[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] ======================================================================== 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. ======================================================================== [[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. ----------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \1\ Implementation of the United States Visitor and Immigrant Status Indicator Technology Program (``US-VISIT''); Biometric Requirements, 69 FR 468, 468 (Jan. 5, 2004). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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). --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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 r