[Federal Register: April 24, 2008 (Volume 73, Number 80)]
[Proposed Rules]
[Page 22065-22088]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ap08-8]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 22065]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 215, 217, 231, and 235
19 CFR Parts 4 and 122
RIN 1601-AA34
[DHS-2008-0039]
Collection of Alien Biometric Data Upon Exit From the United
States at Air and Sea Ports of Departure; United States Visitor and
Immigrant Status Indicator Technology Program (``US-VISIT'')
AGENCY: National Protection and Programs Directorate, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security (DHS) proposes to
establish an exit program at all air and sea ports of departure in the
United States. This proposed rule would require aliens who are subject
to United States Visitor and Immigrant Status Indicator Technology
Program (US-VISIT) biometric requirements upon entering the United
States to provide biometric information to commercial air and vessel
carriers before departing from the United States at air and sea ports
of entry. This rule proposes a performance standard for commercial air
and vessel carriers to collect the biometric information and to submit
this information to DHS no later than 24 hours after air carrier staff
secure the aircraft doors on an international departure, or for sea
travel, no later than 24 hours after the vessel's departure from a U.S.
port. DHS does not propose to apply these requirements to persons
departing the United States on certain private carriers or small
carriers as defined herein.
The exit system proposed under this rule meets the recommendations
of the 9-11 Commission Report and the requirements of section 711 of
the Implementing Recommendations of the 9/11 Commission Act of 2007.
DATES: Comments are due no later than June 23, 2008.
ADDRESSES: You may submit comments pursuant to the instructions in the
Public Comments section of the Supplemental Information, identified by
Docket Number DHS-2008-0039, by one of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting the comments.
Mail: Michael Hardin, Senior Policy Advisor, US-VISIT,
Department of Homeland Security; 1616 North Fort Myer Drive, 18th
Floor, Arlington, VA 22209.
FOR FURTHER INFORMATION CONTACT: Michael Hardin, Senior Policy Advisor,
US-VISIT, Department of Homeland Security; 1616 North Fort Myer Drive,
18th Floor, Arlington, VA 22209 or by phone at (202) 298-5200.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Request for Public Comments
II. Background and Purpose
A. Need for a US-VISIT Exit System
B. Statutory Authority for US-VISIT
C. Program History of the US-VISIT
III. US-VISIT Exit Pilot Program
IV. Proposed Exit Program
A. Purpose
B. Summary of the Exit Proposal and Alternatives Considered
1. Current Passenger Information Requirements for Carriers
2. Current Process for Individuals Departing the United States
by Commercial Air Carrier
3. Proposed Process for Aliens Departing the United States by
Commercial Air Carrier
4. Vessel Carrier Departures
5. Technical Requirements
a. Data Transfer
b. Time of Transfer
c. Substantive Performance Standard for Biometrics
d. Enforcement and Penalties on Carrier Performance
6. Alternatives Considered
a. Confidence of Departure
b. Percentage of Population Captured
c. Operational Impacts to the Alien, Carrier, and DHS
d. Conceptual Financial Burden to the Carriers and DHS
e. Need for Additional Network or Connectivity
f. IT Security Complexity
g. Privacy
h. Cost
i. Constraints
7. Non-Air/Vessel Carrier Departures
8. Small Air/Vessel Carriers
9. Additional ``Kiosk'' Option
a. Requirement for Carrier Participation
b. Air Processes
c. Vessel Processes
d. Kiosk Scenario Assumptions
C. Statutory Authority to Require Air and Vessel Carriers to
Collect Exit Biometrics
D. Impetus for Carrier Participation
V. Summary of the Proposed Rule
VI. Statutory and Regulatory Requirements
A. Executive Order 12866
1. Alternatives to the Proposed Rule Evaluated
2. Costs
3. Benefits
4. Accounting Statement
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Executive Order 13132
E. Executive Order 12988
F. Trade Impact Assessment
G. National Environmental Policy Act
H. Paperwork Reduction Act
I. Public Privacy Interests
Table of Abbreviations and Acronyms
9/11 Recommendations Act--The Implementing Recommendations of the
9/11 Commission Act of 2007
ADIS--Arrival and Departure Information System
AOIP--Aircraft Operator Implementation Plan
APIS--Advance Passenger Information System
AQQ--APIS Quick Query
CBP--Customs and Border Protection
CEQ--Council on Environmental Quality
CII--Critical Infrastructure Information
CJIS--Criminal Justice Information Services
COI--Countries of Interest
CUG--Consolidated Users Guide
DHS--Department of Homeland Security
DOJ--Department of Justice
DOS--Department of State
DMIA--Immigration and Naturalization Service Data Management
Improvement Act of 2000
EBSVERA--Enhanced Border Security and Visa Entry Reform Act of 2002
FBI--Federal Bureau of Investigation
FIN--Fingerprint Identification Number
FOIA--Freedom of Information Act
FONSI--Finding of No Significant Impact
IDENT--Automated Biometric Identification System
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
IRTPA--Intelligence Reform and Terrorism Prevention Act of 2004
MRZ--Machine Readable Zone
NEPA--National Environmental Policy Act of 1969
NCTC--National Counterterrorism Center
NIST--National Institute of Standards and Technology
PCII--Protected Critical Infrastructure Information
PEA--Programmatic Environmental Assessment
[[Page 22066]]
PIA--Privacy Impact Assessment
PII--Personally Identifiable Information
PRA--Paperwork Reduction Act
SBA--Small Business Administration
SFPD--Secure Flight Passenger Data
SSI--Sensitive Security Information
TRIP--Traveler Redress Inquiry Program
TSA--Transportation Security Administration
USA PATRIOT Act--Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001
US-VISIT--United States Visitor and Immigrant Status Indicator
Technology Program
VWP--Visa Waiver Program
VWPPA--Visa Waiver Permanent Program Act of 2000
WSA--Work Station Attendant
I. Request for Public Comments
The Department of Homeland Security (DHS) requests public comment
on this proposed rule. The most helpful comments will specifically
address discrete elements of the proposal, including on-point
operational and financial data and the potential economic and business
impacts from the performance standards proposed under this rule.
This rule proposes a performance standard that requires the
carriers to collect biometric information on the premises of the
facility from which the alien departs the United States, but provides
the carriers with some discretion in the manner of collection and
submission to allow the carriers to meet the requirements in the most
efficient and cost-effective manner. DHS specifically requests public
comments on all of the alternatives discussed in this proposed rule and
the underlying assumptions and analyses related to those alternatives.
Although the proposed rule identifies means for collection of
biometrics, personnel, and methods of transmission, DHS also welcomes
proposals on alternatives that have not been proposed in this rule. The
most useful proposals or alternatives would include information on how
the proposed alternative would reduce the burden on travelers and the
travel industry without sacrificing accuracy in the collection of
biometric information.
DHS also solicits comments on the regulatory evaluations supporting
this proposed rule, including:
The cost models of each alternative, including all
assumptions that underlie the labor costs;
Any cost-sharing alternatives to the proposals presented
between the carriers and the government;
The assumptions and numbers used to develop the carrier
and government alternatives; and
The potential for cost savings for alternatives not
included as options in this proposed rule.
DHS may select another variation between the outer bounds of the
alternatives presented or another alternative if subsequent analysis
and public comments warrant.
All comments will be included in the public docket, except those
comments that, on their face, contain trade secrets, confidential
commercial or financial information, or sensitive security information
(SSI) or critical infrastructure information (CII). Comments that
include trade secrets, confidential commercial or financial
information, or SSI should not be submitted to the public regulatory
docket. Submit such comments separately from other comments on the
rule. Comments containing this type of information should be
appropriately marked and submitted by mail to the individual listed in
the FOR FURTHER INFORMATION CONTACT section. Upon receipt of such
comments, DHS will handle them in accordance with applicable safeguards
and restrictions on access. DHS will not place the comments in the
public docket, but rather will hold them in a separate file to which
the public does not have access and place a note in the public docket
that DHS has received such materials from the commenter.
Industry is invited to submit critical infrastructure information
(CII) in response to this rulemaking. The CII must be submitted to the
Protected Critical Infrastructure Information (PCII) Program Office and
validated as PCII in order to be considered PCII. In addition, the
submitted CII must be accompanied by an express statement requesting
the protections of the Critical Infrastructure Information Act of 2002,
Public Law No. 107-296, tit. II, subtit. B, section 211-214, 116 Stat.
2135, 2150 (Nov. 25, 2002) (6 U.S.C. 131-134) (the CII Act), and a
signed Certification Statement. Once the PCII Program receives the
requisite documentation, and provided that the submitted information
meets the definition of CII under the CII Act, the PCII Program Office
will validate the information as PCII. Submissions of CII for
consideration for validation as PCII should be submitted
electronically, if possible, through the PCII Web site at www.dhs.gov/
pcii and marked with the docket number for this rulemaking. If the
comments cannot be submitted electronically for PCII consideration,
please contact the PCII Program Office at pcii-info@dhs.gov. DHS will
disclose and dispose of CII and PCII only in accordance with the CII
Act and 6 CFR part 29.
II. Background and Purpose
A. Need for a US-VISIT Exit System
Under the Department's current US-VISIT Program, the U.S.
Government, through Customs and Border Protection (CBP) officers or
Department of State (DOS) consular offices, collects biometrics
(digital finger scans and photographs) from aliens seeking to enter the
United States. DHS checks that information against government databases
to identify suspected terrorists, known criminals, or individuals who
have previously violated U.S. immigration laws. This system assists DHS
and DOS in determining whether an alien seeking to enter the United
States is, in fact, admissible to the United States under existing law.
Currently, however, there is no exit system to assist DHS or DOS in
determining whether an alien has overstayed the terms of his or her
visa (or other authorization to be present in the United States).
Following the terrorist attacks on the United States in 2001, the
National Commission on Terrorist Attacks upon the United States (the 9/
11 Commission), in its seminal report, noted:
Looking back, we can see that the routine operations of our
immigration laws--that is, aspects of those laws not specifically
aimed at protecting against terrorism--inevitably shaped al Qaeda
planning and opportunities * * * had the immigration system set a
higher bar for determining whether individuals are who or what they
claim to be--and ensuring routine consequences for violations--it
could potentially have excluded, removed, or come into further
contact with several hijackers who did not appear to meet the terms
for admitting short-term visitors.
The 9/11 Commission Report: Final Report of the National Commission on
Terrorist Attacks upon the United States (2004) (9/11 Commission
Report), p. 384.
The 9/11 Commission's final report illustrated the shortcomings of
a system without exit controls. The Commission reported that several of
the 9/11 hijackers (Mohamed Atta, Ziad Jarrah, Satam Suqami, Salam al
Suqami, and Nawaf al Hazmi) could have been denied admission to the
United States based on previous violations of immigrations laws,
including having previously overstayed their terms of admission. Had
these individuals been denied admission, they would not have been
present or available in the United States on September 11, 2001, to
carry out the terrorist attacks. See 9/11 Commission Report at 564 note
33, also Staff Statement No. 1 to the Report,
[[Page 22067]]
``Entry of the 9/11 Hijackers in the United States'' (``Staff
Statement''). The Staff Statement emphasizes the consequences of this
particular unfinished congressional mandate: ``Congress required the
Attorney General to develop an entry-exit system in 1996. The system's
purpose was to improve INS' ability to address illegal migration and
overstays for all types of foreign visitors. * * * [W]hen hijackers
Suqami and Nawaf al Hazmi overstayed their visas, the system Congress
envisaged did not exist. Moreover, when federal law enforcement
authorities realized in late August 2001 that [Khalid al] Mihdhar had
entered with Hazmi in January 2000 in Los Angeles, they could not
reliably determine whether or not Hazmi was still in the United States,
along with Mihdhar.'' Staff Statement at 8-9.
The purpose of the exit system proposed under this rule is to allow
the U.S. Government to better identify aliens who have violated the
terms of their stay in the United States. This system will complement
the existing entry system and meets the mandates of Congress in the 9/
11 Recommendations Act (9/11 Recommendations Act), Public Law No. 110-
53, 121 Stat. 266, 338 (Aug. 3, 2007), and the recommendations of the
9/11 Commission.
This rule proposes to amend 8 CFR 215.8 and 231.4 to require
commercial air and vessel carriers to collect fingerprints from aliens
departing the United States and to transmit those fingerprints to DHS
either within 24 hours after securing the cabin doors of the aircraft
for departure from the United States or within 24 hours of departure of
a vessel from the United States.
DHS also proposes to amend 8 CFR 215.8 to expand the US-VISIT exit
program beyond its current limitation of fifteen pilot programs. DHS
proposes to require that the air and vessel carriers will submit the
information to DHS for comparison against relevant watchlists and
immigration information, as required under the Implementing
Recommendations of the 9/11 Commission Act of 2007. DHS does not
propose to apply these requirements to an air or vessel carrier that is
a small entity as defined under Small Business Administration (SBA)
regulations. 13 CFR 121.201 (NAIC Codes 481111, 481212, 483112).
This proposed rule is based, in part, on the same statutory
authorities under which DHS requires air and vessel carriers to provide
passenger manifest information under CBP's Advanced Passenger
Information System (APIS). Immigration and Nationality Act of 1952, as
amended (INA), section 231, 8 U.S.C. 1221. Pursuant to existing DHS
regulations, carriers are required to collect, verify, and transmit
APIS data before securing the aircraft doors for international flights.
Carriers will be required to send the biometric portion of the
passenger manifest data to US-VISIT in an XML formatted message that
contains the biometric image, US-VISIT specified biographic data (e.g.,
last name, first name, date of birth, country of citizenship, gender,
document type, document number), and carrier specific information
(e.g., carrier ID, flight number, port of departure, date and time of
fingerprint capture, device identification). US-VISIT will process the
biographic data to find the passenger's entry records in the DHS
Automated Biometric Identification System (IDENT) and the Arrival and
Departure Information System (ADIS) and then compare the exit biometric
to the entry biometric to verify identity.
When an alien arrives at the international departure air or sea
port, the carrier will collect the alien's biometric data. The
biometric data and the associated unique identifier will then be
transmitted, within 24 hours of departure, to US-VISIT for processing.
US-VISIT will use the unique identifier to associate the APIS
biographic and biometric data for each alien.
DHS will use the alien biometric data in conjunction with
biographic exit data to create an exit record for each departing alien.
Biometric exit records will be reconciled against biometric entry
records. Aliens who have overstayed their admission period could be
subject to adverse action upon subsequent encounters with the U.S.
Government, such as during visa application or renewal or application
for admission or re-admission to the United States. DHS will also use
this data to undertake larger statistical analyses to weigh specific
inclusions in the Visa Waiver Program (VWP), as required by INA section
217, 8 U.S.C. 1187.
B. Statutory Authority for US-VISIT
Numerous Congressional enactments provide for the creation of an
integrated and automated system to record the arrival and departure of
aliens; the deployment of equipment at all ports of entry to verify
aliens' identities and authenticate travel documents through the
comparison of biometric identifiers; and the recording of alien arrival
and departure information from biometrically authenticated travel
documents.\1\ DHS may control alien travel and inspect aliens under
sections 215(a) and 235 of the INA, 8 U.S.C. 1185, 1225. Aliens may be
required to provide fingerprints, photographs, or other biometric
identifiers upon arrival in, or departure from, the United States, and
select classes of aliens may be required to provide information at any
time. See, e.g., INA sections 214, 215(a), 235(a), 262(a), 263(a),
264(c), 8 U.S.C. 1184, 1185(a), 1225(a), 1302(a), 1303(a), 1304(c).
Pursuant to section 215(a) of the INA, and Executive Order No. 13323,
69 FR 241 (Jan. 2, 2004), the Secretary of Homeland Security, with the
concurrence of the Secretary of State, has the authority to require
certain aliens to provide requested biographic identifiers and other
relevant identifying information as they depart the United States.
Under section 214 of the INA, 8 U.S.C. 1184, DHS may make compliance
with US-VISIT departure procedures a condition of admission and
maintenance of status for nonimmigrant aliens while in the United
States.
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\1\ Implementation of the United States Visitor and Immigrant
Status Indicator Technology Program (``US-VISIT''); Biometric
Requirements, 69 FR 468, 468 (Jan. 5, 2004).
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The creation of an automated entry-exit system that integrates
electronic alien arrival and departure information was first authorized
in the Immigration and Naturalization Service Data Management
Improvement Act of 2000 (DMIA), Public Law No. 106-215, 114 Stat. 339,
8 U.S.C. 1365a. The DMIA provided that the entry-exit system consist of
the integration of all authorized or required alien arrival and
departure data that is maintained in electronic format. The DMIA also
provided for DHS to use the entry-exit system to match the available
arrival and departure data on aliens. DMIA section 2, 8 U.S.C.
1365a(e).
In addition, section 205 of the Visa Waiver Permanent Program Act
of 2000 (VWPPA), Public Law No. 106-396, 114 Stat. 1637 (October 30,
2000), amending INA section 217(h), 8 U.S.C. 1187(h), provides for the
creation of a system that contains a record of the arrival and
departure of every alien admitted under the VWP at air or sea ports of
entry. The provisions of the DMIA resulted in the integration of the
VWP arrival/departure information into the primary entry-exit system
component of US-VISIT.
Following the attacks on the United States on September 11, 2001,
Congress enacted the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (USA
[[Page 22068]]
PATRIOT Act), Public Law No. 107-56, 115 Stat. 353 (October 26, 2001),
and the Enhanced Border Security and Visa Entry Reform Act of 2002
(EBSVERA), Public Law No. 107-173, 116 Stat. 553 (May 14, 2002).
Section 403(c) of the USA PATRIOT Act, 8 U.S.C. 1379, required DHS and
DOS to jointly develop and certify a technology standard that can be
used to verify the identity of visa applicants and aliens seeking to
enter the United States pursuant to a visa and to do background checks
on such aliens. The technology standard was developed through the
National Institute of Standards and Technology (NIST), in consultation
with the Secretary of the Treasury, other appropriate Federal law
enforcement and intelligence agencies, and Congress. The standard
includes appropriate biometric identifier standards. The USA PATRIOT
Act further provided for DHS and DOS to ``particularly focus on the
utilization of biometric technology; and the development of tamper-
resistant documents readable at ports of entry.'' USA PATRIOT Act
section 414(b), 8 U.S.C. 1365a and note.
The statutory provisions for biometric identifiers to be utilized
in the context of the entry-exit system also were strengthened
significantly under EBSVERA. Section 302(a)(1) of EBSVERA provides that
the entry-exit system must use the technology and biometric standards
required to be certified by DHS and DOS under section 403(c) of the USA
PATRIOT Act. 8 U.S.C. 1731. Section 303(b)(1) of EBSVERA provides that
the United States may issue to aliens only machine-readable, tamper-
resistant visas and other travel and entry documents that use biometric
identifiers. 8 U.S.C. 1732(b)(1). Further, DHS and DOS must jointly
establish document authentication and biometric identifier standards
for alien travel documents from among those recognized by domestic and
international standards organizations. Id. However, unexpired travel
documents that have been issued by the U.S. Government but do not use
biometrics are not invalidated under section 302(c)(2) of EBSVERA. 8
U.S.C. 1732(c)(2). Section 303(b)(2) of EBSVERA provided for the
installation, at all ports of entry, of equipment and software that
allow biometric comparison and authentication of all United States
visas and machine-readable, tamper-resistant travel and entry documents
issued to aliens, as well as passports that are issued by countries
participating in the VWP. 8 U.S.C. 1732(b)(2).
The entry-exit system includes a database that contains alien
arrival and departure data from the machine-readable visas, passports,
and other travel and entry documents. EBSVERA section 302(a)(2), 8
U.S.C. 1731(a)(2). In developing the entry-exit system, EBSVERA
provided that the Secretaries of Homeland Security and State make
interoperable all security databases relevant to making determinations
of alien admissibility. EBSVERA section 302(a)(2), 8 U.S.C. 1731(a)(3).
In addition, EBSVERA provided that the entry-exit system share
information with other systems required by EBSVERA. Section 202 of
EBSVERA addresses requirements for an interoperable law enforcement and
intelligence data system and requires the integration of all databases
and data systems that process or contain information on aliens. 8
U.S.C. 1722.
In December 2004, further statutory provisions were enacted
pertaining to the entry-exit system. Section 7208 of the Intelligence
Reform and Terrorism Prevention Act of 2004 (IRTPA), Public Law No.
108-458, 118 Stat. 3638, 3817 (Dec. 17, 2004), 8 U.S.C. 1365b, provides
for DHS to collect biometric exit data for all categories of aliens who
are required to provide biometric entry data. IRTPA requires that the
system contain, as an interoperable component, the fully integrated
databases and data systems maintained by DHS, DOS and the Department of
Justice (DOJ) that process or contain information on aliens. IRPTA also
requires current and immediate access to information in the databases
of Federal law enforcement agencies and the intelligence community,
which is relevant in determining whether to issue a visa or the
admissibility or deportability of an alien. Section 7208 also provided
a complete list of entry-exit system goals, which include, among other
things, screening aliens efficiently.
Finally, section 711 of the 9/11 Recommendations Act directs the
Secretary of Homeland Security, within one year of enactment, to
``establish an exit system that records the departure on a flight
leaving the United States of every alien participating in the visa
waiver program[.]'' INA section 217(i), 8 U.S.C. 1187(i). This air exit
system must match the biometric information of aliens against relevant
watch lists and immigration information and compare such biometric
information against manifest information collected by air carriers on
passengers departing the country. Id. In addition, subsection (c) of
the 9/11 Recommendations Act permits the Secretary of Homeland Security
to waive the applicability of INA section 217(c)(2)(A), 8 U.S.C.
1187(c)(2)(A), which restricts eligibility for designation into the VWP
to countries that have a low nonimmigrant visa refusal rate, subject to
a determination that certain security-related measures are met.
Specifically, DHS must certify the following to exercise the waiver
authority: (1) An air exit system is in place that can verify the
departure of not less than 97% of foreign nationals who exit through
airports of the United States, and (2) an electronic travel
authorization system to collect biographic and other information in
advance of travel to the United States (as required under 9/11
Recommendations Act) subsection (d)(1)(E), adding INA section
217(h)(3), 8 U.S.C. 1187(h)(3), is fully operational. The VWP waiver
authority suspends on July 1, 2009, unless the Secretary of Homeland
Security provides notification that the air exit system fully satisfies
the biometric requirements of INA section 217(i), 8 U.S.C. 1187(i).\2\
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\2\ The House and Senate Conference Committee reported:
The Conference further agrees to provide the Secretary this
waiver authority upon certification by the Secretary to Congress
that there is an air exit system in place to verify the departure of
not less than 97% of foreign nationals who exit by air, which may or
may not be fully biometric. The Conference also agrees that the
ultimate goal is to achieve a fully biometric air exit system, as
described in subsection (i) of the bill. Therefore, if such a
biometric system is not implemented by June 30, 2009, the
Secretary's waiver authority that was based upon his certification
of 97 percent accuracy of any non-biometric exit system shall be
suspended until a biometric exit system is fully operational.
Establishment of this biometric system will implement a 9/11
Commission recommendation and will enhance our border security and
immigration enforcement by ensuring our ability to track the
arrivals and departures of foreign nationals.
Implementing Recommendations of the 9/11 Commission Act of 2007:
Conference Report to Accompany H.R. 1, H. R. Rept. 110-259, 110th
Cong., 1st Sess., at 318 (July 25, 2007) (H. R. Rept. 110-259). The
statutory provisions clearly indicate Congress's imperative to
create a biometric exit system for air travel.
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The VWP is important to U.S. international trade and tourism, and
preservation of the Secretary's discretion within the VWP program is
critical to balancing U.S. security interests and international trade
priorities. The program was established in 1986 with the objective of
eliminating unnecessary barriers to travel, stimulating the tourism
industry, and permitting the United States to focus resources on other
areas of greater risk or with problematic immigration issues.
Currently, VWP enables nationals of twenty-seven countries to travel to
the United States for tourism or business for stays of 90 days or less
without obtaining a visa.\3\ All VWP travelers,
[[Page 22069]]
regardless of age or type of passport used, must present individual
machine-readable passports. Effective September 30, 2004, nonimmigrants
seeking to enter the United States under the VWP also are required to
provide biometric information under US-VISIT. 69 FR 53318 (Aug. 31,
2004).
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\3\ The VWP countries are Andorra; Australia; Austria; Belgium;
Brunei; Denmark; Finland; France; Germany; Iceland; Ireland; Italy;
Japan; Liechtenstein; Luxembourg; Netherlands; New Zealand; Norway;
Portugal; San Marino; Singapore; Slovenia; Spain; Monaco; Sweden;
Switzerland; and United Kingdom.
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DHS's broad authority to control alien travel and inspect aliens
under INA sections 215(a) and 235, 8 U.S.C. 1185 and 1225, further
supports the requirements under US-VISIT that foreign nationals provide
biometric identifiers and other relevant identifying information upon
admission to, or departure from, the United States.
C. Program History of US-VISIT
On January 5, 2004, DHS implemented the first phase of the US-VISIT
program by requiring that aliens seeking admission into the United
States through nonimmigrant visas provide fingerprints, photographs, or
other biometric identifiers upon arrival in, or departure from, the
United States at air and sea ports of entry. 69 FR 468 (Jan. 5, 2004).
Since September 30, 2004, nonimmigrants seeking to enter the United
States without visas under the VWP also have been required to provide
biometric information under US-VISIT. 69 FR 53318 (Aug. 31, 2004). DHS
has expanded US-VISIT entry to 119 airports, 19 seaports, and 154 land
border ports of entry.
In many cases, US-VISIT biometric identification begins overseas at
DOS consular offices. There, biometrics (digital finger scans and
photographs) of aliens applying for visas are collected and checked
against a database of known criminals, suspected terrorists, and those
who have previously violated the immigration laws of the United States
or had other DHS or DOS encounters.
When any person, whether a U.S. citizen or an alien, arrives at a
port of entry by air, he or she enters a CBP inspection area for
immigration and customs inspection. At that time, every person must
show that he or she is either a U.S. citizen or an alien who is
admissible to the United States. 8 CFR 235.1.
While the alien remains before CBP, US-VISIT will verify that the
alien at the port of entry is the same alien who received the visa by
comparing the biometrics of the alien to the record created at the time
of visa application. For those aliens whose biometrics were not
captured overseas, such as VWP visitors, a CBP officer at the port of
entry will collect digital finger scans and a digital photograph of the
alien. These biometrics will be verified at the time of exit and, if
required, during subsequent applications for admission to the United
States.
DHS's ability to establish and verify the identity of an alien and
to determine whether that alien is admissible to the United States is
critical to the security of the United States and the enforcement of
the laws of the United States. By linking the alien's biometric
information with the alien's travel documents, DHS reduces the
likelihood that another individual could assume the identity of an
alien already recorded in US-VISIT or use an existing recorded identity
to gain admission to the United States.
US-VISIT biometrically screens alien arrivals at air and sea ports
of entry during primary inspection, but will only screen during
secondary inspection at land border ports of entry. At the land border
ports of entry, secondary inspection is used rather than primary
inspection because of the volume of traffic and facility limitations.
Referral of aliens to secondary inspection at the land border ports of
entry is premised on processes that already require secondary
inspection (e.g., issuance of a Form I-94 Arrival/Departure Record) or
an inspecting officer's determination that further investigation of the
alien's identity or admissibility is needed to properly determine
whether the alien is admissible to the United States.
From its inception on January 5, 2004 through February 29, 2008,
US-VISIT has biometrically screened 112,884,097 aliens at the time they
applied for admission to the United States. DHS has taken adverse
action against more than 3,039 of these aliens based on information
obtained through the US-VISIT biometric screening process. By ``adverse
action,'' DHS means that the aliens were:
Arrested pursuant to a criminal arrest warrant;
Denied admission, placed in expedited removal, or returned
to the country of last departure; or
Otherwise detained and denied admission to the United
States.
In addition, by quickly verifying the identities of aliens and the
validity of documents, US-VISIT has expedited the travel of millions of
legitimate entrants. Adding the biometric records of aliens visiting
the United States to the IDENT database will likely result in DHS
identifying other aliens who are inadmissible or who otherwise present
security and criminal threats, including those who may be traveling
under a previously established identity and potentially pose a threat
to the security or law enforcement interests of the United States.
The Secretary of State and the Secretary of Homeland Security may
jointly exempt classes of aliens from US-VISIT. The Secretary of State
and the Secretary of Homeland Security, as well as the Director of the
Central Intelligence Agency, also may exempt any individual from US-
VISIT. 8 CFR 235.1(f)(iv)(B). Aliens currently expressly exempt from
US-VISIT requirements by DHS regulations include:
Aliens admitted on an A-1, A-2, C-3, G-1, G-2, G-3, G-4,
NATO-1, NATO-3, NATO-4, NATO-5, or NATO-6 visa;
Children under the age of 14;
Aliens over the age of 79;
Taiwan officials admitted on an E-1 visa and members of
their immediate families admitted on E-1 visas.
8 CFR 235.1(f)(1)(iv).
On July 27, 2006, DHS proposed to expand the population of aliens
required to provide biometric information under US-VISIT. See 71 FR
42605. Under that proposed rule, DHS would extend US-VISIT requirements
to all aliens, including lawful permanent residents, with the exception
of aliens who are specifically exempted and Canadian citizens applying
for admission as B1/B2 visitors for business or pleasure. The
Department anticipates issuing a final rule before the end of 2008.
III. US-VISIT Exit Pilot Program
Under current regulations, DHS may conduct exit pilot programs at
up to fifteen air or sea ports of entry. 8 CFR 215.8(a). DHS conducted
a series of pilot programs from January 2004 through May 2007 at
fourteen ports of entry across the United States.\4\ The results of the
pilot programs, discussed below, were informative to DHS in its
determination to propose that the most effective method of collecting
biometric information from alien travelers and submitting such
information to DHS
[[Page 22070]]
would be to have commercial air and vessel carriers--who have the most
information and expertise in collecting information from travelers
during the travel process--to collect biometric information in addition
to the biographic information already collected by commercial carriers
for business purposes and as required under federal law.
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\4\ Those ports were: Baltimore/Washington International
Thurgood Marshall Airport; Chicago O'Hare International Airport;
Denver International Airport; Dallas Fort Worth International
Airport; Miami Cruise Terminal; San Juan Luis Munoz Marin
International Airport; Detroit Metropolitan Wayne County Airport
(McNamara Terminal); Newark Liberty International Airport; San
Francisco International Airport; Los Angeles Cruise Terminal;
Hartsfield-Jackson Atlanta International Airport; Philadelphia
International Airport; Ft. Lauderdale/Hollywood International
Airport; and Seattle-Tacoma International Airport.
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Under these pilot programs, aliens admitted to the United States
pursuant to a nonimmigrant visa who departed the United States from a
designated air or sea port of entry were required to provide: (1)
Fingerprints, photograph(s), or other specified biometric identifiers;
(2) documentation of his or her immigration status in the United
States; and (3) such other evidence as a CBP officer might have
requested to determine the alien's identity and whether he or she had
properly maintained his or her status while in the United States.
US-VISIT evaluated various technologies and processes to collect
biometric data from aliens at the time of departure. The pilot
locations were chosen to provide a mix of locations based upon
geography, passenger volume, the number of watchlist hits observed from
US-VISIT entry, travel industry input, and deployment logistics. US-
VISIT conducted site surveys of air and sea ports nationwide.
The US-VISIT exit pilots tested the technical feasibility of three
solution alternatives: A biometric exit kiosk, a mobile (handheld)
biometric device, and a mobile biometric validation device.
Kiosk Alternative. The kiosk alternative provided a stationary
self-service device with a touch screen interface, document scanner,
finger scanner, digital camera, and a receipt printer. In some
locations, a Work Station Attendant (WSA) would assist aliens. These
fixed kiosks were located beyond the TSA screening checkpoint (in the
sterile sector of the airport), but before the individual airport
boarding gates. The alien required to be processed in US-VISIT was
responsible for locating the kiosks and using the device to record his
or her biometrics to confirm his or her departure.
Mobile Alternative. The mobile alternative involved a handheld
device, operated by a WSA, that included a document scanner, finger
scanner, digital camera, and receipt printer. The WSAs were located in
various places in the airport concourse between the TSA checkpoint and
the gates. The WSAs attempted to be as close to applicable gates as
possible without disrupting the boarding process.
Mobile Validator Alternative. The mobile validator alternative used
a handheld device as an additional step in the kiosk alternative. This
device verified that an alien boarding a departing aircraft was the
same alien who had submitted documentation and finger scans to the
kiosk. This was, essentially, a combination of the previous two
alternatives.
In all three alternatives, the alien was expected to comply with
the biometric exit requirements without government enforcement or
compulsion. WSAs were not given the authority to require aliens to
comply with the biometric exit requirements, but were present only to
assist aliens in the exit process, if needed.
During the pilot programs, approximately 6.5 million biometric exit
records were collected. During the same time period, however, over 26
million entry records were collected for the same ports of entry.
Biometric exit records collection should have been approximately four
times higher. This projection is based on analysis of biographic entry
and exit data for the same ports where the pilots were in operation. Of
those biometric exit records that were collected, approximately 94.7%
were successfully matched to biometric entry records.
US-VISIT conducted an evaluation of the pilots between October 2004
and March 2005 and terminated the pilot programs on May 6, 2007, to
prepare for the deployment of the follow-on system. From the pilot
programs, DHS found the following:
Biometrics provide a significant enhancement to the existing
ability to match arrival and departure records. Biographic records
sometimes contain inaccurate, incomplete, or untimely data that can
prevent the matching of exit records to entry records. While using
improved algorithms can improve biographic matching of records, it is
not as accurate as biometric matching. The pilot established that with
two-fingerprint matching, biometric entry and exit records could be
matched with 99.73% accuracy, which is significantly higher than the
rate obtained through the matching of biographic records. With US-
VISIT's change to a ``slap'' or ``flat'' capture of the fingerprints
from one hand for verification, it is likely that this matching
accuracy rate will be higher.\5\ Thus, biometric exit collection would
permit DHS to match thousands more records annually.
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\5\ The change from a two-index-fingerprint to all fingerprints
(no thumb) from one hand system is expected to provide faster
processing and more reliable verification.
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Exit processing compliance could improve by integration with the
departure process. DHS found that compliance with biometric exit
procedures improved depending on the convenience of the process. In
certain airports, DHS was unable, due to contractual reasons with the
airports and airport authorities, to place as many exit kiosks as it
would have liked or in the precise locations where it would have liked.
In places such as these, where the kiosks were inconveniently located,
the compliance rate was lower. In addition, DHS was often limited due
to airport space restrictions in placing signage or other outreach
material in places that it felt would have adequately informed the
public of obligations for certain aliens to provide biometrics upon
exiting the United States at certain airports. Similarly, these
locations also had a low compliance rate.
One conclusion from these pilots is that a biometric exit system is
beneficial and necessary to the security of the United States and the
integrity of its immigration system. In addition, the pilots
demonstrated that the technology used to collect biometric exit records
worked, but that the process of collecting biometric exit records
should be integrated into the existing departure process to improve
compliance. Consistency and integration will ensure that each alien
subject to US-VISIT requirements will have a biometric exit record
created before departing the United States. This proposed rule
implements the lessons learned from the pilot programs.
IV. Proposed Exit Program
A. Purpose
The principal reason for this rulemaking is the need to ascertain
with greater certainty the identity of those aliens departing the
United States and whether those aliens who have entered for limited
times and purposes have, in fact, left the United States in accordance
with the terms of their admission. DHS must be able to record which
aliens have left the United States with reliable identity information
to assess adequately the nature or likelihood of a domestic terrorist
threat posed by any given alien and to better allocate interior
immigration enforcement resources to enforce the immigration laws of
the United States.
Moreover, as discussed above, the 9/11 Recommendations Act requires
DHS to establish a biometric air exit system that records the departure
of aliens who entered under the VWP on flights
[[Page 22071]]
leaving the United States. Unlike past programmatic authorizations,
Congress provided a specific consequence that will occur on a date
certain if the implementation schedule is not met. As discussed
previously, if a fully biometric air exit system is not implemented,
the Secretary's authority to waive the low non-immigrant visa refusal
rate for participation in the VWP will be suspended on July 1, 2009,
until a biometric air exit system is fully operational. H.R. Rept. 110-
259, at 318. In this event, the Secretary would lose the authority to
waive the visa refusal rate for countries seeking to enter the VWP
under INA section 217(c)(2)(A), 8 U.S.C. 1187(c)(2)(A).
The collection of exit biometric data will allow DHS to identify
those aliens who have complied with or overstayed their previous period
of admission. The system will provide DHS with evidence supporting
approval or rejection of any subsequent application for admission to
the United States, a visa application, or other immigration benefit.
This information will also be used, in the aggregate, to allow DHS and
other federal agencies to better tabulate existing statistical reports
on alien immigration, travel, and economic activities. Moreover,
comprehensive trend analysis might reveal to DHS and DOS specific visa-
issuing posts, visa categories, VWP countries, or other information
relating to an unacceptably high overstay rate.
Under existing DHS rules, carriers are required to collect, verify,
and transmit certain passenger manifest data to CBP through APIS before
air carrier personnel secure the aircraft doors for international
flights. If CBP's processing of the APIS data through CBP databases
produces a Fingerprint Identification Number (FIN) that corresponds to
the US-VISIT subject alien passenger, then the FIN will be sent to US-
VISIT.
As part of the APIS transmission requirements, carriers create a
unique identifier for each passenger on the APIS manifest and submit
that identifier as part of their APIS transmission. Under this proposed
rule, when an alien arrives at the international departure air or sea
port, the carrier will collect the alien's biometric data.\6\ The
carrier will then transmit to US-VISIT the biometric data and the
associated unique identifier, within 24 hours of departure, to US-VISIT
for processing. US-VISIT will match the unique identifier from the APIS
biographic data with the biometric record for each alien.
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\6\ This proposed rule addresses the collection of biometrics
from aliens departing the United States from air and sea ports. Land
border ports of entry present challenges different from air and sea
ports, due in large part from a lack of sufficient public or private
infrastructure at land border exits. Therefore, the collection of
information from aliens departing the United States from land ports
will be addressed in a subsequent rule.
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DHS will use the alien biometric data in conjunction with
biographic exit data to create an exit record for each departing alien.
Biometric exit records will be reconciled against biometric entry
records. Aliens who have overstayed their admission period could be
subject to adverse action upon subsequent encounters with the U.S.
Government, such as during visa application or renewal or application
for admission or re-admission to the United States. DHS will also use
this data to undertake larger statistical analyses to weigh specific
inclusions in the VWP, as required by INA section 217, 8 U.S.C. 1187.
B. Summary of the Exit Proposal and Alternatives Considered
1. Current Passenger Information Requirements for Carriers
DHS currently requires commercial aircraft and vessels to
electronically submit passenger manifest information in accordance with
several statutory mandates. These mandates include, but are not limited
to the following: Section 115 of the Aviation and Transportation
Security Act (ATSA), Public Law 107-71, 115 Stat. 597; 49 U.S.C. 44909
(applicable to passenger and crew manifests for flights arriving in the
United States); section 402 of the EBSVERA, INA section 231, 8 U.S.C.
1221 (applicable to passenger and crew manifests for flights and
vessels arriving in and departing from the United States); and CBP's
general statutory authority under 19 U.S.C. 1431 and 1644a (requiring
manifests for vessels and aircraft).
Under APIS regulations, commercial air carriers are required to
submit passenger manifest information to DHS before the flight crew
secure the aircraft doors for departure. See Advance Electronic
Transmission of Passenger and Crew Member Manifests for Commercial
Aircraft and Vessels, 72 FR 48319 (Aug. 23, 2007). Air carriers have
three options to transmit to DHS manifest data for aircraft departing
from or en route to the United States: (1) Transmission of passenger
manifests in batch form by an interactive method no later than 30
minutes prior to the securing of the aircraft doors (APIS 30); (2)
transmission of individual passenger manifest information as each
passenger checks in for the flight up to, but no later than, the time
the flight crew secures the aircraft doors (APIS interactive Quick
Query or AQQ); and (3) transmission of passenger manifests in batch
form by a non-interactive method no later than 30 minutes prior to the
securing of the aircraft doors (APIS 30 ``non-interactive'').
For commercial sea travel, CBP currently requires vessel carriers
to electronically transmit arrival passenger and crew member manifests
at least 24 hours (for voyages of fewer than 24 hours) and up to 96
hours (for voyages of 96 or more hours), prior to the vessel's entry at
a U.S. port or place of destination, depending on the length of the
voyage (for voyages of at least 24 but less than 96 hours, transmission
must be prior to departure of the vessel from any place outside the
United States). See 19 CFR 4.7b(b)(2). A vessel carrier also must
electronically transmit passenger and crew member departure manifests
to CBP 60 minutes prior to the vessel's departure from the United
States. See 72 FR 48320, 48325 (Aug. 23, 2007).
DHS also regulates the security of, among others, certain U.S.
aircraft operators (49 CFR part 1544) and foreign air carriers (49 CFR
parts 1546 and 1550) that conduct passenger and all-cargo operations
to, from, within, and overflying the United States. In addition to
these regulations, the Transportation Security Administration (TSA) has
implemented detailed security requirements tailored for specific
sectors of the transportation industry that are implemented through
security programs, Security Directives, and Emergency Amendments. See
e.g., 49 CFR 1544.305, 1546.105, 1550.5. Under certain Security
Directives and Emergency Amendments now in effect, TSA requires the
advance submission of crew member and non-crew member manifest
information for certain flights operating to, from, continuing within,
and overflying the United States.
DHS has made every effort in this notice of proposed rulemaking to
harmonize its operational and technical requirements with these
programs to reduce the impacts on the carriers and the public. DHS
seeks comment regarding ways in which DHS can improve that
harmonization and reduce any traveling burdens that this rule may
create.
2. Current Process for Individuals Departing the United States by
Commercial Air Carrier
Today, the process for individuals (including aliens) departing the
United States varies widely, but generally consists of the following
steps. An individual leaving the United States by commercial air
carrier may purchase a ticket and ``check-in'' through the
[[Page 22072]]
internet in advance of arriving at the airport or terminal. If the
individual has not purchased a ticket in advance or must check baggage,
he must first approach the carrier's counters and kiosks. CBP requires
commercial air carriers to obtain a travel document, typically a
passport, from every passenger prior to boarding that passenger on a
flight departing the United States. Commercial air carriers typically
require the individual to present his travel documents when he
approaches a counter or kiosk to acquire a boarding pass. If the
individual obtains the boarding pass in advance of arriving at the
airport and does not need to check baggage, he may bypass the check-in
counter and kiosk and proceed directly to the TSA security screening
checkpoint. At TSA's screening, the individual is asked to present
appropriate photo identification to TSA or the air carrier, whichever
is specified in the TSA-approved existing security programs. See 49 CFR
1544.103. If the individual fails to provide appropriate photo
identification, the individual will be subject to secondary screening.
Information provided to the carrier prior to or at the time of
check-in is used to compile the flight manifest. The carrier uses some
of this information for its own commercial business purposes. The
majority of this information is also transmitted to DHS, through APIS,
as part of the mandatory passenger reporting requirements for
carriers.\7\ 19 CFR 122.75a.
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\7\ Information for aircraft to be submitted includes: Full
name, date of birth, gender, citizenship, country of residence,
status on board the aircraft, travel document type, passport
information if passport is required (number, country of issuance,
expiration date), alien registration number where applicable,
address while in the United States (unless a United States citizen,
lawful permanent resident, or person in transit to a location
outside the United States), Passenger Name Record locator if
available, foreign code of foreign port/place where transportation
to the United States began, code of port/place of first arrival,
code of final foreign port/place of destination for in-transit
passengers, airline carrier code, flight number, and date of
aircraft arrival. See 19 CFR 122.49a-122.49c, 122.75a, and 122.75b.
Vessel carriers are governed by 19 CFR 4.7b, 4.64.
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The TSA security screening checkpoint demarks the line beyond which
the airport is ``sterile'' of prohibited materials as determined by TSA
for flight operations.\8\ See 49 CFR part 1542. The sterile area of an
airport provides passengers access to boarding aircraft. Access to the
sterile area is controlled through the screening of persons and
property for weapons, explosives and incendiaries by TSA at the
security screening checkpoint, or by an aircraft operator under 49 CFR
part 1544 or a foreign air carrier under 49 CFR part 1546. See 49 CFR
1544.5, 1540.111. With few exceptions, individuals must present a valid
boarding pass (including a computer-printed one) and submit their
carry-on luggage and themselves to screening. See 49 CFR 1540.107.
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\8\ TSA is responsible for security in all modes of
transportation, including aviation. See 49 U.S.C. 114(d). TSA
restricts the articles a passenger may carry into the sterile areas
of airports and into the cabins of air carrier aircraft. Under TSA's
regulations for acceptance and screening of individuals and
accessible property, 49 CFR 1540.111, an individual (other than a
law enforcement or other authorized individual) may not have a
weapon, explosive, or incendiary on or about the individual's person
or accessible property when performance has begun of the inspection
of the individual's person or accessible property before entering a
sterile area or before boarding an aircraft for which screening is
conducted under 49 CFR 1544.201 or 1546.201; when the individual is
entering or in a sterile area; or when the individual is attempting
to board or is onboard an aircraft for which screening is conducted
under 49 CFR 1544.201 or 1546.201.
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Those individuals who check-in online and do not present their
travel documents for inspection at the check-in counter or kiosk do so
at the departure gate. This allows carrier staff to verify their
identities and ensure that their documentation is appropriate for
admission into their foreign destination.
Carrier staff also must collect the departure portion of any Form
I-94 or I-94W, Arrival/Departure Record, which are issued to all
nonimmigrant aliens, unless otherwise exempted, as evidence of the
terms of their admission. See id. Typically, the carrier collects and
records all boarding passes. In most instances, the boarding pass
collection occurs directly at the door to the jetway or walkway leading
directly to emplaning.
Information collected at the boarding gate is used to confirm and
complete the final flight close-out message, which is then sent
electronically to CBP. This information provides a biographic record of
an alien's departure from the United States.
3. Proposed Process for Aliens Departing the United States by
Commercial Air Carrier
DHS proposes that an alien covered by US-VISIT be required to
provide biometrics to an air carrier, consistent with established
standards, prior to boarding an international flight. DHS acknowledges
this requirement impacts existing carrier business processes. Aliens
will be informed of the need to comply with biometric exit screening by
the air carrier. Regardless of where the alien checks-in for his or her
international flight, the carrier would be required to collect, and the
alien would be required to provide, biometrics prior to the alien
boarding an international flight leaving the United States.
Given the unique configuration of airports, air carriers have
adapted their business practices to simplify air travel for all
passengers, taking steps to eliminate queues and minimize passengers'
airport time. For example, many air carriers permit passengers to check
in and receive a boarding pass on-line prior to arriving at the
airport. Similarly, passengers may check luggage with a skycap outside
the airport and therefore avoid the check-in counter completely. DHS
does not seek to inhibit air carriers' business processes. DHS
therefore proposes to permit the air carriers latitude in where they
collect biometrics from their departing alien passengers.
DHS expects that, in some instances, an alien will be directed to
an air carrier's check-in counter or kiosk prior to security screening
by TSA where the alien will provide biometrics to the air carrier in
addition to the usual proof of identity, typically a passport. In other
instances, DHS expects that air carriers will choose to collect
biometrics from aliens at their international departure gates. This
alternative permits minimal disruption for aliens making connecting
flights who must provide biometrics prior to international departure.
Air carriers may also collect biometrics from aliens on connecting
flights at the first airport in their departure itinerary. This
collection could be made by the air carrier that transports the alien
on the international leg or by a domestic or other carrier with which
it has reached an agreement on biometric collection. Notwithstanding
any such agreements, however, the air carrier transporting the alien on
the international departure flight retains ultimate responsibility for
assuring that the biometrics are collected and transmitted in
accordance with the proposed rule.
Although there are some general limitations, discussed below, DHS
is not designating any specific place within the airport(s) where the
biometrics of alien passengers must be collected. Beyond these general
limitations, DHS only requires that air carriers collect alien
biometrics prior to the alien boarding the flight departing the United
States.
DHS seeks comment on other locations for collection of biometrics
from aliens traveling by air from a domestic location to a foreign
location. As noted above in the connecting flight example, under
currently considered options, the air carrier transporting the alien
from a domestic location to a
[[Page 22073]]
foreign location is responsible for ensuring the collection and
transmission of biometrics in a manner that conforms to the rule. Once
the carrier completes the collection of the required biometric
information, and collection and verification of APIS data pursuant to
other DHS regulations, the carrier may board the alien.
Information provided to the carrier by aliens will continue to be
used by the carrier to compile the departure manifest. DHS anticipates
that carriers will upgrade their existing systems to allow transmission
of the biometric data to DHS through already existing connections the
carrier uses to transmit other passenger screening information required
under DHS regulations or procedures. Biometric data transmission will
be considered to be an additional passenger manifest requirement for
commercial air or vessel carriers for flights or vessels departing the
United States for foreign destinations.
DHS is proposing that commercial air carriers submit biometric data
to DHS no later than 24 hours after the flight is secured. DHS seeks to
minimize additional technology development requirements and duplicative
data submissions to comply with the requirements of these programs. DHS
seeks comment on the potential efficiencies that can be gained by
carriers in coordinating the collection and transmission of biometric
information by carriers with their processes for complying with
existing advance passenger manifest and passenger screening
requirements such as APIS.
4. Vessel Carrier Departures
Nine vessel carriers use a total of 33 seaports for international
departures. This point of contact between the vessel carrier and the
alien passenger must be consistent with port security requirements
imposed by CBP, the U.S. Coast Guard and TSA. See 19 CFR 4.64(b)(2)(i);
72 FR at 48342. The process for aliens departing from the United States
by vessel is different from the process for departing by air. Unlike
the air environment, vessel terminals do not have numerous gates from
which travelers depart. Further, vessel carriers provide security
screening, and TSA does not have a screening checkpoint in most sea
environments.
Currently, at the vessel check-in counter, vessel carriers validate
all international vessel passenger reservations; check travel
documents; collect, verify and transmit APIS data, and issue on-board
identification. CBP's APIS regulations, recognizing the differences
from the air environment, require vessel carriers to transmit APIS data
60 minutes prior to the departure of the vessel. 72 FR at 48325.
Accordingly, for international vessel carrier purposes, DHS proposes to
require that the vessel owner or operator transmit the biometric data
either along with the biographic data required by APIS or at any
subsequent point up to 24 hours following the departure of the vessel.
Aliens will be informed of these requirements by the vessel carrier.
Vessel carriers may not transmit the data earlier than three hours from
the time of the vessel's scheduled departure. DHS seeks comment as to
whether this proposal will be effective in the sea environment.
5. Technical Requirements
a. Data Transfer
An alien's electronic fingerprint file is substantially larger than
an alien's biographic (text) file of manifest information. For this
reason, carriers may need to create or enhance systems to handle the
larger amount of data inherent in biometric (image) transmissions. DHS
proposes operational testing requirements to ensure that all biometric
data transferred to DHS can be placed into IDENT.
Overall, the process outlined above is designed to complement CBP's
and TSA's biographic data collection with the collection of biometric
data, without interfering with existing APIS data collection and
transmission processes. DHS believes that to the extent carriers can
use the APIS departure manifest transmission system as a means of
transmitting the biometric data to DHS, that would ease the cost burden
on the carriers. DHS encourages carriers to adjust their systems
currently to account for APIS, and US-VISIT exit simultaneously to
minimize the later technical changes that will occur over time and
maximize their efficiency.
b. Time of Transfer
DHS is proposing that carriers submit the biometric data to DHS not
later than 24 hours after securing the aircraft doors for departure of
the flight, or departure of the vessel, from the United States. DHS
notes that the Department may reduce this period of time in which
carriers must submit biometric data to DHS through subsequent
rulemakings. As technology improves, DHS and the carriers will have
increased capacity and ability to provide the biometric data to DHS at
an earlier point in time, including up to the point in which APIS data
is submitted prior to departure of the aircraft or vessel. The ability
to submit biometric information to DHS before departure of the carrier,
would provide DHS with additional security benefits by allowing DHS to
compare the biometric information against government databases and
terrorist watchlists prior to the departure of the aircraft or vessel.
c. Substantive Performance Standard for Biometrics
Air and vessel carriers collecting biometrics on behalf of DHS will
be required to register their system with US-VISIT and receive
certification of the quality and security of their transmission
capabilities. The biometric departure manifest information data files
must comply with the Federal Bureau of Investigation, Criminal Justice
Information Services, Electronic Fingerprint Transmission
Specifications, Appendix F, sections 2 and 3 (``IAFIS Image Quality
Specifications'') (May 2, 2005). Data transmission standards and
methods for transmitting biometric departure manifest information are
expected to be the current standards for the transmission to DHS of
other electronic manifest data for carriers.
Carriers must take steps to protect the privacy of the information
collected and should only retain the biometrics collected on behalf of
US-VISIT for a reasonable time. Carriers will be required to meet
applicable technical standards for transmission of data in the
Consolidated User's Guide (CUG).\9\
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\9\ The Consolidated User Guide was jointly developed by CBP and
TSA to provide consistent guidance to airlines on information and
other requirements, including biographic data collection and
transfer under APIS. The CUG is SSI and, therefore, is not released
to the public. The CUG has been provided to carriers. The CUG will
be modified to include biometric data transfer and storage
requirements in a similar manner.
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The proposed rule would establish a performance standard for
carriers to provide biometric identification of alien passengers
departing the United States, consistent with current Integrated
Automotaed Fingerprint Identification System (IAFIS) technical
standards within 24 hours of securing the aircraft doors on an
international departure or the vessel's departure. This performance
standard expresses carrier requirements in terms of outcomes rather
than specifying the means by which the carrier must operate. DHS
believes that this approach is superior to specific design, behavior,
or manner of compliance standards because a performance standard
permits the carriers the flexibility to achieve the required objective
in the most cost-effective manner, given the diversity of
[[Page 22074]]
their circumstances, including diverse airport layout. DHS believes
that this approach permits carriers to achieve the greatest cost
efficiency while assuring compliance through monitoring results and
other means.
d. Enforcement and Penalties on Carrier Performance
The enforcement mechanisms for failure to meet the standards
proposed in this rule are similar to those that currently apply to
carriers who fail to provide APIS passenger data to DHS. See INA
section 231(g), 8 U.S.C. 1221(g) (per passenger fines for failure to
comply; limitations on departure clearance while determination of fines
pending except on deposit of sufficient sums to cover penalties). For
example, a carrier may face enforcement action for failing to create
and transmit a biometric departure record for an alien. A carrier may
also be penalized if their overall collection and transmission
performance is inadequate. For example, if a carrier's biometric
transmissions are of insufficient quality to be processed by US-VISIT
and thereby degrades the performance of IDENT, in accordance with 8 CFR
217.6, the Secretary may terminate a carrier's authorization to
transport aliens under the VWP. Carriers will also be subject to the
data transmission requirements of the Consolidated User's Guide
developed for carriers by CBP and TSA in developing the APIS Pre-
Departure Final Rule. Finally, carriers will remain liable for civil
penalties for improper carriage of aliens, as well as potential
limitations on their clearance to depart the United States or engage in
international commerce under existing law. See INA section 215, 231(g),
8 U.S.C. 1185, 1221(g).
This proposed rule would add one new enforcement provision to
ensure security and compliance. The proposed rule would permit DHS to
specifically require a carrier to collect biometrics under more
restrictive requirements if the carrier fails to collect alien
biometric data and transmit adequate data files in a timely fashion.
The proposed rule would permit DHS to require a carrier to collect
biometrics under supervision at a specified place, including the
collection of biometrics before issuing boarding passes to alien
passengers, thus restricting the carrier's discretion to manage
biometric collection and transmission as is generally provided in the
proposed rule. Central to this enforcement mechanism, which DHS
considers to be a last resort if compliance and other enforcement
mechanisms do not adequately ensure compliance, is the possibility that
DHS will require the carrier to collect biometric information at a
specific location to permit DHS to supervise the collection. DHS
proposes this penalty provision to ensure that DHS will be able to
comply with the requirements of the 9/11 Recommendations Act and other
Congressional enactments discussed above.
6. Alternatives Considered
DHS considered several operational alternatives to meet the need of
biometric data collection at air and sea exit locations. These
alternatives only concentrated on the location of collection and the
collecting entity. Specific technological solutions were not taken into
account. The alternatives considered were:
Alternative A: At the Check-in Counter--Air/Vessel Carrier
collection. An air/vessel carrier representative collects biometric
data of the alien at the air/vessel carrier check-in counter.
Alternative B: At the Check-in Counter--DHS Collection. A DHS
representative collects biometric data of the alien at the air/vessel
carrier check-in counter.
Alternative C: At Security Check-Point--DHS Collection. A DHS
representative collects biometric data of the alien at the security
checkpoint.
Alternative D: At Gate-Air/Vessel Carrier Collection. An air/vessel
carrier representative collects biometric data of the alien at the
departure gate.
Alternative E: At Gate--DHS Collection. A DHS representative
collects biometric data of the alien at the departure gate.
Alternative F: At Check-in Counter--Air/Vessel Carrier collection
with verification at gate. An air/vessel carrier representative
collects biometric data of the alien at the air/vessel carrier check-in
counter, and a DHS representative randomly verifies the data at the
departure gate.
Alternative G: At Check-in Counter--DHS collection with
verification at gate. A DHS representative collects biometric data of
the alien at the air/vessel carrier check-in counter and a DHS
representative randomly verifies the data at the departure gate.
Alternative H: At Security Checkpoint--DHS collection with
verification at gate. A DHS representative collects biometric data of
the alien at the security checkpoint and a DHS representative randomly
verifies the data at the departure gate.
Alternative I: Within Sterile Area--DHS collection based on Data
from Carriers. A DHS representative collects biometric data of the
alien within the airport's sterile area (and a similar area within
seaports) based on the biographic information (e.g. passport number)
provided by carriers on the departing alien.
DHS compared these possible alternatives using the following:
confidence of departure; percentage of population captured; operational
impacts to aliens, the carriers, and DHS; conceptual financial burden
to the carriers and DHS; need for additional network/connectivity;
information technology (IT) security concerns; privacy; and cost.
a. Confidence of Departure
Confidence of departure measures the perceived ability to provide a
level of confidence that the alien subject to US-VISIT processing who
submitted biometric information did, in fact, depart the United States.
The departure gate alternatives provided a higher level of confidence
of departure regardless of the collecting entity. For example, if
biometric collection occurs at the departure point, the ability of an
alien to submit biometrics and exit the airport, without actually
leaving the United States, is very low, thus providing for a higher
confidence of departure. In contrast, collection of biometrics at the
check-in counter provides the lowest confidence of departure because
the alien may exit the airport after submitting biometrics and without
actual departure from the United States. The TSA security screening
checkpoint has a confidence of departure that was in between the other
two locations considered. In addition, random biometric verification of
aliens at the departure gate, who were originally processed at the
check-in counter, provided a higher level of confidence of departure.
Use of the APIS manifest data in concert with the US-VISIT
biometric data is expected to add an extra layer of security and
confidence that an alien did, in fact, depart the United States and is
the same alien who originally entered the United States under that
biographic identity. As explained above, the main purpose of APIS is
for screening passengers before boarding the aircraft or departure of
the vessel. APIS will continue to collect biographic departure
information on passengers traveling internationally. The US-VISIT
biometric data will, in turn, support this function by ensuring that an
alien claiming an identity with biographic information is that person.
The programs, therefore, support each other: US-VISIT exit ensures that
an alien really is the person he or she claims to be when supplying
their biographic data. Comparison of US-VISIT and
[[Page 22075]]
APIS will ensure that the same alien actually departs the United States
and does not walk out of the airport after supplying DHS with only
biometric or biographic data.
b. Percentage of Population Captured
Each alternative was measured for its ability to capture the
biometric information from all affected aliens. Where the alternative
relied on a collection location that is a mandatory location that the
alien must encounter, the percentage of population collected increases.
Since all aliens are processed at the departure gate and at TSA
security screening, these alternatives were the most favorable
regardless of collecting entity. Since not every alien currently checks
in at the check-in counter, this alternative was less favorable.
c. Operational Impacts to the Alien, Carrier, and DHS
The alternatives were compared based on the expected additional
time and/or additional process that the alien, carrier, or U.S.
Government may experience for each implemented solution. The rankings
for operational impacts varied not only with location, but also with
the collecting entity as well. Overall, the alternatives where existing
processes exist and that rely on staffed collection points that already
exist were more favorable than locations where no current process or
staffed collection point exists.
For international travel, most aliens currently interface with the
carrier at the check-in counter. Therefore, operational impacts to the
alien were more favorable for biometric collection by the carrier at
the check-in counter. In most cases, the alien is already providing
identification and other information at the check-in counter. A
biometric collection can be taken in conjunction with these already
existing processes at the check-in counter without the alien
experiencing significant additional processing time. In addition, DHS
expects that information collected through APIS will be verified
primarily at the check-in counter, and so collection of biometrics at
that location would minimize the impact to the carriers in trying to
coordinate requirements from multiple DHS programs. DHS seeks comments
and data from the carriers on these assumptions and conclusions.
The remaining alternatives were less favorable to the alien due to
possible additional time for that collection. For example, although
aliens already proceed through the security checkpoint and are
processed by carriers at the departure gate, biometric collection at
these locations would be an entirely separate process and could result
in additional time. Likewise, DHS collection at the check-in counter or
departure gate adds a DHS process where one currently does not exist.
Currently, carriers process aliens at check-in counters and at the
departure gate. However, adding biometric collection at these locations
will add a process and lengthen wait times for the carrier. Therefore,
for carriers, the carrier collection alternatives rank less favorable
to the DHS collection. If DHS collects the biometric information, the
carrier experiences a much less significant change in current
operations.
DHS has a presence at airports at the TSA security screening
checkpoint and, at international arrival airports, at CBP's secure
federal inspection service. However, adding biometric collection at the
security screening checkpoint was determined to be unfavorable, as the
processes at the security screening checkpoint are primarily concerned
with the screening of individuals and luggage for prohibited items.
In addition, several security and operational reasons make DHS
collection at TSA security screening a less workable solution.
Biometric collection at the screening checkpoint could cause delays. In
addition, many TSA locations have space limitations that make these
areas infeasible for biometric collection. Biometric collection at the
security screening checkpoint could not append to an existing process,
but rather would add time as a new process for aliens subject to US-
VISIT.
Furthermore, DHS biometric collection at the check-in counter or
departure gate would also add a process (and time) where none currently
exists, and would add also to existing airport space concerns as a
government officer would be conducting biometric capture in the same
space as airline employees conduct their business. All DHS alternatives
were deemed unfavorable to DHS due to the additional DHS processes,
while carrier alternatives were deemed more favorable.
Recognizing the need to identify and control aliens subject to US-
VISIT departure biometric capture also leads to favoring use of
existing system parameters (such as APIS) to generate applicable
documentation of aliens to be fingerprinted by DHS, with the limitation
that some documentation would need to be created to permit the carrier
to board an alien. The alternative encompassing each of these
parameters would minimize the burden on airlines and DHS, but would
require close coordination of information flow within a short period of
time.
d. Conceptual Financial Burden to the Carriers and DHS
The alternatives analysis assumed that the collecting entity would
be responsible for the purchase, deployment, and maintenance of all
biometric collection equipment and software needed. Therefore, each
alternative was compared based on the conceptual financial burden for
the collecting entity to develop, deliver, and implement the solution.
Accordingly, financial burden on the carriers was most favorable when
DHS collected the biometrics, and financial burden on DHS was most
favorable when the carriers collected biometrics.
e. Need for Additional Network or Connectivity
Each alternative was analyzed for its potential need for the DHS-
supplied local and wide area data communications infrastructure between
the port and the IDENT system that is used to securely transport
biometric information. The carrier alternatives were moderately more
favorable than the other alternatives, since those locations have
existing network and connectivity infrastructure, although biometric
collection would have to be integrated into that process. Further,
carriers will already be required to make significant efforts to
transmit APIS data. DHS proposes similar testing of the transmission of
biometric data in this proposal. DHS will attempt to ensure that
carriers need not conduct multiple testing and submission requirements
to comply with separate but related DHS programs.
f. IT Security Complexity
The alternatives were compared for the possibility that: (1) There
would be unauthorized use or misuse of the equipment, data, or network;
(2) equipment may be open to intentional or accidental compromise; (3)
U.S. Government standards may not be implemented as specified; and/or
(4) there would be an intentional compromise of equipment, data,
software, or communications infrastructure that would endanger the
integrity of the biometric data collected. The alternatives where
carriers collected the biometric information were less favorable than
the alternatives where DHS collected the biometric information,
regardless of location. Information in the sole custody of an entity
has less possibility of being breached than information passed from one
entity's network to another entity's
[[Page 22076]]
network. The carrier collection alternatives require biometric
information to pass between the carrier's network and DHS's network.
Comparatively, DHS is in sole custody of the biometric information at
all times for the DHS collection alternatives.
g. Privacy
The privacy criteria looked at the likelihood of satisfying US-
VISIT responsibility for compliance with the Privacy Act, 5 U.S.C.
552a, the Homeland Security Act of 2002, Public Law No. 107-296, 116
Stat. 2135 (Nov. 25, 2002) (as amended, found at 6 U.S.C.), the E-
Government Act, Public Law 107-347, 116 Stat. 2899 (Dec. 17, 2002)
(codified or found in various sections of 40 and 44 U.S.C.), and
applicable DHS and US-VISIT policies. Successful compliance requires
limiting the collection of personally identifiable information (PII),
and securing the PII against unauthorized access, use, disclosure, or
retention, such as the use of the PII collected on behalf of the
government for non-government purposes. Like the IT security complexity
analysis, the carrier collection alternatives were less favorable than
the DHS collection alternatives, regardless of location. When DHS does
not maintain custody of PII throughout its lifecycle, there is a lower
degree of confidence of compliance with privacy requirements than when
DHS does maintain full custody over the PII.
h. Cost
US-VISIT has prepared a regulatory evaluation of the alternatives
considered. See section V.A. The costs and benefits are more fully
explained in the Air/Sea Biometric Exit Project Regulatory Evaluation,
which has been placed on the docket and is available at http://
www.regulations.gov docket DHS-2008-0039-0002.
i. Constraints
After comparing the alternatives based on the identified criteria,
DHS further weighed the alternatives against a number of constraints
based on DHS goals and the evaluations of the US-VISIT biometric exit
program pilot. Crucial among the operating constraints was the need for
the biometric exit solution to be, to the extent practical, consistent
with, and not redundant of, existing information collection
requirements and submission systems for carriers. An additional
constraint was to minimize disruption of existing processes from the
traveling public's perspective. By making biometric collection
consistent with the APIS departure manifest data collection to the
extent practical (such as using the same event, e.g. securing of
aircraft doors, for time thresholds, even though the times must be
different), DHS has attempted to streamline requirements and promote
efficiency. US-VISIT exit requirements will be applicable only to a
subset of departing passengers, i.e., departing aliens.
The US-VISIT air exit solution that records any departures by
flight for all aliens participating in the VWP must be implemented by
August 3, 2008 in order to meet the legislative deadline embodied in
the 9/11 Recommendations Act. DHS is committed to meeting statutory
mandates and preserving the Secretary's discretion to manage the VWP
effectively.
Each airport in the United States has a unique design. No Federal
or private infrastructure exists in all international airports
specifically for the processing of departing aliens. CBP inspects
arriving aliens \10\ and TSA inspects all passengers for dangerous
materials. Consequently, any implementation of biometric exit
capabilities must be worked into existing airport and carrier
infrastructure and processes. DHS must, accordingly consider the wide
variation in the floor plans and terminal designs from one airport to
another in developing an alien biometric exit solution.
---------------------------------------------------------------------------
\10\ An airport must provide the physical infrastructure to
support inspection of all arriving international passengers to be
certified as an international airport. 8 CFR 234.4.
---------------------------------------------------------------------------
Of the alternatives considered by DHS, the most promising
alternatives were carrier collection of alien biometrics at the
departure check-in counter or at the boarding gate. By offering
carriers the alternative of using the check-in counter or the boarding
gate, or both, DHS has provided carriers with the flexibility to
implement biometric exit collection capabilities that are most
convenient to carriers in consideration of airport design variation.
In addition, as recommended from the US-VISIT biometric exit pilot
evaluations, integrating biometric collection into an existing process,
such as the check-in counter or boarding gate process, improves
compliance and provides consistency and integration that will ensure
that each alien will have a record collected prior to departure.
The majority of aliens departing the United States by air must
check baggage; all aliens must provide identification and present
travel documents prior to departure. Concern that aliens could ``drop
out'' of the travel process following collection of biometrics is
mitigated by integration into the standard departure procedures and by
the APIS biographic manifest program. The US-VISIT exit program and
APIS are able to support each other. DHS will continue to review
program integration in the future.
APIS pre-departure verification, additionally, based on biographic
information, is applicable to direct departing international flights,
not domestic flights. Approximately 27% of all international departing
passengers arrive at the international departure airport on a
connecting flight from a domestic airport. DHS accordingly scaled the
exit program to those carriers and ports with direct international
departure flights. This scaling reduces the number of air carriers from
approximately 247 to 138, and airports from 450 to 73.
DHS is, therefore, proposing a rule that gives carriers the
flexibility to implement biometric exit collection capabilities at the
check-in counter, at the boarding gate, or to employ differing
locations at differing airports. The proposed rule would not limit an
air carrier's ability to collect biometrics at other locations within
an airport.
As discussed above, and in the Regulatory Impact Assessment (RIA)
accompanying this proposed rule, DHS has analyzed a significant number
of alternatives to the performance standards proposed in this rule. DHS
welcomes public comment on additional alternatives to the performance
standards proposed under this rule, including any combination of
alternatives analyzed in the rule and RIA, and the potential economic
impacts of such alternatives. DHS may consider implementing a
combination of alternatives, such as the use of kiosks operated by DHS
to collect biometrics from aliens with concomitant requirements on
carriers to verify that aliens have submitted biometrics before
boarding a flight or vessel leaving a U.S. port of entry. The
Department will take those comments into consideration in development
of the final rule.
Similarly, vessel carriers may integrate the biometric collection
process into their existing vessel boarding processes. All vessel
passengers have their reservations validated, travel documents checked
and collected by some carriers, APIS biographic data collected,
verified, and transmitted, and on-board identification issued. DHS is
proposing the same flexibility for vessel carriers in selection of a
location for sea exit biometric collection.
[[Page 22077]]
7. Non-Air/Vessel Carrier Departures
The proposed rule would apply only to certain commercial air and
vessel carriers. The proposed rule would not apply to charters and
other small carriers for hire. General aviation aircraft and privately
owned and operated vessels are not included in this rule, but will be
considered separately. Later consideration of general aviation aircraft
and privately owned and operated vessels is consistent with the past
development of security standards based on risk analysis. See Advance
Information on Private Aircraft Arriving or Departing the United
States, 72 FR 53394 (Sept. 18, 2007) (proposed rule). Similarly, ferry
operators are exempt from this rule, as for DHS purposes these are
considered as part of initiatives dealing with land ports-of-entry. See
Documents Required for Travelers Departing From or Arriving in the
United States at Sea and Land Ports-of-Entry From Within the Western
Hemisphere, 73 FR 18384, 17404 (April 3, 2008) (final rule) (ferries
treated as land border port of entry inspections).
8. Small Air/Vessel Carriers
In developing this proposed rule, DHS considered whether the rule
could be effectively applied to small air and vessel carriers. Small
air and vessel carriers appear to handle only a small percentage of
alien departures.
After considering the risks relative to the costs of requiring
small air and vessel carriers to undertake biometric exit data capture
and transmission, DHS has determined to exempt small air and vessel
carriers from the requirements of this proposed rule for the time
being. Utilizing the definitions of the Small Business Administration
(SBA), air carriers (whether scheduled passenger or charter air
transportation) that employ fewer than 1,500 employees are exempted. 13
CFR 121.201 (NAICS codes 481111 (Scheduled Passenger Air
Transportation) and 481211 (Nonscheduled Chartered Passenger Air
Transportation)). Vessel owners or operators that employ fewer than 500
employees are small entities. 13 CFR 121.201 (NAICS code 483112 (Deep
Sea Passenger Transportation)).
DHS has determined that the costs of equipment purchases and
installation, infrastructure modification, and personnel support
outweighs the risks to the United States of not obtaining the
biometrics of this small population of aliens departing the United
States or the benefits to DHS in requiring these costs to obtain the
benefits of biometric acquisition (as compared to only biographic
information) from this small population of aliens departing the United
States. Ultimately, US-VISIT estimates that the percentage of
biometrics not captured from aliens departing the United States by
small air and vessel carriers to be substantially less than 1%. As with
US-VISIT and other DHS programs, DHS's incremental development of US-
VISIT may decide to remove exemption and apply these requirements to
such small air and vessel carriers as necessary in a future rulemaking
action.
9. Additional ``Kiosk'' Option
As noted above, DHS did not formally consider a ``kiosk'' option as
part of its alternatives analysis. This was largely due to the
conclusions of the exit pilot, as described in section III above, in
which DHS concluded that the exit process needed to be made an integral
part of the existing departure process to be feasible, and that such an
option would face challenges that would make implementation very
difficult. Kiosks, for example, require the installation of expensive
cabling; negotiation of lease space with port authorities for the
placement of kiosk in areas where aliens can have the most effective
and efficient access; and the installation of signage instructing
aliens as to the location of kiosks, how to use the kiosks, and their
responsibilities for compliance with the exit requirements. The exit
pilot encountered numerous problems with port authorities regarding
space and signage. For example, US-VISIT was restricted in where it
could place directional and educational signage. Some ports required
that signage be coordinated with other types of signage in that port.
This inconsistency in placement and visual appearance caused confusion
when aliens attempted to comply.
DHS wishes to solicit comments on a potential kiosk option here and
provides this analysis as a means of informing commenters. Additional
documentation for this option can be found in the published docket for
this rulemaking at http://www.regulations.gov.
a. Requirement for Carrier Participation
The kiosk scenario would require participation by the carriers at
two specific points: As part of the boarding pass issuance (whether in-
person and on-paper, or remote and electronic) and at the gate as the
alien departs. Carriers would be responsible for determining that a
specific alien is subject to US-VISIT procedures and also ensuring that
those aliens have in fact complied with the law and provided those
biometrics, thus providing the at-gate enforcement mechanism that the
pilot lacked.
b. Air Processes
i. Reservation: When an international traveler makes the initial
travel reservation, whether in person, on-line, at a travel agency, or
by telephone, the carrier determines by means of a US-VISIT supplied
decision tree if the traveler is subject to US-VISIT procedures upon
departure from the United States. If so, the carrier notifies the
passenger, when providing him or her with a boarding pass (whether
paper or electronic), that they must proceed to a US-VISIT exit kiosk
at the time of their departure from the United States.
ii. Kiosk Location: An alien originating at an international
airport may have the option of using a kiosk located before the
security-screening checkpoint or using a kiosk located within the
sterile area of the terminal. Kiosks may also be located at domestic
terminals of international airports or domestic terminals. Multiple
locations allow for ease of compliance and reduce the cost of the
system. For example, a system located only at the departure gate would
require sufficient kiosks and attendants to enable the entire departing
alien population to provide their biometrics within a limited window of
time. By enabling aliens to provide their biometrics at multiple
locations and over a longer time frame within the departure process,
the number of kiosks/attendants required is less than a sole point of
compliance solution would require. A connecting alien (i.e., who
originated at a domestic airport and is transferring to an
international flight) may be able to use a kiosk located within the
sterile area.
iii. Kiosk Procedure. The alien's boarding pass will have a two-
dimension bar code printed on it. The kiosk will read the bar code.
After the bar code is read, the alien submits the biometric
fingerprints. The kiosk prints a receipt that the alien provides to the
carrier upon departure. Carriers will be required to modify their
reservations system so that when a boarding pass (either printed or
electronic) is printed or sent to the alien, it will include a bar code
containing the passenger's name, travel document number, airline code
(e.g., ``CO'' or ``UA''), flight number, and date and time of
departure. This information is required to build the biometric manifest
and to link the biometric with the APIS manifest.
iv. Gate Procedure: The alien will be required to provide, to the
carrier agent at the gate, either a receipt from the kiosk or a
separate boarding pass created by a kiosk that demonstrates the person
has complied with the requirement to provide biometrics.
[[Page 22078]]
c. Vessel Processes
The vessel carrier context uses the preferred solution assumption
of 33 seaports. The reservation system would be equivalent to the air
carrier scenario described above. Because the business model for vessel
carriers is slightly different from the business model for an air
carrier, however, the kiosk location would be different. All vessel
carrier passengers originate at the United States port-of-departure,
there are no boarding passes per se, and the check-in agent is also the
functional gate agent. Therefore, the scenario for vessel carriers
would be that the alien provides the biometric at the time of check-in.
Since vessel carriers do not provide their passengers a boarding pass,
aliens would be required to insert the biographic page of their
passport into a document reader. After the passport is read, the
passenger provides the biometric fingerprints The kiosk would print a
receipt that the alien would present to the vessel carrier's agent.
There is no equivalent gate procedure to the air scenario as the
check-in area is the functional gate area.
d. Kiosk Scenario Assumptions
This scenario makes several assumptions about carriers and DHS
operations that may require further modification:
Carriers will be required to incorporate into their
reservations system a US-VISIT provided ``decision tree'' to determine
if a passenger is an alien subject to US-VISIT and will be required to
develop a passenger notification process;
Air carriers will be required to print a compliance
advisement on paper boarding passes and include a compliance advisement
on an electronic boarding pass;
Air carriers will incorporate into their departure control
systems a means to identify an alien subject to US-VISIT exit
requirements to verify that the passenger has provided their biometric
prior to boarding the international flight;
DHS would be required to develop the software to collect
and transmit the biographic and biometric information;
DHS would use existing communication paths or develop a
direct kiosk/US-VISIT communication path;
DHS would develop new kiosks with a fingerprint scanner, a
boarding pass reader, and a printer, and the kiosk would be compliant
with the Americans with Disability Act;
Carriers would be subject to penalties for boarding aliens
subject to US-VISIT exit requirements who have not complied with the
exit process;
The APIS and biometric manifests will be compared by US-
VISIT to identify non-compliant passengers;
The carrier's gate agent would be able to identify the
relevant aliens and would deny boarding to any alien who has not
complied with US-VISIT exit requirements;
Carriers would either collect the kiosk receipt and/or
build a verification process into their departure control system;
DHS would be required to negotiate with each individual
port authority for kiosk and administrative space;
DHS would be responsible for ``first level'' kiosk
maintenance, which is defined as tasks such as cleaning the fingerprint
platen, changing receipt paper rolls, and ink cartridges;
DHS would be responsible for providing a kiosk attendant
to assist aliens experiencing difficulty using the kiosk or to validate
that an alien is physically unable to provide an exit biometric;
DHS would provide one attendant per cluster of kiosks up
to a ratio of one attendant for every three co-located kiosks;
The attendants would be aligned with a DHS entity such as
TSA or CBP for supervision, support, and interface with the port
authority and carriers;
The attendants would require office and storage space,
uniforms, and clearance to enter the security area.
e. Cost of Kiosk Option
US-VISIT estimates that the costs for implementation of this
option, to both government and private industry collectively, over a
ten-year period, would be $3,132,900,000. A more detailed analysis,
including a breakdown of costs, additional assumptions, and cost
comparisons to the proposed option included in this rule, as well as
cost breakdowns of the proposed option and other alternatives, can be
found in the docket for this proposed rule at http://
www.regulations.gov.
C. Statutory Authority To Require Air and Vessel Carriers to Collect
Exit Biometrics
The proposed rule would impose on certain commercial air and vessel
carriers additional manifest requirements for the collection and
transmission of biometric identifiers relative to certain passengers,
crew members, and non-crew departing the United States. The biometric
manifest information required will depend upon whether an alien is
required to satisfy the biometric exit requirements established under
US-VISIT.
Commanding officers, masters, owners and others of any aircraft and
vessel transporting any person out of the United States are required to
file manifests:
For each commercial vessel or aircraft taking passengers on
board at any seaport or airport of the United States, who are
destined to any place outside the United States, it shall be the
duty of an appropriate official specified in subsection (d) of this
section to provide any United States border officer (as defined in
subsection (i) of this section) before departure from such port
manifest information about each passenger, crew member, and other
occupant to be transported.
INA section 231(b), as amended, 8 U.S.C. 1221(b). The contents of the
passenger manifest are set forth with particularity in INA section
231(c)(1)-(9), but the Secretary is also delegated authority to add
specific requirements in INA section 231(c)(10) to include:
Such other information the [Secretary], in consultation with the
Secretary of State, * * * determines as being necessary for the
identification of the persons transported and for the enforcement of
the immigration laws and to protect safety and national security.
INA section 231(c)(10), 8 U.S.C. 1221(c)(10). Other provisions of law
have been historically used to require biographic manifest information.
See 19 U.S.C. 1431, 1433 and 1644a; 46 U.S.C. 60105; 49 U.S.C. 44909.
Currently, advance passenger manifest data for commercial flights and
voyages to and from the United States are collected by CBP through
APIS. To enforce these requirements, an aircraft or vessel may not be
granted departure clearance until the manifest information is provided:
No operator of any private or public carrier that is under a
duty to provide manifest information under this section shall be
granted clearance papers until the appropriate official specified in
subsection (d) of this section has complied with the requirements of
this subsection, except that, in the case of commercial vessels or
aircraft that the [Secretary] determines are making regular trips to
the United States, the [Secretary] may, when expedient, arrange for
the provision of manifest information of persons departing the
United States at a later date.
INA section 231(f), 8 U.S.C. 1221(f); see also 19 U.S.C. 1644a (customs
law by which outbound clearance requirements under 46 U.S.C. 60105 are
incorporated and made applicable to departing carriers). Additionally,
civil penalties may be levied for failure to comply with manifest
provisions. INA section 231(g), 8 U.S.C. 1221(g); see also 19 U.S.C.
1433, 1436 and 1644a.
[[Page 22079]]
The INA prohibits aliens boarding a vessel or aircraft from
departing the United States, except as authorized by the Secretary:
Unless otherwise ordered by the President, it shall be unlawful--
(1) For any alien to depart from or enter or attempt to depart
from or enter the United States except under such reasonable rules,
regulations, and orders, and subject to such limitations and
exceptions as the President may prescribe;
(2) For any person to transport or attempt to transport from or
into the United States another person with knowledge or reasonable
cause to believe that the departure or entry of such other person is
forbidden by this section;
INA section 215(a), as amended, 8 U.S.C. 1185(a). The President has
delegated his authority to prescribe regulations regarding aliens under
this provision to the Secretary of Homeland Security. Executive Order
13323, Assignment of Functions Relating to Arrivals in and Departures
from the United States, 69 FR 241 (Jan. 2, 2004).
Both the plain language and the history of these statutes supports
the Secretary's authority to impose upon carriers the responsibility to
positively identify arriving and departing aliens to protect the
national security of the United States and the safety of U.S. citizens
and aliens and to better enforce the immigration laws of the United
States.\11\ Positive identification can be achieved with most
certainty, and most efficiently, through the use of biometrics. It is
well within the Secretary's authority to require carriers to employ
today's technology when he effectuates the objectives set forth in INA
section 231(c)(10), 8 U.S.C. 1221(c)(10).
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\11\ Vessel and air carriers often have extra responsibilities
and obligations that have involved engagement of their own personnel
in detailed questioning, and even physical inspections, of
passengers. See 25 Ops. Atty. Gen. 336, 339 (1905) (as to the heavy
burden on carriers); McInerney v. United States, 143 F. 729, 737
(1st Cir. 1906) (as to the quasi-public character of the
responsibility of making a manifest and of the manifest itself--
assisting the government to enforce its laws, imbuing it with a
force it would not otherwise possess); see, e.g., Oceanic Steam
Navigation Company v. Stranahan, 214 U.S. 320 (1909) (as to medical
inspections applied in relation to the manifest under a 1903 law).
---------------------------------------------------------------------------
The collection of biometrics from departing aliens incident to
their departure also supports DHS' missions in developing, analyzing,
and sharing intelligence information, both within the U.S. Government
and with our international allies. The location of an alien deemed to
be a threat may profitably be learned upon a delayed basis and relayed
to the appropriate international authority to support U.S. intelligence
and criminal law enforcement functions. Accordingly, the rule is
proposed under the Secretary's authority and responsibility to ensure
the security of the homeland.
The rule is also proposed under the Secretary's authority to
require air carrier security screening and manifesting. 49 U.S.C.
44909. Accordingly, the Secretary views his authority over homeland
security as a whole, not as separate and distinct authorities.
The Secretary relies upon all of the authorities delegated to him
and his subordinates under the Homeland Security Act of 2002 (HSA),
Public Law No. 107-296, sections 101, 102, 116 Stat. 1135 (Nov. 26,
2002), 6 U.S.C. 111, 112, including his plenary regulatory authority
over immigration under INA section 103(a), 8 U.S.C. 1103(a), as well as
regulatory authority delegated by the customs and shipping laws. The
Secretary exercises all of these authorities to fulfill the provisions
of various enactments providing programmatic authority for a
comprehensive entry--exit information management system, including
biometric identifiers, to match an alien's available arrival data with
the alien's available departure data (as authorized or required to be
created or collected under law) in an electronic format to assist the
United States to identify, through on-line searching procedures,
lawfully admitted nonimmigrants who may have remained in the United
States beyond the period authorized.
D. Impetus for Carrier Participation
The 9/11 Recommendations Act requires biometric exit processing by
August 3, 2008. As discussed above, the Secretary's authority to waive
limitations on the VWP will be suspended on July 1, 2009, unless the
Secretary provides notification that the air exit system fully
satisfies the biometric requirements of INA section 217(i), 8 U.S.C.
1187(i). A lapse in this waiver authority could be detrimental to air
carriers if a significant number of aliens would be removed from VWP
and be required to acquire visas to be admitted to the United States.
Biometric collection was required by IRTPA and was contemplated by
Congress much earlier. The manner in which such processing can be
successfully and efficiently accomplished by the U.S. Government alone,
however, has been complicated by several practical constraints that
were reinforced in the pilot programs. The chief constraints include
the limited, privately owned, high-value space at air and vessel
terminals needed to install equipment at optimal locations for exit
processing; the apparent necessity for a concentrated (and potentially
expensive) enforcement presence to assure compliance with exit
requirements; and the addition of ``another separate process'' with
which aliens and carriers will need to contend before boarding.
Space constraints for exit equipment forced many pilot sites to be
located at a considerable distance from the appropriate gates, which
worked against passenger participation and contributed to low
compliance. The constraints revealed by the pilots are tied to the
absence of statutes controlling, and national experience with, rigorous
inspection upon departure and the attendant lack of facilities and
space that, by contrast, are made available by carriers and authorities
for inspection upon arrival.
These factors have led to the conclusion that integration of
biometric exit capture into the existing departure process will best
serve processing objectives and be least disruptive to the traveling
public.
V. Summary of the Proposed Rule
DHS proposes to add a new 8 CFR 231.4 requiring the collection and
transmission of biometric departure manifest information by carriers.
This section provides for the collection of biometric departure
manifest information from all aliens subject to US-VISIT requirements
regardless of the specific commercial air or vessel carrier on which
they depart the United States. Proposed section 231.4 specifies that
biometrics for any alien who is required to provide biometrics under
proposed 8 CFR 215.8 must be collected prior to boarding that alien on
transportation for departure from the United States. Initially, the
biometrics must be transmitted to DHS within 24 hours of securing the
doors of the aircraft for departure from the United States or departure
of the vessel from the United States, using existing manifest
transmission standards. DHS recognizes that capacity will change over
time and further amendment to reduce the time for transmission is
likely. The biometrics collected must meet Federal Bureau of
Investigation specifications. The carriers are required to use the
biometrics for no other purpose except as designated in 8 CFR 231.4 and
use the biometrics only pursuant to the CUG.
In addition, the rule updates 8 CFR 217.7, to include, in the last
sentence concerning aliens departing the United States, a reference to
8 CFR 231.4. The proposed rule also corrects citation
[[Page 22080]]
errors that currently exist in 8 CFR 235.1.
DHS proposes to revise 19 CFR 4.64, 122.75a, and 122.75b
(pertaining to electronic departure manifests) to add paragraphs cross-
referencing the proposed 8 CFR 231.4, which requires the biometric
collection as an additional carrier manifest responsibility. Although
the manifest information required by the APIS system is different from
the biometric departure manifest information and its underlying system
(US-VISIT), and the information has different uses and processing and
retention requirements, the requirement for both derive from the same
statutes, and the communications medium and transmission standards for
the existing system are leveraged for the transmission of the biometric
departure manifest information. DHS proposes to amend 8 CFR 215.8 to
remove the reference to the number of pilots and the numerical
limitation on the number of air or sea ports where aliens are required
to provide biometric exit data and to reference new carrier
responsibilities.
Finally, although DHS does not expect enforcement of these
requirements to be problematic, DHS proposes to add a supplemental
enforcement provision to the regulations. Upon making any of the
determinations that would result in civil penalties or denial of
departure clearance, DHS proposes to retain the authority to require a
carrier to collect alien biometric data and transmit that data to DHS
under a more restrictive system of DHS oversight, specifically
including designating the location where the carrier must collect the
biometric data.
VI. Statutory and Regulatory Requirements
A. Executive Order 12866
Executive Order 12866, ``Regulatory Planning and Review'' (58 FR
51735, October 4, 1993), as amended, requires a determination whether a
regulatory action is ``significant'' and therefore subject to review by
the Office of Management and Budget (OMB) and subject to the
requirements of the Executive Order. DHS has determined that this
proposed rule is a ``significant regulatory action'' under Executive
Order 12866, section 3(f) because there is significant public interest
in issues pertaining to national security and because this is an
economically significant rule pursuant to this Executive Order.
Accordingly, this proposed rule has been submitted to OMB for review
and approval.
In order for DHS to maintain the integrity of the United States
immigration system, immigration benefits should only be given to those
that truly deserve those benefits. Accurate and timely information on
an alien's departure can inform decision makers so correct decisions on
visa renewal, re-admittance into the United States, and granting of
permanent residence or citizenship can be made.
Biometric confirmation that an alien has departed the United States
provides two key elements for immigration and border security
management: (1) Certainty that the alien in question did, in fact,
leave; and (2) an accurate identification of that alien.
Presently, DHS is able to match the vast majority of international
aliens' entry and exit records with biographic information. Biographic
(i.e. name, date of birth, etc.) information can sometimes be
inaccurate, however, for a variety of reasons. For example, names and
other biographic data are sometimes inadvertently changed when manually
typed (if the machine-readable zone of the passport is worn or
unreadable), or the data can differ from travel document to boarding
pass. Other factors can make it difficult for DHS to match some sets of
records. Consistent with the authorizing legislation, DHS proposes to
require air and vessel carriers to collect alien fingerprints prior to
departure and transmit that data to DHS. Biometric collection will
increase the confidence that an alien did, in fact, depart, as opposed
to carrier biographic manifest data, which are tied more to an alien's
document than to the alien in question.
DHS has performed a preliminary analysis of the expected costs and
benefits of this proposed rule.
1. Alternatives to the Proposed Rule Evaluated
This proposed rule would require air and vessel carriers to collect
biometrics from aliens departing the United States. As discussed more
fully in section III.B, there are four alternatives being evaluated for
the regulatory evaluation of air and sea exit. Alternatives vary by the
location of the biometric collection and the entity which pays for and
operates the system:
Proposed Rule: At a Location at the Carrier's Discretion--Air and
Vessel carriers implement and manage. An air or vessel carrier
representative collects biometric data of the aliens at any
international airport or seaport location selected at the discretion of
the carrier based on airport or seaport terminal layout, current and
future business practices and operational efficiency. Possible
locations for collection include, but are not limited to, the ticket
counter and the boarding gate.
Alternative 1: At Airline Check-in Counter--Air and Vessel carriers
implement and manage. An air or vessel carrier representative collects
biometric data of the aliens at the air or vessel check-in counter. No
boarding pass or other vessel identification documentation may be
issued prior to the collection of biometrics.
Alternative 2: At Security Check-Point--United States Government
implements and manages. A U.S. Government representative collects
biometric data of the alien traveler at the TSA security checkpoint.
This is not applicable to vessel carriers because there are no TSA
checkpoint at seaports.
Alternative 3: At a Location at the Carrier's Discretion--United
States Government implements and manages. A U.S. Government
representative collects biometric data from aliens at any airport or
seaport location selected at the discretion of the carrier based on air
or sea port terminal layout, current and future business practices and
operational efficiency.
Alternative 4: At a Kiosk--United States Government implements and
manages. An alien passenger will be instructed by the carrier to
proceed to a US-VIST exit kiosk at the time of their departure. The
carrier will be required to notate on the boarding pass (whether paper
or electronic) that the person must provide biometrics before
departure. The kiosk will be available before or after the security
checkpoint. The carrier is subject to penalty for boarding an alien
passenger who has not complied with exit requirements. A vessel carrier
passenger provides biometrics at the time of check-in.
2. Costs
Table 1 shows that the proposed rule expenditure and delay costs
for a ten-year period are estimated at $3.5 billion. That estimate is
approximately $2.6 billion using a discount rate of 7% and $3.1 billion
using a discount rate of 3%.
[[Page 22081]]
Table 1.--Air/Sea Biometric Exit Cost Summary
[$ millions, 2008 dollars]
----------------------------------------------------------------------------------------------------------------
Proposed Alt 1: Alt 3:
Rule: carrier Alt 2: TSA carrier Alt 4:
Expenditure and delay costs estimates carrier check-in security determined fixed kiosk
discretion counter checkpoint location
----------------------------------------------------------------------------------------------------------------
10 Year total Expenditure plus Delay Costs..... $3,549.3 $6,404.4 $4,775.6 $3,696.3 $3,123.9
20 Year total Expenditure plus Delay Costs..... 7,457.0 13,330.2 10,079.0 7,960.3 6,772.5
10 Year Present Value 7% discounting........... 2,623.6 4,725.8 3,480.9 2,685.9 2,303.6
10 Year Present Value 3% discounting........... 3,096.3 5,583.2 4,142.9 3,202.0 2,722.5
----------------------------------------------------------------------------------------------------------------
The analysis incorporates risk analysis to estimate a range of
costs to carriers resulting from the proposed rule.
Table 2 provides a summary of the costs to carriers. For the high
end of each range, US-VISIT assumes that first year costs will be
$379.2 million with an average recurring annual cost of $443.6 million.
This would result in a 10 year present value total of $3,685.1 million
at a 3% discount rate and $3,116.5 million at a 7% discount rate. For
the low end of each range, US-VISIT assumes that first year costs will
be $223.0 million with an average recurring annual cost of $206.1
million. This would result in a 10 year present value of $1,855.6
million at a 3% discount rate and $1,594.1 million at a 7% discount
rate.
Table 2.--Air/Sea Biometric Exit Costs to Carriers Summary
[$ millions, 2008 dollars]
----------------------------------------------------------------------------------------------------------------
Avg. 10 year 10 year
First year recurring present present
costs costs value (3%) value (7%)
----------------------------------------------------------------------------------------------------------------
Median Estimates:
Large Airlines.......................................... 229.1 270.4 2,301.8 1,955.5
Medium Airlines......................................... 7.1 8.4 71.2 60.5
Vessel Carriers......................................... 57.6 34.3 317.9 273.4
---------------------------------------------------
Total............................................... 282.7 313.1 2,690.9 2,289.4
High Estimates:
Large Airlines.......................................... 295.7 382.5 3,151.5 2,662.6
Medium Airlines......................................... 9.1 11.8 97.5 82.3
Vessel Carriers......................................... 74.4 49.2 436.1 371.5
---------------------------------------------------
Total............................................... 379.2 443.6 3,685.1 3,116.5
Low Estimates:
Large Airlines.......................................... 174.0 178.1 1,582.8 1,356.9
Medium Airlines......................................... 5.4 5.5 49.0 42.0
Vessel Carriers......................................... 43.6 22.5 223.8 195.2
---------------------------------------------------
Total............................................... 223.0 206.1 1,855.6 1,594.1
----------------------------------------------------------------------------------------------------------------
US-VISIT has assessed seven categories of economic impacts other
than direct expenditures. Of these two are economic costs.
Social costs resulting from increased traveler queue and
processing time; and
Social costs resulting from increased flight delays.
3. Benefits
Table 3 shows that the ten-year benefits are estimated at $1,093.6
million, which is about $771.7 million with a discount rate of 7% and
$935.6 million with a discount rate of 3%.
Table 3.--Ai