One commenter was concerned that a specific country that is not currently listed might be listed in the future. The commenter believed that this would be antithetical to the relationship between the United States and that country and its citizens.

    The listing of countries from which nonimmigrant aliens will be subject to special registration is determined by the Attorney General in consultation with the Secretary of State, thereby ensuring that foreign policy implications will be considered when evaluating the possible designation of any specific country. However, because the final rule only provides the framework for the special registration process, and does not make any specific designations, this comment is outside the scope of this final rule.

6. Reporting at 30-day and Annual Intervals

    One commenter suggested that interval reporting is problematic. As the States are making it increasingly difficult, if not impossible, for some nonimmigrants to obtain driver's licenses or identification cards, some aliens may find that an alternative form of identification is not available. The commenter suggested proof of tenancy is often impossible because “short-term visitors (such as students touring for the summer) often travel around the United States, with no set address as they stay in hostels or c amp”; in other cases aliens may not have established proof of tenancy in their names if they are staying with relatives or friends. Another commenter suggested that nonimmigrants sponsored by a charity, such as for a speaking tour, be permitted to use the charity's address.

A commenter also argued that interval reregistration will be burdensome, both in traveling to a specified office and in the process of scheduling and appearing at an overburdened office. This commenter also discussed, and discounted, the notion that nonimmigrants might be required to report to state or local police offices.

    The rule continues to provide that an individual must reregister at a 30-day interval and annually. Neither of these requirements appears to the Department to be burdensome. However, if an individual nonimmigrant alien subject to special registration can show a specific burden, that nonimmigrant alien subject to special registration may seek relief from the appropriate district director.

7. Relief

    Several commenters stated that the provision allowing a district director to grant relief from the provisions of the rule was insufficient. They were concerned that travel to a distant office was still required, that some offices would not grant dispensation, and that officials would not be available by telephone. One commenter specifically noted that the provision does not include any provision regarding failure to register due to a serious illness or other emergency circumstance that would prevent the non immigrant from complying.

    The Department does not believe that these situations require any amendment to the rule. The rule is specific that reregistration must be in person and, therefore, telephone communication is irrelevant. Moreover, the reregistration dates are intentionally established as windows before and after a specific date to accommodate such intervening events as illness. The second registration is required to be made between 30 and 40 days after admission, while annual reregistration may be made within 10 days--before or after--the anniversary of admission. The totality of this inconvenience must be kept in perspective with the scope of this rule: the rule applies only to the small number of nonimmigrant aliens subject to special registration, and the registrations are not so frequent or so rigid as to be burdensome in comparison with the national security or law enforcement interests of the United States.

8. Final Registration

    The proposed rule provided that a nonimmigrant subject to special registration also report when leaving the United States. This final registration would occur through inspection at a port of entry. One commenter suggested that this final registration, like the entry process, would take substantial time to develop and implement with airports, even for the small number of aliens covered by this rule. The commenter noted that, for some period of time, nonimmigrant aliens subject to special registration would b e permitted to depart the United States only through the limited number of ports with sufficient facilities. The commenter argued against such a provision because it would create a substantial inconvenience and expense to the alien, and, in some instances, a bar to departure.

    The Department recognizes that a small number of persons presently in the United States who will become subject to the rule possess a return ticket, and some of these tickets are non-refundable and non-changeable without penalty. However, the Department is making every effort to ensure that there will be sufficient facilities to accommodate final registration at all ports at the time the rule becomes effective. Because special registration will be a paperless system, the Department will be establishing addi tional computer links to ensure that the system is available nationwide. Nevertheless, for a short period of time, because aliens will be permitted to depart from any port when the rule becomes effective, the Department expects that initially some inspectors will need to record information provided by nonimmigrant aliens subject to special registration on paper records that will not be entered into the system until shortly thereafter. If the Service determines that a port is inappropriate for the departure of nonimmigrant aliens subject to special registration, the Service will give appropriate notice by publication in the Federal Register . The Department agrees that individual aliens should not be inconvenienced during the ongoing development of the system. To provide sufficient time to procure equipment and provide training to all inspection personnel, paragraph (f)(8) of the final rule will not become applicable until October 1, 2002. Moreover, the final registration requirement of 8 CFR 264.1(f)(8) will apply only to those nonimmigrant aliens who have been registered under paragraph (f)(3), or who are or have been required to register pu rsuant to paragraph (f)(4).

    Another commenter conceded that subjecting departing aliens to special registration requirements is not new, but is not often done. The commenter noted that departure will now be confirmed by actual presentation by the nonimmigrant alien subject to special registration, and that the alien's departure can then be confirmed by reference to other records, such as the electronic manifests provided by air carriers. The commenter suggested that INS and the air carriers use APIS to collect an alien's departure inf ormation. The commenter suggested a system by which an alien would proceed to the flight gate and the air carrier would electronically collect his departure information and then transmit it to the INS. The commenter suggested that, if prior to an alien's scheduled departure, the INS determined it must conduct a face-to-face interview, INS could arrange for the alien to meet a departure control officer in the federal inspection service (FIS) area before flight time. In all other cases, the air carrier's elec tronic transmission of the alien's departure would serve as confirmation to the INS.

    The Department appreciates the thought given to this approach, but must decline to adopt it. Final registration, like inspection, requires a face-to-face confirmation of identity until such time as electronic verification of biometrics can ensure that the nonimmigrant alien subject to special registration actually is the individual departing the United States.

9. Future Inadmissibility

    Another commenter stated that the proposed rule would effectively create a new ground of inadmissibility by characterizing failure to comply with the final registration provisions as “unlawful activity.” The commenter noted that the individual would thereafter be presumed to be inadmissible to the United States under section 212(a)(3)(A)(ii) of the Act as an alien “who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, pr incipally, or incidentally in

* * * any other unlawful activity.” 8 U.S.C. 1182(a)(3)(A)(ii).

    The commenter's analysis is faulty in that only Congress can establish grounds for removal and inadmissibility to the United States. Congress has made clear, however, that the Attorney General may find an alien inadmissible if he has “a reasonable ground to believe [the alien] seeks to enter the United States to engage solely, principally, or incidentally in * * * any other unlawful activity * * *.” INA section 212(a)(3)(A)(ii) (8 U.S.C. 1182(a)(3)(A)(ii)) (emphasis added). An alien is subject to special re gistration requirements because that alien meets pre-established criteria that the Department found to be associated with national security risks. When such an alien violates the terms of his or her special registration by failing to register upon leaving the United States and then seeks to reenter the United States, the alien can reasonably be seen as attempting to reenter for the purpose of engaging in “unlawful activity” under section 212(a)(3)(A)(ii) of the Act. If an alien complies with the regulations , he or she will not, in the future, be presumed inadmissible under this provision.

    The Department recognizes that there may be reasons why a departing alien may not be able personally to report for final registration when leaving the United States. The Department acknowledges that some failures to register upon leaving are not likely to be the result of a preconceived intent to engage in unlawful activity at the time of an alien's future entry into the United States. However, if the nonimmigrant alien subject to special registration violates the specific regulations relating to final regi stration at the time of exiting the United States, that nonimmigrant alien subject to special registration will be presumed to be inadmissible. The presumption may be overcome, but, despite the concerns of at least one commenter, it is not necessary for the Attorney General to provide a complete and exhaustive catalogue of the manner in which he will exercise his discretion.

D. Issues Not Raised in the Rule

Several commenters opposed the entry of violation information into the National Crime Information Center. The Attorney General's announcement of his direction to the Federal Bureau of Investigation and the INS to include this information is not covered by, and need not be covered by, this rule. Accordingly, these comments are not considered in developing the final rule.

Regulatory Procedures

Regulatory Flexibility Act

The Department of Justice, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. This rule will affect individual nonimmigrant aliens who are not considered small entities as that term is defined in 5 U.S.C. 601(6).

Executive Order 12866

This regulation has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review, section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has been reviewed by the Office of Management and Budget.

Executive Order 13132

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment.

Executive Order 12988

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act

Information collection associated with this regulation has been approved by the Office of Management and Budget under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The OMB control number for this collection is 1115-0254.