\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (CIS, ICE, CBP) - 2004 \ FEDERAL REGISTER INTERIM REGULATIONS - 2004 \ 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 [69 FR 53318] [FR 31-04]
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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 [69 FR 53318] [FR 31-04]
FEDERAL REGISTER CITE:
69 FR 53318
DATE OF PUBLICATION:
August 31, 2004
BILLING CODE: 4410-10
DEPARTMENT OF HOMELAND SECURITY
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
Border and Transportation Security Directorate, DHS.
Interim rule with request for comments.
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
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 follow
ing identification in Notices published in the
, 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 u
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.
: This interim rule is effective September 30, 2004.
: Written comments must be submitted on or before November 1, 2004.
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:
. 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:
. 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
You may also access the Federal eRulemaking Portal at
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.
This supplementary information section is organized as follows:
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
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;
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 Jus
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 a
ccess 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 ar
rival/departure information into the primary entry-exit system component of the US-VISIT program.
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 PAT
RIOT 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 Sec
urity 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 readabl
e, 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 and Executive Order No. 13323 (69
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 cro
ssing 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 A
These statutory mandates, among other laws, collectively authorize DHS to promulgate regulations, including this interim rule, as necessary to implement US-VISIT.
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 r
efers 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