.gov/edocket. Follow the instructions 

for submitting comments at that web site.
    (2) Mail: Written comments may be submitted to Michael Hardin, 
Senior Policy Advisor, US-VISIT, Border and Transportation Security; 
Department of Homeland Security; 1616 North Fort Myer Drive, 18th 
Floor, Arlington, VA 22209.
    (5) Federal eRulemaking portal: http://www.regulations.gov. Follow 

the instructions for submitting comments.
    Submitted comments may be inspected at 1616 North Ft. Myer Drive, 
Arlington, VA 22209, between 9 a.m. and 5 p.m., Monday through Friday 
except Federal holidays. Arrangements to inspect submitted comments 
should be made in advance by calling (202) 298-5200. You may also find 
this docket on the Internet at http://www.epa.gov/edocket You may also access the Federal eRulemaking Portal at http://www.regulations.gov.


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

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

I. Background
    A. Statutory Authority to Implement US-VISIT
    B. Recommendations of the 9/11 Commission
II. Implementation of the First Phase of US-VISIT
    A. Air and Sea Ports of Entry
    B. Exit Pilot Programs
    C. Classes of Aliens Exempted from Biometrics Requirements of 
US-VISIT Pursuant to the January 5, 2004 Interim Final Rule
III. Implementation of the Second Phase of US-VISIT
    A. The 50 Most Highly Trafficked Land Border Ports
    B. Inclusion of Visa Waiver Program Participants
    C. Additional Classes of Aliens Affected by Changes to the 
January 5, 2004 Interim Rule
IV. Comments and Changes to the January 5, 2004 Interim Rule
    A. Summary of Comments
    B. Solicitation of Public Comment on the Operation of US-VISIT 
to Date and the Expansion of US-VISIT pursuant to this Interim Rule
V. Regulatory Requirements
    A. Good Cause Exception
    B. Regulatory Flexibility Act
    C. Executive Order 12866
    D. Executive Order 13132
    E. Executive Order 12988
    F. Unfunded Mandates Reform Act of 1995
    G. Small Business Regulatory Enforcement Fairness Act of 1996
    H. Trade Impact Assessment
    I. National Environmental Policy Act of 1969
    J. Paperwork Reduction Act
    K. Public Privacy Interests

I. Background

A. Statutory Authority for US-VISIT

    DHS established US-VISIT in accordance with several statutory 
mandates that collectively require DHS to create an integrated, 
automated entry and exit system (entry-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 
requirements may be required to provide fingerprints, photographs, or 
other biometric identifiers upon arrival in, or departure from, the 
United States.
    The statutory mandates which authorize DHS to establish US-VISIT 
include, but are not limited to, the following:
     Section 2(a) of the Immigration and Naturalization Service 
Data Management Improvement Act of 2000 (DMIA), Public Law 106-215;
     Section 205 of the Visa Waiver Permanent Program Act of 
2000 (VWPPA), Public Law 106-396;

[[Page 53319]]

     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; and
     Section 302 of the Enhanced Border Security and Visa Entry 
Reform Act of 2002 (Border Security Act), Public Law 107-173.
    The principal law that mandates the creation of an automated entry-
exit system that integrates electronic alien arrival and departure 
information is the Immigration and Naturalization Service Data 
Management Improvement Act of 2000 (DMIA), Public Law 106-215 (2000), 
114 Stat. 339, codified as amended at 8 U.S.C. 1365a. DMIA requires 
that the entry-exit system consist of the integration of all authorized 
or required alien arrival and departure data that is maintained in 
electronic format in Department of Justice (DOJ) \1\ or Department of 
State (DOS) databases. 8 U.S.C. 1365a. Under DMIA, 8 U.S.C. 1356a(d), 
this integrated entry-exit system was required to be implemented at air 
and sea ports of entry in the United States no later than December 31, 
2003, using available air and sea alien arrival and departure data as 
described in the statute. DMIA also requires that the system must be 
implemented at the 50 most highly trafficked land border ports of entry 
by December 31, 2004, and at all ports of entry by December 31, 2005, 
with all available electronic alien arrival and departure information. 
DMIA also requires DHS to use the entry-exit system to match the 
available arrival and departure data on aliens, and to prepare and 
submit reports to Congress on the numbers of aliens who have overstayed 
their periods of admission, as well as reports on the implementation of 
the system. 8 U.S.C. 1365a(e). DMIA authorizes the Secretary of DHS, in 
his discretion, to permit other Federal, State, and local law 
enforcement officials to have access to the entry-exit system for law 
enforcement purposes. 8 U.S.C. 1365a(f). In addition, section 217(h) of 
the Visa Waiver Permanent Program Act of 2000 (VWPPA), Public Law 106-
396 (2000), 114 Stat. 1637, codified as amended at 8 U.S.C. 1187(h), 
requires the creation of a system that contains a record of the arrival 
and departure of every alien admitted under the Visa Waiver Program 
(VWP) who arrives and departs by air or sea. The requirements of DMIA 
effectively result in the integration of this VWP arrival/departure 
information into the primary entry-exit system component of the US-
VISIT program.
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    \1\ Effective March 1, 2003, pursuant to the Homeland Security 
Act of 2002, the responsibility for maintenance of such files, along 
with other functions, was transferred from DOJ to DHS. For purpose 
of consistency throughout this interim rule, any reference to 
authorities or functions originally vested in the Attorney General 
or DOJ that were transferred to DHS or the Secretary of DHS will now 
be referenced as functions or authorities of DHS or the Secretary of 
DHS.
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    In late 2001 and during 2002, Congress, following the events of 
September 11, 2001, passed two additional laws affecting the 
development of the entry-exit system: 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 
(2001), 115 Stat. 353; and the Enhanced Border Security and Visa Entry 
Reform Act of 2002 (``Border Security Act''), Public Law 107-173 
(2002), 116 Stat. 553. Section 403(c) of the USA PATRIOT Act, 8 U.S.C. 
1379, requires DHS and DOS jointly to develop and certify a technology 
standard that can be used to verify the identity of visa applicants and 
persons seeking to enter the United States pursuant to a visa, and to 
do background checks on such aliens. The technology standard shall be 
developed through the National Institute of Standards and Technology 
(NIST), in consultation with the Secretary of the Treasury, other 
appropriate Federal law enforcement and intelligence agencies, and 
Congress. The standard shall include appropriate biometric identifier 
standards. The USA PATRIOT Act further directs DHS and DOS to 
``particularly focus on the utilization of biometric technology; and 
the development of tamper-resistant documents readable at ports of 
entry.'' 8 U.S.C. 1365a and note.
    The legislative requirements for biometric identifiers to be 
utilized in the context of the entry-exit system also were strengthened 
significantly under the Border Security Act. Section 302(a)(1) of the 
Border Security Act, 8 U.S.C. 1731, states that the entry-exit system 
must use the technology and biometric standards required to be 
certified by DHS and DOS under section 403(c) of the USA PATRIOT Act. 
Section 303(b)(1) of the Border Security Act further requires that the 
United States issue to aliens only machine-readable, tamper-resistant 
visas and other travel and entry documents that use biometric 
identifiers. 8 U.S.C. 1732(b)(1). Further, DHS and DOS must jointly 
establish document authentication and biometric identifier standards 
for alien travel documents from among those recognized by domestic and 
international standards organizations. However, unexpired travel 
documents that have been issued by the U.S. government that do not use 
biometrics are not invalidated. Id. Section 303(b)(2) of the Border 
Security Act requires the United States, by October 26, 2004, to 
install at all ports of entry, equipment and software that allow 
biometric comparison and authentication of all U.S. visas and machine-
readable, tamper-resistant travel and entry documents issued to aliens, 
as well as passports that are issued by countries participating in the 
Visa Waiver Program (VWP). 8 U.S.C. 1732(b)(2). Congress recently 
extended this deadline for one year, until October 26, 2005, pursuant 
to Public Law 108-299.
    In addition, any country that is designated by the United States to 
participate in the VWP must certify that such country has a program in 
place to issue tamper-resistant, machine-readable, biometric passports 
that comply with biometric and document identifying standards 
established by the International Civil Aviation Organization (ICAO). 8 
U.S.C. 1732(c)(1). Section 303(c) of the Border Security Act requires 
that any alien applying for admission under the VWP must present a 
passport that is machine readable, tamper-resistant and that uses ICAO-
compliant biometric identifiers, unless the unexpired passport was 
issued prior to that date. 8 U.S.C. 1732(c)(2).
    The entry-exit system must include a database that contains alien 
arrival and departure data from the machine-readable visas, passports, 
and other travel and entry documents. 8 U.S.C. 1731(a)(2). In 
developing the entry-exit system, the Secretaries of DHS and DOS also 
must make interoperable all security databases relevant to making 
determinations of alien admissibility. 8 U.S.C. 1731(a)(3).
    In addition, the entry-exit system component must share information 
with other systems required by the Border Security Act. Section 202 of 
the Border Security Act addresses requirements for an interoperable law 
enforcement and intelligence data system and requires the integration 
of all databases and data systems that process or contain information 
on aliens.
    DHS's broad authority to inspect aliens under sections 235 and 
215(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1225, 
further supports the requirements under US-VISIT that foreign nationals 
provide biometric identifiers and other relevant identifying 
information upon admission to, or departure from, the United States. 
Pursuant to section 215(a) of the INA

[[Page 53320]]

and Executive Order No. 13323 (69 Federal Register 241), the Secretary 
of Homeland Security, with the concurrence of the Secretary of State, 
has the authority to issue this interim rule which requires certain 
aliens to provide requested biographic identifiers and other relevant 
identifying information as they depart the United States. Section 
101(a)(6) of the INA, 8 U.S.C. 1101(a)(6), requires that regulations 
promulgated by DHS to prescribe the conditions for use of ``border 
crossing identification cards'' must provide that ``an alien presenting 
a border crossing identification card is not permitted to cross over 
the border into the United States unless the biometric identifier 
contained on the BCC matches the appropriate biometric characteristic 
of the alien.'' In addition, under section 214 of the INA (8 U.S.C. 
1184), DHS may make compliance with US-VISIT departure procedures a 
condition of admission and maintenance of status for nonimmigrant 
aliens while in the United States.
    Many other provisions within the INA also support the 
implementation of the US-VISIT program, such as the grounds of 
inadmissibility in section 212, the grounds of removability in section 
237, the requirements for the VWP program in section 217, the 
electronic passenger manifest requirements in section 231, the 
requirements relating to alien crewmen located at section 251 et seq., 
and authority for alternative inspection services in sections 286(q) 
and 235 of the INA and section 404 of the Border Security Act.
    These statutory mandates, among other laws, collectively authorize 
DHS to promulgate regulations, including this interim rule, as 
necessary to implement US-VISIT.

B. Recommendations of the 9/11 Commission

    The National Commission on Terrorist Attacks upon the United States 
(the Commission) was established by Congress and the President on 
November 22, 2002 (Public Law 107-306) to investigate the events 
leading up to the terrorist attacks on the United States on September 
11, 2001. On July 22, 2004, the Commission published its final report, 
``The 9/11 Commission Report: Final Report of the National Commission 
on Terrorist Attacks upon the United States'' (the Report). In its 
Report, the Commission recognizes the importance of screening aliens 
traveling to and from the United States. In addition, the Commission 
recommended that ``[t]argeting travel is at least as powerful a weapon 
against terrorists as targeting their money. The United States should 
combine terrorist travel intelligence, operations, and law enforcement 
in a strategy to intercept terrorists, find terrorist travel 
facilitators, and constrain terrorist mobility.'' The Report calls for 
the implementation of a biometric screening system and specifically 
refers to the implementation of US-VISIT among the Commission's many 
recommendations for strengthening the ability of the United States to 
detect and deter terrorist attacks on the United States. The Report 
also emphasizes the need to make US-VISIT fully operational as soon as 
possible and that the present timetable ``may be too slow, given the 
possible security dangers.''
    This interim rule, which expands US-VISIT to the 50 most highly 
trafficked land borders and includes aliens traveling without visas 
under the VWP, will assist in meeting the goals and recommendations of 
the Commission.

II. Implementation of the First Phase of US-VISIT

A. Air and Sea Ports of Entry

    On January 5, 2004, DHS published an interim rule in the Federal 
Register establishing US-VISIT at air and sea ports of entry designated 
by notice in the Federal Register at 69 FR 468. Also on January 5, 
2004, DHS published a notice in the Federal Register at 69 FR 482, 
designating 115 airports and 14 sea ports for the collection of 
biometric data from certain aliens upon arrival to the United States 
under the US-VISIT program. Since January 5, 2004, aliens applying for 
admission pursuant to a nonimmigrant visa at designated air and 
seaports have been required to submit fingerprints and photographs.
    Since its implementation at air and seaports in January 2004, US-
VISIT has proven that the use of biometrics to check identity and 
background is a highly effective national security and law enforcement 
tool. US-VISIT has already prevented 196 criminal aliens from entering 
the United States. Further, US-VISIT has already identified 790 aliens 
using biometric ``lookout'' lists--established lists of aliens 
suspected of being terrorists, or having committed past criminal acts 
or immigration violations.

B. Exit Pilot Programs

    The January 5, 2004 interim rule also authorized the Secretary of 
DHS to establish pilot programs at up to fifteen air or sea ports of 
entry, to be identified by notice in the Federal Register, through 
which DHS may require certain aliens who depart from a designated air 
or sea port of entry to provide specified biometric identifiers and 
other evidence at the time of departure. 8 CFR 215.8. On January 5, 
2004, DHS published a notice in the Federal Register at 69 FR 482 
identifying the implementation of exit pilot programs at Baltimore-
Washington International Airport (BWI) and the Miami Seaport. DHS has 
recently implemented exit pilot programs at an additional 13 ports of 
departure, as identified by notice in the Federal Register on August 3, 
2004 at 69 FR 46556.
    Under the exit pilot programs at BWI and Miami, aliens departing 
from any of the designated departure air and sea ports are required to 
submit fingerprints and electronically scan their nonimmigrant visas or 
passports at self-serve ``kiosks'' which are located in the air and sea 
port terminals. DHS personnel are available to assist aliens with the 
data collection procedure as needed. To date, the process has been 
implemented smoothly with no significant delays for travelers.
    Since early August of 2004, DHS, through the extended exit pilot 
program, has been testing different methods to collect the required 
information from aliens as they depart the United States through the 
designated ports of entry. DHS currently is exploring several different 
methods and processes for collection of information, including an 
``enhanced'' version of the existing self-serve kiosks already in 
place. The enhanced version provides the alien a receipt with biometric 
identifiers for the alien to present to a DHS representative prior to 
boarding a flight or ship. Also, DHS is testing hand-held scanners, 
which can be taken from person to person by a DHS representative to 
collect biometric information, and a combination of the two systems. 
US-VISIT rejected several other options, including the use of 
Transportation Security Administration (TSA) screeners or airline 
personnel assisting in data collection, as unfeasible due to the 
potential of overwhelming the ability of these organizations to perform 
their already existing functions.
    The exit pilot program will enable DHS to conduct a cost-benefit 
analysis of the different processes and determine which process allows 
for the most accurate and efficient collection of information from 
aliens departing from the United States. After careful analysis and 
consideration of the deployed alternatives, DHS will then evaluate 
which solution or solutions will be selected for additional deployment 
at air and sea ports.
    The evaluation of the best method for collecting exit data 
collection will occur from August through November 2004.

[[Page 53321]]

The pilot programs will be evaluated based on: (1) The cost of each 
option, including the impact on staffing and necessary personnel; (2) 
how well the alternative supports all necessary aliens being processed 
and requisite law enforcement functions; and (3) how conducive the 
alternative is for tourist and commercial travel. The extended pilot 
program began in August 2004, where the additional methods of data 
collection have occurred in Chicago O'Hare airport, Baltimore/
Washington International Airport, and Miami seaport. In early September 
2004, US-VISIT exit pilot program will expand to additional ports of 
entry where additional evaluations may be made. DHS will take a 
flexible approach to the evaluation of the different methods of data 
collection, and may select one of the methods currently evaluated or a 
slightly modified version, depending on information gained from the 
pilot program. In addition, DHS may not select the same method at every 
port, recognizing that physical space limitations and passenger 
procedures are different at different ports. DHS invites comments on 
the existing methods being piloted, the ones previously rejected, or on 
any other potential technologies or methods of collecting US-VISIT exit 
data.
    The pilot program is currently for air and sea ports of entry; at 
this time, no departure requirements are in place at land border ports 
of entry.

C. Classes of Aliens Exempted From Biometrics Requirements of US-VISIT 
Pursuant to the January 5, 2004 Interim Rule

    The January 5, 2004 interim rule exempts certain classes of aliens 
from US-VISIT requirements. The exempted classes are: (i) Aliens 
admitted on A-1, A-2, C-3 (except for attendants, servants or personal 
employees of accredited officials), G-1, G-2, G-3, G-4, and NATO-1, 
NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6 visas, unless the Secretary of 
State and the Secretary of Homeland Security jointly determine that a 
class of such aliens should be subject to the rule, (ii) children under 
the age of 14, (iii) persons over the age of 79, (iv) classes of aliens 
the Secretary of Homeland Security and the Secretary of State jointly 
determine shall be exempt, and (v) an individual alien the Secretary of 
Homeland Security, the Secretary of State, or the Director of Central 
Intelligence determines shall be exempt. 8 CFR 215.8(a)(2).

III. Implementation of the Second Phase of US-VISIT

    This interim rule amends DHS regulations to implement the second 
phase of US-VISIT by expanding the program to the 50 most highly 
trafficked land border ports of entry in the United States as directed 
under 8 U.S.C. 1365a(d)(2). This interim rule also expands the 
population of nonimmigrant aliens who may be subject to US-VISIT 
biometric data collection. Finally, this interim rule further defines 
the aliens who are exempt from US-VISIT biometric data collection 
requirements.

A. The 50 Most Highly Trafficked Land Border Ports

    This interim rule authorizes the Secretary or his delegate to 
extend the US-VISIT biometric data collection requirements to land 
border ports of entry designated by notice in the Federal Register. 
Biometric data collection at time of entry will be implemented at the 
50 most highly trafficked land border ports of entry by December 31, 
2004. Biometric data collection at time of departure will be 
implemented at land border ports, through a limited number of pilot 
programs at locations designated by notice in the Federal Register. The 
classes of aliens required to provide biometrics are the same 
regardless of whether the application for admission takes place at an 
air, sea or land port of entry.
    DHS expects to comply with the December 31, 2004 DMIA deadline for 
implementing the integrated entry exit system at the 50 most highly 
trafficked land border ports of entry. This compliance will include 
integration of all available arrival and departure data on aliens that 
currently exist in the electronic systems of DHS and DOS. This includes 
information from Advance Passenger Information System (APIS) and the 
Arrival/Departure Information System, (ADIS), as well as other systems 
related to air and sea inspections as well as law enforcement purposes. 
APIS and ADIS include information captured from passenger manifest data 
received from carriers and information on visa applicants and 
recipients received through the DataShare program with DOS.
    At this time, DHS has not designated any land border ports of entry 
where biometric data collection is required. DHS will implement the 
biometric data requirements, taken at the time of alien arrival, at the 
50 most highly trafficked land ports of entry within the next few 
months. Those land border ports will be identified through notice(s) in 
the Federal Register. Staggering the implementation of US-VISIT, 
starting with a few initial locations, will enable DHS to test the 
system and identify areas where the process for collection of biometric 
information may be improved. Subsequent to implementation of biometric 
data collection at time of entry at the 50 busiest ports, DHS will 
implement biometric data collection at time of departure through a 
limited number of pilot programs at locations designated by notice in 
the Federal Register.
    This interim rule is expected to have minimal effect on the overall 
inspection process or inspection times for travelers at land border 
ports of entry. DHS, through Bureau of Customs and Border Protection 
(CBP) personnel, have carefully monitored the impact of US-VISIT 
biometric data collection on the inspection of air and sea applicants 
for admission, and has determined that this process takes, on average, 
approximately 15 additional seconds during the inspection. Similar 
results are expected at land border ports of entry, given the 
population to whom this process will apply and how it will be 
conducted. However, DHS, through CBP, will continue to carefully 
monitor the effect of US-VISIT on overall inspection times at all 
locations at which US-VISIT has been deployed, and will make 
operational adjustments as necessary.
    Similarly, this interim rule is expected to have little effect on 
trans-border commerce. Minimal additional time or effort will be spent 
in the US-VISIT process and no delays or interruptions of shipments are 
expected as a result of this rule.
    DMIA requires that DHS implement US-VISIT at the 50 most highly 
trafficked land border ports of entry in the United States no later 
than December 31, 2004. This interim rule authorizes the Secretary of 
DHS to extend the US-VISIT biometric data collection requirements to 
the 50 most highly trafficked land border ports of entry and to 
identify the specific land border ports separately by notice in the 
Federal Register.
    This interim rule makes no changes to current regulations that 
control the issuance and use of the Form I-94. All current valid Forms 
I-94 remain in effect. DHS will verify an alien's identity using 
biometrics at the time of issuance of a Form I-94, or at any time DHS 
determines such verification is necessary. The goal of the US-VISIT 
program, once fully implemented, is to verify an alien's identity using 
biometric identifiers upon each entry and

[[Page 53322]]

departure through any air, land, or sea port of entry.
    The fee required under 8 CFR 103.7(b)(1) and 8 CFR 235.1(f) for the 
issuance of a Form I-94 at a land border port of entry will still be 
required. This interim rule does not change any of the fee 
requirements. As previously stated, this interim rule merely adds 
designated land border ports-of-entry as a location for the collection 
of biometrics upon the entry of aliens required by regulation to 
provide them. Multiple-entry Forms I-94 will still be issued as before, 
with no change in the fees.

B. Inclusion of Visa Waiver Program Participants

    Pursuant to section 217 of the INA, the Secretary of DHS, in 
consultation with the Secretary of State, may designate certain 
countries as VWP program countries if certain requirements are met. 
Those requirements include, without limitation, (i) the rate of 
nonimmigrant visa refusal for nationals of the country, (ii) whether 
the government certifies that it has a program to issue machine 
readable, tamper-resistant passports that comply with ICAO standards, 
(iii) whether the country's designation would negatively affect U.S. 
law enforcement and security interests, and (iv) whether the government 
certifies that it reports to the United States on a timely basis the 
theft of blank passports. The statute also sets forth requirements for 
continued eligibility and, where appropriate, emergency termination of 
program countries. Nationals of VWP countries, who are otherwise 
admissible, may travel to the United States and be admitted in the B-1/
B-2 categories without a visa for up to ninety days.
    Travelers seeking entry to the United States through the VWP 
comprise nearly 50% of the total number of nonimmigrant aliens who 
apply for admission each year by air or sea. Individual travelers are 
limited by statute in both purpose and duration of visit, as well as 
other benefits potentially available to travelers holding visas. VWP 
applicants must also waive any right to appeal the admissibility 
determination or to contest, other than on the basis of an application 
for asylum, any action for removal of the alien.
    DHS has determined that enrolling VWP aliens in the US-VISIT 
program will improve public safety, national security, and the 
integrity of the immigration process. As with any traveler to the 
United States, it is important to verify the true identity of the alien 
and to ensure that the alien is admissible. Enrolling VWP travelers in 
US-VISIT reduces the risk that the VWP traveler's identity could be 
used by other individuals to enter the United States. By linking the 
alien's biometric information with the alien's travel documents, DHS 
reduces the likelihood that another alien could later assume the 
identity of an enrolled individual to gain admission to the United 
States. Since US-VISIT was initiated on January 5, 2004, the program 
has been very successful in identifying aliens whom the officer would 
not have known were inadmissible. Through June 2004, US-VISIT has 
prevented the admission of more than 196 persons traveling under non-
immigrant visas that were inadmissible, including known or suspected 
criminals. Adding the VWP population to US-VISIT should result in 
additionally success in preventing criminal aliens from being admitted.
    Although the Secretary of DHS may have determined that the rate of 
visa refusal for nationals of VWP countries is low and that the 
country's participation in the VWP program is consistent with U.S. law 
enforcement and security programs, the importance of identification 
verification and other security concerns require that VWP travelers be 
enrolled in US-VISIT.
    Further, there is evidence that VWP passports are attractive to 
individuals seeking to avoid the security and immigration screening 
provided by the visa issuance process. Security concerns outside of 
identity fraud also have led DHS to the conclusion that enrolling VWP 
travelers in US-VISIT is warranted.

C. Additional Classes of Aliens Affected by Changes to the January 5, 
2004 Interim Final Rule

1. TECRO Aliens
    In establishing diplomatic relations with the People's Republic of 
China (PRC) in 1979, the U.S. Government recognized the PRC as the sole 
legal government of China. Both sides agreed that, within this context, 
the people of the United States would maintain cultural, commercial, 
and other unofficial relations with the people in Taiwan.
    The Taiwan Relations Act (TRA) (Pub. L. 96-8) provides the legal 
framework for the conduct of these unofficial relations. This law 
provides that the Taipei Economic and Cultural Representative Office 
(TECRO), a private organization, is responsible for the unofficial 
relations between the people of the United States and the people in 
Taiwan. In keeping with this special status, Taiwan representatives of 
the TECRO, and their dependents, are added as an additional class of 
aliens exempt from the collection of biometric information under US-
VISIT at this time. This interim rule now exempts certain officials of 
TECRO from US-VISIT, through amendments to 8 CFR 252.8(a)(2)(ii) and 
235(d)(iv)(B).
2. Alien Crewmembers
    Pursuant to section 101(a)(15)(D) of the INA, an alien may be 
admitted into the United States temporarily to work as a crewmember. 
Current DHS regulations at 8 CFR 252.1(b) provide that crewmembers are 
examined under the provisions of 8 CFR parts 235 and 240. This interim 
rule clarifies that every alien crewman applying for landing privileges 
in the United States is subject to the collection of biometric 
information pursuant to 8 CFR 235.1(d)(1)(ii) and (iii).
3. Mexican Nationals Who Present a Form DSP-150, B-1/B-2 Visa and 
Border Crossing Card (BCC)
    Mexican nationals who travel to and from the United States may 
apply for a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC). 
Pursuant to 8 CFR 212.1(c)(1)(i), a visa and passport are not required 
of a Mexican national who is in possession of a BCC containing a 
machine-readable biometric identifier and who is applying for admission 
as a temporary visitor for business or pleasure from a contiguous 
territory. If the BCC traveler is applying for admission from other 
than a contiguous territory, he or she must present a valid passport. 
See 8 CFR 212.1(c)(2).
    Prior to issuing a BCC to a Mexican national, DOS obtains 
fingerprints and a photograph from the individual and conducts a 
background check on the individual using biographic and biometric 
identifying information. Once the individual is approved, the 
fingerprints and photograph of the Mexican national are then embedded 
into the BCC. Upon admission to the United States, a CBP officer 
inspects the holder of a BCC to determine that he or she is the 
rightful bearer of the document.
    Whether a BCC traveler is issued a Form I-94 Arrival/Departure 
Record at time of admission depends on how long the Mexican national 
will remain in the United States and where the Mexican national will 
travel while in the United States. Pursuant to 8 CFR 235.1(f)(1)(iii), 
if the Mexican national's admission will not exceed 30 days and the 
visit will be within 25 miles of the border, it is not required that 
the alien be issued a Form

[[Page 53323]]

I-94 Arrival/Departure Record. The distance restriction is increased to 
75 miles if the Mexican national is admitted at a port of entry in the 
state of Arizona. See 8 CFR 235.1(f)(1)(v).
    Pursuant to this interim rule, the Secretary of DHS or his delegate 
may require Mexican nationals who present a BCC at time of admission at 
a designated air, sea or land port of entry to provide fingerprints, 
photographs, or other biometric identifiers at time of entry into or 
departure from the United States. However, under 8 CFR parts 
215.8(a)(2)(iii) and 235.1(d)(1)(iv)(C), the Secretaries of DHS and 
State may jointly exempt classes of aliens from the US-VISIT biometric 
data requirements. This interim rule constitutes notice that the 
Secretaries of DHS and State have jointly determined that the US-VISIT 
departure requirements in 8 CFR part 215.8(a)(1), and inspection 
requirements in 8 CFR 235.1(d)(ii), shall apply only to Mexican 
nationals for whom a Form I-94 is issued under 8 CFR 235.1(f)(1)(iii) 
or (v). This means that Mexican nationals who present a BCC at time of 
admission, who will stay within 25 miles of the border (75 miles if 
admitted at a port of entry in Arizona) and whose stay will be shorter 
than 30 days, are not subject to the US-VISIT biometric data collection 
requirements. The Secretaries of DHS and State have determined that 
this class of aliens should be exempt because the biometric data 
(fingerprints and photographs) of BCC travelers have already been 
captured by DOS at time of the BCC issuance, and the biometric 
photograph of the traveler on the BCC is compared to the facial 
appearance of the traveler upon admission. This exemption is temporary. 
DHS expects that the exemption will be phased out as US-VISIT 
capabilities and technologies improve.
    Mexican nationals who present a BCC and who will travel beyond the 
geographic restrictions or remain in the United States for longer than 
30 days are currently issued a Form I-94, Arrival/Departure Record and 
will now be subject to US-VISIT biometric requirements if they apply 
for admission at a designated air, sea, or land port of entry. If a BCC 
traveler is issued a multiple-entry Form I-94, Arrival/Departure 
Record, the traveler will be subject to US-VISIT biometric data 
requirements the next time the traveler is issued a Form I-94, Arrival/
Departure Record.

IV. Comments and Changes to the January 5, 2004 Interim Rule

A. Summary of Comments

    DHS received 21 comments on the January 5, 2004 interim rule. The 
commenters included representatives of the travel industry, including 
airports, airlines, and travel or transport associations. Other 
commenters included a national business association, a privacy 
organization, attorneys and an attorney association, two universities, 
an educational association, a personnel association, a trucking 
association, a manufacturer of smart cards, and a foreign government.
    The following is discussion of the comments received and the 
Department's response.
1. Comments Regarding Implementation of US-VISIT
    DHS received several comments from the public praising the 
implementation of US-VISIT, both in terms of its value in improving the 
security of the United States and its minimal effect upon travel times 
and the public. Many of the comments specifically praised the program 
as having almost no impact on travel to and from the United States. As 
one commenter said: ``The program has been implemented successfully at 
115 airports and 14 seaports for entry. To date, [we] have received no 
reports of significant delays. In fact, the collection of the biometric 
data and the security checks seem to have been integrated almost 
seamlessly into the inspection process.'' A second commenter said ``We 
commend US-VISIT and CBP on the generally smooth implementation of the 
US-VISIT program at 115 airports.''
2. ``Good Cause'' Exception to Initial Notice and Comment of the 
January 5, 2004 Rule
    Several commenters expressed their concerns that DHS implemented 
US-VISIT at air and sea ports of entry by an interim rule without 
providing prior public notice or the opportunity to comment. As 
discussed in the January 5, 2004 interim rule, DHS implemented the 
initial phase of the US-VISIT program through an interim rule, with a 
request for public comment after the effective date, for two reasons: 
(1) The delay of the implementation of US-VISIT at air and sea ports to 
allow public comment would have compromised national security and thus 
been contrary to the public interest under the Administrative Procedure 
Act, 5 U.S.C. 553(b) and (d)(3), and (2) such delay would not have 
allowed the newly-formed Department to meet the statutory deadlines for 
implementation of the exit-entry system under DMIA.
    One commenter also stated that, because the January 5, 2004 interim 
rule was not published as a notice of proposed rulemaking, DHS should 
provide a sunset provision in the final rule. DHS cannot implement this 
request. US-VISIT was established by several statutory mandates. These 
statutes do not contain sunset provisions. Therefore, allowing US-VISIT 
to expire through a sunset provision implemented in a DHS regulation 
would be contrary to existing law and the intent of Congress in 
requiring the establishment and implementation of US-VISIT.
3. Data Management Information Act (DMIA) and Task Force
    One commenter objected to a statement in the supplementary 
information recommending that travelers maintain evidence of departure. 
The commenter stated that this recommendation violates the DMIA 
restriction on additional documentary requirements. The statement was 
made in recognition that some travelers may be concerned about evidence 
of a prior departure when they seek to re-enter. The statement is 
merely a recommendation made in the supplementary information and 
imposes no new documentary requirement on the traveler.
    One commenter stated that US-VISIT should use the recommendations 
of the DMIA Task Force in implementing US-VISIT at land borders. The 
DMIA Data Management Improvement Task Force was a public/private group 
created by the provisions of DMIA and chartered by the Attorney General 
in 2002 to evaluate how the Attorney General could carry out the 
provisions of DMIA and improve the flow of traffic at airports, 
seaports, and land border ports of entry through: (1) Enhancing systems 
for data collection and data sharing, and (2) increasing cooperation 
between the public and private sectors, increasing cooperation among 
Federal agencies and among federal and state agencies, and modifying 
information technology systems. The Task Force members included the 
Departments of Homeland Security, Commerce, State, and Transportation, 
as well as several private sector organizations with knowledge of 
trans-border commerce.
    The Task Force delivered two separate reports to Congress in 2002 
and 2003 which made a series of recommendations, including one 
specifically aimed at the US-VISIT program, which was adopted. As 
recommended by the Task Force, the

[[Page 53324]]

deployment to land border ports will begin with pilots that will then 
be evaluated before additional deployments are made. As provided 
elsewhere in this rule, US-VISIT will be implemented at land borders in 
accordance with the requirements of DMIA statute and the DMIA taskforce 
recommendations have been reviewed accordingly. All of the Task Force 
reports are public and may be accessed electronically at http://www.immigration.gov
.

    One commenter stated that the DMIA Task Force should not have been 
disbanded. Under section 3(i) of DMIA, Congress provided authority for 
the termination of the Task Force to the Attorney General, now the 
Secretary of DHS. Through delegation to the chair of the Task Force, 
the Under Secretary for Border and Transportation Security, on January 
27, 2004, the DHS Secretary terminated the Task Force as it had 
completed its mission and met the statutory requirements of DMIA. 
However, DHS also believes that the comment procedures of this interim 
rule and the January 5, 2004 interim rule allow the public to 
participate and have significant input into the continued development 
of US-VISIT.
4. Monitoring and Evaluation of US-VISIT
    One commenter stated that US-VISIT should implement a process to 
evaluate and monitor how the program is working. Another commenter 
stated that such an evaluation should be made within 6 months of 
implementation of the program.
    On January 5, 2004, DHS implemented a strict reporting procedure to 
monitor the passenger arrival process at all US-VISIT designated 
locations and has evaluated the impact of US-VISIT biometric 
enrollment. DHS monitors all locations on a daily basis and makes the 
appropriate adjustments to field operations to minimize any adverse 
impacts. Analyses of data indicate that deployment of US-VISIT has had 
minimal impact on the passenger arrival and departure process. The data 
indicates that the entire process consumes no more than 15 seconds per 
affected passenger, on average, above the time already currently 
required in the inspections process. Overall, there was no significant 
impact upon the overall clearance times. DHS continues to monitor US-
VISIT at all locations on a weekly basis to ensure that the 
facilitative aspects of its mission continue unimpeded, making 
modifications where necessary.
5. Privacy Issues
    One commenter representing a privacy organization raised several 
concerns. The commenter stated that US-VISIT should address how long 
information will be retained and that the program should develop 
guidelines for deleting records and expunging information when no 
longer relevant, to avoid ``mission creep'' (meaning using information 
for purposes beyond those defined by statute). The commenter also 
stated that the program should expunge data when the individual becomes 
a lawful permanent resident.
    US-VISIT is currently using technology systems that have been 
employed by the former Immigration and Naturalization Service (now DHS) 
components for years. The existing legacy systems were created at 
different times and for different purposes, and the data within them 
are retained and disposed of based on those needs. Data usage and 
retention schedules are published for each of these systems. As US-
VISIT matures and decisions are made regarding whether the existing 
systems will be integrated, modernized, and/or retired, the data 
retention periods for US-VISIT data will be reviewed and adjusted to 
reflect the redefined needs of DHS. DHS recognizes the importance of 
privacy rights and will further define the purpose of US-VISIT and the 
limitations on data collection, maintenance, and use through updates to 
the Privacy Impact Assessment.
    The Privacy Impact Assessment (PIA) for US-VISIT lists the 
principal users of the data within DHS and notes that the information 
may also be shared with other law enforcement agencies at the federal, 
state, local, foreign, or tribal level, who, in accordance with their 
responsibilities, are lawfully engaged in collecting law enforcement 
intelligence information and/or investigating, prosecuting, enforcing, 
or implementing civil and/or criminal laws, related rules, regulations, 
or orders. This PIA is published on the DHS Web site at http: //
http://www.dhs.gov/us-visit.

    Several commenters stated that US-VISIT must make it a priority to 
protect privacy and should declare specifically who has access to US-
VISIT data. One of US-VISIT's primary goals is to safeguard the 
personal information that is being collected in a way that is 
responsible and respectful of privacy concerns. DHS is achieving this 
goal by implementing a comprehensive privacy program to ensure that 
personal information is protected from misuse and improper disclosure, 
and destroyed when no longer needed for its stated purpose. The Privacy 
Officer for US-VISIT provides oversight to ensure that collected data 
is being handled in accordance with all applicable Federal laws, 
regulations and Departmental policy regarding privacy and data 
integrity.
    While it is not possible for US-VISIT to list the names of the 
specific entities that may be given access to the data in the future, 
it should be noted that access is only provided on an official basis 
and in accordance with the system of notices required for records 
within the existing systems on which US-VISIT is based.
    Several commenters stated that US-VISIT should establish procedures 
for correcting any errors and should address how long it will take to 
make any corrections. US-VISIT utilizes a three-step redress process 
for individuals to have their records reviewed and amended or corrected 
based on accuracy, relevancy, timeliness, or completeness. This process 
includes confirming that mismatches and other errors are not retained 
as part of an alien's record. The first opportunity for data correction 
occurs at the port of entry where the CBP Officer has the ability to 
correct manually most biographic-related errors such as name, date of 
birth, flight information and document errors. A Data Integrity Team 
sends biometric-related errors to US-VISIT for resolution. All of this 
process occurs without any action required by the individual.
    If the individual still has questions about the travel record, he 
or she can send a written request by mail or telefax to the US-VISIT 
Privacy Officer, Steve Yonkers, at the following address: US-VISIT, 
Border and Transportation Security, Department of Homeland Security, 
Washington, DC 20528. Phone (202) 927-5200. Fax (202) 298-5201. The 
Privacy Officer will review the travel record, amend or correct it as 
necessary, and send a response to the traveler describing the action 
taken, within 20 business days of receipt. If the individual is not 
satisfied with the action taken, he or she can appeal to the Department 
Chief Privacy Officer, who will review the appeal, conduct an 
investigation, and make a final decision on the action to be taken. 
This redress policy is published on the DHS Web site at http://www.dhs.gov/us-visit.
 The US-VISIT Privacy Officer can also be contacted by e-mail at usvisitprivacy@dhs.gov..

    One commenter stated that US-VISIT should provide a receipt that 
the visitor had a ``false positive'' to protect the visitor in future 
travel. When visitors are processed through US-VISIT, the

[[Page 53325]]

fingerprints collected are checked against a biometric watch list for a 
possible match. If DHS determines that the match was a ``false 
positive,'' no negative information is associated with the traveler 
history. This ``false positive'' will not affect future entries into 
the United States. That an individual may be a repeat ``false 
positive'' is possible, but not likely because the system automatically 
collects the highest quality fingerprints available with each new 
entry, reducing the possibility of a future erroneous match.
6. Databases
    Several commenters made statements about the US-VISIT database. One 
commenter stated that the Advance Passenger Information System (APIS) 
regulation, as proposed, requires more information than is presently 
provided to US-VISIT by the carriers. One commenter stated that the 
regulation should clarify whether US-VISIT is receiving the information 
described in the supplementary information section of the January 5, 
2004, interim rule. Another commenter recommended that US-VISIT create 
an intelligence liaison office to consolidate the watch list databases 
to ensure accuracy. US-VISIT has the capability to receive and collect 
any information required by 8 CFR 231, although as the commenter noted, 
not all of the data elements enumerated in the January 5, 2004 interim 
rule supplemental information are currently being provided by the 
transportation carriers.
    One commenter stated that databases need to be fully integrated and 
that the database systems from the three immigration-related bureaus 
should be integrated. Two commenters stated that multiple agencies 
should not be asking for the same or redundant travel information. One 
commenter stated a concern that as US-VISIT is expanded to other 
groups, the capacity of the database may not be adequate and that time 
necessary for database and watch list searches will delay the US-VISIT 
process.
    Under US-VISIT, information systems associated with border 
inspections and security are being linked. Biometric and other 
information will be available to appropriate staff in CBP, the Bureau 
of Immigration and Customs Enforcement (ICE), the Bureau of Citizenship 
and Immigration Services (CIS), DOS consular officers, and other staff 
involved with the adjudication of visa applications at overseas posts, 
other DHS officers, appropriate officers of the United States 
intelligence and law enforcement community, and DOS personnel and 
attorneys when needed for the performance of their duties.
    Over time, US-VISIT will continue to integrate appropriate 
additional databases and ensure interoperability with other databases 
as appropriate. US-VISIT maintains a long-term vision that, working in 
conjunction with a prime integrator, will address these concerns, 
including redundant information requests. In addition, US-VISIT works 
closely with the National Institute of Standards and Technology (NIST), 
and DOS to ensure that the US-VISIT database has and maintains the 
ready performance and quality to hold and manage increasing data.
    One commenter stated that frequent traveler programs should be 
utilized by US-VISIT. DHS currently utilizes several frequent traveler 
programs. As one example, DHS uses the INSPASS program at air ports of 
entry to facilitate frequent air travelers. DHS does not currently 
utilize a frequent-traveler program as part of US-VISIT, though classes 
of aliens who benefit from other programs (e.g. INSPASS) are currently 
exempt from US-VISIT. DHS will determine whether such programs will be 
used, and how they will be integrated with US-VISIT, as US-VISIT is 
expanded.
    One commenter stated that more time is needed to develop the 
necessary infrastructure and technological capabilities and recommended 
that US-VISIT use small-scale operations before going nationwide. That 
commenter stated that NSEERS (discussed in section N, below) and SEVIS 
(the Student and Exchange Visitor Information System, designed to track 
aliens in the F, J, and M visa classifications who are attending an 
educational program in the United States) programs have included data 
entry errors, system malfunctions, and leakages of data. US-VISIT is 
based on existing, functional systems. The successful nationwide 
implementation of US-VISIT, as required by statute, demonstrates that 
small-scale operations were not necessary. Where DHS is still 
developing technologies (e.g. exit capabilities), DHS is piloting 
different methodologies in certain areas before nationwide expansion 
(see Federal Register notices at 69 FR 482 (January 5, 2004) and 69 FR 
46556 (August 3, 2004)).
    One commenter stated that SEVIS is flawed and indicated that US-
VISIT should not use SEVIS to determine status or background. SEVIS has 
been very responsive to meeting stakeholder and users requirements and 
continues to make enhancements. US-VISIT receives information from many 
systems; no single system is relied upon for final determinations.
    One commenter stated that the interim rule does not include a list 
of all the law enforcement databases that will be used. DHS 
specifically did not include a detailed list of these databases because 
of their sensitive nature relating to law enforcement and intelligence.
    One commenter stated that IDENT (DHS' automated fingerprint 
identification tool) checks at consular offices and by US-VISIT should 
get priority over other requests for IDENT checks. US-VISIT and 
consular office IDENT checks are prioritized to meet the required 
response time for each type of check. Another commenter stated that DHS 
should create a separate US-VISIT biometric database instead of using 
IDENT, because ``[by] lumping US-VISIT enrollees in with criminals, we 
are sending the message that aliens are criminals.'' DHS is not sending 
such a message, instead, DHS is using its available existing resources 
to ensure criminals are quickly identified and, if appropriate, denied 
entry to the United States.
7. Right to Counsel
    One commenter stated that arriving aliens should have the right to 
counsel, stating that the US-VISIT program increases the chance for 
erroneous admission decisions and reinforces the need for the 
availability of an alien's counsel at a port of entry.
    This recommendation will not be adopted at this time. The current 
DHS regulation at 8 CFR 292.5(b) reads, in part, ``* * * nothing in 
this paragraph shall be construed to provide any applicant for 
admission in either primary or secondary inspection the right to 
representation, unless the applicant for admission has become the focus 
of a criminal investigation and has been taken into custody.'' DHS does 
not believe that the introduction of US-VISIT requires a change to the 
existing regulation because US-VISIT does not significantly alter the 
inspection or admission process for aliens.
8. Inspecting Officers
    Two commenters stated that individuals accessing US-VISIT 
information must be trained to interpret data correctly. Another 
commenter stated that DHS should establish an immigration expertise 
officer or specialist officer at the ports-of-entry, and suggested that 
the specialists should be coordinated by the Offices of Chief Counsel 
for BCIS and the Principal Legal Advisor for ICE. The commenter stated 
that these steps

[[Page 53326]]

would help to ensure the accuracy and consistency of immigration 
decisions.
    US-VISIT has an aggressive deployment schedule which involves 
training, new technology, and new primary inspection procedures. 
Concurrent to the US-VISIT deployment, DHS initiated a cross-training 
program for all officers who perform the inspection function. A 
training curriculum was developed specific to US-VISIT which focused on 
using the new US-VISIT technology, as well as the additional systems 
used by the inspecting officers to process travelers, along with 
operational procedures. Instruction was completed prior to the launch 
of US-VISIT and will continue and expand as US-VISIT expands. DHS is 
confident, therefore, that the training provided will allow each CBP 
officer to have and maintain proficiency in current immigration law and 
procedure.
9. Secondary Inspections
    One commenter stated that US-VISIT should provide safeguards for 
secondary inspections, such as limiting the use of handcuffs and 
providing water. The existing procedures, which apply to secondary 
inspection, are designed to ensure the safety of the traveling public 
and our officers while ensuring that detained persons receive proper 
treatment. DHS does not believe that the introduction of biometric data 
collection as part of the inspection process necessitates a change to 
existing regulations and procedures governing secondary inspection and 
detention of certain aliens.
    Another commenter stated that US-VISIT should have procedures to 
expedite aliens referred to secondary inspection by US-VISIT. DHS has 
promulgated new standard operating procedures for CBP officers 
responsible for addressing applicants referred to secondary inspection 
due to US-VISIT. The goal is to inspect and facilitate legitimate 
travelers as quickly as possible within current rules and regulations.
10. Resources and Staffing
    Several commenters addressed the need to provide adequate staffing 
and equipment to avoid long lines, the need to continue to meet the 45-
minute clearance requirement, and the need to have mitigation 
strategies to avoid delay. The Department shares the public's concerns 
that US-VISIT not become an impediment to legitimate travel and trade. 
Ensuring that an impediment does not occur is one of US-VISIT's primary 
goals. Accordingly, it is a DHS priority to provide optimal staffing 
and to minimize process wait times. DHS has procedures already in place 
for adequate staffing during peak processing times. Analyses of data 
indicate that there has been no significant increase in passenger wait 
times attributed to US-VISIT and that the US-VISIT process has been, 
for the most part, absorbed into the normal standard operating 
procedure. CBP will continually monitor inspection processing to reduce 
or avoid delays. Additional technical staff are being hired and 
assigned to key US-VISIT ports-of-entry to monitor the equipment to 
ensure that it remains in working order. All equipment and system 
issues are monitored closely and a central help desk is available to 
resolve any problems. If necessary, additional equipment is available 
to be deployed on short notice.
    One commenter stated that employee vacancies should be filled so 
that adequate staffing is maintained. Employee vacancies continue to be 
filled through an ongoing Human Resources program. In addition, in 
Spring 2004, legacy Customs and Immigration Inspectors were converted 
to CBP Officer positions and cross-trained. As a result of this cross-
training, port directors now have additional resources to maximize the 
staffing capabilities and flexibility at ports of entry. These 
resources will be used to ensure that all ports of entry are adequately 
staffed.
    One commenter stated that the program should establish exclusive 
lines for travelers not subject to US-VISIT and should recalculate 
transfer times to account for US-VISIT. Queue management has been a 
long-established CBP practice. Because there has been no significant 
passenger processing delay, no changes to the inspection and transfer 
lines are required at this time.
11. Use of Form I-94, Arrival/Departure Record
    Several commenters stated their views on the use of the Form I-94, 
Arrival/ Departure Record. One commenter stated that the Form I-94 
should be modified to include an electronic bar code to provide an 
entry/departure record, and that the Form I-94 should be usable for 
reentry to ease consular burden. Another commenter stated that the Form 
I-94 should interface with the computer systems. One commenter stated 
that the privacy of the Form I-94 should be preserved. Three commenters 
stated that the Form I-94 should be discontinued, with one of those 
commenters stating that US-VISIT should rely on APIS (Advance Passenger 
Information System) information rather than using Form I-94, and 
another commenter stating that the Form I-94 data was duplicative of 
the APIS information.
    DHS is reviewing the continued use of the paper Form I-94, and is 
considering many of the enhancements suggested by the commenters. In 
addition, in conjunction with a passport, the Form I-94 currently 
serves an important purpose: Evidence of lawful entry and status after 
admission to the United States, especially in instances where access to 
online systems cannot be achieved. The current Form I-94 will continue 
to be utilized until alternatives and automated systems are developed 
to collect and provide the same information and have passed quality 
control and field-testing.
12. Eligibility for Re-entry
    Several commenters addressed re-entry and the impact of the exit 
component on eligibility for re-entry. One commenter stated that US-
VISIT should not rely on US-VISIT exit information as the basis for any 
adverse actions until the system is fully applied. Another commenter 
stated that US-VISIT should provide outreach to the public on the 
consequences of overstay and re-entry.
    US-VISIT has taken many steps to inform the public of their 
responsibility to report their exit when departing from a designated 
port of departure. Until US-VISIT is fully implemented, DHS and DOS 
will review all evidence surrounding an alien's prior travel to, and 
departure from, the United States to determine whether the alien 
complied with the terms of his or her admission. Information from US-
VISIT, including departure information, will be one factor relied upon 
by consular officers and inspectors when determining whether the alien 
complied with the terms of his or her admission.
    In an effort to fully inform the public of the benefits and 
responsibilities associated with the US-VISIT program, the US-VISIT 
Outreach Campaign was established. The campaign includes a 
comprehensive package of materials and media and stakeholder outreach 
to heighten awareness about US-VISIT and its role in enhancing the 
security of U.S. citizens and visitors while facilitating legitimate 
travel and trade.
    The US-VISIT program produces videos, pamphlets and exit cards that 
are made available to the public and that explain the responsibility of 
a visitor to `check out' before departing the United States. The video 
can be seen in-flight on airlines and on-board at cruise lines at 
appropriate points. The pamphlets are available at U.S.

[[Page 53327]]

consulates and on-line at http://www.dhs.gov/us-visit. Each of these cards 

clearly states: ``Visitors with visas who depart from a port where the 
departure confirmation system is in place must comply. The exit 
confirmation will be added to the visitor's travel records to 
demonstrate compliance and record the individual's status for future 
visits to the United States.''
    One commenter stated that US-VISIT should simplify procedures for 
aliens making subsequent trips. DHS is not altering the process for 
frequent travelers at this time. Part of US-VISIT's purpose is to 
identify aliens through biometric identifiers at the time of each 
admission and departure. The collection of biometrics is therefore 
required upon each visitor's entry and exit. DHS believes, however, 
that the steps required are simple enough such that the program will 
facilitate legitimate travel through an accurate determination of a 
traveler's immigration status or admissibility.
    One commenter stated that the rule should clarify that aliens 
seeking reentry may receive a section 212(d)(3) of the Act waiver for 
failing to comply with departure requirements because of emergent 
circumstances. The January 5, 2004 interim rule states that an alien 
who does not comply with the departure requirements may be inadmissible 
under section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9). The commenter 
is correct that, for nonimmigrants, violations of 212(a)(9)(B) 
inadmissibility grounds may be waived under section 212(d)(3) of the 
Act, 8 U.S.C. 1182(d)(3). That interim rule did not alter an alien's 
eligibility to apply for a waiver under section 212(d)(3) of the Act. 
DHS has determined that it is not necessary to clarify the waiver 
authority in the codified text of the regulation.
13. Biometrics
    Several commenters addressed the use of biometrics. One commenter 
stated the need to define better the rule's narrative statement about 
possible use of ``other biometric identifiers.'' The International 
Civil Aviation Organization (ICAO) has stated that facial images are 
the mandatory biometric required for use in biometric passport 
applications. The ICAO standard indicates that nations may use 
fingerprints and iris scans in addition to facial images. US-VISIT 
currently collects fingerprints and facial images for use in its 
identity verification process, utilizing the fingerprints for the 
primary automated verification component. As technology evolves and 
international standards are refined, US-VISIT will evaluate its use of 
biometric information. DHS's goal is to collect enough biometric 
information to ensure accuracy, while minimizing the burden and 
intrusion upon the privacy of travelers.
    Another commenter stated biometrics in foreign documents should be 
interoperable with US-VISIT. US-VISIT anticipates the foreign nations 
will utilize the guidelines established by the ICAO and International 
Standards Organization for biometric data. Biometric data stored in 
these formats are interoperable. As nations begin to employ this 
standard, DHS will ensure that its systems are interoperable with 
international biometric standards.
    One commenter stated that some persons object to fingerprint 
collection as intrusive. The collection of fingerprints is an integral 
part of national security efforts. DHS recognizes that some persons 
could find it intrusive to provide fingerprints, but the unique ability 
to compare fingerprints against a biometric watch list of known 
terrorists, criminal offenders, and immigration violators is essential 
to national security. Through continued outreach and education, DHS is 
confident that any perceived stigma associated with providing biometric 
information will be minimized.
    One commenter asked whether there is any possibility other 
biometrics would be collected. Currently, only fingerprints and facial 
images are envisioned as part of US-VISIT. One commenter asked for an 
explanation of the accommodations that will be made for visitors who 
cannot provide biometrics. DHS has implemented procedures for handling 
persons who cannot provide adequate fingerprint images from a specific 
finger, utilizing a specified order of taking the fingerprints. If a 
traveler is unable to provide any adequate fingerprints (e.g. due to a 
physical disability), DHS may rely upon other biometric identifiers, 
including comparison with the facial image.
    One commenter recommends that US-VISIT use ``smart cards.'' The 
ICAO-compliant biometric passport, which VWP countries are required to 
implement over the next few years, is essentially a smart card. US-
VISIT intends to use this document as part of the inspection process to 
verify identity for persons traveling under VWP. For visa holders, the 
visa will not contain a chip, but instead serves as a ``pointer'' to 
information already residing in a central database. There is no need 
for the additional expense and process involved in producing an e-visa.
    One commenter recommended the continued use of two-finger 
fingerprints and for DHS to not require ten fingerprints. DHS currently 
utilizes a two-finger scan to verify whether the alien applying for 
admission is the same individual to whom the DOS issued the 
nonimmigrant visa. DHS also utilizes a two-finger scan to determine 
whether the alien is identified in any watch lists or lookout 
databases. As the US-VISIT database grows, DHS and other federal 
agencies will assess the need to expand to a greater number of 
fingerprints in order to maintain its ability to identify criminal and 
other inadmissible aliens, while minimizing the number of multiple hits 
or false hits.
14. Crewmembers
    Three commenters stated that foreign crewmembers should not be 
included in US-VISIT. One commenter stated that crewmembers already go 
through a series of background checks as part of their jobs and that 
requiring crewmembers to comply with US-VISIT, because of the time 
involved to comply, would place foreign carriers at an unfair 
disadvantage with carriers whose crew were primarily or exclusively 
U.S. citizens. Alien crewmembers are examined pursuant to the 
provisions of 8 CFR 252.1(b), which provides that alien crewmen are 
examined in accordance with the provisions of 8 CFR parts 235 and 240. 
The classes of aliens exempt from US-VISIT, excluding those that are 
age dependent, are for the diplomatic corps and for foreign nationals 
traveling to the United States on official business as representatives 
of NATO. These exemptions are based on longstanding protocols, 
reciprocal agreements and treaties. DHS sees no valid reason to exempt 
crew visa holders from the US-VISIT process. While it may be true that 
some airline crews go through a series of criminal background checks in 
order to maintain employment, this process is not equivalent to what 
the US-VISIT program provides. For example, US-VISIT enhances DHS' 
ability to ensure that the person providing the biometric is the same 
person who received the visa. With regard to increasing the time spent 
by crewmembers complying with US-VISIT, given the short time frames for 
inspection, DHS has seen no evidence that this process would place the 
foreign carriers at a competitive disadvantage. To clarify that alien 
crewmen are subject to US-VISIT, DHS has amended 8 CFR 252.1(c).
15. NSEERS Registration
    One commenter stated that the rule needs clarity on whether 
National

[[Page 53328]]

Security Entry-Exit Registration System (NSEERS) \2\ aliens are also 
subject to the US-VISIT requirements. At present, because biometric and 
biographic information is collected from NSEERS registrants at time of 
admission, they are not currently required to provide additional 
biometric data pursuant under the US-VISIT program. The arrival and 
departure information of NSEERS registrants will be integrated into the 
entry-exit system.
---------------------------------------------------------------------------

    \2\ Certain aliens whose presence in the United States warrants 
monitoring for national security or law enforcement reasons remain 
subject to the NSEERS special registration procedures at 8 CFR 
264.1(f) and its implementing notices. See 68 FR 67578.
---------------------------------------------------------------------------

16. Additional Coverage of Classes of Aliens under US-VISIT
    Several commenters expressed concern as to what other classes of 
travelers may be subject to the provisions of the January 5, 2004 
interim rule and whether biometric collection will be required at all 
ports-of-entry. The statutory authority granted to the Secretary is to 
implement an automated entry-exit system that integrates electronic 
arrival and departure information for all aliens and that the system be 
deployed to all ports of entry by specific legislated dates. This 
interim rule is limited to the ports of entry that will be identified 
by notice in the Federal Register. The need for full deployment to all 
border crossings is requisite for a fully successful entry/exit system, 
therefore it should be expected that biometric collection and 
verification capabilities will be expanded to all ports of entry.
    One commenter expressed concern that, as additional categories of 
alien visitors or additional biometrics are required, US-VISIT will not 
be able to meet clearance times. As stated previously, facilitating 
legitimate travelers is a primary DHS goal. DHS will continue to 
monitor the process to reduce or eliminate processing delays as US-
VISIT expands to include additional categories of alien visitors 
(including the current expansion of US-VISIT to include VWP travelers) 
and additional ports of entry. While a statutorily mandated clearance 
time no longer exists, DHS takes very seriously its goal to facilitate 
the legitimate traveler, and as previously explained, DHS has taken 
extensive steps to ensure minimal impact due to this important security 
initiative. DHS further asserts that, once fully functional, US-VISIT 
may actually serve to expedite the processing of travelers by providing 
timely information demonstrating prior compliance with terms of 
admission.
    Another commenter states that the Mexican ``laser visa'' (also 
known as Border Crossing Card, or DSP-150) holders should be exempt 
from US-VISIT. This interim rule addresses this issue in full in Part 
III of this Supplemental section.
17. Outreach, Consultation, and Public Information
    Several commenters stated that US-VISIT should include extensive 
outreach to the public, including information on the consequences of 
overstay and re-entry, the exit requirements, and advising travelers 
abroad of US-VISIT before they commence travel.
    As stated earlier in the section concerning re-entry, US-VISIT has 
launched an extensive outreach campaign, designed to inform and educate 
domestic and international audiences about US-VISIT. This campaign 
includes comprehensive materials and media and stakeholder outreach to 
heighten awareness about US-VISIT and its role in enhancing the 
security of U.S. citizens and international visitors while facilitating 
legitimate travel and trade.
    The Outreach Team has created a strong brand for US-VISIT, 
including logo, tagline, graphics, and an overall look and feel that 
makes the program easily recognizable to international travelers. US-
VISIT outreach materials are being developed in multiple languages, 
including English, Spanish, Portuguese, Japanese, Mandarin, Korean, 
Arabic, Haitian/Creole, Russian, Polish, Hebrew, Ukrainian, Vietnamese, 
French and German. The campaign currently includes the following 
materials: An in-flight animated video; an informational brochure, in 
print and electronic versions; boarding cards; airport posters and 
other signage; exit cards; video public service announcements; tool 
kits and press kits.
    The Outreach Team has worked with the media to carry information 
about US-VISIT to critical constituents. Ongoing media relations 
activities include: editorial board briefings with selected domestic 
and foreign press, daily media monitoring and analysis, digital video 
conferences and other briefings with foreign press, and briefings at 
the New York and Washington Foreign Press Centers and at other selected 
events to spotlight the US-VISIT technologies and simple, fast 
procedures for travelers.
    The Outreach Team has created a comprehensive relationship 
management system to keep all major stakeholders aware, informed, and 
educated about ongoing developments, and to assure US-VISIT 
responsiveness to their needs and interests.
    In addressing outreach efforts, commenters stated that US-VISIT 
should consult with foreign governments and clarify the different 
requirements for inspections of those travelers with nonimmigrant visas 
and those who are inspected under the VWP. US-VISIT meets regularly 
with DOS to coordinate and discuss any changes in policy for a 
particular country or group of countries. US-VISIT meets regularly with 
Canada and Mexico to discuss immigration policies and procedures. Since 
this interim rule adds VWP applicants to US-VISIT, we will continue to 
coordinate and explain the requirements of US-VISIT with affected 
foreign governments.
    One commenter stated that reports were received that persons were 
``stared at'' by those travelers who were not subject to US-VISIT. The 
outreach program includes information on which persons are not subject 
to US-VISIT. With continued outreach, any unfavorable perception on the 
applicability of US-VISIT should decrease or be eliminated.
    Another commenter stated that US-VISIT has been applied to persons 
not subject to US-VISIT, and that such errors need to be rectified. DHS 
is committed to ensuring that US-VISIT requirements are applied to the 
correct population of travelers. Recently, a US-VISIT program team has 
reviewed data to determine whether data has been collected from 
travelers not subject to the biometric data requirements and, if so, 
whether that data should be removed. DHS will continue to conduct such 
data reviews and correct any issues that arise.
18. Law Enforcement and Intelligence Capabilities
    A commenter stated that there is nothing inherent in US-VISIT that 
will lead law enforcement to identify, locate and remove individuals in 
the United States who are engaged in terrorism or unlawful activities, 
and that a variety of other means is needed to enhance intelligence. 
Currently, biometric identifiers used by US-VISIT provide the 
capability to verify an alien's identity and to authenticate his or her 
travel documents. Individuals attempting to enter the United States 
fraudulently using another identity will be intercepted using 
biometrics and removed from the United States prior to being admitted. 
The alien's biometric and other information will be checked against law 
enforcement and intelligence data to determine whether the alien is a 
threat to national security

[[Page 53329]]

or public safety, or is otherwise inadmissible. However, as DHS 
receives new information concerning individuals who are risks to 
national security, US-VISIT will be able to ascertain whether those 
individual aliens are present within the United States, thereby 
providing a valuable law enforcement and national security tool.
    Another commenter stated that US-VISIT needs procedures for 
detecting overstays. ICE has established a compliance unit that 
monitors entry-exit data available through US-VISIT, the National 
Security Entry-exit System (NSEERS), and other systems; analyzes 
overstay data; and targets individuals for field investigation. Through 
US-VISIT, ICE will be better able to identify aliens who overstay their 
period of authorized admission.
    One commenter stated that DHS should not use US-VISIT as a 
substitute for increasing intelligence capacity. US-VISIT was not 
intended to supplant the existing roles of the nation's intelligence 
community. It was designed to meet the Congressional mandate for a 
system to both record the entry and exit of those individuals traveling 
to the United States, and to verify the identity of those individuals.
    The principal law that mandates the creation of an automated entry-
exit system that integrates electronic alien arrival and departure 
information is the DMIA. DMIA authorizes the Secretary of DHS, in his 
discretion, to permit other Federal, State, and local law enforcement 
officials to have access to the entry-exit system for law enforcement 
purposes; 8 U.S.C. 1365a(f). In addition, the entry-exit system 
component must share information with other systems as required by the 
Border Security Act. Section 202 of the Border Security Act addresses 
requirements for an interoperable law enforcement and intelligence data 
system and requires the integration of all databases and data systems 
that process or contain information on aliens. While the system must be 
interoperable and shared with other Federal law enforcement officials, 
neither the underlying laws nor any rulemaking mandates that US-VISIT 
serve as a substitute for increasing intelligence capacity.
19. Fees, Costs, and Fines
    One commenter opposed the suggestion in the supplementary 
information of the rule that fees may have to be raised to cover 
biometric costs. Pursuant to section 286 of the INA, DHS has the 
authority to establish fees at a level needed to cover program costs 
associated with the inspections of persons at air, land and sea ports 
of entry. If the determination is made that a change in fees is 
required, DHS will implement such change in fees pursuant to the 
applicable requirements of the APA (5 U.S.C. 553).
    One commenter stated that airlines could be subject to costs for 
returning illegal aliens. Another commenter requested that the rule 
clarify that airlines will not be subject to fines if aliens refuse to 
provide biometrics. Two commenters stated that airlines should not be 
penalized if aliens are denied re-entry because of a failure to comply 
with US-VISIT exit requirements. At this time, there is no change to 
pre-existing regulations and procedures regarding the responsibility of 
transportation carriers. Carriers remain responsible for the removal of 
applicants who are determined to be inadmissible.
    However, DHS recognizes that there will be circumstances where an 
alien will be deemed to be inadmissible ultimately due to the 
implementation of US-VISIT and where the carrier could have had no 
prior knowledge of the alien's admissibility. An example, as provided 
by the commenter, is if an alien with a valid visa and passport refuses 
to provide biometric information upon entry. However, sections 273(c) 
and (e) of the INA provide for remittance, reduction, or outright 
waiver of any fines by the Secretary of DHS in situations where the 
carrier did not know, and could not have found with reasonable 
diligence, that an alien was inadmissible; or when the carrier screens 
all passengers in accordance with established procedures; or where 
other circumstances exist that would justify a remittance, reduction, 
or waiver of any fines. In making these determinations, DHS will weigh 
very heavily the ability of the carriers to foresee an alien's 
inadmissibility as it relates to US-VISIT.
20. Aliens in a Period of Stay Pursuant to a Pending Benefit 
Application
    One commenter asked how DHS would handle aliens who left the United 
States after their initial period of admission expired, but otherwise 
complied with all aspects of US-VISIT and who had a pending benefit 
application at the time of departure. Pursuant to CIS policy, the 
timely and nonfrivolous filing of certain benefit applications will 
toll unlawful presence time from accruing until the adjudication of 
that benefit application.
    As mentioned earlier, US-VISIT is an interoperable system, which 
can access data from other DHS systems, including the CIS system 
responsible for tracking immigration benefit applications. Thus, aliens 
who fall under this scenario described above will not be adversely 
impacted by US-VISIT, since the US-VISIT system will have access to the 
CIS benefit processing information.
21. Land Border Ports-of-Entry
    Although the January 5, 2004 interim rule did not implement US-
VISIT at land borders, three commenters discussed US-VISIT land border 
implementation in their comments. One commenter emphatically noted ``we 
wish to make unequivocally clear that the circumstances of travel at 
land borders are monumentally different than at air and seaports and 
the hurdles are immeasurably higher.'' The commenter also expressed 
concern that DHS may not be able to meet the DMIA December 31, 2004 
deadline unless DHS implemented systems that were not adequately 
tested, and that DHS should request that Congress provide additional 
time for implementing US-VISIT at land borders.
    DHS recognizes that some of the challenges associated with 
implementing US-VISIT at land borders are potentially more complex than 
at air and sea ports of entry. Therefore, DHS is taking measured steps 
in land border implementation. For instance, the systems which 
encompass the US-VISIT system will have been operational for various 
periods of time prior to being used at land border ports of entry. 
Therefore, these systems have been adequately tested in an operational 
setting and DHS has gained proficiency in their use. DHS expects that 
the experience it has gained from implementing US-VISIT at air and sea 
ports of entry will allow it to implement US-VISIT at land ports of 
entry in an efficient manner.
    DHS has been working to implement US-VISIT requirements at the 50 
most highly trafficked land borders within the timeframe required under 
DMIA. As highlighted recently in the 9/11 Commission Report, there is 
an immediate security need to implement this phase of US-VISIT as soon 
as possible. Therefore, DHS will not be seeking additional time from 
Congress to expand US-VISIT to land borders. The implementation of US-
VISIT at the 50 most highly trafficked land borders in the United 
States is discussed in greater detail in Section III A above.

B. Solicitation of Public Comment on the Operation of US-VISIT to Date 
and the Expansion of US-VISIT Pursuant to This Interim Rule

    As stated previously, DHS places a great deal of importance on 
input from

[[Page 53330]]

the public on the performance and implementation of the US-VISIT 
program. Accordingly, DHS is soliciting comments from the public on all 
aspects of the current US-VISIT program, and any changes to the program 
as a result of this interim rule. DHS also invites comments on the 
implementation of the US-VISIT exit pilot programs. The pilot programs 
introduced three different methods of collection of identifying 
information pursuant to US-VISIT. DHS invites comments on the existing 
methods of collection of information, the methods considered and 
rejected by DHS (as discussed in Section II B above and in the Federal 
Register Notices published at 69 FR 482 (Jan. 5, 2004) and 69 FR 46556 
(Aug. 3, 2004)), and suggested alternative methods for collection of 
biometric, biographic, or other identifying information under US-VISIT.
    The comment filing process will use the standard procedure and 
instructions for filing are included at the beginning of this 
regulation. The comment period will be open until November 1, 2004. DHS 
also notes there is no plan to implement US-VISIT biometric data 
collection at any land border prior to the closing date for comments. 
Accordingly, as mentioned earlier in this supplemental section, the 
public will have an opportunity to comment on all land border issues 
prior to any US-VISIT land border implementation.

V. Regulatory Requirements

A. Good Cause Exception for an Interim Final Rule

    Implementation of this rule without notice and the opportunity for 
public comment is warranted under the ``good cause'' exception found 
under the Administrative Procedure Act (APA) at 5 U.S.C. 553(b). The 
expansion of US-VISIT to the 50 most highly trafficked land borders and 
inclusion of aliens traveling under VWP are necessary to strengthen the 
ability of the United States to detect and deter aliens seeking 
admission into the United States who may not be lawfully admissible due 
to criminal records or suspected involvement in, or ties to, terrorist 
activities. Thus, this interim rule is integral to strengthening the 
security of the United States. Further, this interim rule will assist 
in meeting the goals and recommendations of the 9/11 Commission. 
Therefore, delay of the publication and effective date of this interim 
rule to allow for prior notice and comment would be impracticable and 
contrary to the public interest under 5 U.S.C. 553(b).
    The immediate implementation of this second phase of US-VISIT will 
allow for the collection and comparison of biometric, biographic and 
other identifying information from aliens seeking admission into and 
departing from the United States through land borders. Issuing this 
interim rule before obtaining public comment is necessary to enhance 
the government's ability to identify persons who may pose a threat to 
homeland security.
    Further, this interim rule will authorize DHS to obtain biometric 
information from persons traveling without visas under the VWP. 
Enrolling VWP travelers in US-VISIT will allow DHS to conduct 
biometric-based checks at time of a VWP traveler's application for 
admission into the United States. From a security standpoint, biometric 
checks are superior to biographic information checks. First, there are 
often a series of the same name in database checks, which can lead to 
confusion or mistaken identity, leading to time-consuming corrections. 
Second, biometric identifiers reduce the potential for fraudulent use 
of admission documentation.
    Enrolling VWP travelers in US-VISIT freezes the traveler's identity 
and ties his or her identity to the travel document presented at time 
of initial admission. By making this link, US-VISIT greatly reduces the 
risk that the VWP traveler's identity could subsequently be used by 
another traveler seeking to enter the U.S. The biometric element 
provided by US-VISIT ensures that the alien is in fact presenting his 
or her own passport at the time of admission. As mentioned above, this 
biometric requirement helps to eliminate a common method of immigration 
fraud: assuming the identity of another by using their passport. 
Increasing the number of ports of entry where these checks are 
conducted, from air and sea to land border ports of entry, greatly 
increases the benefits of the process.
    As discussed in Section II A above, since its implementation in 
January 2004, US-VISIT has proven that the use of biometrics to check 
identity and background is a highly effective law enforcement tool. US-
VISIT has already prevented 196 criminal aliens from entering the 
United States, even though the program is currently operating on a 
limited basis. Expanding the classes of aliens subject to US-VISIT to 
VWP aliens immediately should result in additional aliens being 
identified on ``lookout'' lists being prevented admission or arrested 
as fugitives or wanted criminals. Further, expanding the program to 
include the major land border ports-of-entry should result in even more 
``hits.'' Accordingly, expanding both the classes of aliens subject to 
US-VISIT, as well as the location of ports where US-VISIT will be 
implemented, will have a considerable and positive effect on national 
security. Any delay in the implementation of this interim rule to allow 
for public comment may increase the opportunity for aliens who may 
otherwise not be admissible to the United States, due to suspected 
terrorist affiliations or criminal records, to enter the United States 
using false identifies, and false, fraudulent or stolen passports or 
other travel documents.
    Accordingly, DHS finds that good cause exists under 5 U.S.C. 553(b) 
to make this interim rule effective 30 days following publication in 
the Federal Register, before closure of the 60 day public comment 
period. DHS nevertheless invites written comments on this interim rule, 
and will consider any timely comments in preparing a final rule.
    DHS also finds that good cause exists under the Congressional 
Review Act, 5 U.S.C. 808, to implement this interim rule 30 days after 
publication in the Federal Register.

B. 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). Because good 
cause exists for issuing this regulation as an interim rule, no 
regulatory flexibility analysis is required under the RFA. Nonetheless, 
DHS has considered the impact of this rule on small entities and 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities. The individual aliens to whom 
this rule applies are not small entities as that term is defined in 5 
U.S.C. 601(6). There is no change expected in any process as a result 
of this rule that would have a direct effect, either positive or 
negative, on a small entity.

C. Executive Order 12866

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993), requires a determination whether a regulatory 
action is ``significant'' and therefore subject to review by the Office 
of Management and Budget (OMB) and subject to the requirements of the

[[Page 53331]]

Executive Order. DHS has determined that this interim rule is a 
``significant regulatory action'' under Executive Order 12866, section 
3(f) because there is significant public interest in issues pertaining 
to national security. Accordingly, this interim rule has been submitted 
to the Office of Management and Budget (OMB) for review and approval.
    DHS has already performed a preliminary analysis of the expected 
costs and benefits of this interim rule. The anticipated benefits of 
this rule include: (1) Improving identification of travelers who may 
present threats to public safety and the national security of the 
United States through use of biometric identifiers; (2) enhancing the 
government's ability to match an alien's fingerprints and photographs 
to other law enforcement or intelligence data associated with identical 
biometrics; (3) improving the ability of the United States to identify 
individuals who may be inadmissible to the United States; (4) improving 
cooperation across international, Federal, State and local agencies 
through better access to data on foreign nationals who may pose a 
threat to the United States; (5) improving facilitation of legitimate 
travel and commerce by improving the timeliness and accuracy of the 
determination of a traveler's immigration status and admissibility; (6) 
enhancing enforcement of immigration laws, contributing to the 
increased integrity of the system of immigration in the United States, 
including the collection of more complete arrival and departure 
information on VWP travelers and aliens who seek to enter the United 
States through a land border port of entry; (7) reducing fraud, 
undetected impostors, and identity theft; and, (8) increasing integrity 
within the VWP program, through better data collection, tracking, and 
identification, allowing better compliance monitoring through increased 
and more accurate data.
    The costs associated with implementation of this interim rule for 
travelers not otherwise exempt from US-VISIT requirements include an 
increase of approximately 15 seconds in inspection processing time per 
applicant over the current average inspection time of one minute, 
whether at a land, air, or sea port-of-entry. No significant difference 
is anticipated in the processing of an alien traveling with a visa as 
compared to a traveler without a visa under VWP.
    DHS anticipates that, by December 31, 2005 when US-VISIT is 
required to be implemented at all land border ports of entry in the 
United States, approximately 3.2 million nonimmigrant applicants for 
Form I-94 issuance could be affected at the designated land ports-of-
entry. DHS, when conducting a cost-benefit analysis for the January 5, 
2004 interim rule, estimated that the time required to obtain the 
biometric information required under US-VISIT was approximately 15 
seconds per person. Since the implementation of US-VISIT at air and sea 
ports on January 5, 2004, DHS has not received reports of average 
processing times greater than 15 seconds nor any significant delays for 
travelers resulting from the collection of biometric information under 
US-VISIT. The limited 15 second processing time was not expected to 
cause significant delays for travelers at air or sea ports because 
persons not required to provide biometrics (e.g. U.S. citizens, lawful 
permanent residents, and visa-exempt non-immigrants) generally are 
routed through different inspection lines, thereby easing any impact of 
the biometric collection process. Because the same biometric 
information will be obtained at land border ports of entry, through a 
similar secondary inspection process, DHS does not anticipate any 
increase in the 15 second processing time or any significant delay for 
travelers at land border ports of entry in the United States.
    In addition, over time, the efficiency with which the process is 
employed will increase, and the process can be expected to improve 
further. While DHS does not anticipate longer wait times at land border 
ports of entry due to the collection and processing of biometric 
information under US-VISIT, DHS has developed a number of mitigation 
strategies, not unlike those already available to CBP under other 
conditions that result in backups. 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.
    The addition of aliens traveling under the VWP was anticipated in 
the calculation of costs and benefits for the implementation of US-
VISIT at air and sea ports pursuant to the January 5, interim rule. DHS 
estimated that 13 million aliens traveling to the United States through 
air or sea ports under VWP would be affected under US-VISIT. The number 
of aliens traveling through the 50 most highly trafficked land border 
ports of entry in the United States is estimated to be 209 million, but 
only slightly over 3 million will be required to obtain an I-94, either 
as a nonimmigrant alien with a visa or a Mexican national with a DSP-
150 BCC seeking admission in the B-1/B-2 category. Thus, as a result of 
this rule, only approximately 3 million aliens annually seeking 
admission to the United States at a land border ultimately will be 
subject to US-VISIT requirements. DHS does not believe that the 
addition of VWP travelers or the 50 most trafficked land borders to US-
VISIT will affect the average processing times or result in significant 
travel delays.
    The additional costs to the Government and the public to implement 
the requirements of this rule are approximately $155 million for all 50 
ports during fiscal year 2004, or approximately $3.1 million at each of 
the ports. These expenditures are required to upgrade the information 
technology hardware (i.e. desktop hardware and peripherals, upgrading 
local and wide area networks) at the affected ports.

D. 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 interim rule in accordance with the 
principles and criteria in the Executive Order and has determined that 
this interim 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 
interim rule does not have federalism implications. This interim 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.

E. Executive Order 12988

    This interim 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,

[[Page 53332]]

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 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.

F. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, 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 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 interim 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.

G. Small Business Regulatory Enforcement Fairness Act of 1996

    This interim rule is 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 interim rule will result in an annual effect on the 
economy of $100 million or more as the Federal government expects to 
spend $155 million to upgrade technology and hardware at the 50 ports 
of entry in 2004/2005. However, because this rule is expected to have 
little effect on trans-border commerce, this interim rule will not have 
a major increase in costs or prices, or significant adverse effects on 
competition, employment, investment, productivity, or innovation of 
small businesses, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

H. Trade Impact Assessment

    The Trade Impact Agreement Act of 1979, 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 U.S. standards. DHS has determined that this 
interim 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.

I. National Environmental Policy Act of 1969

    DHS is required to analyze the proposed actions contained in this 
interim rule for purposes of complying with the National Environmental 
Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., and Council on 
Environmental Quality (CEQ) regulations, 40 CFR Parts 1501-1508. An 
agency is not required to prepare either an environmental impact 
statement (EIS) or environmental assessment (EA) under NEPA if the 
proposed action falls within a categorical exclusion, and no 
extraordinary circumstances preclude use of the categorical exclusion. 
40 CFR 1508.4. DHS has analyzed this interim rule and has concluded 
that there are no factors in the expansion of US-VISIT pursuant to this 
interim rule case that would limit the use of a categorical exclusion 
under 28 CFR part 61 App. C, as authorized under 6 U.S.C. 552(a). 
Therefore, DHS finds that this interim rule is categorically excluded 
from further environmental documentation.

J. Paperwork Reduction Act

    This interim rule permits DHS to require certain aliens who cross 
United States borders to provide fingerprints, photograph(s), and 
potentially other biometric identifiers upon their arrival at 
designated ports or departure from designated locations. 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 adds a new category of aliens who must be 
photographed, fingerprinted, and who may be required to provide other 
biometric identifiers, the Department 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 
the OMB has approved the changes.
    In addition, this interim rule requires that the same classes of 
aliens who are required to provide fingerprints, photograph(s), and 
potentially other biometric identifiers upon their arrival at air and 
sea ports-of-entry under US-VISIT must also provide these biometrics 
when entering the United States at land border ports-of-entry. The 
requirement to collect these biometrics under US-VISIT are considered 
information collections under the Paperwork Reduction Act. OMB has 
previously approved the information collection requirements for US-
VISIT. The OMB Control Number for this collection is 1600-0006.

K. Public Privacy Interests

    As discussed in the January 5, 2004 interim rule, US-VISIT records 
will be prot