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”), 22065-22088 [E8-8956]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 73, Number 80 (Thursday, April 24, 2008)]
[Proposed Rules]
[Pages 22065-22088]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-8956]


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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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Federal Register / Vol. 73, No. 80 / Thursday, April 24, 2008 / 
Proposed 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.

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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: https://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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
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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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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 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 API