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[Federal Register: December 2, 2003 (Volume 68, Number 231)]
[Rules and Regulations]               
[Page 67577-67584]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02de03-15]                         


[[Page 67577]]

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

Part IV





Department of Homeland Security





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



8 CFR Part 264



Suspending the 30-Day and Annual Interview Requirements From the 
Special Registration Process for Certain Nonimmigrants; Interim Rule


[[Page 67578]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 264

[ICE No. 2301-3]
RIN 1653-AA29

 
Suspending the 30-Day and Annual Interview Requirements From the 
Special Registration Process for Certain Nonimmigrants

AGENCY: U.S. Immigration and Customs Enforcement, Department of 
Homeland Security.

ACTION: Interim rule with request for comments.

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

SUMMARY: This rule amends Department of Homeland Security (DHS) 
regulations for the registration and monitoring of certain nonimmigrant 
aliens. This rule amends existing regulations by suspending the 30-day 
and annual re-registration requirements for aliens who are subject to 
the National Security Entry-Exit Registration System (NSEERS) 
Registration. Instead of requiring all aliens subject to NSEERS to 
appear for 30-day and/or annual re-registration interviews, the DHS 
will utilize a more tailored system in which it will notify individual 
aliens of future registration requirements. This rule also eliminates 
the requirement for those nonimmigrant aliens subject to special 
registration who are also enrolled in the Student and Exchange Visitor 
Information System (SEVIS) to separately notify DHS of changes in 
educational institutions and addresses. Additionally, this rule 
clarifies how nonimmigrant aliens may apply for relief from special 
registration requirements and clarifies that certain alien crewmen are 
not subject to the departure requirements. Finally, certain conforming 
amendments have been made to the existing regulations to reflect the 
fact that the former Immigration and Naturalization Service (Service) 
has been abolished and its functions transferred from the Department of 
Justice to DHS under the Homeland Security Act of 2002 (HSA), Public 
Law 107-296.

DATES: Effective date: This interim rule is effective December 2, 2003.
    Comment date: Written comments must be submitted on or before 
February 2, 2004.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division, U.S. Citizenship and Immigration Services, 
DHS, 425 I Street, NW., Room 4034, Washington, DC 20536. To ensure 
proper handling, please reference ICE No. 2301-03 on your 
correspondence. Comments may also be submitted electronically to DHS at rfs.regs@dhs.gov. Comments submitted electronically must include the 
ICE No. 2301-03 in the subject box. Comments are available for public 
inspection at the above address by calling (202) 514-3048 to arrange 
for an appointment.

FOR FURTHER INFORMATION CONTACT: Robert Schoch, U.S. Immigration and 
Customs Enforcement, DHS, 425 I Street, NW., Room 1000, Washington, DC 
20536, telephone (202) 353-3173.

SUPPLEMENTARY INFORMATION:

Background

How Does Registration of Aliens Work Under the Existing Statutory and 
Regulatory Provisions?

    Section 262(a) of the Immigration and Nationality Act (Act) 
provides that all aliens who have not previously been registered and 
fingerprinted pursuant to section 221(b) of the Act have a duty to 
apply for registration and to be fingerprinted if they remain in the 
United States for 30 days or longer. Under the existing regulations at 
8 CFR 264.1(a), DHS registers nonimmigrants using Form I-94 (Arrival-
Departure Record). Section 263(a) of the Act also authorizes the 
Secretary of DHS to prescribe special regulations and forms for the 
registration of special groups of aliens in the United States. As 
authorized by section 262(c) of the Act, the existing regulations at 8 
CFR 264.1(e) contain general provisions waiving the fingerprinting 
requirement for many nonimmigrants. Accordingly, at the present time, 
most nonimmigrant aliens are admitted to the United States without 
being either fingerprinted or photographed.
    Section 214 of the Act authorizes the Attorney General (now deemed 
to be the Secretary of DHS under the HSA) to prescribe conditions for 
the admission of nonimmigrant aliens. Section 215 of the Act provides 
for departure control from the United States. In addition, section 265 
of the Act requires that all aliens who remain in the United States who 
are required to be registered under the Act must notify the Secretary 
of DHS of each change of address within ten days from the date of such 
change and furnish with such notice additional information as the 
Secretary of DHS may prescribe.
    Prior to the enactment of the HSA and the transfer of the functions 
of the former Service from the Department of Justice to DHS, the 
Service exercised the previously described registration authority to 
require that certain classes of aliens be specially registered while in 
the United States. Pursuant to section 263(a) of the Act, as well as 
the general registration authority under section 262 of the Act, the 
former Service promulgated 8 CFR 264.1(f), which required that certain 
nonimmigrant aliens be registered, fingerprinted, and photographed by 
the Service at the port of entry (POE) at the time the nonimmigrant 
aliens apply for admission. See 67 FR 52584 (Aug. 12, 2002). 
Registration at the POEs shall be known as ``POE registration'' for the 
purpose of this discussion. Additionally, pursuant to section 265 of 
the Act, 8 CFR 264.1(f) directed that certain nonimmigrant aliens 
designated by the Attorney General who were already in the United 
States appear before the Service for special registration. Id. 
Registration of aliens already present in the United States shall be 
known as ``call-in registration'' for the purpose of this discussion.

How Does This Rule Change the Current Special Registration 
Requirements?

    Currently, 8 CFR 264.1(f)(3) provides that aliens specially 
registered at a POE must appear before DHS 30 days after their 
admission into the United States for a continuing registration 
interview. This rule suspends this automatic 30-day continuing 
registration requirement.
    As currently written, 8 CFR 264.1(f)(5) requires that all aliens 
who were subject to special registration appear for an annual re-
registration interview. This rule also suspends the annual re-
registration requirement.
    The suspension of the 30-day and annual re-registration requirement 
applies to all aliens previously registered under the NSEERS program, 
whether call-in or POE registration, as well as any aliens registered 
subsequent to the effective date of this rule. In place of these 
previous requirements that all nonimmigrant aliens subject to NSEERS 
registration appear for additional 30-yday and annual interviews, this 
rule will allow DHS, as a matter of discretion, to notify nonimmigrant 
aliens subject to NSEERS registration to appear for one or more 
additional continuing registration interviews in those particular cases 
where it may be necessary to determine whether the alien is complying 
with the conditions of his or her nonimmigrant visa status and 
admission.
    This rule also provides that when an alien who is monitored under 
SEVIS notifies DHS of a change of address or educational institution 
through SEVIS, it also constitutes a notification for the purposes of 
NSEERS registration. It also clarifies that certain alien crewmen, 
described at section 101(a)(15)(D) of the

[[Page 67579]]

Act, and are subject to special registration, are exempted from the 
departure control requirements of 8 CFR section 264.1(f) (8).
    Finally, this rule reflects that the Service was abolished, and DHS 
now performs its functions. Thus, throughout 8 CFR 264.1(f), this rule 
substitutes the Secretary of Homeland Security for the Attorney 
General, and replaces references to the Service with references to DHS.
    This rule does not eliminate or in any way limit the authority of 
the Secretary of DHS under section 263 of the Act, for certain types of 
aliens, and section 265 of the Act, for any class or group of aliens, 
through notice, to require such aliens to appear for special 
registration in the future if circumstances so require. Additionally, 
this rule does not limit or alter any other special registration 
requirement under section 263 of the Act.

What Other Changes Are Made by This Rule?

    This rule also clarifies how nonimmigrant aliens subject to NSEERS 
registration may apply for relief from registration departure 
requirements. Aliens subject to NSEERS registration are required to 
register their departure before an immigration officer at a designated 
port of departure and depart from that port on the same day. Aliens 
previously could contact the Service district director to obtain relief 
from these departure requirements. However, the abolition of the former 
Service and the distribution of its functions to various agencies 
within DHS, such as U.S. Citizenship and Immigration Services (CIS) and 
U.S. Customs and Border Protection (CBP), have created uncertainties 
for aliens as to how to seek such relief. For nonimmigrant aliens who 
have been NSEERS registered, this regulation clarifies how the alien 
may seek a waiver from the departure registration requirements.
    First, under the revisions set out in this rule, a nonimmigrant 
alien subject to the departure registration requirements based upon 
NSEERS registration may seek relief from these requirements before his 
or her departure from an official designated by DHS or from the CBP 
field office director for the port from which the alien intends to 
depart. The alien seeking such relief must establish to the 
satisfaction of the field office director or designated official that 
exigent or unusual circumstances exist, and that the alien warrants a 
favorable exercise of discretion.
    Additionally, for an alien who has been registered and who makes 
frequent trips to the United States, based upon a showing of good 
cause, exigent or unusual circumstances, the CBP field office director 
over the port to which the alien most frequently arrives in the United 
States may exempt the alien from future POE registrations. The field 
office director or his designee will make the determination that the 
frequency of arrival warrants relief from the registration requirements 
on a case-by-case basis. In making this determination, the field office 
director or his designee will consider the mode of travel, business and 
economic concerns, purpose of travel, or other factors as determined by 
the director. In seeking such relief, the alien bears the burden of 
establishing he or she warrants a favorable exercise of discretion. If 
granted, relief from POE registrations also shall include relief from 
NSEERS registration departure control requirements.
    An alien alternatively may seek an exemption from the NSEERS 
registration requirements from the Department of State by such forms 
and methods as the Department of State may prescribe.
    There are no specific forms to request relief from the NSEERS 
requirements from DHS; an individual seeking relief should direct a 
letter to the appropriate CBP field office director. In such a letter, 
the alien should provide a detailed description of the type of relief 
sought, their full name, date-of-birth, Fingerprint Identification 
Number (which is reflected on the Form I-94), a 1'' x 1'' passport 
style photograph, the alien's A-number, if one has been assigned, and 
any documents that support the relief request. Information regarding 
the relief provisions will be provided to aliens upon completion of 
registration. Copies of these materials, known as the ``walk-away'' 
materials, are also available on the Web site http://www.ice.gov, in the 
special registration section.
    This rule further clarifies to aliens applying for relief that, 
until an application for relief from the NSEERS registration 
requirements is granted, the alien is required to comply with the 
registration requirements.
    The decision of any DHS officer or official to grant or deny relief 
from the NSEERS registration provisions is done as an exercise of 
discretion, and as such is final and cannot be appealed.
    A DHS officer authorized to grant relief also may terminate such 
relief by providing notice to the alien.

Why Is This Rule Necessary?

    The former Service, and now DHS (as of March 1, 2003), have 
evaluated the utility of the 30-day and annual interviews under the 
current requirements for national security and immigration enforcement 
purposes. Additionally, DHS is under a congressional mandate set forth 
in various amendments to the Act to create a comprehensive entry-exit 
system. In carrying out this mandate through the establishment of the 
US-VISIT Program, DHS has reviewed the use of the special registration 
program for both POE and call-in registrations. After considering these 
factors, DHS has determined it is appropriate to suspend the continuing 
registration requirements set out in 8 CFR 264.1(f), that automatically 
required aliens subject to NSEERS registration to report for 30-day 
and/or annual re-registration interviews. Special registration of 
aliens at POEs has, consistent with the program's intent, provided 
important law enforcement benefits, which have included the 
identification of a number of alien terrorists and criminals. This rule 
is not amending the procedures for NSEERS registration at the POE's. In 
addition to US-VISIT, which will soon become operational, DHS has other 
systems available that can help ensure that those aliens who are 
already subject to NSEERS registration remain in compliance with the 
terms of their visa and admission. For example, Congress mandated that 
DHS develop a student monitoring system. See Illegal Immigration Reform 
and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, 
section 641; ``Uniting and Strengthening America by Providing 
Appropriate Tools Required to Intercept and Obstruct Terrorism'' (USA 
Patriot Act), Public Law 107-56, section 416. This system, SEVIS, is 
now fully operational. Schools now must report directly to DHS when a 
student or exchange visitor alien changes schools, fails to appear for 
classes or otherwise fails to maintain his or her student status 
following admission into the United States.
    Thus, DHS is now in a position to suspend the mandatory re-
registration interview requirements for those aliens who are already 
subject to NSEERS registration, which will reduce the burden on those 
required to register under the current regulations, as well as to DHS. 
Instead, DHS will be able to schedule re-registration interviews on a 
more targeted and effective basis, only in those particular cases where 
it may be appropriate for additional scrutiny to ensure that an alien 
remains in compliance with the terms of his or her nonimmigrant visa 
and admission.

[[Page 67580]]

Who Is Affected by This Rule?

    Aliens who have been subject to NSEERS registration, whether as a 
result of being registered at a POE upon arrival, or as a result of 
being called in to register by Federal Register notice, are affected by 
the rule, because it reduces their current reporting requirements by 
eliminating the mandatory 30-day and annual re-registration interviews. 
Additionally, aliens who hereafter enter the United States and are 
NSEERS registered at a POE are affected by this rule. Affected aliens 
have been or will be given a Form I-94 documenting their registration, 
which will reflect their Fingerprint Identification Number (FIN). DHS 
uses the FIN recorded on the Form I-94 to identify the records of an 
alien subject to special registration. Based upon the number of aliens 
who have previously registered, DHS estimates that over the 6 month 
time span from December 2003 through May 2004, approximately 82,532 
aliens will benefit from this change and will not have to report for 
either a 30-day or annual re-interview during that period.

How Does This Rule Affect Registration at POEs?

    This rule does not affect the procedures for the NSEERS 
registration of aliens, including fingerprinting, photographing, and 
provision of information, at POEs. As is obligatory under current 
regulations, nonimmigrant aliens subject to POE registration will still 
be required, utilizing the information collection system in place, to 
provide routine and readily available information as a condition of 
admission. This includes such information as is necessary to identify 
the alien in the United States. Lists of information that may be 
required during NSEERS registration have previously been issued. See, 
e.g., 67 FR 40581, 40582.
    Registration at POEs continues to allow DHS to determine if an 
alien's fingerprints match those of known terrorists or criminals, and 
to detain for removal or refuse admission of the alien if such an 
identity match is established.

How Will DHS Provide Notice to Individual Aliens That They Must Appear 
for an Additional Registration Interview?

    In place of the automatic re-registration requirements set out in 
the original NSEERS registration provisions, this rule substitutes a 
more tailored approach to re-registration. The determination of whether 
an alien will be subject to additional registration requirements will 
be made on a case-by-case basis. The admission of any nonimmigrant 
alien subject to NSEERS registration is subject to the requirement 
that, under this rule, he or she may be required to appear for future 
continuing re-registration interviews at the discretion of DHS. At the 
time of admission, DHS will advise all nonimmigrant aliens subject to 
special registration that they may be required to appear for additional 
registration interviews upon notice. DHS will separately notify those 
aliens selected to appear before DHS to comply with the additional re-
registration requirements, which for a small number of aliens may be 
more frequent than the 30-day and annual re-registration requirements 
set out in the prior rule. However, only aliens who are notified of the 
re-registration requirements will have to appear before DHS for such 
requirement, and the majority of individuals registered will see a 
reduction in the burden of additional registration as a result of this 
rule. Notification under these regulations may be given to the alien in 
a manner reasonably calculated to reach the alien, which shall include, 
but is not limited to, notice by publication in the Federal Register, a 
letter sent via standard U.S. postal mail to the last address provided 
by the alien to DHS using regular mail, an e-mail to the address the 
alien provided to DHS during a previous NSEERS registration interview, 
or in-person delivery. The nonimmigrant alien must appear at the 
designated U.S. Immigration and Customs Enforcement office location, 
and on the specified date and time, unless otherwise specified in the 
notice. DHS will provide the alien at least ten days, measured from the 
date DHS publishes or sends notice to the alien, to comply with the re-
registration obligation.
    Notice to an alien of registration or re-registration requirements 
may be issued by the ICE Assistant Secretary, his designee, or any 
other such individual designated by the Secretary of DHS.

How Does This Rule Affect an Alien's Obligation To Notify DHS of a 
Change of Address or Employment?

    This rule reiterates, for this distinct group of nonimmigrant 
aliens who are subject to NSEERS registration, and who remain in the 
United States for more than thirty days, the requirement that the 
nonimmigrant alien notify DHS of any change of address, employment and/
or educational institution within 10 days of such change. Affected 
aliens may notify DHS by mail, or such other means as the Secretary of 
DHS may designate, of a change of address. The required form, the AR-11 
for Special Registration, is available at DHS offices and on the DHS 
Internet Web site at http://www.uscis.gov, in the special registration 
section.
    However, this rule discontinues the requirement that student aliens 
monitored under SEVIS who are subject to special registration 
separately notify DHS of a change in their educational institution or 
address, if such information is provided to DHS through SEVIS. This 
rule provides that when an alien reports a change of address or 
educational institution to DHS through SEVIS, that action fulfills his 
or her special registration requirement to notify DHS of changes in 
address. However, student aliens who are monitored under SEVIS who are 
subject to special registration will still be required under 8 CFR 
264.1(f)(5) to notify DHS of any change of employment which is 
currently not captured in the SEVIS system.

How Does This Rule Affect Departure Control Requirements?

    This rule does not change the general requirement that a 
nonimmigrant alien subject to NSEERS registration, either POE 
registration or a prior or future call-in registration, also report his 
or her actual departure from the United States. Cessation of departure 
controls is inconsistent with the congressional mandate requiring that 
DHS establish a comprehensive entry-exit monitoring system. As DHS 
develops the larger system mandated by Congress, to be called US-VISIT, 
it will integrate the NSEERS registration currently in use. This 
requirement of departure registration means that the alien must appear 
at a designated Port of Departure before a departure control officer, 
i.e., a CBP inspector, on the day he or she departs the United States 
to close his or her registration and also depart from that port. This 
departure requirement will ensure that all NSEERS registrations are 
properly closed.
    If the departure control requirements do not continue, registration 
records for the nonimmigrant aliens subject to NSEERS registration 
would be left open without explanation. This could result in serious 
difficulties, including the possibility of future inadmissibility, for 
already registered aliens who depart and attempt to return to the 
United States.
    The most recent Federal Register notice listing Ports of Departure 
can be found at 68 FR 8967. This rule does not alter or amend that 
list.
    This rule does clarify that certain alien crewmen described at 
101(a) (15) (D) of the Act who are subject to special registration 
requirements are exempt

[[Page 67581]]

from the departure registration requirements of 8 CFR 264(f) (8).

Does This Rule Change Any of the Penalties for Failing To Comply With 
the Special Registration Provisions?

    No. This rule does not change any of the penalties for failing to 
comply with the special registration provisions. Moreover, this rule 
does not excuse any prior failure to comply with special registration 
provisions.
    Under section 214(a) of the Act, as amended by the HSA, the 
admission of all nonimmigrant aliens to the United States ``shall be 
for such time and under such conditions as the [Secretary of DHS] may 
by regulations prescribe.'' The Secretary of DHS may impose conditions 
on admission that are rationally related to the maintenance of 
nonimmigrant status. See, e.g., Narenji v. Civiletti, 617 F.2d 745, 747 
(D.C. Cir. 1980)(upholding regulation requiring Iranians on student 
visas to report and ``provide information as to residence and 
maintenance of nonimmigrant status'' or be subject to deportation 
proceedings). The regulations that currently implement section 214 of 
the Act provide in part that one condition of a nonimmigrant's 
continued stay in the country ``is the full and truthful disclosure of 
all information requested'' by DHS. 8 CFR 214.1(f).
    The NSEERS registration requirements previously imposed upon 
aliens, either through POE registration or call-in registration, were 
intended in part to ensure that nonimmigrant aliens are complying with 
their nonimmigrant status (e.g., by continuing to be students or 
employees, as contemplated at the time of the issuance of their visas 
or admission). Additionally, 8 CFR 214.1(f) was amended to reflect that 
a nonimmigrant alien's willful failure to comply with the special 
registration provisions constitutes a failure to maintain the relevant 
nonimmigrant status, and would render the alien removable under section 
237(a)(1)(C)(i) of the Act.
    Although this rule amends the regulations to eliminate the existing 
automatic 30-day and annual re-registration interview requirements, 
aliens who willfully failed to comply with prior registration 
requirements, including aliens who failed before December 2, 2003 to 
appear for a required initial call-in registration, a 30-day re-
registration interview, or an annual re-registration interview, remain 
subject to the penalties outlined above and in previous Federal 
Register notices. Additionally, aliens who willfully fail to comply 
with any future call-in notice or additional registration requirement 
imposed pursuant to this rule would be removable under section 
237(a)(1)(C)(i) of the Act.

What Is the Effect of an Alien's Failure To Comply With the Departure 
Reporting Requirements Upon the Alien's Subsequent Application for 
Admission?

    An alien who is subject to the special registration requirements 
who has failed, without good cause, to report his or her departure with 
DHS is presumed inadmissible to the United States. The presumption of 
inadmissibility arises if there was no good cause for the alien's 
failure to report to DHS at the time of his or her departure from the 
United States. However, an alien may overcome the presumption of 
inadmissibility by establishing to the Secretary of State and the 
Secretary of DHS that he or she does not seek to enter the United 
States to engage solely, principally, or incidentally in any unlawful 
activity.
    An alien who fails to report his or her departure may, at the time 
he or she applies for a new nonimmigrant visa abroad, attempt to 
establish that there was good cause for the failure to report and, in 
the event that no good cause is found, that he or she is not 
inadmissible under section 212(a)(3)(A)ii) of the Act. If the consular 
officer, in adjudicating the new visa application, finds good cause 
existed for the alien's failure to register departure or that the alien 
is not inadmissible under section 212(a)(3)(A)(ii) of the Act, the 
inspecting officer at the POE, while not bound by the DOS 
determination, will consider this finding as a significantly favorable 
factor in determining whether the alien is inadmissible due to his or 
her prior failure to register at the time of departure from the United 
States.

Good Cause Exception

    Immediate implementation of this interim rule with provision for 
post-promulgation public comments is based upon the good cause 
exception found at 5 U.S.C. 553(b)(B). Pursuant to 5 U.S.C. 553(b)(B), 
prior notice and opportunity for comment is not necessary where it is 
``impracticable, unnecessary, or contrary to the public interest.'' DHS 
estimates that without this regulation approximately 82,532 aliens 
would be subject to 30-day or annual re-registration interviews between 
December 2003 and May 2004. Therefore DHS believes there is an urgent 
need for the immediate implementation of this rule suspending the 
automatic interview requirements to avoid unnecessarily burdening the 
public impacted by this rule.

Initial Regulatory Flexibility Act Determination

    The regulatory Flexibility Act of 1980, as amended (RFA) was 
enacted by Congress to ensure that small entities (small businesses, 
not-for-profit organizations, and small governmental jurisdictions) are 
not unnecessarily or disproportionately burdened by Federal 
regulations. The RFA requires agencies to review rules to determine if 
they have ``a significant economic impact on a substantial number of 
small entities.'' DHS has determined that this interim final rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule will not affect small entities as defined at 5 U.S.C. 
605(b) and will relieve cost burdens on individuals.
    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), 
I have reviewed this rule and by approving it, I certify that this rule 
will not have a significant economic impact on a substantial number of 
small entities.

Executive Order 12866

    Executive Order 12866, ``Regulatory Planning and Review,'' requires 
a determination whether a regulatory action is ``significant'' and 
therefore subject to review by the Office of Management and Budget 
(OMB) and to E.O. 12866's requirements.
    This rule is considered by DHS to be a significant regulatory 
action under Executive Order 12866, section 3(f), Regulatory Planning 
and Review. However, it does not have an impact on the economy of $100 
million or more and, therefore, is not economically significant. 
Accordingly, this regulation has been submitted to the Office of 
Management and Budget (OMB) for review.
    DHS has assessed both the costs and benefits of this rule as 
required by Executive Order 12866. First, this rule significantly 
reduces costs to the public by reducing the burden of re-registration 
and continuing registration requirements for aliens present in the 
United States. Without this regulation, in between December 2003 and 
May 2004, an estimated 82,532 aliens would be subject to re-
registration under prior regulations. Assuming that each interview will 
last 45 minutes, and each alien will have to prepare approximately 30 
minutes for the interview, DHS anticipates that between December 2003 
and May 2004, the burden reduction on the public to be a total of over 
103,000 hours.
    DHS also will experience a burden reduction, based upon the reduced 
costs related to information collection and

[[Page 67582]]

processing. Based upon the number of estimated registrations between 
December 2003 and May 2004 and assuming that each registration lasts 
approximately 45 minutes, under this regulation DHS estimates it will 
be able to reallocate almost 62,000 work hours. DHS is able to shift 
personnel who would have conducted these re-registration interviews to 
other law enforcement functions. These resources also can be better 
utilized to craft a targeted registration process that meets the 
national security needs of the country.
    The costs to DHS of not amending the regulations would be 
significant. Because the initial call-in registrations by the former 
Service occurred over a brief period of months, the number of aliens 
appearing for re-registration in a brief period of time will be 
significant. DHS would be forced to reallocate personnel resources from 
other law-enforcement functions in order to timely register aliens.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism summary impact statement.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

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

Executive Order 12988: Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act of 1995

    The regulations at 8 CFR 264.1(f)(7) allows an alien who has been 
registered under the provisions of 8 CFR 264.1(f) and who has not yet 
departed from the United States, to seek relief from the departure 
control requirement contained in 8 CFR 264.1(f)(8) for that admission. 
In order to seek relief the alien must apply to the U.S. Customs and 
Border Protection field office director for the port from which the 
alien intends to depart. In making an application for relief, the alien 
must establish that exigent or unusual circumstances exist and that the 
alien warrants a favorable exercise of discretion. This request for 
relief is considered an information collection requirement under the 
Paperwork Reduction Act (PRA).
    The Department of Homeland Security (DHS) and the U.S. Immigration 
and Customs Enforcement (ICE) has submitted an emergency information 
collection request (ICR) utilizing emergency review procedures, to the 
Office of Management and Budget (OMB) for review and clearance in 
accordance with section 1320.13(a)(1)(ii) and (a)(2)(iii) of the 
Paperwork Reduction Act of 1995. The DHS has determined that it cannot 
reasonably comply with the normal clearance procedures under this part 
because normal clearance procedures are reasonably likely to prevent or 
disrupt the collection of information. Therefore, immediate OMB 
approval has been requested. If granted, the emergency approval is only 
valid for 180 days. ALL comments and/or questions pertaining to this 
pending request for emergency approval must be directed to OMB, Office 
of Information and Regulatory Affairs, Attention: Department of 
Homeland Security Desk Officer, 725--17th Street, NW., Suite 10235, 
Washington, DC 20503.
    During the first 60 days of this same period, a regular review of 
this information collection is also being undertaken. During the 
regular review period, the DHS requests written comments and 
suggestions from the public and affected agencies concerning this 
information collection. Comments are encouraged and will be accepted 
until February 2, 2004. During 60-day regular review, all comments and 
suggestions, or questions regarding additional information, to include 
obtaining a copy of the information collection instrument with 
instructions, should be directed to Mr. Richard A. Sloan, 202-514-3291, 
Director, Regulations and Forms Services Division, Department of 
Homeland Security, Room 4034, 425 I Street, NW., Washington, DC 20536. 
Written comments and suggestions from the public and affected agencies 
concerning the proposed collection of information should address one or 
more of the following four points:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agencies estimate of the burden of 
the proposed collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses. Overview of this information collection:
    (1) Type of Information Collection: New information collection.
    (2) Title of the Form/Collection: Exemption from NSEERS 
Registration Requirements.
    (3) Agency form number, if any, and the applicable component of the 
Department of Homeland Security sponsoring the collection: No Agency 
Form Number. File No. OMB-40. U.S. Immigration and Customs Enforcement.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals and Households. This 
information collection allows an alien to seek an exemption from the 
NSEERS registration requirements by submitting a letter to the 
Department of Homeland Security containing specific information.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: 5,800 responses 
at 30 minutes (.5 hours) per response.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: 2,900 annual burden hours.
    If additional information is required contact: Mr. Steve Cooper, 
PRA

[[Page 67583]]

Clearance Officer, Department of Homeland Security, Office of Chief 
Information Officer, Regional Office Building 3, 7th and D Streets, 
SW., Suite 4636-26, Washington, DC 20202.
    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting requirements 
inherent in a rule. This rule suspends the 30-day and annual re-
registration requirements for aliens who are subject to NSEERS 
registration. The OMB information collection number under NSEERS is 
1115-0254. It is estimated that approximately 82,000 aliens will no 
longer be subject to the 30-day or annual re-registration interviews 
once this rule is implemented. Accordingly, ICE has submitted the 
required Paperwork Reduction Change Worksheet (OMB-83C) to OMB 
reflecting the reduction in burden hours for NSEERS.

List of Subjects in 8 CFR Part 264

    Reporting and recordkeeping requirements.

0
Accordingly, part 264 of chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 264--REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED 
STATES

0
1. The authority citation for Part 264 continues to read as follows:

    Authority: 8 U.S.C. 1103, 1201, 1303--1305; 8 CFR part 2.

0
2. Section 264.1(f) is revised to read as follows:


Sec.  264.1  Registration and fingerprinting.

* * * * *
    (f) Registration, fingerprinting, and photographing of certain 
nonimmigrant aliens.
    (1) Registration requirement for certain nonimmigrants. 
Notwithstanding the provisions in paragraph (e) of this section, 
nonimmigrant aliens identified in paragraph (f)(2) of this section are 
subject to special registration, fingerprinting, and photographing 
requirements upon arrival in the United States. This requirement shall 
not apply to those nonimmigrant aliens applying for admission to the 
United States under sections 101(a)(15)(A) (8 U.S.C. 1101(a)(15)(A)) or 
101(a)(15)(G) (8 U.S.C. 1101(a)(15)(G)) of the Act. In addition, this 
requirement shall not apply to those classes of nonimmigrant aliens to 
whom the Secretary of Homeland Security and the Secretary of State 
jointly determine it shall not apply, or to any individual nonimmigrant 
alien to whom the Secretary of Homeland Security or the Secretary of 
State determines it shall not apply. Completion of special registration 
pursuant to this paragraph (f) is a condition of admission under 
section 214 of the Act (8 U.S.C. 1184) if the inspecting officer 
determines that the alien is subject to registration under this 
paragraph (f) (hereinafter ``nonimmigrant alien subject to special 
registration'').
    (2) Identification of aliens subject to registration at ports-of-
entry. Nonimmigrant aliens in the following categories are subject to 
the requirements of paragraph (f)(3) of this section:
    (i) Nonimmigrant aliens who are nationals or citizens of a country 
or territory designated by the Secretary of Homeland Security, in 
consultation with the Secretary of State, by a notice in the Federal 
Register;
    (ii) Nonimmigrant aliens whom a consular officer or an inspecting 
officer has reason to believe are nationals or citizens of a country or 
territory designated by the Secretary of Homeland Security, in 
consultation with the Secretary of State, by a notice in the Federal 
Register; or
    (iii) Nonimmigrant aliens who meet pre-existing criteria, or whom a 
consular officer or the inspecting officer has reason to believe meet 
pre-existing criteria, determined by the Secretary of Homeland Security 
or the Secretary of State to indicate that such aliens' presence in the 
United States warrants monitoring in the national security interests, 
as defined in section 219 of the Act (8 U.S.C. 1189), or law 
enforcement interests of the United States.
    (3) Obligations regarding registration. (i) Any nonimmigrant alien 
who is included in paragraph (f)(2) of this section, and who applies 
for admission to the United States, shall be specially registered by 
providing information required by the Department of Homeland Security, 
shall be fingerprinted, and shall be photographed, by Department of 
Homeland Security, at the port-of-entry at such time the nonimmigrant 
alien applies for admission to the United States. The Department of 
Homeland Security shall advise the nonimmigrant alien subject to 
special registration that the nonimmigrant alien may, upon ten days 
notice, and at the Department of Homeland Security's discretion, be 
required to appear at a U.S. Immigration and Customs Enforcement office 
in person to verify information by providing additional information or 
documentation confirming compliance with the conditions of his or her 
visa status and admission. The Department of Homeland Security will 
determine on a case-by-case basis which aliens must appear in person to 
verify information. The nonimmigrant alien subject to special 
registration must appear at the designated office location, and on the 
specified date and time, unless otherwise specified in the notice.
    (ii) At the time of verification of information for registration 
pursuant to paragraph (f)(3)(i) of this section, the nonimmigrant alien 
subject to special registration shall provide the Department of 
Homeland Security with proof of compliance with the conditions of his 
or her nonimmigrant visa status and admission, including, but not 
limited to, proof of residence, employment, or registration and 
matriculation at an approved school or educational institution. The 
nonimmigrant alien subject to special registration shall provide any 
additional information required by the Department of Homeland Security.
    (4) Registration of aliens present in the United States. (i) The 
Secretary of Homeland Security, by publication of a notice in the 
Federal Register, also may impose such special registration, 
fingerprinting, and photographing requirements upon nonimmigrant aliens 
who are nationals, citizens, or residents of specified countries or 
territories (or a designated subset of such nationals, citizens, or 
residents) who have already been admitted to the United States or who 
are otherwise in the United States. A notice under this paragraph 
(f)(4) shall explain the procedures for appearing in person and 
providing the information required by the Department of Homeland 
Security, providing fingerprints, photographs, or submitting 
supplemental information or documentation.
    (ii) Any nonimmigrant alien who is currently subject to special 
registration as a result of the publication of any previous Federal 
Register notice may, while he or she remains in the United States, upon 
10 days notice and at the Department of Homeland Security's discretion, 
be required to appear at a Department of Homeland Security Office in 
person to provide additional information or documentation confirming 
compliance with his or her visa and admission. The Department of 
Homeland Security will determine on a case-by-case basis which aliens 
must appear in person to verify information. The nonimmigrant alien 
subject to special registration must appear at the designated office 
location, and on the

[[Page 67584]]

specified date and time, unless otherwise specified in the notice.
    (5) Obligation to provide updated information. In addition to any 
additional re-registrations that may be required pursuant to paragraphs 
(f)(3) and (f)(4) of this section, any nonimmigrant alien subject to 
special registration under this paragraph (f) who remains in the United 
States for 30 days or more shall notify the Department of Homeland 
Security by mail or other such means as determined by the Secretary of 
Homeland Security, using a notification form designated by the 
Department of Homeland Security, of any change of address, change of 
residence, change of employment, or change of educational institution 
within 10 days of such change. Notice to the Department of Homeland 
Security of a change of address, change of residence or change of 
educational institution made within 10 days of such a change through 
the Student and Exchange Visitor Information System (SEVIS) shall 
constitute notice under this paragraph.
    (6) [Reserved]
    (7) Relief from registration requirements. A nonimmigrant alien 
subject to special registration may apply for relief from the 
registration requirements as follows:
    (i) Relief from departure controls set out in 264.1(f) (8). An 
alien who has been registered under the provisions of this section (f) 
and has not yet departed the United States may seek relief from the 
departure control requirement contained in paragraph (f)(8) for that 
admission by applying to the U.S. Customs and Border Protection field 
office director for the port from which the alien intends to depart. In 
making an application for relief, the alien must establish that exigent 
or unusual circumstances exist and that the alien warrants a favorable 
exercise of discretion.
    (ii) Frequent travelers. An alien who previously has been 
registered and who would otherwise be subject to registration at a port 
of entry under the provisions of paragraphs (f)(2) and (3) of this 
section may seek relief from the registration requirements from the 
Secretary of Homeland Security after his initial registration if the 
alien makes frequent trips to the United States. An alien seeking 
relief under this paragraph from the Secretary of Homeland Security may 
apply to the U.S. Customs and Border Protection field office director 
for the port to which the alien most frequently arrives in the United 
States. The field office director or his designee will make the 
determination that the frequency of arrival warrants relief from the 
registration requirements on a case-by-case basis, and will consider in 
this analysis the mode of travel, business and economic concerns, 
purpose of travel, or other factors as determined by the director. In 
making an application for relief, the alien must establish that good 
cause or exigent or unusual circumstances exist and that the alien 
warrants a favorable exercise of discretion.
    (iii) Exemption from registration. At a Department of State 
consular office abroad, an alien may seek exemption from these 
regulations from the Department of State by such methods as it may 
prescribe.
    (iv) For all applications for relief. Any decision of a Department 
of Homeland Security officer or official to grant or deny relief under 
this paragraph (f)(7) is final and not appealable. Absent receipt of a 
decision exempting or relieving the nonimmigrant alien from these 
requirements, he or she shall comply with the special registration 
requirements contained in this section.
    (v) Termination of relief. Relief granted under paragraphs 
(f)(7)(i) or (ii) of this section may be terminated by notice to the 
alien by any field office director or other Department of Homeland 
Security officer or official authorized to grant such relief.
    (8) Departure requirements. (i) General requirements When a 
nonimmigrant alien subject to special registration departs from the 
United States (other than nonimmigrant crewmen as defined under section 
101(a)(15)(D) of the Act) he or she shall report to an inspecting 
officer of the Department of Homeland Security at any'port-of entry 
unless the Department of Homeland Security has, by publication of a 
notice in the Federal Register, specified that nonimmigrant aliens 
subject to special registration may not depart from specific ports. 
This paragraph (f)(8) applies only to those nonimmigrant aliens who 
have been registered under paragraph (f)(3) of this section, or who 
have been required to register pursuant to paragraph (f)(4) of this 
section, and who have not been granted relief from the departure 
requirements under paragraph (f)(7).
    (ii) Presumption of inadmissibility. Any nonimmigrant alien subject 
to special registration who fails, without good cause, to be examined 
by an inspecting officer at the time of his or her departure and to 
have his or her departure recorded by the inspecting officer shall 
thereafter be presumed to be inadmissible under, but not limited to, 
section 212(a)(3)(A)(ii) of the Act (8 U.S.C. 1182(a)(3)(A)(ii)), as an 
alien whom the Secretary of Homeland Security has reasonable grounds to 
believe, based on the alien's past failure to conform with the 
requirements for special registration, seeks to enter the United States 
to engage in unlawful activity.
    (iii) Overcoming inadmissibility. An alien may overcome the 
presumption of inadmissibility set out in paragraph (f)(8)(ii) by 
making a showing that he or she satisfies conditions set by the 
Secretary of Homeland Security and the Secretary of State. If a 
consular officer, in adjudicating a new visa application by an alien 
that previously failed to register his or her departure from the United 
States, finds good cause existed for the alien's failure to register 
departure or that the alien is not inadmissible under section 
212(a)(3)(A)(ii) of the Act, the inspecting officer at the port-of-
entry, while not bound by the consular officer's decision, will 
consider this finding as a significantly favorable factor in 
determining whether the alien is admissible.
    (9) Completion of registration. Registration under this paragraph 
(f) is not deemed to be complete unless all of the information required 
by the Department of Homeland Security and all requested documents are 
provided in a timely manner. Any additional re-registration that may be 
required and each change of material fact is a registration that is 
required under sections 262 and 263 of the Act (8 U.S.C. 1302, 1303). 
Each change of address required under this paragraph (f) is a change of 
address required under section 265 of the Act (8 U.S.C. 1305).
* * * * *

    Dated: November 27, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-30120 Filed 12-1-03; 8:45 am]
BILLING CODE 4410-10-P




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