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[Federal Register: August 13, 2004 (Volume 69, Number 156)]
[Rules and Regulations]               
[Page 50051-50053]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13au04-1]                         


========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

========================================================================



[[Page 50051]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 235

RIN 1651-AA60

 
Extension of Time Limit on Admission of Certain Mexican Nationals

AGENCY: Border and Transportation Security Directorate, DHS.

ACTION: Interim rule with request for comments.

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

SUMMARY: This interim rule amends the Department of Homeland Security 
(the Department) regulations to extend the period of time certain 
Mexican nationals may remain in the United States without obtaining 
additional immigration documentation. Currently, Mexican nationals who 
present a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC) are 
not required to obtain a Form I-94 if their stay in the United States 
is less than 72 hours and they remain within 25 miles of the border (75 
miles within Arizona). This interim rule extends the time limit to 
allow BCC holders to remain in the United States for up to 30 days 
without being issued a Form I-94. The geographic limitations remain 
unchanged. This interim rule is intended to promote commerce along the 
border while ensuring that sufficient safeguards are in place to 
prevent illegal entry into the United States.

DATES: This interim rule is effective August 13, 2004. Written comments 
must be submitted on or before October 12, 2004.

ADDRESSES: Written comments must be submitted to the Bureau of Customs 
and Border Protection, Office of Regulations and Rulings, Attention: 
Regulations Branch, 1300 Pennsylvania Avenue, NW. (Mint Annex), 
Washington, DC 20229. Submitted comments may be inspected at the Bureau 
of Customs and Border Protection, 799 9th Street, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Diane Hinckley, Office of Field 
Operations, Bureau of Customs and Border Protection, (202) 344-1401.

SUPPLEMENTARY INFORMATION: 

Background

Border Crossing Cards Under the Current Regulations

    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 
contiguous territory. If the BCC traveler is applying for admission 
from other than contiguous territory, he or she must present a valid 
passport. See 8 CFR 212.1(c)(2)(i).
    Under Department regulations at 8 CFR 235.1(f)(1), each arriving 
nonimmigrant who is admitted to the United States, upon payment of the 
fee prescribed in 8 CFR 103.7(b)(1), is issued a Form I-94 as evidence 
of the terms of admission. Section 235.1(f)(1) exempts from the Form I-
94 requirement a Mexican national in possession of a BCC or in 
possession of a passport and valid visa who is admitted as a 
nonimmigrant visitor, and any Mexican national entering solely for the 
purpose of applying for a Mexican passport or other official Mexican 
document at a Mexican consular office in the United States (``consular 
applicant''). See 8 CFR 212.1(c)(1)(ii). The exemption from the Form I-
94 requirement only applies if the Mexican national is admitted for a 
period not to exceed 72 hours to visit within 25 miles of the border 
(75 miles in Arizona). Currently, if a BCC traveler wishes to stay 
longer than three days or travel further than 25 miles from the border 
(75 miles in Arizona), the BCC traveler may do so only upon payment of 
the fee prescribed at 8 CFR 103.7(b)(1) and issuance of a Form I-94. 
Forms I-94 are valid for multiple entries for 6 months.

How Does This Rule Change the Current Regulations?

    This interim rule extends the current time limit to allow BCC 
holders to remain in the United States for up to 30 days without being 
issued a Form I-94. This interim rule does not alter the geographic 
limitation.

Why Has the Department Decided To Extend the Time Restriction?

    With passage of the North American Free Trade Agreement in 1994, 
commerce, tourism, and trade across the United States and Mexico border 
into neighboring communities have increased the economic 
interdependence among cities located in the border area. However, under 
the current regulations, Mexican BCC holders can only spend up to 72 
hours in the United States without obtaining additional immigration 
documentation. This interim rule extends the 72-hour time limit to 30 
days. The extension of the 72-hour time limit will help to facilitate 
commerce, tourism, and trade along the southern border of the United 
States. If Mexican nationals are able to remain in the United States 
for a longer period of time, they will aid the economic development of 
the southern border states.
    In addition, this change will result in greater parity between the 
treatment of Mexican and Canadian nationals. With few exceptions, 
Canadian nationals may be admitted to the United States for up to six 
months without obtaining an additional travel document.
    Because Mexican BCC holders can already obtain a Form I-94 to 
remain in the United States for an additional period of time, this 
interim rule promotes administrative efficiency by extending the time 
limit from 72 hours to 30 days without requiring additional paperwork.

Border Protection and National Security

    Pursuant to 8 U.S.C. 1101(a)(6), each BCC must include a biometric 
identifier (such as the fingerprints or digital photograph of the 
alien) that is machine readable. Prior to issuing a BCC to a Mexican 
national, the Department of State conducts biographic and biometric 
checks on the individual (including an interview), and the fingerprints 
and photograph of the Mexican national are then embedded into the 
machine-readable BCC. The Mexican national must also provide 
information regarding residence, employment, and the reason for 
frequent border crossing. At time of entry into the United States, a 
holder of a BCC is inspected to determine that he or she is the 
rightful bearer of the

[[Page 50052]]

document when crossing through a U.S. port-of-entry.
    The Department will monitor and evaluate any changes in the 
patterns of violations of terms of admission that may occur. In 
addition, the Department will monitor data on apprehensions of those 
Mexican BCC holders who do not have an approved Form I-94 and who 
violate their terms of admission by traveling beyond the 25 mile limit 
(75 miles in Arizona) or who remain in the United States for more than 
the 30-day limit set by this rule.

Does This Rule Extend the Time Limitation for Other Mexican Nationals 
Who Are Not Required To Obtain a Form I-94?

    No. The 72-hour time limit for Mexican nationals entering solely 
for the purpose of applying for a Mexican passport or other official 
Mexican document at a Mexican consular office in the United States 
under 8 CFR 212.1(c)(1)(ii) remains unchanged. The 72-hour time limit 
for Mexican nationals in possession of a passport and valid visa who 
are admitted as nonimmigrant visitors without obtaining a Form I-94 
under 8 CFR 235.1(f)(1) also remains unchanged.

Good Cause Exception

    Implementation of this interim rule without prior public notice and 
the opportunity for comment is warranted under the exceptions found 
under the Administrative Procedure Act (APA) at 5 U.S.C. 553(b) and 
(d), both for ``good cause'' and because this interim rule merely 
relieves prior existing restrictions. This interim rule will 
significantly reduce administrative burdens and allow critical border 
security resources to be focused on addressing security concerns rather 
than on processing paperwork.
    Under the current system, if a BCC holder wishes to stay in the 
United States longer than three days, he or she may do so only upon 
issuance of a Form I-94 and paying the associated fees. This rule has 
resulted in many BCC travelers crossing back and forth over the border 
for the sole purpose of avoiding staying longer than 3 consecutive 
days. Other BCC travelers who frequently conduct cross-border commerce 
which requires stays longer than 72 hours are required to fill out 
identical Forms I-94 every 6 months. The result is that Department 
personnel at the border are confronted with longer lines and 
duplicative paperwork.
    In light of the heightened security environment, the Department has 
determined that this interim rule is needed to ensure that available 
resources are focused on security enhancing activities to the greatest 
extent possible. Moreover, the Department anticipates that that 
security could be enhanced because the increase from 72 hours to 30 
days may encourage more people to obtain BCCs that contain machine-
readable biometric identifiers. Therefore, delay of the effective date 
of this interim rule to allow for prior notice and comment would be 
impracticable and contrary to the public interest.
    In addition, DHS finds that good cause exists under the 
Congressional Review Act, 5 U.S.C. 808, to implement this interim rule 
immediately upon publication in the Federal Register.

Comments

    The Department will consider any written comments timely submitted 
to the Department in preparing a final rule, including comments on the 
clarity of this interim rule and how it may be made easier to 
understand. Comments submitted will be available for public inspection 
in accordance with the Freedom of Information Act (5 U.S.C. 552) and 
CBP regulations (19 CFR 103.11(b)), on regular business days between 
the hours of 9 a.m. and 4:30 p.m. at the Regulations Branch, Office of 
Regulations and Rulings, Bureau of Customs and Border Protection, 
Department of Homeland Security, 799 9th Street, NW., Washington, DC. 
Arrangements to inspect submitted comments should be made in advance by 
calling Mr. Joseph Clark at (202) 572-8768.

The 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). Section 603(a) of the RFA 
requires that agencies prepare and make available for public comment an 
initial regulatory flexibility analysis whenever the agency is required 
by law to publish a general notice of proposed rulemaking. Because good 
cause exists under 5 U.S.C. 553(b) for issuing this regulation as an 
interim rule, no regulatory flexibility analysis is required under the 
RFA. Accordingly, the Department has not prepared an initial regulatory 
flexibility analysis for this rule.

Unfunded Mandates Reform Act of 1995

    This interim final rule will not result in the expenditure by 
State, local, or tribal governments, in the aggregate, or by the 
private sector, of more than $100 million annually.

Paperwork Reduction Act

    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 or recordkeeping 
requirements inherent in a final rule. This interim rule does not 
impose any new reporting or recordkeeping requirements under the 
Paperwork Reduction Act. However, DHS anticipates that there will be a 
reduction in the number of I-94s issued as a result of this interim 
rule, which will reduce the burden hours associated with the I-94 
collection by an estimated 5,313 hours. The OMB control number is 1651-
0111

Executive Order 12866, Regulatory Planning and Review

    The Department has examined the economic implications of this 
interim final rule as required by Executive Order 12866. Executive 
Order 12866 directs agencies to assess all costs and benefits of 
available regulatory alternatives and, when regulation is necessary, to 
select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity). Executive Order 12866 
classifies a rule as significant if it meets any one of a number of 
specified conditions, including: Having an annual effect on the economy 
of $100 million, adversely affecting a sector of the economy in a 
material way, adversely affecting competition, or adversely affecting 
jobs. A regulation is also considered a significant regulatory action 
if it raises novel legal or policy issues. The Department concludes 
that this interim final rule is not an economically significant 
regulatory action under section 3(f)(1) of the Executive Order, since 
it does not have an annual effect on the economy of $100 million or 
more. The Department also concludes, however, that this interim final 
rule raises novel legal and policy issues under section 3(f)(4), and is 
therefore a significant regulatory action under the Executive Order.
    Costs. DHS expects the costs of this rulemaking to be negligible. 
Because Mexican BCC holders already can obtain a Form I-94 to remain in 
the United

[[Page 50053]]

States for an additional period of time, this interim rule simply 
promotes administrative efficiency by expanding the time limit from 72 
hours to 30 days without requiring additional paperwork.
    Benefits. This rule will affect those BCC holders issued I-94s for 
the purpose of staying in the country, within 25 miles of the border, 
for longer than 3 days but less than 30 days. DHS assumes that 
approximately 1%, or approximately 21,250, of the total I-94s are 
currently issued to BCC holders for this purpose and therefore those I-
94s would no longer be required to be issued under this interim rule. 
DHS acknowledges that this estimate is uncertain and requests comment.
    BCC holders will benefit from no longer being required to obtain an 
I-94 in order to remain along the border for an extended period of 
time. These individuals will no longer be required to request and 
receive an I-94 which is done in secondary examination at the land 
border ports. The process requires an interview, the payment of a $6.00 
fee, and often requires the BCC holder to produce documentation 
concerning their intentions in the United States. The process takes an 
average of approximately 15 minutes.
    In addition to the previously mentioned BCC holders who will no 
longer be required to obtain I-94's, DHS estimates that between 200,000 
and 400,000 BCC holders will utilize the expanded time period to remain 
in the United States for longer than the current 72 hours limit. 
Additionally, this interim rule will likely motivate more Mexican 
nationals without BCC's to obtain BCCs in order to take advantage of 
the extended time-limit. These factors will facilitate commerce along 
the U.S. border and increase the demand by BCC holders for goods and 
services provided by border communities in the United States. As more 
Mexican nationals take advantage of the extended time-limit and remain 
in the United States for a longer period of time, the border 
communities in the United States will also benefit from a greater 
demand for goods and services provided by those communities.

Executive Order 12988, Civil Justice Reform

    This interim rule meets the applicable standards set forth in 
Executive Order 12988. Among other things, the regulation does not 
preempt, repeal or modify any Federal statute; provides clear 
standards; has no retroactive effects; defines key terms; and is 
drafted clearly.

Executive Order 13132, Federalism

    This interim rule will not have federalism implications because the 
regulations will not have financial or other effects on States, the 
relationship between the Federal Government and the States, or the 
distribution of power and responsibilities among the various levels of 
government.

Drafting Information

    The principal author of this document was Christopher W. Pappas, 
Regulations Branch, Office of Regulations and Rulings, Bureau of 
Customs and Border Protection. However, personnel from other offices 
participated in its development.

List of Subjects in 8 CFR Part 235

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

Amendment to the Regulations

0
Part 235 of title 8 of the Code of Federal Regulations (8 CFR part 235) 
is amended as follows:

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
1. The authority citation for part 235 continues to read as follows:

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


0
2. Section 235.1 is amended by:
0
a. Revising paragraph (f)(1)(iii); and
0
b. Revising paragraph (f)(1)(v), to read as follows:


Sec.  235.1  Scope of Examination.

* * * * *
    (f) * * *
    (1) * * *
    (iii) Except as provided in paragraph (f)(1)(v) of this section, 
any Mexican national admitted as a nonimmigrant visitor who is:
    (A) Exempt from a visa and passport pursuant to Sec.  
212.1(c)(1)(i) of this chapter and is admitted for a period not to 
exceed 30 days to visit within 25 miles of the border; or
    (B) In possession of a valid visa and passport or exempt from a 
visa and passport pursuant to Sec.  212.1(c)(1)(ii) of this chapter; 
and is admitted for a period not to exceed 72 hours to visit within 25 
miles of the border;
* * * * *
    (v) Any Mexican national admitted as a nonimmigrant visitor who is:
    (A) Exempt from a visa and passport pursuant to Sec.  
212.1(c)(1)(i) of this chapter and is admitted at the Mexican border 
POEs in the State of Arizona at Sasabe, Nogales, Mariposa, Naco or 
Douglas to visit within the State of Arizona within 75 miles of the 
border for a period not to exceed 30 days; or
    (B) In possession of a valid visa and passport or exempt from a 
visa and passport pursuant to Sec.  212.1(c)(1)(ii) of this chapter; 
and is admitted at the Mexican border POEs in the State of Arizona at 
Sasabe, Nogales, Mariposa, Naco or Douglas to visit within the State of 
Arizona within 75 miles of the border for a period not to exceed 72 
hours.
* * * * *

    Dated: August 10, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-18651 Filed 8-12-04; 8:45 am]
BILLING CODE 4410-10-P




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