Federal Register / Vol. 61, No. 108 / Tuesday, June 4, 1996 / Rules and Regulations 28003

pork and pork products. The end result

is expressed in an amount per pound for

each type of pork or pork product. To

determine the amount per kilogram for

pork and pork products subject to

assessment under the Act and Order, the

cent per pound assessments are

multiplied by a metric conversion factor

2.2046 and carried to the sixth decimal.

The formula in the preamble for the

Order at 51 FR 31901 contemplated that

it would be necessary to recalculate the

equivalent live animal value of

imported pork and pork products to

reflect changes in the annual average

price of domestic barrows and gilts to

maintain equity of assessments between

domestic porcine animals and imported

pork and pork products.

The average annual market price

increased from $39.57 in 1994 to $41.76

in 1995, an increase of about 6 percent.

This increase will result in a

corresponding increase in assessments

for all HTS numbers listed in the table

in § 1230.110, 60 FR 29965; June 7,

1995, of an amount equal to twohundredths of a cent per pound, or as

expressed in cents per kilogram, fourhundredths of a cent per kilogram.

Based on the most recent available

Department of Commerce, Bureau of

Census, data on the volume of imported

pork and pork products, the increase in

assessment amounts would result in an

estimated $104,000 increase in

assessments over a 12-month period.

On March 22, 1996, AMS published

in the Federal Register (61 FR 11776) a

proposed rule which would increase the

per pound assessment on imported pork

and pork products consistent with

increases in the 1995 average prices of

domestic barrows and gilts to provide

comparability between imported and

domestic assessments. The proposal was

published with a request for comments

by April 22, 1996. No comments were

received.

Accordingly, this final rule

establishes the new per-pound and perkilogram assessments on imported pork

and pork products.

List of Subjects in 7 CFR Part 1230

Administrative practice and

procedure, Advertising, Agricultural

research, Marketing agreement, Meat

and meat products, Pork and pork

products.

For the reasons set forth in the

preamble, 7 CFR Part 1230 is amended

as follows:

PART 1230—PORK PROMOTION,

RESEARCH, AND CONSUMER

INFORMATION

1. The authority citation for 7 CFR

Part 1230 continues to read as follows:

Authority: 7 U.S.C. 4801–4819.

Subpart B—[Amended]

2. In Subpart B—Rules and

Regulations, § 1230.110 is revised to

read as follows:

§ 1230.110 Assessments on imported pork

and pork products.

(a) The following HTS categories of

imported live porcine animals are

subject to assessment at the rate

specified.

Live porcine

animals Assessment

0103.10.0000 0.45 percent Customs Entered Value.

0103.91.0000 0.45 percent Customs Entered Value.

0103.92.0000 0.45 percent Customs Entered Value.

(b) The following HTS categories of

imported pork and pork products are

subject to assessment at the rates

specified.

Pork and pork products

Assessment

Cents/lb Cents/kg

0203.11.0000 ............ .27 .507058

0203.12.1010 ............ .27 .507058

0203.12.1020 ............ .27 .507058

0203.12.9010 ............ .27 .507058

0203.12.9020 ............ .27 .507058

0203.19.2010 ............ .31 .573196

0203.19.2090 ............ .31 .573196

0203.19.4010 ............ .27 .507058

0203.19.4090 ............ .27 .507058

0203.21.0000 ............ .27 .507058

0203.22.1000 ............ .27 .507058

0203.22.9000 ............ .27 .507058

0203.29.2000 ............ .31 .573196

0203.29.4000 ............ .27 .507058

0206.30.0000 ............ .27 .507058

0206.41.0000 ............ .27 .507058

0206.49.0000 ............ .27 .507058

0210.11.0010 ............ .27 .507058

0210.11.0020 ............ .27 .507058

0210.12.0020 ............ .27 .507058

0210.12.0040 ............ .27 .507058

0210.19.0010 ............ .31 .573196

0210.19.0090 ............ .31 .573196

1601.00.2010 ............ .37 .683426

1601.00.2090 ............ .37 .683426

1602.41.2020 ............ .41 .749564

1602.41.2040 ............ .41 .749564

1602.41.9000 ............ .27 .507058

1602.42.2020 ............ .41 .749564

1602.42.2040 ............ .41 .749564

1602.42.4000 ............ .27 .507058

1602.49.2000 ............ .37 .683426

1602.49.4000 ............ .31 .573196

Dated: May 28, 1996.

Kenneth C. Clayton,

Acting Administrator.

[FR Doc. 96–13833 Filed 6–3–96; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103 and 299

[INS No. 1666–94]

RIN 1115–AD75

Certification of Designated

Fingerprinting Services

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Final rule.

SUMMARY: This rule amends the

Immigration and Naturalization Service

(Service) regulations by certifying

designated fingerprinting services (DFS)

to take fingerprints of applicants for

immigration benefits. This rule

establishes the eligibility requirements

and application procedures for DFS

certification. When the rule is

implemented, it will facilitate the

processing of applications for

immigration benefits, protect the

integrity of the fingerprinting process,

and relieve the strain on Service

personnel resources.

EFFECTIVE DATE: This rule is effective

July 5, 1996. Entities desiring to

continue providing fingerprint services

for immigration benefits without

interruption must file an application for

DFS status in accordance with the

standards of this rule no later than

November 1, 1996. After December 31,

1996, the Service will not accept

fingerprints taken by entities who have

not filed an application for DFS

certification and been approved by the

Service.

FOR FURTHER INFORMATION CONTACT:

Jack Rasmussen, Adjudications Officer,

or Kathleen Hatcher, Adjudications

Officer, Adjudications Division,

Immigration and Naturalization Service,

425 I Street, NW., Room 3214,

Washington, DC 20536, telephone (202)

514–3240; Kim Mangan, Adjudications

Officer, Immigration and Naturalization

Service, 2901 Metro Dr., Suite 100,

Bloomington, MN 55425, telephone

(612) 335–2234; Delia Ramirez,

Adjudications Officer, Immigration and

Naturalization Service, EOFP 6th Fl.,

P.O. Box 30080, Laguna Niguel, CA

92607–0080, telephone (714) 360–3314;

or Yolanda Sanchez, Adjudications

Officer, Immigration and Naturalization
28004 Federal Register / Vol. 61, No. 108 / Tuesday, June 4, 1996 / Rules and Regulations

Service, 509 N. Belt, Houston, TX

77060, telephone (713) 229–2833. These

are not toll-free numbers.

SUPPLEMENTARY INFORMATION:

Background

Applicants for various types of

immigration benefits are required to

submit a set of fingerprints along with

their applications. These fingerprints

are forwarded to the Federal Bureau of

Investigation (FBI) for criminal history

records clearance. The Service’s field

offices frequently have been unable to

provide timely fingerprinting services

due to the fluctuating demand in many

localities. As a result of these

fluctuating fingerprinting demands,

applicants for immigration benefits

frequently sought fingerprinting services

from outside enterprises. Initially, the

Service gauged the quality of outside

fingerprinting through reviewing and

evaluating individual application

fingerprint documents. However, with

increasing volume of applications

requiring fingerprints, this approach

proved to be less than effective. In

addition, concerns were raised about the

integrity of fingerprints submitted with

many applications. In February of 1994,

the Inspector General of the Department

of Justice completed a study regarding

the Service’s fingerprint controls. The

study identified two major deficiencies

as follows: (1) the Service relies on

unknown and untrained outside entities

to prepare fingerprints and (2) the

Service does not know if the

fingerprints submitted by the applicants

are their own. Additionally, the Office

of Inspector General (OIG) pointed out

that fingerprint cards submitted by

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.

Following the OIG report, the General

Accounting Office (GAO) conducted an

audit of the Service’s fingerprint

collection process and ratified the OIG’s

findings. Furthermore, on July 14, 1994,

the Senate Committee on

Appropriations included language

directing that the Service implement a

fingerprint collection system which

permits only trained Service employee,

recognized law enforcement agencies, or

Service-certified outside entities to take

fingerprints.

The Service responded by revising

and refining its policies and publishing

these in a notice of proposed rule

making in the Federal Register on May

15, 1995 (60 FR 25856) with a 60-day

public comment period. The public

comment period ended on July 14, 1995.

The notice of proposed rulemaking

presented a certification process that

included eligibility criteria, certification

requirements, application procedures,

and a date on which the Service will

stop accepting fingerprint cards

prepared by unauthorized organizations.

Name Change From DOE to DFS

In the proposed rule the Service

referred to organizations certified to take

fingerprints as ‘‘DOEs’’ (Designated

Outside Entities). The Service has made

a technical name change from ‘‘DOE’’

(Designated Outside Entity) to ‘‘DFS’’

(Designated Fingerprinting Services) in

order to minimize confusion and

ambiguity with other organizations

performing functions ‘‘outside’’ the

Service. This technical name change to

‘‘DFS’’ (Designated Fingerprinting

Services) more accurately describes the

specific function or services being

provided by the certified and designated

organization(s). Furthermore, the

Service desires to increase outside or

community-based partnership roles in

other areas related to immigration forms

or documents, and many immigrationrelated service organizations have

expressed concern that the certification

given these outside entities may have

been interpreted beyond the intended

fingerprinting role.

Discussion of Comments

Forty-four individuals or groups

submitted comments. Most commenters

strongly supported the fingerprinting

certification process. Many expressed an

interest in seeking DFS status. Only

three commenters preferred the current

fingerprinting procedures over the new

certification process. The following is a

summarized discussion of those

comments and the Service’s response.

Section 103.2(e)(1) Fingerprinting by

the Service

One commenter stated that the

purpose of this regulation is to establish

oversight of organizations that charge a

fee for fingerprinting services. This

commenter indicated that this purpose

should be clearly stated in the

regulation. The Service believes that the

proposed regulation was clear on this

point but has added language to the last

sentence of the general statement in the

introductory text of paragraph (e) to

make the purpose of this regulation

more explicit.

Another commenter suggested that

the Service stop providing

fingerprinting service altogether and,

instead, rely entirely on certified DFS(s).

The intent of the proposed rule was to

make available to INS customers high

quality fingerprinting services. In areas

where there may not be sufficient

business interest in the DFS process,

Service personnel will continue to offer

fingerprinting services. Accordingly,

INS local offices have the flexibility to

make decisions based on local

conditions.

In § 103.2(e)(2) of the proposed rule,

the Service provided that when district

offices do not have the resources to

provide fingerprinting services, they

shall certify ‘‘one or multiple outside

entities’’ as DFS(s) to provide the

service. One commenter asked INS to

clarify whether this provision gave the

district director broad discretionary

authority to limit the number of DFS(s)

he or she would certify. On closer

review of this provision, the proposed

language could be misleading or

improperly construed as allowing the

district director to designate a single or

a discretionary number of DFS(s) for the

entire immigration district. This

particular interpretion of the proposed

provision would be at odds with the

Service’s expectation that all district

directors certify as many DFS(s) as there

are qualified applicants. In the final

rule, the Service revised the language in

the proposed § 103.2(e)(2) and merged it

with § 103.2(e)(1) to clearly reflect this

policy. The text in § 103.2(e)(1) now

includes the provision that ‘‘the district

director shall consider all qualified

applicants for DFS certification and

certify applicants who meet the

regulatory standards to supplement the

district’s efforts.’’

Section 103.2(e)(2) Designated

Fingerprinting Services

The Service has renamed the new

§ 103.2(e)(2) as ‘‘Designated

fingerprinting services’’ and clarified

the different procedures involving the

two classes of designated fingerprinting

services: (1) Designated law

enforcement agencies (Federal, state,

and local police or military police); and

(2) other businesses, organizations, and

individuals. As a law enforcement

agency, a Federal, state, or local police

department may register with the

Service to gain automatic DFS status but

is exempted from the requirements in

this paragraph regarding operating

licenses, identification and training of

employees, attestation, inspections, or

application fees. On the other hand, all

other designated fingerprinting services,

including businesses, individuals, or

not-for-profit organizations, must abide

by the regulations and procedures

established in § 103.2(e).
Federal Register / Vol. 61, No. 108 / Tuesday, June 4, 1996 / Rules and Regulations 28005

Section 103.2(e)(3) Transition to use

Designated Fingerprinting Services

The Service has decided to implement

the DFS Certification Program in two

stages: (1) As of 120 days from the

effective date of this final rule, the

Service will require that all fingerprints

submitted must be taken by a Service

employee, a DFS fingerprinter, a

recognized law enforcement agency, or

an intending DFS who has completed

and filed an application for certification

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

after the effective date of the final rule,

the Service will no longer accept

fingerprint cards for immigration

benefits that are taken by unauthorized

fingerprinters. However, the Service

inadvertently misstated in paragraph

(e)(3)(iii) that an intending DFS or

organization would have only 90 days to

file an application for DFS certification

instead of 120 days. This has been

corrected in the final rule under

paragraph (e)(3)(i).

Two commenters were concerned that

possible delays in the processing of

applications for DFS certification or

renewal would interrupt the applicants’

businesses. They suggested that where

delayed adjudication occurred, the

Service grant the applicants an

automatic grace period provided that

the applications were timely filed (in

the case of initial certification, within

the 120-day window, in the case of

renewal, 90 days before the certification

expires). The Service recognizes these

concerns and has stressed the

importance of timely processing to its

field personnel during training sessions

on DFS certification. The Service is

confident that DFS applications will be

processed quickly, but agrees that in

case of lengthy processing delays, the

district director may, on a case-by-case

basis, grant discretionary relief to

applicants of a timely filed application

to avoid interruption to their businesses.

Section 103.2(e)(4) Eligibility for DFS

The Service proposed that DFS(s) be

U.S. citizens or lawful permanent

residents (LPRs), and in the case of a

business entity, that the majority

ownership of the business be held by

U.S. citizens and LPRs. One commenter

opposed this requirement, arguing that

people with other immigration status

could also be entrusted with this

responsibility. Another commenter said

that the majority-ownership

requirement would require not-for-profit

organizations to inquire into the legal

status of their volunteer officers, and

that these inquiries could be perceived

as an invasion of privacy and deter

interested individuals from

participating in volunteering work.

The U.S. citizens and LPR

requirements were designed for security

purposes. Since the Service will have to

rely on the DFS(s) to ensure the integrity

of the fingerprinting process, the status

of United States citizen or permanent

resident creates a reasonable

presumption of allegiance and loyalty.

While the Service is not persuaded that

not-for-profit organizations should be

exempted from the U.S. citizen and LPR

requirement, the ownership provision

may pose an undue burden on private

organizations. Specifically, the burden

imposed by this requirement does not

result in an equal or better enhancement

to security needs. Therefore, and until

the DFS certification program may be

evaluated over time, the Service has

now determined that the ownership

provision is not necessary. The

ownership language was removed.

Section 103.2(e)(5) Criminal History

Records Check

The same commenter also requested

that not-for-profit organizations and

their employees be exempt from the FBI

fingerprint check, arguing that this

requirement would invade their privacy

and deter participation by volunteers

who are usually prominent and

accomplished members of the society.

Another commenter asked for a waiver

of the FBI fingerprint check for not-forprofit entities approved by the Board of

Immigration Appeals under the

provisions of 8 CFR 292.2. Although it

is true that persons affiliated with BIAapproved entities under § 292.2

generally are respected and

accomplished individuals, this is also

likely to be true of other outside

fingerprinters. Since there is no

objective way to pre-determine any

individual’s moral character, it would

be unfair for the Service to selectively

exempt groups of DFS applicants from

the FBI fingerprint check. The objective

of this fingerprint check is to strengthen

and restore the integrity of this security

process. Information obtained from the

fingerprint check will not be shared

with any entity other than the

organization seeking certification or a

law enforcement agency should there be

an outstanding warrant.

The Service proposed to bar from DFS

status any individuals who have been

convicted of an aggravated felony or a

crime involving dishonesty or false

statement, or who have been subjected

to a civil penalty for fraud. However,

exceptions could be made for an

employee of an outside entity if

convincing mitigating factors exist—for

example, the person’s youth at the time

of the crime or the number of years that

have elapsed since the offense. Two

commenters objected to this provision,

arguing that there are no uniform

standards that can be used to determine

rehabilitation of a convicted felon.

These commenters urged that all

convicted felons be barred from taking

fingerprints regardless of when the

crime was committed. As a rule, the

Service will not approve a convicted

felon as a DFS fingerprinter. However,

if a convicted felon can demonstrate

that he or she has since been

rehabilitated and has led a productive,

constructive and law-abiding life in his

or her community and our society for

many years, the district director may

approve such an individual as a

fingerprinter. However, the Service

believes that cases like this should be

evaluated on a case-by-case basis. In any

case, the district director will not

approve a DFS fingerprinter with a

felony conviction unless the individual

can satisfactorily and clearly

demonstrate a record of rehabilitation.

The burden of proof rests solely with

the applicant.

Section 103.2(e)(6) Requirements

Paragraph (e)(6)(ii)

The commenters were evenly divided

on the issue of unannounced on-site

inspections. Three commenters, all

would-be DFS(s), were opposed to the

requirement that a DFS permit

unannounced on-site inspections by the

Service to ensure compliance with

regulatory requirements. These

commenters felt that Government

oversight of their businesses was not

needed because they regularly monitor

their own employees. One commenter

was concerned that surprise visits by

the Service would be disruptive to DFS

activities and violate the confidentiality

of individuals seeking legal assistance.

On the other hand, several commenters

praised the Service’s initiative in this

regard. One commenter pointed out that

his organization enjoyed a good rapport

with the Service’s field personnel when

working with them during the

Legalization Program, and is looking

forward to working closely with the

Service again as a DFS.

As explained earlier, the Service

undertook this rulemaking to restore

integrity and establish oversight of the

fingerprint process. The unannounced

on-site inspection requirement is a

quality control feature designed to

ensure compliance with the DFS(s)

certification requirements. At the same

time, on-site inspections provide the

Service with the opportunity to stay in

active communication with the DFS(s),
28006 Federal Register / Vol. 61, No. 108 / Tuesday, June 4, 1996 / Rules and Regulations

enabling the Service to evaluate the

effectiveness of the DFS certification

program. Only by observing DFS(s) at

work during their regular business

hours can the Service determine

whether the objectives of the DFS

certification are being met. The Service

will conduct these inspections in a

reasonable and nonintrusive manner in

order to minimize disruption to DFS

operations.

Paragraph (e)(6)(iii)

The Service proposed that outside

entities be trained in fingerprinting

techniques and procedures by the FBI or

the Service before receiving

certification, but that exceptions could

be made for an individual who could

demonstrate proficiency in

fingerprinting techniques. One

commenter pointed out that an

individual who is proficient in taking

fingerprints may not be knowledgeable

about the various DFS responsibilities

and requirements. Since the training

focuses both on fingerprinting

techniques and certification

requirements, including completion of

the attestation form and proper photo-ID

verification, it was recommended that

only those who have had ‘‘equivalent

training’’ be exempt from the training

requirement. The commenter’s point is

well taken and has been adopted.

Paragraph (e)(6)(iv)

The Service proposed that DFS

applicants notify the Service of the

completion of any scheduled training

prior to the approval of their

applications. One commenter

recommended that DFS(s) be required to

complete any scheduled training within

60 days of the submission of the

application. The Service considered this

suggestion, but decided that a time limit

is not necessary since a DFS employee

is not permitted to take fingerprints

until he or she has been approved by the

Service. A DFS employee who fails to

complete the scheduled training in a

timely manner will only delay his or her

employment. To clarify that the Service

will not approve a DFS employee unless

he or she completes the required

training, paragraph (e)(6)(iv) has been

modified to require DFS(s) to ‘‘notify the

district director, where the application

was filed, and when the completion of

fingerprinting training occurred prior to

the approval of the application, if such

training was not completed but was in

progress or had been scheduled at the

filing of the application.’’ Additionally,

a correction has been made in paragraph

(e)(6)(v) to insert the word ‘‘and,’’ which

was inadvertently left out in the

proposed rule, between ‘‘(exceptions

can be made for those who have

received training from the FBI or the

Service)’’ and ‘‘to conduct periodic

refresher training as needed.’’

Paragraph (e)(6)(vii)

The proposed rule would require

DFS(s) to offer free retakes if they

prepared illegible fingerprints that were

rejected by the FBI. One commenter

suggested that the Service include a

statement on its fee receipts to benefit

applicants that DFS(s) are obligated to

retake illegible fingerprints free of

charge. Two other commenters were

concerned that the benefit applicants

would need some kind of proof to show

who took the rejected fingerprints.

Another commenter stated that Federal,

state, and local police registered as

DFS(s) should also give free retakes

since they too charge a fee for taking

fingerprints. Recognizing that benefit

applicants will need to show proof of

rejection by the FBI to the responsible

DFS(s) in order to receive free retakes,

the Service suggests that claimants for

free retakes show the notice they will

receive from INS that they must

resubmit their fingerprints along with a

sales receipt from the responsible DFS.

Police agencies registered with the

Service as DFS(s) are subject to the same

free retake requirement if they charge a

fingerprinting fee.

Paragraph (e)(6)(viii)

The proposed rule would require the

DFS(s) to submit fingerprints on FD–258

and other Service-designated forms. One

commenter wondered if DFS(s) would

be expected to take fingerprints for

applicants seeking to replace their Alien

Registration Cards on Form I–90. Form

I–90, Application for Replacement of

Alien Registration Card, and Form I–

765, Application for Employment

Authorization Document, will be

included in the group of fingerprint

forms DFS(s) are authorized to prepare

after they have been revised to

incorporate a fingerprint block and a

DFS attestation. But the Service will

have to undertake rulemaking before

implementing these planned revisions.

Paragraph (e)(6)(xi)

The Service proposed that DFS(s)

verify the identification of the

individuals they fingerprint by

comparing their photo-IDs with the

information on their fingerprint cards.

The proposed rule would require DFS(s)

to accept only passports, alien

registration cards (green cards) or other

Service-issued photo-IDs for

identification verification. Six

commenters protested that this

requirement was to restrictive because it

excluded many people who were in

lawful status but who did not possess

either a passport or a Service-issued

photo-ID, such as refugees, asylees, or

even some United States citizens. The

commenters recommended that DFS(s)

be allowed to accept state-issued photoIDs, such as a driver’s license. The

Service’s intent in this requirement was

two-fold: (1) to exclude photo-IDs that

can be easily counterfeited; and (2) to

keep the verification process as simple

and clear as possible. But the Service

agrees that the list of acceptable photoIDs may be expanded without

compromising the integrity of the photoID verification process to include other

valid photo-IDs. Therefore, foreign

national identification documents have

been added to the list of acceptable

documents. Two (2) examples of

national identification documents

which may be acceptable are those

issued by the Government of Hong Kong

and Taiwan. Likewise, military

identification documents issued by the

Northern Atlantic Treaty Organization

would be acceptable. Additionally,

drivers’ licenses and state-issued photo

identification documents have been

added to the list of acceptable

documents. The final rule has been

revised to reflect these changes.

Paragraph (e)(6)(xiii)

It was proposed that the DFS provide

specific information on the fingerprint

card, FD–258, or other Servicedesignated documents. The specific

information to be provided by the DFS

included the following: (1) The DFS had

been certified by the Service; (2) The

name and address of the DFS; (3) The

DFS certification number, including the

expiration date; and (4) The

fingerprinter’s name and employee

Identification number. One commenter

recommended that DFS(s) be required to

put this information on a rubber stamp.

The Service agrees that a standardized

rubber stamp would be more efficient

insofar as the information needed from

the DFS. Accordingly, the DFS may use

a rubber stamp if he or she desires. The

regulation requires that stamped or

written information be placed on the

backside of the fingerprint card in the

space reserved. Should the DFS use a

rubber stamp it is recommended that the

stamped information be clearly legible

and fit into the space (four inches [4′′]

wide, and one and one quarter inches

[11⁄4′′] high). The specific information

provided on a rubber stamp must

contain the information listed as items

(1) through (4) in this paragraph.

Additionally, it is required that the

specific information provided on the

rubber stamp also include a space for
Federal Register / Vol. 61, No. 108 / Tuesday, June 4, 1996 / Rules and Regulations 28007

the fingerprinter’s signature and the

date the fingerprints were taken. The

DFS may also imprint a blank stamp,

with DFS(s) original signature and date,

on a sealed envelope which contains the

completed fingerprint document. When

the envelope containing the completed

fingerprint document is sealed, that

envelope may not be opened or altered.

The Services has revised paragraph

(e)(6) in the final rule to reflect these

changes.

Paragraph (e)(6)(xiv)

It was proposed that DFS(s) be

allowed to charge a reasonable fee for

providing fingerprinting services and

that the fees be published in a list

distributed by each INS district office.

Two commenters recommended that, in

order to keep the fee reasonable, the

Service should impose a limit on fees.

Another commenter suggested that the

Service was proposing to control the

fees DFSs charge by disclosing that

information to competitors, and

maintained that DFS fees should be

determined entirely by competition in

the marketplace. The Service’s position

on the fee issue is motivated by two

policies: (1) DFS(s) should be allowed to

set prices and compete for business; and

(2) the consumers’ interests are to be

protected. In including the fee

information on the DFS list, the Service

is ensuring that consumers will have the

information they need while allowing

DFS(s) to compete for customers by

offering the best value and service.

Paragraph (e)(6)(xv)

One commenter suggested that the

Service define the term ‘‘immediately’’

as used in the proposed rule, which

would require DFS(s) to immediately

report to the Service any changes in

personnel responsible for taking

fingerprints. Since DFS(s) may not

employ any fingerprints without prior

approval by the Service, this reporting

requirement is really intended to

provide notice to the Service when

fingerprinters are no longer employed in

those positions. The approval of a DFS

fingerprinter is conditioned on his or

her continued employment with a

particular DFS employer. To protect the

integrity of the Service’s master DFS

listings, it is important that DFS(s)

report personnel changes as soon as

they take place. For the purpose of this

paragraph, a DFS is encouraged to

report personnel changes in advance

where feasible, and is required to notify

the district director having jurisdiction

over the DFS(s) business location of a

personnel change within 2 working

days. The final rule reflects this change.

The Service also considered and

rejected a suggestion that it require

DFS(s) to post a $500 bond to guarantee

retakes for benefit applicants who were

provided with poor quality fingerprints.

The Service believes that the DFS

regulation provides sufficient

performance incentives. A requirement

to post a performance bond would be

too much of a burden on the DFS(s) and

the Service.

Paragraph (e)(6)(xviii)

One commenter suggested that the

Service remove the requirement to

maintain ‘‘clean and suitable agencies

that are accessible to the public,’’ asking

‘‘who will determine what is clean and

suitable or whether there is sufficient

access to the public?’’ The commenter

raised a valid point. Since all businesses

must comply with various public safety

and health regulations imposed by the

relevant Federal, state, and local

governments, the Service agrees that it

should defer to the responsible

governments in this case. However,

since the DFS(s) are certified to provide

fingerprinting services to applicants for

immigration benefits, they must operate

at permanent business locations that are

accessible to the public. Moreover,

except in situations where DFS(s) have

made advance arrangements to process

groups of applicants off-site, DFS(s) are

expected to conduct their fingerprinting

businesses at the addresses given on

their applications for certification.

Accordingly, paragraph (e)(6)(xviii) was

revised to include the joint requirement

that DFS(s) ‘‘maintain facilities which

are permanent and accessible to the

public.’’ The use of this joint

requirement specifically excludes

facilities described as private homes,

vans or automobiles, mobile carts, and

removable stands or portable

storefronts.

Section 103.2(e)(7) Attestation

Four commenters thought that the

requirement of a DFS attestation on

Form I–850A for each person

fingerprinted was unnecessary and

unduly burdensome. Two of the

commenters recommended that the

attestation be stamped on or

incorporated into the fingerprint card,

FD–258, instead. Two other commenters

suggested that DFS(s) be required to

retain copies of their attestations for 1

year instead of 3 months. One of these

commenters said that DFS(s) should

keep copies of the attestations longer

than 3 months as a way of tracking their

own customers in cases where free

retakes were needed.

The fingerprint card, FD–258, is a

Federal Bureau of Investigation (FBI)

form that can only be revised by that

agency. Any change to the design of the

form will have an effect on the FBI’s

automated fingerprint classification

process. The Service will refer this

suggestion to the FBI for its

consideration. The Service is reluctant

to increase the administrative burdens

by lengthening the period for which

DFS(s) must keep copies of their

attestations on file. The rationale for the

3-month requirement is to provide the

Service with a sample of the quality of

the DFS’ work. However, any DFS is

free to maintain copies of attestations

for a longer period as a way to verify

fingerprinting sales and reconcile

requests for retakes.

Paragraph (e)(7)(ii)

It was also suggested that the terms

‘‘the original copy’’ and ‘‘the second

copy’’ as used in the proposed rule be

changed to ‘‘the original’’ and ‘‘the

copy.’’ The suggestion was adopted and

paragraph (e)(7)(ii) was amended to

reflect this change. Finally, due to the

expansion of the types of photo-IDs

acceptable for identification verification

purposes as prescribed by paragraph

(e)(6)(xi) of the final rule, parallel

changes have been made to paragraph

(e)(7)(i)(C) to ensure consistency.

Section 103.2(e)(8) Application

Three commenters asked whether

there was a limited application period

and whether DFS(s) certified by a given

Service local office were limited to

providing service to people who resided

within the jurisdiction of that office. An

outside organization may file an

application for DFS certification at any

time after the final rule takes effect.

However, only those currently

providing fingerprinting services who

file within the initial 120 days may

continue to take fingerprints without

interruption. Those who file after the

120-day window will have to wait until

their applications are approved to begin

taking fingerprints. Once an

organization obtains DFS certification,

the DFS is not limited to taking

fingerprints of benefit applicants who

reside in the same jurisdiction. A

certified DFS may take fingerprints of

applicants who reside in other

jurisdictions, but any completed

fingerprint card must bear the specific

code for the Service office where the

fingerprint card will be filed. For

example, a DFS certified by the New

York District Office may fingerprint a

visitor from San Francisco on an FD–

258 fingerprint card if the correct

Originating Agency Identifier (ORI) code

for San Francisco is entered in the block

labeled ORI. At the same time, a DFS
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with multiple locations which fall

under the jurisdiction of the same

Service district director may file a single

application, with one fee, by including

all the business locations and

employees. However, DFS(s) with crossjurisdiction locations will have to file

separate applications for business

offices that fall under the jurisdiction of

different district directors. Each

application must include the required

fee and information on all business

locations and employees in that

jurisdiction.

One commenter suggested that the

Service make DFS applications a part of

the public record. This suggestion was

not adopted because applications

contain, in part, information that is

private or proprietary. Those portions

that are subject to release are available

under the Freedom of Information Act,

5 U.S.C. 552.

Section 103.2(e)(9) Registration of

Police Stations or Military Police

Agencies

One commenter proposed that local

police in rural areas be allowed to

continue their fingerprinting services

since certified DFS(s) might be a long

distance away. Two commenters

complained that the police were not

adequately regulated, attaching alleged

examples of poor quality fingerprinting

work by local police stations. Another

commenter wanted college and

university campus police to be granted

DFS status without registration. The

Service understands that people living

in remote areas rely on the local police

for fingerprinting service, and has

always intended to include the police as

DFS(s). The DFS regulation provides

that Federal, state, and local police, as

well as military police, can

automatically become DFS(s) if they

register with the Service. Once

registered, they will be placed on the

DFS list and receive updates of the DFS

regulation and requirements. Further,

campus police who have general arrest

authority pursuant to a state statute, and

who have met the training requirements

established for law enforcement officers,

are exempted from the DFS

requirements and may follow the

streamlined registration procedures

reserved for law enforcement agencies.

Clarifying language has been added to

§ 103.2(e)(2)(i) to explain this point.

Section 103.2(e)(11) Approval of

Application

The Service has made typographical

corrections in the second sentence of

the introductory text to paragraph

(e)(11) by: (1) inserting the word

‘‘number’’ between the word

‘‘certification’’ and the word ‘‘to;’’ and

(2) replacing the word ‘‘fingerprints’’

with ‘‘fingerprints.’’ That sentence now

reads: ‘‘When the application has been

approved, the district director shall

assign a certification number to the DFS

and individual ID numbers to its

approved fingerprints.’’

Section 103.2(e)(12) Denial of the

Application

Three commenters asked the Service

to clarify the appeals process available

to DFS applicants whose applications

are denied. DFS applicants are entitled

to appeal rights as provided by 8 CFR

103.3 and 8 CFR 103.5. DFS applicants

who wish to appeal a denial decision

may file an appeal on Form I–290B,

with the required fee, with the Service’s

Administrative Appeals Office (AAO)

within 30 days of the decision. DFS

applicants may also file a motion to

reopen or reconsider with the Service

district office having jurisdiction.

Section 103.2(e)(17) Change of

Address or in Fee

Under the proposed rule, a DFS was

required to report promptly, to the

district director having jurisdiction over

the DFS(s) place of business, any change

in address or in fee. One commenter

thought that the proposed requirement

was inadequate in that it did not require

the DFS to report these changes in

advance. This commenter argued that it

would be difficult to preserve fair

competition among DFS(s) and protect

the consumers unless DFS(s) were

required to report changes in address or

in fee in advance. In order to give the

Service sufficient time to update its DFS

listings and to make that information

available to the public, the commenter

suggested that DFS(s) be required to

report these changes at least 10 working

days before they occur. The Service

concurs that the public should be

protected from possible fee

manipulation by DFS(s) and that the

DFS listings will not have the intended

effect unless the public is provided with

accurate information about DFS fees and

locations. Accordingly, the Service has

adjusted the final rule to require a 10-

working day advance notice for changes

in address or fee. DFS(s) who make

unreported fee changes are subject to

revocation of their DFS status as

provided by paragraph (e)(17). Note that

the requirement of a permanent address

does not preclude a DFS from

processing groups of applicants off site,

such as processing applicants for

naturalization at a school auditorium.

Miscellaneous Items

1. Opposing Views

Three commenters preferred the

current system, stating that the

proposed regulation was unnecessary

and burdensome. One commenter

challenged the OIG report, arguing that

there had been no known report of fraud

in the submission of fingerprints. As

explained in the background section of

the supplemental information, the

Service initiated this rulemaking to

provide integrity to its benefits

adjudications process and to address the

concerns of the Senate Committee on

Appropriations and the Department of

Justice’s Office of Inspector General

(OIG). It has been established that 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. In drafting this

rule, the Service has carefully

considered the policies of Executive

Order 12866 and the Regulatory

Flexibility Act and has attempted to

ensure that the intended objectives are

met without unduly burdening the

affected small businesses.

2. Application Fee

Three commenters protested the

application fee of $370. One of them

suggested that the Service underwrite

the costs of administering the DFS

certification program, including

training. The other two said the

estimated costs for training and

monitoring were too high. However,

another commenter said the Service

underestimated the program costs,

maintaining that the proposed

application fee of $370 was not enough

to offset the administrative costs of the

program.

The Service’s Adjudications program

does not receive any appropriated funds

from Congress. Instead, it is authorized

by Congress to collect user fees to

support its functions. In order to

determine the appropriate application

fee for the DFS Certification Program,

the Service conducted a fee analysis

based on estimated processing and

administrative costs, such as staffing,

training of Service personnel on the DFS

certification process, adjudication of

applications, oversight of DFS(s), and

providing fingerprinting training. The

actual cost of running the DFS

Certification Program will not be known

until it has been fully implemented. At

that time, the Service will determine

whether the fee structure needs to be

adjusted.

One other commenter recommended

that the Service make special provisions
Federal Register / Vol. 61, No. 108 / Tuesday, June 4, 1996 / Rules and Regulations 28009

for outside entities with multiple

business locations across the country.

This commenter suggested that

businesses with multiple locations be

allowed to file a single application with

a single application fee, and that a site

fee of $35 be charged for each additional

location to cover administrative and

monitoring costs. While the regulation

allows DFS(s) with multiple business

locations within the jurisdiction of the

same Service district to file a single

application with a single fee, it does not

provide for certification of a national

fingerprinting service with crossjurisdiction business locations.

However, the Service agrees that outside

entities with multiple locations in the

jurisdiction of the same district office

will incur greater administrative and

monitoring costs and should be required

to pay a site fee for each location.

Because the public has not been offered

the opportunity to comment on the

concept of a site fee, the Service has

decided to defer the consideration of a

site fee until after the full

implementation of the DFS certification

program. If it is evident then that the

application fee was below cost, the

Service will make appropriate

adjustments to the application fee

structure through rulemaking.

As noted in our earlier discussions

regarding § 103.2(e)(8), due to regulatory

limitations placed on the district

director’s authority, a district director

cannot approve DFS(s) operating

outside of his or her jurisdiction.

Therefore, while DFS(s) with multiple

business locations in the same INS

district only needs to file one

application with one fee, DFS(s) with

multiple business operations in

different INS districts must file a

separate application, with the required

fee, with each district director having

jurisdiction over the business

location(s).

3. Free Space for Photographing and

Fingerprinting Studios

One commenter protested that the

Service gives preferential treatment to

not-for-profit organizations. This

commenter cited as an example the free

use of studio space (for fingerprinting

and/or photographing services), in the

Service’s local offices, by certain notfor-profit organizations. The commenter

argued that this practice, as provided by

8 CFR 332.2, unfairly disadvantaged

other competing business entities and

had to be changed. Indeed, 8 CFR 332.2

provides that district directors may

make available, free of charge, space

within district offices for the

‘‘establishment and operation of studios

providing photographic services,

fingerprinting services or both.’’ It

further provides that these studios must

be ‘‘operated by sponsoring

organizations on a nonprofit basis solely

for the benefit of persons seeking to

comply with the requirements of the

immigration and naturalization laws.’’

During the implementation period of the

legalization program, as provided by the

Immigration Reform and Control Act

(IRCA) of 1986, the Service’s local

Legalization offices often had studios

operated by not-for-profit organizations.

However, due to overcrowding and lack

of resources, most district offices have

ended this practice over the past few

years. Moreover, the remaining agencies

operating under § 332.2 remain subject

to the separate restrictions of these

regulations. This new program

addresses a larger group of organizations

which is largely not subject to § 332.2.

4. Not-For-Profit Organizations and

Entities Approved by the Board of

Immigration Appeals (BIA) under 8 CFR

Part 292

Twenty-one of the commenters are

not-for-profit organizations which were

accredited for representation of others

by the BIA. They asked that they be

granted automatic DFS status, without

fee. These commenters argued that they

should not have to apply for DFS status

because they had already been approved

by the BIA. They further argued that

not-for-profit organizations were

typically under-funded, and the

proposed application fee of $370 would

pose a significant financial burden for

them. They also argued that they were

limited to charging only a ‘‘nominal fee’’

that could not be used to supplement

their administrative costs.

The Service is sympathetic to these

commenters’ financial difficulties and is

willing to assist where feasible. But

because the Service’s benefit programs

are all supported by user fees, the DFS

Certification Program must also be

funded by its user—the DFS applicants.

Waiving the fee or the application

requirement for not-for-profit

organizations would be perceived as

giving preferential treatment to special

interest groups. Moreover, the Service

would be obligated to charge other DFS

applicants a higher fee to offset the costs

incurred by the not-for-profit

organizations.

When the $370 application fee is

apportioned for 3 years, the period

during which a DFS certification

remains valid, the annual certification

cost is $123, which can easily be passed

on to the users as a service charge. The

Service is of the opinion that entities

accredited for representation by the BIA

are not in violation of the ‘‘nominal fee’’

provision of 8 CFR 292.2, when they

charge a reasonable fee for

fingerprinting services.

Some commenters proposed that the

Service exclude from DFS certification

any entity which has had a history of

offering assistance in matters involving

the immigration law without a license.

They were concerned that these

practitioners would exploit unknowing

aliens if authorized to provide

fingerprinting services. One commenter

suggested that DFS applicants be

required to sign a statement on the

application form attesting to compliance

with the requirements of 8 CFR 292,

which prescribes the authority to

represent applicants for immigration

benefits. This commenter also suggested

that the Service require DFS applicants

to list all other services that they

provide in addition to fingerprinting to

ensure that they were not ‘‘practicing

law without authorization.’’

The sole purpose of the DFS

regulation (8 CFR 103.2(e)) is to

establish eligibility requirements and

application procedures for outside

entities who wish to be approved as

fingerprinters. The authority granted to

outside entities certified under 8 CFR

103.2(e) is limited to providing

fingerprinting services. Meanwhile, 8

CFR 292 provides for the accreditation

of individuals or organizations that wish

to represent aliens before the Service

and/or the Board of Immigration

Appeals (BIA). Qualified individuals or

organizations must apply to the BIA for

accreditation. Since the governing

regulations clearly define the scope and

conditions of each of these two types of

authorizations, it is unlikely that there

will be confusion about their purposes.

However, to avoid the possibility that

outside entities might exploit their DFS

status, the Service has added a new

paragraph (e)(18) in the final rule to

prohibit them from engaging in any kind

of advertisement or presentation which

may create a false impression that they

are authorized by the Service to do more

than fingerprinting. DFS(s) are

prohibited from using images of the

Service’s logo type or official seal on

any of their stationery, information

flyers, or advertisements. When dealing

with the public or advertising for

business, a DFS is required to refer to

itself as ‘‘an INS-Authorized

Fingerprinting Service.’’ Violators are

subject to revocation of their DFS status

as provided by 8 CFR 103.2(e)(18).

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
28010 Federal Register / Vol. 61, No. 108 / Tuesday, June 4, 1996 / Rules and Regulations

collections are contained in 8 CFR

299.5, Display of Control Numbers.

Regulatory Flexibility Act

The Commissioner of the Immigration

and Naturalization Service, in

accordance with the Regulatory

Flexibility Act (5 U.S.C. 605(b)), has

reviewed this regulation and, by

approving it, certifies that the rule will

not have a significant economic impact

on a substantial number of small

entities. The Service has drafted this

rule in a way to minimize the impact

that it has on small business while

meeting its intended objectives.

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 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 rule.

The Service has considered

significant alternatives to this 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 agencies. 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 taken be

legible and classifiable; that DFS

personnel charged with the

responsibility to take fingerprints pass

an FBI criminal history records check;

and that such DFS personnel be trained

in fingerprinting or otherwise be able to

demonstrate their proficiency.

Executive Order 12866

The Immigration and Naturalization

Service, Department of Justice,

considers this rule be a ‘‘significant

regulatory action’’ as defined by section

3(f) of Executive Order 12866. With

perhaps as many as 3,000 entities likely

to file for DFS certification, this rule

may lead to the collection of application

fees that would ‘‘materially alter the

budgetary impact of * * * user fees

* * * or the rights and obligations of

recipients’’ of the related services. The

Office of Management and Budget has

conducted the necessary review of this

rule.

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. The

objectives of this 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

cerrtification of designated

fingerprinting services to take

fingerprints. The legal basis for this rule

is the authority conferred upon the

Attorney General and delegated to the

Service under section 103 (a) and (b) of

the Immigration and Nationality Act to

establish regulations needed to carry out

its functions. 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.

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.

List of Subjects

8 CFR Part 103

Administrative practice and

procedure, Authority delegations

(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 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, 11201, 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. Section 103.1 is amended by:

a. Removing the ‘‘and’’ from

paragraph (f)(3)(iii)(LL),

b. Removing the ‘‘.’’ from the end of

paragraph (f)(3)(iii)(MM) and replacing

it with a ‘‘; and’’, and by

c. Adding a new paragraph

(f)(3)(iii)(NN), to read as follows:

§ 103.1 Delegations of Authority.

* * * * *

(f) * * *

(3) * * *

(iii) * * *

(NN) Application for Certification For

Designated Fingerprinting Services

under § 103.2(e) of this chapter.

3. 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. To

ensure they have access to reputable

fingerprinting services, the

fingerprinting of these benefit

applicants must be carried out pursuant

to the fingerprinting service provisions

established in this paragraph.

(1) Fingerprinting by the Service.

Where feasible, a local Service office

shall provide fingerprinting service to

applicants for immigration benefits.

Also, the district director shall consider

all qualified applicants for DFS

certification and certify applicants who

meet the regulatory standards to

supplement the district’s efforts. Where

district Service personnel are providing

fingerprinting services, the district

director may end such services when he

or she determines that there are

sufficient outside or private

fingerprinting services available at a

reasonable fee.

(2) Designated fingerprinting services.

(i) Law enforcement agencies. Federal,

state, or local police, or military police,

in the United States are not required to

apply for DFS certification. However, it

is essential that any Federal, state, and

local police, or military police, that

provide fingerprinting services to

applicants for immigration benefits be

familiar with the Service’s

fingerprinting regulations and

requirements. In order to receive

updates on such regulations and

requirements, a policy agency that does

provide such services must register with

the Service pursuant to procedures

prescribed by § 103.2(e)(9). Campus

police departments having general arrest

powers pursuant to a State statute and

meeting training requirements
Federal Register / Vol. 61, No. 108 / Tuesday, June 4, 1996 / Rules and Regulations 28011

established by law or ordinance for law

enforcement officers are included

within the category of state or local

police departments for purposes of

§ 103.2(e).

(ii) Other business entities or

individuals. Businesses and individuals

who apply and qualify shall, subject to

the requirements of § 103.2(e), be

approved by the Service to provide

fingerprinting services.

(3) Transition to use designated

fingerprinting services. As of December

31, 1996, the Service will not accept

fingerprint cards for immigration

benefits unless they are taken by:

(i) A DFS accompanied by a

completed attestation, Form I–850A,

Attestation by Designated

Fingerprinting Services Certified to

Take Fingerprints;

(ii) An intending DFS or organization

that has completed an filed an

application for DFS status prior to

November 1, 1996 which may, pending

the Service’s action upon its

application, take fingerprints and

complete the Form I–850A, indicating

that its application for DFS status is

pending. This provisional authority for

an outside entity shall cease if its

application is denied or as of December

31, 1996 whichever occurs first.

(iii) A recognized law enforcement

agency that is registered as a DFS; or

(iv) Designated Service employees.

(4) Eligibility for DFS. An outside

entity applying for DFS status may be a

business, a not-for-profit organization,

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 related to dishonesty or

false statements involving a civil

penalty for fraud.

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

organization must establish the identity

of its chief operations officer, who

exercises primary and oversight control

over the organization’s operations, and

its fingerprinting employees; and the

business or a not-for-profit organization

must establish that the chief operations

officer and fingerprinting employees are

United States citizens or lawful

permanent resident(s), and that its

principal officers, directors, or partners

meet the standard for individual

applicants.

(iii) A Federal, state, or local law

enforcement agency may register as a

designated fingerprinting service.

However, a law enforcement agency is

not required to comply with the

operating license(s), identification and

training of employees, criminal record

history check, attestation, or application

fee provisions in this paragraph.

(5) Criminal history records check.

(i) An identification and criminal

history record check is required for each

employee or person as otherwise

described in paragraphs (e)(4) (i) and (ii)

of this section who will take fingerprints

listed on the application for DFS

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

DFS needs to add new or replacement

employees to the personnel approved by

the Service, it must file a new

application with the district director

having jurisdiction over the DFS’s place

of business. That new application must

be accompanied by the required fee for

the FBI fingerprint check. The Service

will accept fingerprints from an

applicant for DFS certification only it

the fingerprints were taken by

designated Service personnel.

(ii) An employee who has been

convicted of an aggravated felony or a

crime involving dishonestly or false

statement, or who has been subjected to

a civil penalty for fraud, may not be

assigned to take fingerprints unless the

DFS can establish to the Service’s

satisfaction that the circumstances of

the offense are such (because of the

person’s youth at the time of the offense,

and/or the number of years that have

passed since its commission) 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) of this section, an

outside entity seeking certification as a

DFS must agree that it will:

(i) Abide by Service regulations

governing certification of DFS(s);

(ii) Permit Service personnel and

Service contract personnel to make onsite 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 equivalent

training);

(iv) Notify the district director where

the application was filed when the

completion of fingerprinting training

occurred prior to the approval of the

application, if such training was not

completed but was in progress or had

been scheduled at the filing of the

application;

(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) and 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 DFS initially fails to take

legible and classifiable prints;

(viii) Use only the fingerprint card(s),

Form(s) FD–258, or other Servicedesignated documents to take

fingerprints for immigration purposes;

(ix) Ensure that the fingerprint card(s)

or other Service-designated fingerprint

documents are completed in accordance

with the instructions provided, using

FBI prescribed personal descriptor

codes;

(x) Ensure that the fingerprint card(s)

or other Service-designated forms 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-designated forms with the

applicant’s passport, national ID,

military ID, driver’s license or stateissued photo-ID, alien registration card,

or other acceptable Service-issued

photo-ID;

(xii) Complete an attestation on Form

I–850A, Attestation by Designated

Fingerprinting Service Certified to Take

Fingerprints, and provide it to the

person being fingerprinted;

(xiii) Note (legibly by hand or using

a rubber stamp) on the back of the

fingerprint card, Form FD–258, or a

Service designated fingerprint

document, the DFS’s name and address,

certification number, expiration date,

the DFS fingerprinter’s ID number and

signature, and the date on which the

fingerprints are taken. The DFS

fingerprint shall seal the completed

fingerprint card or fingerprint

document, and sign or imprint a stamp

with an original signature crossing the

sealed area.

(xiv) Charge only reasonable fees for

fingerprinting services, and the current

fee status is to be made known to the

Service;

(xv) Notify the director having

jurisdiction over the applicant’s place of

business within 2 working days, on

Form I–850 without fee, 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
28012 Federal Register / Vol. 61, No. 108 / Tuesday, June 4, 1996 / Rules and Regulations

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

section;

(xvii) Notify the Service of any

conviction for an aggravated felony or

for a crime involving dishonesty or false

statement, or of any civil penalty for

fraud subsequent to the DFS

certification of an employee authorized

to take fingerprints; and

(xviii) Maintain facilities which are

permanent and accessible to the public.

The use of the terms permanent and

accessible to the public shall not

include business or organizational

operations in private homes, vans or

automobiles, mobile carts, and

removable stands or portable

storefronts.

(7) Attestation.

(i) To ensure the integrity of the

fingerprint cards submitted by

applicants for benefits, all DFS

fingerprinters must fill out an attestation

on Form I–850A each time they take

fingerprints for an immigration benefit

applicant. Such attestation mut 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 DFS

certification;

(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, national ID,

military ID, driver’s license or stateissued photo-ID, alien registration card,

or other acceptable Service-issued

photo-ID; and

(D) That it is signed and dated by the

benefit applicant.

(ii) DFS fingerprinters must execute

the attestations in duplicate in the

presence of the applicant. The original

must be given to the applicant to be

filed with the Service with his or her

fingerprint card, and the copy, which

may be a reproduced copy of the

original, must be kept on file at the DFS

for at least 3 months for Service

inspection.

(8) Application. An outside

organization seeking certification as a

DFS, or a DFS seeking approval for

personnel change, must submit an

application on Form I–850, Application

for Certification for Designated

Fingerprinting Services, to the district

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 and

if the organization is a not-for-profit

entity, documented evidence of such

status;

(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 the DFS will abide by the

Service regulation governing

fingerprinting and the certification of

designated fingerprinting services.

(9) Registration of police stations or

military police agencies.

(i) Federal, state, or local police

stations, or military police agencies,

may individually register to take

fingerprints of applicants for

immigration benefits by filing a Form I–

850, application for Certification for

Designated Fingerprinting Services,

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 agencies on the Service’s list of

DFS organizations. The Service will

make available to these agencies the

fingerprinting regulations, related

instruction material or other relevant

information when appropriate.

(10) Confidentiality. A DFS 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 number to the DFS and

individual ID numbers to its approved

fingerprinters. 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 Serviceissued photo-IDs; and

(iii) A statement detailing the DFS(s)

responsibilities and rights, including the

renewal and revocation procedures as

provided by paragraphs (e) (12) and (13)

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 to the

AAO under 8 CFR part 103.

(13) Renewal (i) Subject to paragraph

(e)(13)(ii) of this section, a DFS must

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

contained in paragraph (e)(8) of this

section. In considering an application

for renewal, the Service will give

appropriate weight to the volume,

nature, and the substance of complaints

or issues raised in the past regarding

that particular DFS and or relevant

circumstances which are made known

to the Service by the general public,

other governmental or private

organizations, or through Service

inspections. Also, the Service will

favorably consider 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 DFS status.

(ii) The Service will certify and renew

DFS(s) 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 DFS’ services

and, if so, whether they should switch

to newer technologies, such as acquiring

compatible automated fingerprinting
Federal Register / Vol. 61, No. 108 / Tuesday, June 4, 1996 / Rules and Regulations 28013

equipment. In either event, the Service

shall issue a public notification or issue

a new rule, as appropriate. Nothing in

this paragraph shall preclude the

Service, in its discretion, from

discontinuing the DFS certification

program after the initial 3 years or from

requiring, as a condition of continued

certification, that the DFS incorporate

automated fingerprinting equipment.

(14) Revocation of certification. The

district director shall revoke an

approval of application for DFS status

under the following circumstances:

(i)Automatic revocation. The approval

of any application is automatically

revoked if the DFS:

(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 DFS which has violated the

regulations governing the fingerprinting

process as established in paragraph (e)

of this section.

(A) If the district director finds that a

DFS has failed 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 DFS may

submit evidence in 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 DFS or the results of

a reinspection.

(B) For flagrant 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 DFS on immediate

suspension. During the suspension

period, the DFS may not take

fingerprints, and the Service will not

accept fingerprints taken by the

suspended DFS. The DFS 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 DFS to resume fingerprinting

on probation pending the results of the

reinspection and the Service will

resume accepting submitted

fingerprints. The district director shall

cancel the suspension order if he or she

finds the results of a reinspection

satisfactory.

(C) If the DFS 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 DFS of the revocation

decision, detailing the reasons, and of

its right to appeal.

(D) The district director shall consider

all timely submitted evidence and

decide whether to revoke the DFS

approval. The district director shall also

decide whether any such revocation

shall preclude accepting fingerprints

taken by that DFS (or any of its offices

or employees) during some or all of the

period of its certification.

(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 (Penalties for Document Fraud),

or 18 U.S.C. 1001 (false statement), or

for other appropriate enforcement

action.

(15) Appeal of revocation of approval.

The revocation of approval may be

appealed to the Service’s Administrative

Appeals Office (AAO). There is no

appeal from an automatic revocation.

(16) List of DFS(s). Each district office

shall make available a list of the DFS(s)

it has certified to take fingerprints. Such

list shall contain the name, address,

telephone number, if available, and the

fingerprinting fee charge, if any, of each

DFS certified in the district.

(17) Change of address or in fee. A

DFS shall notify the Service, on Form I–

850, without an application fees, of any

change(s) of address or change(s) in the

fee charged for fingerprinting at least 10

working days before such a change takes

place. The district office shall update its

DFS list, including any fingerprinting

fee changes, upon receipt of the notice

of change(s).

(18) False advertising or

misrepresentation by a DFS. Designated

fingerprinting services are prohibited

form exploiting their DFS status by

creating the impression that they are

authorized by the Service to do more

than fingerprinting. DFS(s) are

prohibited from using the Service logo

on their stationery, flyers, or

advertisements. When dealing with the

public or advertising for business, a DFS

may refer to itself only as ‘‘an INSAuthorized Fingerprinting Service.’’

DFS(s) found in violation of this

requirement are subject to suspension or

revocation actions pursuant to

§ 103.2(e)(14).

4. In § 103.7, paragraph (b)(1) is

amended by adding to the listing of

forms, in proper numerical sequence,

the entry for ‘‘Form I–850’’ to read as

follows:

§ 103.7 Fees.

* * * * *

(b) * * *

(1) * * *

* * * * *

Form I–850. For filing an application for

certification as a designated fingerprinting

service—$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, military police or campus police

agencies registering pursuant to § 103.2(e)(9).

* * * * *

PART 229—IMMIGRATION FORMS

5. The authority citation for part 299

continues to read as follows:

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

2.

6. Section 299.1 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:

§ 299.1 Prescribed forms.

* * * * *

Form No. Edition

date Title

* * * * *

I–850 ....... 05–21–96 Application for Certification for Designated Fingerprint Services.

I–850A ..... 05–21–96 Attestation by Designated

Fingerprinting

Service Certified

to Take Fingerprints.

* * * * *

7. 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 control No.

* * * * *

I–850 ....... Application for

Certification for

Designated

Fingerprinting

Services.

1115–0193

I–850A ..... Attestation by

Designated

Fingerprinting

Service Certified to Take

Fingerprints.

1115–0194

* * * * *
28014 Federal Register / Vol. 61, No. 108 / Tuesday, June 4, 1996 / Rules and Regulations

Dated: February 28, 1996.

Doris Meissner,

Commissioner, Immigration and

Naturalization Service.

[Note: Appendix A and B will not appear in

the Code of Federal Regulations]

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28020 Federal Register / Vol. 61, No. 108 / Tuesday, June 4, 1996 / Rules and Regulations

[FR Doc. 96–13856 Filed 6–3–96; 8:45 am]

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