US-VISIT Regulation (VWP)

Tuesday,
August 31, 2004

Part V

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;
Interim Rule

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Federal Register / Vol. 69, No. 168 / Tuesday, August 31, 2004 / Rules and Regulations

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
Border and Transportation
Security Directorate, DHS.
ACTION: Interim rule with request for
comments.
AGENCY:

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

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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:

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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;

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• 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
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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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.
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 machinereadable, 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

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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, machinereadable, 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 machinereadable 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

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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

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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

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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 BaltimoreWashington 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 selfserve ‘‘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 selfserve 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.

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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).

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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

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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 transborder 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

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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

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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

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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
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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.

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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

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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

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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.

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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:
//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

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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 biometricrelated 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
[email protected].
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

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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

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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

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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

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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 crosstraining 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

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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 crosstrained. As a result of this crosstraining, 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)

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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 reentry 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.

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consulates and on-line at 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–

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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 ICAOcompliant 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.

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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

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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.
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 portsof-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.
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.

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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,

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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

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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

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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 reentry because of a failure to comply
with US–VISIT exit requirements. At
this time, there is no change to preexisting 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

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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

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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).

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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 timeconsuming 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

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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

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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

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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

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53331

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,

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Federal Register / Vol. 69, No. 168 / Tuesday, August 31, 2004 / Rules and Regulations

to determine the impact of those
proposals on civil justice and potential
issues for litigation. The Order requires
that agencies make reasonable efforts to
ensure 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

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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

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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
protected consistent with all applicable
privacy laws and regulations. Personal
information will be kept secure and
confidential and will not be discussed
with, nor disclosed to, any person
within or outside US–VISIT other than
as authorized by law and as required for
the performance of official duties. In
addition, careful safeguards, including
appropriate security controls, will
ensure that the data is not used or
accessed improperly. The Department’s
Chief Privacy Officer will review
pertinent aspects of the program to
ensure that these proper safeguards and
security controls are in place. The
information will also be protected in
accordance with the Department’s
published privacy policy for US–VISIT.
Affected persons will have a three-stage
process for redress if there is concern
about the accuracy of information. An
individual may request a review or
change, or a Department officer may
determine that an inaccuracy exists in a
record. A Department officer can modify
the record. If the individual remains
unsatisfied with this response, he or she
can request assistance from the US–
VISIT Privacy Officer, and can ask that

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Federal Register / Vol. 69, No. 168 / Tuesday, August 31, 2004 / Rules and Regulations
the Privacy Officer review the record
and address any remaining concerns.
The Department’s Privacy Office will
exercise oversight of US–VISIT to
ensure further that the information
collected and stored in IDENT and other
systems associated with US–VISIT is
being properly protected under the
privacy laws and guidance. US–VISIT
also has a program-dedicated Privacy
Officer to handle specific inquiries and
to provide additional oversight of the
program.
Finally, DHS will maintain secure
computer systems that will ensure that
the confidentiality of an individual’s
personal information is maintained. In
doing so, the Department and its
information technology personnel will
comply with all laws and regulations
applicable to government systems, such
as the Federal Information Security
Management Act of 2002, Title X, Public
Law 107–296, 116 Stat. 2259–2273
(2002)(codified in scattered sections of
6, 10, 15, 40, and 44 U.S.C.);
Information Management Technology
Reform Act (Clinger-Cohen Act), Public
Law 104–106, Div. E, codified at 40
U.S.C. 11101 et seq.; Computer Security
Act of 1987, Public Law 100–235, 40
U.S.C. 1441 et seq. (as amended);
Government Paperwork Elimination
Act, Title XVII, Public Law 105–277,
112 Stat. 2681–749—2681–751 (1998)
(codified, as amended, at 44 U.S.C. 101;
3504 note); and Electronic Freedom of
Information Act of 1996, Public Law
104–231, 110 Stat. 3048 (1996)(codified,
as amended, at 5 U.S.C. section 552.)
List of Subjects
8 CFR Part 215
Administrative practice and
procedure, Aliens, Travel restrictions.
8 CFR Part 235

(a)(1) The Secretary of Homeland
Security may establish pilot programs at
land border ports-of-entry, and at up to
fifteen air or sea ports-of-entry,
designated through notice in the
Federal Register, through which the
Secretary or his delegate may require an
alien admitted pursuant to a
nonimmigrant visa, a Form DSP–150, B–
1/B–2 Visa and Border Crossing Card, or
section 217 of the Act, who departs the
United States from a designated port-ofentry, to provide fingerprints,
photograph(s) or other specified
biometric identifiers, documentation of
his or her immigration status in the
United States, and such other evidence
as may be requested to determine the
alien’s identity and whether he or she
has properly maintained his or her
status while in the United States.
(2) * * *
(ii) 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, NATO–
1, NATO–2, NATO–3, NATO–4, NATO–
5, or NATO–6 visas, and certain officials
of the Taipei Economic and Cultural
Representative Office, who are
maintaining such status at time of
departure, unless the Secretary of State
and the Secretary of Homeland Security
jointly determine that a class of such
aliens should be subject to the
requirements of paragraph (a)(1);
*
*
*
*
*

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

Air Carriers, Airmen, Aliens,
Maritime carriers, Reporting and
recordkeeping requirements, Seamen.
Accordingly, chapter I of title 8 of the
Code of Federal Regulations is amended
as follows:

■

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

4. Sections 235.1 is amended by
revising paragraphs (d)(1)(ii) and
(d)(1)(iv)(B), as follows:

■

§ 235.1

PART 215—CONTROL OF ALIENS
DEPARTING FROM THE UNITED
STATES

Scope of examination.

*

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

■

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

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

■

8 CFR Part 252

18:03 Aug 30, 2004

2. Section 215.8 is amended by:
a. Revising paragraph (a)(1); and
b. Revising paragraph (a)(2)(ii).
The revisions read as follows:

PART 235—INSPECTION OF PERSONS
APPLYING FOR ADMISSION

Aliens, Immigration, Registration,
Reporting and Recordkeeping
requirements.

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■
■
■

*
*
*
*
(d) * * *
(1) * * *
(ii) The Secretary of Homeland
Security or his delegate may require
nonimmigrant aliens seeking admission
to the United States pursuant to a
nonimmigrant visa, a Form DSP–150, B–

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53333

1/B–2 Visa and Border Crossing Card, or
section 217 of the Act, at a port-of-entry
designated by notice in the Federal
Register to provide fingerprints,
photograph(s) or other specified
biometric identifiers during the
inspection process. The failure of an
applicant for admission to comply with
any requirement to provide biometric
identifiers may result in a determination
that the alien is inadmissible under
section 212(a)(7) of the Act, or other
relevant grounds in section 212 of the
Act.
*
*
*
*
*
(iv) * * *
(B) 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, NATO–
1, NATO–2, NATO–3, NATO–4, NATO–
5 or NATO–6 visas, and certain officials
of the Taipei Economic and Cultural
Representative Office, unless the
Secretary of State and the Secretary of
Homeland Security jointly determine
that a class of such aliens should be
subject to the requirements of paragraph
(d)(1)(ii);
*
*
*
*
*
PART 252—LANDING OF ALIEN
CREWMEN
5. The authority citation for part 252 is
revised to read as follow:

■

Authority: 8 U.S.C. 1103, 1184, 1185
(pursuant to E.O. 13323 published on January
2, 2004) , 1258, 1281, 1282; 8 CFR part 2.

6. Section 252.1(c) is revised to read as
follows:

■

§ 252.1

Examination of crewmen.

*

*
*
*
*
(c) Requirements for landing permits.
Every alien crewman applying for
landing privileges in the United States
is subject to the provisions of 8 CFR
235.1(d)(1)(ii) and (iii), and must make
his or her application in person before
a Customs and Border Protection (CBP)
officer, present whatever documents are
required, establish to the satisfaction of
the inspecting officer that he or she is
not inadmissible under any provision of
the law, and is entitled clearly and
beyond doubt to landing privileges in
the United States.
*
*
*
*
*
Dated: August 26, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04–19906 Filed 8–30–04; 8:45 am]
BILLING CODE 4410–10–P

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