[Federal Register Volume 61, Number 108 (Tuesday, June 4, 1996)] [Rules and Regulations] [Pages 28003-28020] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-13856] ======================================================================= ----------------------------------------------------------------------- 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 [[Page 28004]] 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 immigration-related 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 Sec. 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 Sec. 103.2(e)(2) and merged it with Sec. 103.2(e)(1) to clearly reflect this policy. The text in Sec. 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 Sec. 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 Sec. 103.2(e). [[Page 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-for-profit entities approved by the Board of Immigration Appeals under the provisions of 8 CFR 292.2. Although it is true that persons affiliated with BIA-approved entities under Sec. 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), [[Page 28006]] 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 photo-IDs, 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 photo-IDs may be expanded without compromising the integrity of the photo-ID 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 Service- designated 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 [1\1/4\''] 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 [[Page 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 [[Page 28008]] 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 cross-jurisdiction 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 Sec. 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 [[Page 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 cross-jurisdiction 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 Sec. 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 not-for-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 Sec. 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 Sec. 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 [[Page 28010]] 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: Sec. 103.1 Delegations of Authority. * * * * * (f) * * * (3) * * * (iii) * * * (NN) Application for Certification For Designated Fingerprinting Services under Sec. 103.2(e) of this chapter. 3. In Sec. 103.2, a new paragraph (e) is added to read as follows: Sec. 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 Sec. 103.2(e)(9). Campus police departments having general arrest powers pursuant to a State statute and meeting training requirements [[Page 28011]] established by law or ordinance for law enforcement officers are included within the category of state or local police departments for purposes of Sec. 103.2(e). (ii) Other business entities or individuals. Businesses and individuals who apply and qualify shall, subject to the requirements of Sec. 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 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 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 Service-designated 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 state-issued 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 [[Page 28012]] (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 Sec. 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 state-issued 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 Service-issued 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 [[Page 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 INS-Authorized Fingerprinting Service.'' DFS(s) found in violation of this requirement are subject to suspension or revocation actions pursuant to Sec. 103.2(e)(14). 4. In Sec. 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: Sec. 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 Sec. 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: Sec. 299.1 Prescribed forms. * * * * * ------------------------------------------------------------------------ Edition Form No. 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: Sec. 299.5 Display of control numbers. * * * * * ------------------------------------------------------------------------ Currently assigned INS form No. INS form title OMB control No. ------------------------------------------------------------------------ * * * * * I-850....................... Application for Certification 1115-0193 for Designated Fingerprinting Services. I-850A...................... Attestation by Designated 1115-0194 Fingerprinting Service Certified to Take Fingerprints. * * * * * ------------------------------------------------------------------------ [[Page 28014]] 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] BILLING CODE 4410-10-M [[Page 28015]] [GRAPHIC] [TIFF OMITTED] TR04JN96.000 [[Page 28016]] [GRAPHIC] [TIFF OMITTED] TR04JN96.001 [[Page 28017]] [GRAPHIC] [TIFF OMITTED] TR04JN96.002 [[Page 28018]] [GRAPHIC] [TIFF OMITTED] TR04JN96.003 [[Page 28019]] [GRAPHIC] [TIFF OMITTED] TR04JN96.004 [[Page 28020]] [GRAPHIC] [TIFF OMITTED] TR04JN96.005 [FR Doc. 96-13856 Filed 6-3-96; 8:45 am] BILLING CODE 4410-10-C