This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

25856

Vol. 60, No. 93

Monday, May 15, 1995

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103 and 299

[INS No. 1666–94]

RIN 1115–AD75

Certification of Designated Outside

Entities to Take Fingerprints

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Proposed rule.

SUMMARY: The Immigration and

Naturalization Service (Service) is

proposing to certify designated outside

entities (DOEs) to take fingerprints of

applicants for immigration benefits.

This rule would establish eligibility

criteria and application procedures to

certify DOEs. The proposed rule would

facilitate processing of applications for

immigration benefits and protect the

integrity of the fingerprinting process,

while relieving the strain on Service

resources.

DATES: Written comments must be

received on or before July 14, 1995.

ADDRESSES: Please submit written

comments, in triplicate, to the Policy

Directives and Instructions Branch,

Immigration and Naturalization Service,

425 I Street NW., Room 5307,

Washington, DC 20536, Attn: Public

Comment Clerk. To ensure proper

handling, please reference INS No.

1666–94 in your correspondence.

Comments are available for public

inspection at this location by calling

(202)–514–3048 to arrange an

appointment.

FOR FURTHER INFORMATION CONTACT:

Pearl Chang, Senior Examiner, Jack

Rasmussen, Senior Examiner, or Ray

Jaroneski, Senior Examiner,

Adjudications Division, Immigration

and Naturalization Service, 425 I Street

NW., Room 3214, Washington, DC

20536, telephone (202) 514–3240. This

is not a toll-free number.

SUPPLEMENTARY INFORMATION:

Background

Applicants for various types of

immigration benefits are required to

submit a set of fingerprints on Form FD–

258, Applicant Fingerprint Card, along

with their applications. The applicants’

fingerprints are forwarded to the Federal

Bureau of Investigation (FBI) for checks

for criminal history that may render an

alien ineligible for immigration benefits.

Traditionally, applicants for

immigration benefits have been

fingerprinted at Service local offices.

Over the past few years, because of

resource shortages and uncontrollable

overcrowding, most Service field offices

have been forced to stop fingerprinting

applicants for immigration benefits.

Since other law enforcement agencies

have not been able to meet the demand,

applicants have turned to private

enterprises for fingerprints. Under these

circumstances, the Service typically

does not know the identity of the person

or organization that prepared the

fingerprints.

In a February 1994 inspection report,

the Office of Inspector General (OIG) of

the Department of Justice identified two

major deficiencies in the current

fingerprinting process that required

corrective action: the reliance on

unknown and untrained outside entities

to prepare fingerprints; and the lack of

identity verification of the individuals

fingerprinted. In addition, the OIG

pointed out that fingerprint cards

submitted by the applicants were often

of poor quality and had to be rejected

by the FBI. The OIG recommended that

the Service establish procedures to

institute control and oversight of the

fingerprint process. The Committee on

Appropriation of the United States

Senate also expressed concern about the

current fingerprint process and directed

in its report dated July 14, 1994, that the

Service implement a fingerprint

collection system which accepts only

fingerprints taken by authorized

entities, including trained Service

employees, recognized law enforcement

agencies, or Service certified outside

entities.

In May 1994, the Service convened a

working group, which was comprised of

representatives from various Service

components along with advisors from

the FBI and the OIG, to recommend

solutions. After considering various

options, the working group

recommended that the Service adopt a

policy of encouraging Service local

offices to provide fingerprinting

services. Where that was not feasible,

the working group recommended that

the district director designate outside

entities to do the job. The district

director would assess the unique local

situation prior to deciding whether to

certify DOEs or to renew them when the

initial certification of 3 years expires.

The working group concluded that

certification of DOEs is the most costeffective way to restore integrity to the

process in the short term and that it

should be implemented as soon as

possible. Based on these

recommendations, the Service is

undertaking rulemaking to establish

eligibility criteria, certification

requirements, application procedures,

and a date on which the Service will

stop accepting fingerprint cards

prepared by unauthorized entities.

The Service is aware that the

objectives of the proposed DOEcertification program cannot be fulfilled

unless the outside entities are carefully

screened and monitored. The Service is

contemplating three complementary

methods for the monitoring of DOEs: onsite review of DOE operations;

completion of an attestation form

(discussed later) which the applicant is

to submit to the Service with the

fingerprint cards; and, in many cases,

physical verification of benefitapplicants’ fingerprints during their

interviews with Service officers. The

latter is possible because the Service has

been developing imaging capability in

its Computer Linked Adjudication and

Information Management System

(CLAIMS). This imaging capability can

be used to capture, store, and reproduce

the digitalized image of the fingerprints

submitted by applicants for benefits. At

interview time, the adjudicating officer

will be able to compare a systemgenerated image of the applicant’s right

index fingerprint with a freshly taken

print of the interviewee’s right index

finger to ascertain that they belong to

the same person.

It should be emphasized that the

working group gave serious thought to

the feasibility of resuming fingerprinting

services at all Service field offices.

However, acquiring additional staff and

facilities is a time-consuming process.

Even with a fee increase, it would take

up to 3 years to implement a fully
Federal Register / Vol. 60, No. 93 / Monday, May 15, 1995 / Proposed Rules 25857

functional fingerprinting operation at all

local Service offices. It is simply not

feasible for all Service field offices to

resume the fingerprinting service in a

short time. The working group believed

that the establishment of an automated

fingerprint information system would

ultimately resolve the current problems,

yet it is not a solution that could be

implemented immediately. Thus, the

fingerprint working group

recommended the use of DOEs as an

interim solution while the Service is

actively working on automating the

fingerprinting process.

Upon development of an automated

fingerprint information system, the

Service will decide if there is a

continued need for the DOEs’ services

and, if so, whether they should switch

to newer technologies, such as acquiring

automated fingerprinting equipment

that meet the Service’s specifications. In

either event, the Service shall issue a

public notification or make a new rule,

as appropriate.

During the deliberation of the

fingerprinting options, the Service

explored contracting as a possible

solution, but determined that

contracting was not viable. A controlled

procurement contract requires the

contracting agency and the contractor to

enter into a binding agreement

involving appropriated funds, and these

required conditions do not exist. On the

other hand, section 103 (a) and (b) of the

Immigration and Nationality Act (‘‘the

Act’’) confers upon the Attorney

General, and the Commissioner of the

Service by delegation, the authority to

establish regulations necessary for

carrying out the provisions of the Act.

For reasons explained earlier in this

preamble, rulemaking appears to be a

reasonable and practical way to solve

the fingerprinting problem.

In this rulemaking, the Service is

proposing the creation of a new

paragraph (e) in 8 CFR 103.2, to

establish eligibility standards,

responsibilities, and application

procedures for DOE certification.

Public comments are encouraged and

must be received by the Service on or

before July 14, 1995. It has also been

suggested that DOEs certified as a result

of this rulemaking could ultimately be

endorsed and utilized by other federal,

state, or local government agencies

which require fingerprints from

applicants for various types of benefits

or programs under this jurisdiction.

Comments are also solicited on the

feasibility of such an expansion in the

role of DOEs and on what changes to the

rule would be necessary to

accommodate that broader role.

Proposed Regulation for Certification of

DOEs

1. DOE Eligibility

As stated earlier, the purpose of the

fingerprints-clearance requirement is to

ensure that the applicants for

immigration benefits (e.g., adjustment to

permanent residence, citizenship,

adoption of foreign orphans, etc.), do

not have criminal records that would

render them ineligible. Because the

validity of the fingerprints is an

essential premise for carrying out the

Service’s obligation to identify and deny

benefits to ineligible aliens, it is

important that the fingerprinting

process is not entrusted to persons

whose past criminal conduct or other

wrongdoing makes them unsuitable for

such responsibility.

Thus, the proposed regulation would

preclude from certification as outside

entities those applicants who have been

convicted of any aggravated felony as

defined in section 101(a)(43) of the At

or of any crime involving dishonesty or

false statement, who have been

subjected to a civil penalty for fraud

under section 274C of the Act or any

other law. (If the applicant is an

organization, these standards would

also be applied to its principal officers,

directors, or partners.) Moreover, an

outside entity’s employee who has been

convicted of an aggravated felony or a

crime involving dishonesty or false

statement, or subjected to a civil penalty

for fraud, would not be eligible to take

fingerprints, unless the outside entity

can establish to the Service’s

satisfaction that the circumstances are

such (because of the person’s youth at

the time of the conduct, the number of

years that have passed since then, or

other convincing factors) that there can

be no reasonable questions as to the

person’s reliability in taking fingerprints

in conformity with these rules.

In interpreting the terms ‘‘dishonesty

or false statement’’, the Service may take

general guidance to the degree that it is

appropriate by analog to the judicial

interpretations of crimes involving

‘‘dishonesty or false statement’’ as that

phrase is used in Rule 609(a)(2) of the

Federal Rules of Evidence and prior

cases. For example, Government of

Virgin Islands v. Toto, 529 F.2d 278 (3d

Cir. 1976), includes criminal

convictions involving ‘‘perjury or

subornation of perjury, false statement,

criminal fraud, embezzlement, false

pretense, or any other offense which

involves some element of deceitfulness,

untruthfulness or falsification’’. The

Service invites comments from the

public on these issues.

Since the FBI fingerprint-check is the

only practical means available to the

Service to positively identify any known

criminal history, this rule would require

outside entity employees with

fingerprinting responsibility to submit

their own fingerprints for an FBI check.

Fingerprints submitted to support

applications for certification as a DOE

would have to be taken by designated

Service personnel at local offices.

The proposed rule would also provide

for a streamlined registration process for

Federal, state, or local law enforcement

facilities and military police facilities

which provide fingerprinting service.

These local police stations and military

police facilities would be automatically

eligible for DOE status provided that

they register with the Service on Form

I–850, Application for Certification as

Designated Outside Entity to Take

Fingerprints. No FBI fingerprint check,

application fee, or additional training

would be required of their personnel

charged to take fingerprints. Once

registered, the Service would include

these police stations and military police

facilities on the listing of DOEs and

make available to them the Service’s

fingerprinting regulations and

instructions.

2. Requirements

As set forth in § 103.2(e) of the

proposed regulation, a DOE would be

required to take legible and classifiable

fingerprints of applicants, or be required

to retake the fingerprints deemed to be

illegible free of charge. A DOE would be

allowed to charge an additional fee,

however, if a good set of fingerprints is

rendered illegible due to improper

handling by the applicant. As part of the

fingerprinting procedures, a DOE would

be required to check the identification

of the person being fingerprinted by

comparing the information on the

fingerprint cards with that of his or her

passport, alien registration card, or any

other Service issued photo-ID. The DOE

would be required to maintain clean

and suitable facilities that are accessible

to the general public. The DOE would

be required to use only fingerprint cards

(Forms FD–258) or any other forms that

are specified and supplied by the

Service. Reproduced copies of Form

FD–258 would be rejected.

A DOE could charge a reasonable fee

for taking the fingerprints. Even though

the Service has not imposed a fee

limitation, a DOE would be required to

make its fee known to the Service at the

time its application for DOEcertification is filed and when there is

a fee change. The Service believes that
25858 Federal Register / Vol. 60, No. 93 / Monday, May 15, 1995 / Proposed Rules

competition in the marketplace would

keep the DOEs’ fees at a reasonable

level. Each local Service office would

compile a list of the DOEs in its

jurisdiction, giving their names,

addresses, telephone numbers, and fees,

and make the list available the public to

encourage healthy competition.

A DOE would be required to

immediately notify the Service director

having jurisdiction over his or her place

of business of any changes in personnel

who take fingerprints. All DOE

personnel charged with the

responsibility to take fingerprints would

be required to undergo and pass an FBI

criminal history check, as discussed.

A DOE would be required to ensure

that its employees receive adequate

training in fingerprinting techniques

and photo-ID verification procedures. A

qualifying outside entity applying for

certification would be required to show

that all of its personnel charged with the

fingerprinting responsibility have been

trained by the Service or the FBI, are

scheduled to receive such training prior

to the approval of the application, or

can otherwise demonstrate proficiency.

After certification, a DOE, however,

would be allowed to train its new

employees, provided that the trainer

was initially trained by the Service or

the FBI. The proposed rule would

condition the grant of DOE status to the

entity’s successful completion of the

required training. Training could be

arranged through local Service offices.

An applicant who has been previously

trained in fingerprinting by the Service

or the FBI, or who can otherwise

demonstrate proficiency, could be

exempt from this training requirement.

A DOE would be required to

immediately notify the Service of any

conviction for an aggravated felony or a

criminal offense involving dishonesty or

false statement or of any civil penalty

for fraud committed by an employee

charged to take fingerprints. Since these

types of activities cast doubt on an

individual’s credibility as a responsible

person, the Service would need to be

alerted.

A DOE would be required to permit

the Service to make periodical on-site

inspection of its operations to ensure

compliance with required procedures. If

a DOE was found to be in violation of

the established regulations and

procedures, and in the absence of

evidence of willful misconduct, it

would be given the opportunity to

submit rebuttal evidence or request a

reinspection following corrective

actions. If the DOE failed to submit

evidence of rebuttal or take corrective

actions within a 30-day period, or if

unsatisfactory conditions persisted at

the second inspection, the Service could

revoke its DOE status.

3. Attestation

To assure the Service of the integrity

of the fingerprint cards submitted, the

proposed rule would require all DOE

fingerprints to fill out an attestation

each time they take fingerprints for an

immigration benefit applicant. In turn,

applicants for immigration benefits

would file this attestation together with

the fingerprint card. The attestation

must be signed and dated by the

fingerprinter and state: (1) That he or

she has properly checked the identity of

the person being fingerprinted and

entered, on the form, information

pertaining to the individual’s passport,

alien registration card, or other

acceptable Service issued photo-ID; (2)

that he or she is an employee of a

certified DOE, giving the DOE’s name,

address, certification number (as

assigned by the Service) and expiration

date; (3) that he or she understands the

fingerprinting requirements as

established by this remaking and has

received adequate training to perform

his or her responsibilities, giving his or

her name and ID number (as assigned by

the Service); and (4) the name,

signature, and identification provided

by the person being fingerprinted (the

benefit applicant). The DOE’s

fingerprinters would be required to

execute the attestations in duplicate in

the presence of the benefit applicants.

The original copy would be given to the

person being fingerprinted, to be filed

with the Service along with the

fingerprint cards. The second copy,

which may be a reproduced copy of the

first one, would be kept on file by the

DOE for at least 3 months for Service

inspection. The Service would provide

a standardized attestation, Form I–850A,

Attestation by Designated Outside

Entities Certified to Take Fingerprints,

to DOEs for their convenience. The

DOEs would be allowed to use

reproduced copies of Form I–850A.

Most of the information on the form

could be preprinted, except for the

fingerprinter’s signature, the date, and

the information pertaining to the person

being fingerprinted.

4. Application

To obtain certification as a DOE, a

qualifying outside entity would be

required to file an application on Form

I–850, including the required fee, with

the district director having jurisdiction

over the applicant’s place of business. A

DOE would also use Form I–850 to

apply for renewal of its certification, to

change its address or fee, or to seek

approval for new or replacement

employees to take fingerprints. The

district director would consider all

supporting materials submitted and

request other evidence of eligibility for

certification as he or she may deem

necessary. The initial certification is

valid for three years and, if the district

director finds a continuing need, may be

renewed by applying to the district

director having jurisdiction over the

DOE’s place of business on a new Form

I–850, with the required fee, at least 90

days before it expires.

5. Fee

As previously mentioned, an

application for DOE certification would

be filed on Form I–850, with the

required fee of $370. (The fee for filing

an application for renewal of DOE

certification would be $200.) The

application fee would underwrite the

Service’s processing and administrative

costs incurred in the DOE certification

process, such as staffing, training of

Service personnel on the DOE

certification process, adjudication of

applications, oversight or DOEs, as well

as providing fingerprinting training

(including instructional material and

training videos) to DOEs. The proposed

fee amount is based on estimates of

these costs and is supported by a fee

analysis, which is available upon

request. Since the FBI fingerprint-check

and related processing currently costs

the Service $23 per person, an employer

would also be required to pay an

additional fee of $23 for each of its

employees submitted for the Service’s

approval to take fingerprints. A fee

would not be charged for filing a request

for adding new employees to a prior

approved list, but the employer would

have to pay the fingerprint-check fee of

$23 for each of the new employees.

6. Revocation

DOE certification would be

automatically revoked when the DOE

withdraws its application, or goes out of

business prior to the expiration of the

approval. The district director may also

revoke on notice the certification of a

DOE that is providing poor quality

prints, cannot provide adequate

assurance as to the identity of persons

being fingerprinted or the integrity of its

employees, or otherwise has violated

the fingerprinting requirements. In that

case, the district director would issue a

notice of intent to revoke detailing the

reasons for the intended action. Within

30 days of the receipt of the notice, the

DOE could submit evidence of rebuttal.

If the district director is not satisfied

with the evidence of rebuttal or if the

DOE fails to respond within the 30-day

period, the district director would notify
Federal Register / Vol. 60, No. 93 / Monday, May 15, 1995 / Proposed Rules 25859

the DOE of the revocation, and of its

right to appeal. If the violations are

egregious, such as failure to verify the

identity of the individuals seeking

fingerprinting, the district director

could issue a suspension order and

place the DOE on immediate

suspension. If the reason for suspension

is correctable, the DOE under

suspension could submit evidence of

corrective action to the district director

within 30 days and request a second

inspection. Upon approval by the

district director, the DOE would be

allowed to resume fingerprinting on

probation pending the results of the

reinspection.

7. Confidentiality

Section 264(b) of the Act provides

that all registration and fingerprint

records made under Title II are

confidential and may be made available

only (1) to Federal, State, and local law

enforcement agencies, upon request,

pursuant to section 287(f)(2) of the Act,

and (2) to such persons and agencies as

may be designated by the Attorney

General. To preserve confidentiality, the

proposed regulation would prohibit a

DOE from releasing the fingerprints

taken pursuant to the provisions of 8

CFR 103.2(e), other than to the Service

or to the subject or as otherwise

provided in the Service’s regulations.

This restriction is not intended to

preclude law enforcement agencies

registered under 8 CFR 103.2(e) from

using the fingerprints they have

collected for immigration purposes in

other law enforcement pursuits.

8. Effective Date

Upon publication of the final

regulation in the Federal Register,

qualifying outside entities may apply to

the district director having jurisdiction

over the location of their businesses for

certification as a DOE. During the initial

certification phase, the Service will

allow an overlapping period to give

outside entities sufficient time to obtain

certification. To facilitate a smooth

transition to the new fingerprinting

environment, the Service intends to

implement the certification process,

within a 6-month period, in two stages:

(1) As of 120 days from the date of

publication of the final rule in the

Federal Register, the service would

require that all fingerprints submitted

by immigration benefit applicants be

taken by either a Service employee, a

DOE fingerprinter, or an outside entity

who has completed and filed an

application for certification with the

Service; and (2) As of 180 days from the

date of publication of the final rule in

the Federal Register, the Service would

phase out all uncertified fingerprinters.

As indicated, the Service does not

plan to implement the new

fingerprinting process to a full scale

until 6 months after the final rule has

taken effect, but it would begin to

implement the attestation provision of

the proposed regulation before the end

of the transitional period. As of 90 days

from the date of publication of the final

rule in the Federal Register, the Service

would require that all fingerprint cards

submitted by benefit applicants be

accompanied by an attestation on Form

I–850A by the fingerprinter. An outside

entity that has completed and filed an

application for DOE status prior to 90

days from the date of publication of the

final rule in the Federal Register may,

pending the Service’s action upon its

application, take fingerprints and

complete the Form I–850A, indicating

that its application for DOE status is

pending. This provisional authority will

cease if its application is denied or as

of 180 days from the date of publication

of the final rule in the Federal Register.

The information collection

requirements contained in this rule have

been cleared by the Office of

Management and Budget, under the

provisions of the Paperwork Reduction

Act. Clearance numbers for these

collections will be contained in 8 CFR

299.5, Display of Control Numbers.

Regulatory Flexibility Act

The Service has examined the impact

of this proposed rule in light of

Executive Order 12866 and the

Regulatory Flexibility Act (5 U.S.C. 603,

et seq.) and has drafted this rule in a

way to minimize the impact that it has

on small business while meeting its

intended objectives.

As set forth more fully elsewhere in

the preceding supplemental

information, the current fingerprinting

process does not adequately ensure

either the quality or the integrity of

fingerprints submitted to the Service by

applicants for immigration benefits.

This rulemaking action is being

conducted in order to address the

concerns of the Justice Department’s

Office of the Inspector General (OIG)

and the Committee on Appropriations of

the United States Senate regarding the

current fingerprinting process.

According to an OIG report issued in

February 1994, 11% of the total number

of fingerprint cards submitted by the

Service to the FBI during fiscal year

1993 were rejected by the FBI as

unclassifiable. That is a high level of

rejection based on the quality of the

fingerprints, resulting in unnecessary

burdens on the Service, the FBI , and

the applicants. Moreover, in the absence

of a system to designate entities to take

fingerprints, the Service often does not

know who took the fingerprints and

lacks ready means to determine if the

fingerprints are actually those of the

person submitting them.

The objectives of this proposed rule

are to facilitate processing of

applications for immigration benefits,

protect the integrity of the fingerprinting

process, and relieve strain on Service

resources by establishing criteria for the

certification of designated outside

entities to take fingerprints. The legal

basis for this rule is the authority

conferred upon the Attorney General

and, by delegation, upon the Service by

section 103 (a) and (b) of the

Immigration and Nationality Act to

establish such regulations as are

necessary to carry out its provision. This

rule will substantially promote the

Service’s ability to identify and deny

benefits to ineligible aliens, and to

promptly and effectively administer the

immigration laws of the United States

by reducing unnecessary delays caused

by poor fingerprint cards.

The Service believes that there are

approximately 3,000 outside entities

which are taking fingerprints for

immigration benefit applicants. Because

the entities providing fingerprinting

services at present are primarily small

businesses, the Service has developed

and reviewed this proposed rule with

the needs and circumstances of small

businesses specifically in mind. The

Service is not aware of any relevant

Federal rules which duplicate, overlap

or conflict with this proposed rule.

The Service has considered

significant alternatives to this proposed

rule which accomplish the objectives

and which minimize any significant

economic impact of this rule on small

entities, including the use of contracting

or greater use of Service facilities. The

Service has sought to avoid burdens on

outside entities beyond those

requirements needed to improve the

quality of the fingerprints taken and to

provide assurance to the Service that the

fingerprints it receives are genuine. As

appropriate, requirements have been

drafted as performance standards, for

example: that the fingerprints DOEs take

be legible and classifiable; that DOE

personnel charged with the

responsibility to take fingerprints pass

an FBI criminal history records check;

and that such DOE personnel be trained

in fingerprinting or otherwise be able to

demonstrate their proficiency.

The Service considered the purposes

for certification and made the following

determinations:
25860 Federal Register / Vol. 60, No. 93 / Monday, May 15, 1995 / Proposed Rules

1. This rule must improve the quality

of fingerprints taken for immigration

benefit applicants by providing for the

training of persons taking fingerprints or

by their demonstration of proficiency in

doing so. A beneficial result of

improving the quality of fingerprints

will be to reduce amount of time wasted

by the applicant and by the Service in

the processing and retaking of smeared

or otherwise unusable fingerprints. This

rule must also improve the integrity of

the fingerprint process. This is

accomplished by the licensing of DOE’s

and by the requirement that attestations

be submitted along with the

fingerprints. A beneficial result of

improving the integrity will be to reduce

the number of immigration benefits

improperly granted.

Many outside entities currently taking

fingerprints do so with acceptable

standards of quality control and

applicant verification. The Service

believes that such entities will have no

difficulty qualifying under this rule. The

eligibility criteria of this rule have been

minimized as far as possible while

remaining consistent with the achieving

of Service objectives in order to allow

outside entities which at present do not

meet acceptable standards to raise their

standards to acceptable levels without

undue burden.

2. Training requirements should be

flexible in order to avoid unduly

burdening DOEs. Accordingly, the

Service will exempt from the training

requirement those individuals who have

been previously trained by the Service

or the FBI, or who can otherwise

demonstrate proficiency. Furthermore,

the Service will allow a DOE to train its

new employees with an employee who

was initially trained by the Service or

the FBI.

3. DOEs should decide for themselves

what is a reasonable fee for the services

they provide. Instead of setting a

fingerprinting fee for the DOEs, the

Service believes that the appropriate

amount should be determined by the

marketplace. Therefore, the proposed

regulation would require that a DOE

make its fee known to the Service when

applying for certification. The Service

would encourage healthy competition

by compiling a DOE fee list and making

it available to the public.

4. The regulation is a mechanism for

setting guidelines for quality control

and should be educational in nature.

The regulation is designed to stress

training and voluntary compliance. In

the absence of willful misconduct, the

DOEs, found to be in violation of the

established regulations are not subject to

sanctions until they had been given an

opportunity for a rebuttal or a second

inspection within 30 days. The Service

will only take actions against those

DOEs which have failed to submit

evidence of rebuttal or take corrective

actions within the 30-day period.

5. There should be a three-month

transitional period during which an

outside entity may continue to take

fingerprints. Entities that apply for

certification during this three-month

period will be grandfathered, pending

the Service’s decision to grant or deny

certification. This will allow the Service

to regain control of the fingerprinting

process at the earliest possible date

without disrupting an outside entity’s

ability to conduct routine business.

After the transitional period, an outside

entity which has applied for

certification before the end of the

transitional period may continue to take

fingerprints until the Service acts on its

application, as long as it completes a

standard attestation, Form I–850A, for

each of the immigration benefit

applicants it fingerprints and indicates

that its application for certification is

pending.

The Service has designed the

attestation form to allow the DOEs to

partially fill in the information

concerning the DOE, then provide

reproduced copies of the partially

completed form for its fingerprinters to

use. The person who actually takes the

fingerprints would then easily be able to

complete the form with the information

specific to the person being

fingerprinted.

6. The Service will charge DOEs an

application fee that is based on actual

cost. The Service is proposing to charge

$370 for an initial application and $200

for a renewal to underwrite the

processing and administrative costs

incurred in the DOE certification

process. The proposed fee, which is

supported by an estimated fee analysis,

is based on costs relating to staffing,

training of Service personnel on DOE

certification process, adjudication of

applications, oversight of DOEs, as well

as providing fingerprinting training to

DOEs. In addition, due to concerns for

national security, the Service is

proposing to require all employees of

outside entities responsible for taking

fingerprints to pass an FBI fingerprintcheck. Since the fingerprint check and

related processing currently costs the

Service about $23 per person, an

employer will also be required to pay an

additional fee of $23 for each of its

employees submitted for approval or

each change of employees. Although

this rule imposes a fee on qualified

small business entities to conduct

fingerprinting services, the fee is

minimal and will not have a significant

economic impact on small entities.

DOEs will be able to recoup the cost of

the fee through the fees they charge for

their fingerprinting services.

7. In addition to the cost of

certification and renewals, it is

estimated that each applicant would be

required to expend approximately two

and half hours every three years

completing the appropriate application

for certification or renewal of

certification. The Service is not asking

the applicants to provide more

information than what is necessary for

adjudicating their applications.

8. The Service will give the public

sufficient time to comment on the

proposal for rulemaking, especially,

those small business entities that will be

affected by it. To that end, the Service

has set a 60-day comment period. The

Service will consider all comments

received within the comment period

and make changes, as appropriate.

Executive Order 12866

This rule is considered by the

Department of Justice, Immigration and

Naturalization Service, to be a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

Regulatory Planning and Review, and

has been reviewed by the Office of

Management and Budget. As noted in

the supplementary section of the rule,

this action is intended to facilitate

processing of applications for

immigration benefits and protect the

integrity of the fingerprinting process,

while reviewing the strain on Service

resources.

Executive Order 12612

The regulation will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this rule does not

have sufficient federalism implications

to warrant the preparation of a

Federalism Assessment.

Executive Order 12606

The Commissioner of the Immigration

and Naturalization Service certifies that

she has addressed this rule in light of

the criteria in Executive Order 12606

and has determined that it will not have

any impact on family well-being.

List of Subjects

8 CFR Part 103

Administrative practice and

procedure, Authority delegations
Federal Register / Vol. 60, No. 93 / Monday, May 15, 1995 / Proposed Rules 25861

(Government agencies), Reporting and

recordkeeping requirements.

8 CFR Part 299

Immigration, Reporting and

recordkeeping requirements.

Accordingly, chapter I of title 8 of the

Code of Federal Regulations is proposed

to be amended as follows:

PART 103—POWERS AND DUTIES OF

SERVICE OFFICERS; AVAILABILITY

OF SERVICE RECORDS

1. The authority citation for part 103

continues to read as follows:

Authority: 5 U.S.C. 552, 552a; 8 U.S.C.

1101, 1103, 1201, 1252 note, 1252b, 1304,

1356; 31 U.S.C. 9701; E.O. 12356, 47 FR

14874, 15557, 3 CFR, 1982 Comp., p. 166; 8

CFR part 2.

2. In § 103.2 a new paragraph (e) is

added to read as follows:

§ 103.2 Applications, petitions, and other

documents.

(e) Fingerprinting. Service regulations

require that applicants for various types

of immigration benefits submit their

fingerprints with the applications. The

fingerprinting of these benefit

applicants must be carried out pursuant

to the provisions contained in this

paragraph (e).

(1) Fingerprinting by the Service.

Where feasible, a Service local office

shall provide fingerprinting service to

applicants for immigration benefits. The

district director shall assess available

resources in his or her district office to

determine whether the district office

can provide such service.

(2) Certification of designated outside

entities. Where the district director

determines that the district office does

not have the resources to provide

fingerprinting services, the district

director may certify one or multiple

outside entities as a designated outside

entity (DOE) to provide the service.

Where a district office does not have the

resources to fingerprint all applicants,

the district director may certify outside

entities to take fingerprints to

supplement the district’s efforts.

(3) Transition to use designated

outside entities. As of 180 days from the

date of publication of the final rule in

the Federal Register, the Service will

not accept fingerprint cards for

immigration benefits unless they are

taken by:

(i) Designated Service employees;

(ii) A DOE accompanied by a

completed attestation, Form I–850A; or

(iii) An outside entity that has

completed and filed an application for

DOE status prior to 90 days from the

date of publication of the final rule in

the Federal Register may, pending the

Service’s action upon its application,

take fingerprints and complete the Form

I–850A, indicating that its application

for DOE status is pending. This

provisional authority for an outside

entity shall cease if its application is

denied or as of 180 days from the date

of publication of the final rule in the

Federal Register, whichever occurs first.

(4) Eligibility for DOE. An outside

entity applying for DOE status may be

either a business, a not-for-profit

organization, a Federal, state, or local

law enforcement facility, or an

individual.

(i) An individual must establish that

he or she is a United States citizen or

lawful permanent resident, and has not

been convicted of an aggravated felony

or any crime involving dishonesty or

false statement or subjected to a civil

penalty for fraud.

(ii) A business or a not-for-profit

organization must establish that it is of

no known disrepute, that the majority

(more than 50%) of its ownership is

comprised of United States citizen(s) or

lawful permanent resident(s), and that

its principal officers, directors or

partners meet the standard for

individual applicants. Subsidiaries of

foreign corporations may be exempted

from the ownership requirement,

provided that the subsidiary is

incorporated in the United States.

(iii) A Federal, state or local law

enforcement facility may register as a

designated outside entity but does not

need to comply with the requirements

in this paragraph regarding operating

licenses, identification and training of

employees or application fees.

(5) Criminal history records check.

(i) An identification and criminal

history record check is required for each

person listed on the application for DOE

certification. The district director shall

designate Service personnel of the

district office to obtain and transmit

fingerprints to the Federal Bureau of

Investigation (FBI) for such checks. If a

DOE needs to add new or replacement

employees to the personnel approved by

the Service, it must file a new

application, with the required fee for the

FBI fingerprint check, with the district

director having jurisdiction over the

DOE’s place of business. The Service

will accept fingerprints from an

applicant for DOE-certification only if

the fingerprints were taken by

designated Service personnel.

(ii) An employee who has been

convicted of an aggravated felony or a

crime involving dishonesty or false

statement, or subjected to a civil penalty

for fraud, may not be assigned to take

fingerprints, unless the DOE can

establish to the Service’s satisfaction

that the circumstances of the crime are

such (because of the person’s youth at

the time of the conduct, and/or the

number of years that have passed since

then) that there can be no reasonable

doubt as to the person’s reliability in

taking fingerprints in conformity with

these rules.

(6) Requirements. Except as provided

under paragraph (e)(9), an outside entity

seeking certification as a DOE must

agree that it will:

(i) Abide by Service regulations

governing certification of DOEs;

(ii) Permit Service personnel to make

on-site inspections to ensure

compliance with required procedures;

(iii) Ensure that the personnel

responsible for taking fingerprints

received training in fingerprinting

procedures by the Service or FBI

(exceptions can be made for those who

have previously received training from

the FBI or the Service or who can

otherwise demonstrate proficiency);

(iv) If training in fingerprinting is in

progress or has been scheduled and will

be conducted prior to the approval of

the application, notification of

completion of training must be made to

the district director where the

application was filed;

(v) Use only FBI or Service-trained

employees to train its new employees

on fingerprinting procedures

(exceptions can be made for those who

have previously received training from

the FBI or the Service) to conduct

periodic refresher training as needed;

(vi) Make every reasonable effort to

take legible and classifiable fingerprints,

using only black ink;

(vii) Retake the applicants’ prints free

of charge if the DOE initially fails to

take legible and classifiable prints;

(viii) Use only fingerprint cards

(Forms FD–258 or other Service

specified forms) that were provided by

the Service for all fingerprints taken for

immigration purposes;

(ix) Ensure that the fingerprint cards

are correctly completed using FBI

prescribed identity codes;

(x) Ensure that the fingerprint cards

are signed by the applicants in their

presence, and by the fingerprinter;

(xi) Verify the identification of the

person being fingerprinted by

comparing the information on the

fingerprint card, Form FD–258, or other

Service specified forms with the

applicant’s passport, alien registration

card, or other acceptable Service issued

photo-ID;

(xii) Complete an attestation on Form

I–850A and provide it to the person

being fingerprinted along with the

fingerprint cards;
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(xiii) Note on the fingerprint card,

Form FD–258, or other Service specified

forms that it has been certified by INS

as a DOE, giving its DOE certification

number (including the fingerprinter’s ID

number), expiration date, name, and

address;

(xiv) Charge no more than a

reasonable fee, if a fee is charged, and

make that amount known to the Service;

(xv) Immediately notify the director

having jurisdiction over the applicant’s

place of business of any changes in

personnel responsible for taking

fingerprints;

(xvi) Request approval for any new

personnel to take fingerprints according

to the procedures set forth in paragraphs

(e) (4), (5), (6), (8), and (9) of this

section;

(xvii) Notify the Service of any

conviction for a crime involving

dishonesty or false statement or civil

penalty for fraud subsequent to the

DOE’s certification of an employee

authorized to take fingerprints; and

(xviii) Maintain clean and suitable

facilities that are accessible to the

general public.

(7) Attestation.

(i) To ensure the integrity of the

fingerprint cards submitted by

applicants for benefits, all DOE

fingerprinters must fill out an attestation

on Form I–850A each time they take

fingerprints for an immigration benefit

applicant. Such attestation must be

signed and dated by the fingerprinter

and show:

(A) The fingerprinter’s name and ID

number (as assigned by the Service) and

a statement that the requirements of

§ 103.2(e) have been met;

(B) The name, address, certification

number (as assigned by the Service) and

expiration date of the certified DOE;

(C) That he or she has checked the

identity of the person he or she

fingerprinted and has listed the

identification number from the

individual’s passport, alien registration

card, or other acceptable Service issued

photo-ID; and

(D) That it is signed and dated by the

benefit applicant.

(ii) DOE fingerprinters must execute

the attestations in duplicate in the

presence of the applicant. The original

copy must be given to the applicant to

be filed with the Service with his or her

fingerprint card, and the second copy,

which may be a reproduced copy of the

first one, must be kept on file at the DOE

for at least three months for Service

inspection.

(8) Application. An outside entity

seeking certification as a DOE, or a DOE

seeking approval for personnel change,

must submit an application on Form I–

850, Application for Certification as a

Designated Outside Entity to Take

Fingerprints, to the director having

jurisdiction over the applicant’s place of

business. The application must include

the following:

(i) The required fee;

(ii) A copy of all business licenses or

permits required for its operations;

(iii) The names and signatures of

personnel who will take fingerprints of

applicants for immigration benefits;

(iv) A set of fingerprints taken by a

Service employee on Form FD–258 for

each employee whose name appears on

the application form pursuant to

paragraph (e)(4) of this section, and the

required fee (for each employee) for the

FBI criminal history record check;

(v) A statement on Form I–850

indicating the fee, if any, it will charge

for the fingerprinting service; and

(vi) A signed statement on Form I–850

attesting that it will abide by the Service

regulation governing fingerprinting and

the certification of DOEs.

(9) Registration of police stations or

military police facilities.

(i) Federal, state, or local police

stations or military police facilities may

individually register to take fingerprints

of applicants for immigration benefits

by filing a Form I–850, Application for

Certification as Designated Outside

Entity to Take Fingerprints, completing

only the relevant parts of the form. No

fee or fingerprint cards need to be

submitted for their personnel charged

with the fingerprinting responsibility;

nor are these personnel required to have

additional training in fingerprinting

techniques and procedures.

Furthermore, law enforcement agencies

registered to take fingerprints under this

paragraph are not subject to on-site

inspections by the Service. The Service

will communicate with these agencies

through regular liaison channels at the

local level.

(ii) A police department may request

registration on behalf of all of its

subordinate stations on a single

application by listing their precinct

numbers and addresses. Once

registered, the Service will include the

individual police stations and military

police facilities on the DOE listings and

make available to them the Service’s

fingerprinting regulations and

instructions.

(10) Confidentiality. A DOE is

prohibited from releasing fingerprints

taken pursuant to certification, other

than to the Service or to the applicant

or as otherwise provided in the

Service’s regulations. Law enforcement

agencies enumerated under paragraph

(e)(9) of this section are not precluded

from using the fingerprints they have

collected for immigration purposes in

other law enforcement efforts.

(11) Approval of application. The

district director shall consider all

supporting documents submitted and

may request additional documentation

as he or she may deem necessary. When

the application has been approved, the

district director shall assign a

certification to the DOE and individual

ID numbers to its approved fingerprints.

The approval will be valid for a period

of 3 years and may be renewed in

accordance with paragraph (e)(13) of

this section. The district director shall

notify the applicant of the approval and

include in the notice of approval the

following items:

(i) Instructions on how to prepare

Applicant Fingerprint Cards, Form FD–

258;

(ii) A listing of acceptable Service

issued photo-IDs; and

(iii) A statement detailing the DOE’s

responsibilities and rights, including the

renewal and revocation procedures as

provided by paragraph (e) of this

section.

(12) Denial of the application. The

applicant shall be notified of the denial

of an application, the reasons for the

denial, and the right to appeal under 8

CFR part 103.

(13) Renewal.

(i) Subject to paragraph (e)(13)(ii) of

this section, a DOE may apply for

renewal of its certification at least

ninety (90) days prior to the expiration

date to prevent interruption in its ability

to provide fingerprinting services. An

application for renewal must be made

on Form I–850 with the required fee and

documentation as continued in

paragraph (e)(8) of this section. In

considering an application for renewal,

the Service will give particular weight

to the volume and nature of complaints

or issues that have been raised in the

past with respect to the DOE, by the

Service, the FBI, or the public, or the

absence of such complaints or issues.

Each renewal shall be valid for 3 years.

Failure to apply for renewal will result

in the expiration of the outside entity’s

DOE status.

(ii) The Service will certify and renew

DOEs as long as the need for their

service exists. Following the

development of an automated

fingerprint information system, the

Service will determine if there is a

continued need for the DOEs’ services,

and if so, whether they should switch to

newer technologies, such as acquiring

compatible automated fingerprinting

equipment. In either event, the Service

shall issue a public notification or make

a new rule, as appropriate. Nothing in

this paragraph shall preclude the
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Service from discontinuing the DOE

certification program after the initial

three years.

(14) Revocation of certification. The

district director shall revoke an

approval of application for DOE status

under the following circumstances:

(i) Automatic revocation. The

approval of any application is

automatically revoked if the DOE:

(A) Goes out of business prior to the

expiration of the approval; or

(B) Files a written withdrawal of the

application.

(ii) Revocation on notice. The Service

shall revoke on notice the certification

of a DOE which has violated the

regulations governing the fingerprinting

process as established in paragraph (e)

of this section.

(A) If the district director finds a DOE

fails to meet the required standards, he

or she will issue a notice of intent to

revoke detailing reasons for the

intended revocation. Within 30 days of

the receipt of the notice, the DOE may

submit evidence of rebuttal or request

an inspection following corrective

actions. The district director shall

cancel the notice of intent to revoke if

he or she is satisfied with the evidence

presented by the DOE or the results of

a reinspection.

(B) For egregious violations, such as

failure to verify the identity of the

persons seeking fingerprinting, the

district director may, in his or her

discretion, issue a suspension order and

place the DOE on immediate

suspension. The DOE under suspension

may submit a plan for corrective action

to the district director within 30 days

and request a reinspection. If the district

director approves the plan, he or she

shall permit the DOE to resume

fingerprinting on probation pending the

results of the reinspection. The district

director shall cancel the suspension

order if he or she finds the results of a

reinspection satisfactory.

(C) If the DOE fails to submit evidence

of rebuttal or corrective actions within

the 30-day period, or if unsatisfactory

conditions persist at the second

inspection, the district director shall

notify the DOE of the revocation

decision, detailing the reasons, and of

its rights to appeal.

(D) The district director shall consider

all timely submitted evidence and

decide whether to revoke the DOE’s

approval.

(iii) If the Service’s investigation

uncovers evidence of material

misconduct, the Service may, in

addition to revocation, refer the matter

for action pursuant to section 274C of

the Act (civil document fraud), 18

U.S.C. 1001 (false statement), or other

appropriate enforcement action.

(15) Appeal of revocation of approval.

The revocation of approval may be

appealed to the Associate Commissioner

for Examinations under 8 CFR part 103.

There is no appeal from an automatic

revocation.

(16) List of DOEs. Each district office

shall make available a list of the DOEs

it has certified to take fingerprints. Such

list shall contain the name, address,

telephone number, if available, and the

fee of each DOE certified in the district.

(17) Change of address or in fee. A

DOE shall promptly report to the

Service, on Form I–850, any change of

address or in the fee it is charging. The

district office shall update the list of

DOEs and their fees upon receipt of the

notice of changes.

3. In § 103.7, paragraph (b)(1) is

amended by adding to the listing of

forms, in numerical sequence, the entry

for ‘‘Form I–850’’ to read as follows:

§ 103.7 Fees.

* * * * *

(b) * * *

(1) * * *

* * * * *

Form I–850. For filing application for

certification as designated outside

entity—$370 plus $23 for each

fingerprint check for initial certification;

$200 for renewal of certification; and

$23 for each fingerprint check for

adding or replacing employees. No fee

will be charged to police stations or

military police facilities registering

pursuant to § 103.2(e)(9).

* * * * *

PART 299—IMMIGRATION FORMS

4. The authority citation for part 299

continues to read as follows:

Authority: 8 U.S.C. 1101, 1103; 8 CFR part

2.

5. Section 299.1 is amended by

adding to the listing of forms, in

numerical sequence, the entry for Forms

‘‘I–850 and I–850A’’ to read as follows:

§ 299.1 Prescribed forms.

* * * * *

Form No. Edition

date Title

* * * * *

I–850 ...... XXXXX ... Application for Certification as Designated Outside

Entity to Take Fingerprints.

I–850A ... XXXXX ... Attestation by Designated Outside

Entities Certified to

Take Fingerprints.

* * * * *

6. Section 299.5 is amended by

adding to the listing of forms, in proper

numerical sequence, the entry for Forms

‘‘I–850 and I–850A’’ to read as follows:

§ 299.5 Display of control numbers.

* * * * *

INS form

No. INS form title

Currently

assigned

OMB

* * * * *

I–850 ...... Application for Certification as Designated Outside

Entity to Take

Fingerprints.

1115–0166

I–850A ... Attestation by Designated Outside

Entities Certified

to Take Fingerprints.

1115–0194

* * * * *

Dated: March 24, 1995.

Doris Meissner,

Commissioner, Immigration and

Naturalization Service.

Note: Appendix A and B will not appear

in the Code of Federal Regulation.

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[FR Doc. 95–11733 Filed 5–12–95; 8:45 am]

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