DHS Document Regarding Collection of Alien Biometric Data Upon Exit From the US

http://cryptome.org/dhs042408.htm

24 April 2008


[Federal Register: April 24, 2008 (Volume 73, Number 80)]

[Proposed Rules]               
[Page 22065-22088]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ap08-8]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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[[Page 22065]]

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 215, 217, 231, and 235

19 CFR Parts 4 and 122

RIN 1601-AA34
[DHS-2008-0039]

Collection of Alien Biometric Data Upon Exit From the United
States at Air and Sea Ports of Departure; United States Visitor and
Immigrant Status Indicator Technology Program (``US-VISIT'')

AGENCY: National Protection and Programs Directorate, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security (DHS) proposes to
establish an exit program at all air and sea ports of departure in the
United States. This proposed rule would require aliens who are subject
to United States Visitor and Immigrant Status Indicator Technology
Program (US-VISIT) biometric requirements upon entering the United
States to provide biometric information to commercial air and vessel
carriers before departing from the United States at air and sea ports
of entry. This rule proposes a performance standard for commercial air
and vessel carriers to collect the biometric information and to submit
this information to DHS no later than 24 hours after air carrier staff
secure the aircraft doors on an international departure, or for sea
travel, no later than 24 hours after the vessel's departure from a U.S.
port. DHS does not propose to apply these requirements to persons
departing the United States on certain private carriers or small
carriers as defined herein.
The exit system proposed under this rule meets the recommendations
of the 9-11 Commission Report and the requirements of section 711 of
the Implementing Recommendations of the 9/11 Commission Act of 2007.

DATES: Comments are due no later than June 23, 2008.

ADDRESSES: You may submit comments pursuant to the instructions in the
Public Comments section of the Supplemental Information, identified by
Docket Number DHS-2008-0039, by one of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting the comments.
Mail: Michael Hardin, Senior Policy Advisor, US-VISIT,
Department of Homeland Security; 1616 North Fort Myer Drive, 18th
Floor, Arlington, VA 22209.

FOR FURTHER INFORMATION CONTACT: Michael Hardin, Senior Policy Advisor,
US-VISIT, Department of Homeland Security; 1616 North Fort Myer Drive,
18th Floor, Arlington, VA 22209 or by phone at (202) 298-5200.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Request for Public Comments
II. Background and Purpose
A. Need for a US-VISIT Exit System
B. Statutory Authority for US-VISIT
C. Program History of the US-VISIT
III. US-VISIT Exit Pilot Program
IV. Proposed Exit Program
A. Purpose
B. Summary of the Exit Proposal and Alternatives Considered
1. Current Passenger Information Requirements for Carriers
2. Current Process for Individuals Departing the United States
by Commercial Air Carrier
3. Proposed Process for Aliens Departing the United States by
Commercial Air Carrier
4. Vessel Carrier Departures
5. Technical Requirements
a. Data Transfer
b. Time of Transfer
c. Substantive Performance Standard for Biometrics
d. Enforcement and Penalties on Carrier Performance
6. Alternatives Considered
a. Confidence of Departure
b. Percentage of Population Captured
c. Operational Impacts to the Alien, Carrier, and DHS
d. Conceptual Financial Burden to the Carriers and DHS
e. Need for Additional Network or Connectivity
f. IT Security Complexity
g. Privacy
h. Cost
i. Constraints
7. Non-Air/Vessel Carrier Departures
8. Small Air/Vessel Carriers
9. Additional ``Kiosk'' Option
a. Requirement for Carrier Participation
b. Air Processes
c. Vessel Processes
d. Kiosk Scenario Assumptions
C. Statutory Authority to Require Air and Vessel Carriers to
Collect Exit Biometrics
D. Impetus for Carrier Participation
V. Summary of the Proposed Rule
VI. Statutory and Regulatory Requirements
A. Executive Order 12866
1. Alternatives to the Proposed Rule Evaluated
2. Costs
3. Benefits
4. Accounting Statement
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Executive Order 13132
E. Executive Order 12988
F. Trade Impact Assessment
G. National Environmental Policy Act
H. Paperwork Reduction Act
I. Public Privacy Interests

Table of Abbreviations and Acronyms

9/11 Recommendations Act--The Implementing Recommendations of the
9/11 Commission Act of 2007

ADIS--Arrival and Departure Information System
AOIP--Aircraft Operator Implementation Plan
APIS--Advance Passenger Information System
AQQ--APIS Quick Query
CBP--Customs and Border Protection
CEQ--Council on Environmental Quality
CII--Critical Infrastructure Information
CJIS--Criminal Justice Information Services
COI--Countries of Interest
CUG--Consolidated Users Guide
DHS--Department of Homeland Security
DOJ--Department of Justice
DOS--Department of State
DMIA--Immigration and Naturalization Service Data Management
Improvement Act of 2000
EBSVERA--Enhanced Border Security and Visa Entry Reform Act of 2002
FBI--Federal Bureau of Investigation
FIN--Fingerprint Identification Number
FOIA--Freedom of Information Act
FONSI--Finding of No Significant Impact
IDENT--Automated Biometric Identification System
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
IRTPA--Intelligence Reform and Terrorism Prevention Act of 2004
MRZ--Machine Readable Zone
NEPA--National Environmental Policy Act of 1969
NCTC--National Counterterrorism Center
NIST--National Institute of Standards and Technology
PCII--Protected Critical Infrastructure Information
PEA--Programmatic Environmental Assessment

[[Page 22066]]

PIA--Privacy Impact Assessment
PII--Personally Identifiable Information
PRA--Paperwork Reduction Act
SBA--Small Business Administration
SFPD--Secure Flight Passenger Data
SSI--Sensitive Security Information
TRIP--Traveler Redress Inquiry Program
TSA--Transportation Security Administration
USA PATRIOT Act--Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001
US-VISIT--United States Visitor and Immigrant Status Indicator
Technology Program
VWP--Visa Waiver Program
VWPPA--Visa Waiver Permanent Program Act of 2000
WSA--Work Station Attendant

I. Request for Public Comments

The Department of Homeland Security (DHS) requests public comment
on this proposed rule. The most helpful comments will specifically
address discrete elements of the proposal, including on-point
operational and financial data and the potential economic and business
impacts from the performance standards proposed under this rule.
This rule proposes a performance standard that requires the
carriers to collect biometric information on the premises of the
facility from which the alien departs the United States, but provides
the carriers with some discretion in the manner of collection and
submission to allow the carriers to meet the requirements in the most
efficient and cost-effective manner. DHS specifically requests public
comments on all of the alternatives discussed in this proposed rule and
the underlying assumptions and analyses related to those alternatives.
Although the proposed rule identifies means for collection of
biometrics, personnel, and methods of transmission, DHS also welcomes
proposals on alternatives that have not been proposed in this rule. The
most useful proposals or alternatives would include information on how
the proposed alternative would reduce the burden on travelers and the
travel industry without sacrificing accuracy in the collection of
biometric information.
DHS also solicits comments on the regulatory evaluations supporting
this proposed rule, including:
The cost models of each alternative, including all
assumptions that underlie the labor costs;
Any cost-sharing alternatives to the proposals presented
between the carriers and the government;
The assumptions and numbers used to develop the carrier
and government alternatives; and
The potential for cost savings for alternatives not
included as options in this proposed rule.
DHS may select another variation between the outer bounds of the
alternatives presented or another alternative if subsequent analysis
and public comments warrant.
All comments will be included in the public docket, except those
comments that, on their face, contain trade secrets, confidential
commercial or financial information, or sensitive security information
(SSI) or critical infrastructure information (CII). Comments that
include trade secrets, confidential commercial or financial
information, or SSI should not be submitted to the public regulatory
docket. Submit such comments separately from other comments on the
rule. Comments containing this type of information should be
appropriately marked and submitted by mail to the individual listed in
the FOR FURTHER INFORMATION CONTACT section. Upon receipt of such
comments, DHS will handle them in accordance with applicable safeguards
and restrictions on access. DHS will not place the comments in the
public docket, but rather will hold them in a separate file to which
the public does not have access and place a note in the public docket
that DHS has received such materials from the commenter.
Industry is invited to submit critical infrastructure information
(CII) in response to this rulemaking. The CII must be submitted to the
Protected Critical Infrastructure Information (PCII) Program Office and
validated as PCII in order to be considered PCII. In addition, the
submitted CII must be accompanied by an express statement requesting
the protections of the Critical Infrastructure Information Act of 2002,
Public Law No. 107-296, tit. II, subtit. B, section 211-214, 116 Stat.
2135, 2150 (Nov. 25, 2002) (6 U.S.C. 131-134) (the CII Act), and a
signed Certification Statement. Once the PCII Program receives the
requisite documentation, and provided that the submitted information
meets the definition of CII under the CII Act, the PCII Program Office
will validate the information as PCII. Submissions of CII for
consideration for validation as PCII should be submitted
electronically, if possible, through the PCII Web site at www.dhs.gov/
pcii
and marked with the docket number for this rulemaking. If the
comments cannot be submitted electronically for PCII consideration,
please contact the PCII Program Office at pcii-info@dhs.gov. DHS will
disclose and dispose of CII and PCII only in accordance with the CII
Act and 6 CFR part 29.

II. Background and Purpose

A. Need for a US-VISIT Exit System

Under the Department's current US-VISIT Program, the U.S.
Government, through Customs and Border Protection (CBP) officers or
Department of State (DOS) consular offices, collects biometrics
(digital finger scans and photographs) from aliens seeking to enter the
United States. DHS checks that information against government databases
to identify suspected terrorists, known criminals, or individuals who
have previously violated U.S. immigration laws. This system assists DHS
and DOS in determining whether an alien seeking to enter the United
States is, in fact, admissible to the United States under existing law.
Currently, however, there is no exit system to assist DHS or DOS in
determining whether an alien has overstayed the terms of his or her
visa (or other authorization to be present in the United States).
Following the terrorist attacks on the United States in 2001, the
National Commission on Terrorist Attacks upon the United States (the 9/
11 Commission), in its seminal report, noted:

Looking back, we can see that the routine operations of our
immigration laws--that is, aspects of those laws not specifically
aimed at protecting against terrorism--inevitably shaped al Qaeda
planning and opportunities * * * had the immigration system set a
higher bar for determining whether individuals are who or what they
claim to be--and ensuring routine consequences for violations--it
could potentially have excluded, removed, or come into further
contact with several hijackers who did not appear to meet the terms
for admitting short-term visitors.

The 9/11 Commission Report: Final Report of the National Commission on
Terrorist Attacks upon the United States (2004) (9/11 Commission
Report), p. 384.
The 9/11 Commission's final report illustrated the shortcomings of
a system without exit controls. The Commission reported that several of
the 9/11 hijackers (Mohamed Atta, Ziad Jarrah, Satam Suqami, Salam al
Suqami, and Nawaf al Hazmi) could have been denied admission to the
United States based on previous violations of immigrations laws,
including having previously overstayed their terms of admission. Had
these individuals been denied admission, they would not have been
present or available in the United States on September 11, 2001, to
carry out the terrorist attacks. See 9/11 Commission Report at 564 note
33, also Staff Statement No. 1 to the Report,

[[Page 22067]]

``Entry of the 9/11 Hijackers in the United States'' (``Staff
Statement''). The Staff Statement emphasizes the consequences of this
particular unfinished congressional mandate: ``Congress required the
Attorney General to develop an entry-exit system in 1996. The system's
purpose was to improve INS' ability to address illegal migration and
overstays for all types of foreign visitors. * * * [W]hen hijackers
Suqami and Nawaf al Hazmi overstayed their visas, the system Congress
envisaged did not exist. Moreover, when federal law enforcement
authorities realized in late August 2001 that [Khalid al] Mihdhar had
entered with Hazmi in January 2000 in Los Angeles, they could not
reliably determine whether or not Hazmi was still in the United States,
along with Mihdhar.'' Staff Statement at 8-9.
The purpose of the exit system proposed under this rule is to allow
the U.S. Government to better identify aliens who have violated the
terms of their stay in the United States. This system will complement
the existing entry system and meets the mandates of Congress in the 9/
11 Recommendations Act (9/11 Recommendations Act), Public Law No. 110-
53, 121 Stat. 266, 338 (Aug. 3, 2007), and the recommendations of the
9/11 Commission.
This rule proposes to amend 8 CFR 215.8 and 231.4 to require
commercial air and vessel carriers to collect fingerprints from aliens
departing the United States and to transmit those fingerprints to DHS
either within 24 hours after securing the cabin doors of the aircraft
for departure from the United States or within 24 hours of departure of
a vessel from the United States.
DHS also proposes to amend 8 CFR 215.8 to expand the US-VISIT exit
program beyond its current limitation of fifteen pilot programs. DHS
proposes to require that the air and vessel carriers will submit the
information to DHS for comparison against relevant watchlists and
immigration information, as required under the Implementing
Recommendations of the 9/11 Commission Act of 2007. DHS does not
propose to apply these requirements to an air or vessel carrier that is
a small entity as defined under Small Business Administration (SBA)
regulations. 13 CFR 121.201 (NAIC Codes 481111, 481212, 483112).
This proposed rule is based, in part, on the same statutory
authorities under which DHS requires air and vessel carriers to provide
passenger manifest information under CBP's Advanced Passenger
Information System (APIS). Immigration and Nationality Act of 1952, as
amended (INA), section 231, 8 U.S.C. 1221. Pursuant to existing DHS
regulations, carriers are required to collect, verify, and transmit
APIS data before securing the aircraft doors for international flights.
Carriers will be required to send the biometric portion of the
passenger manifest data to US-VISIT in an XML formatted message that
contains the biometric image, US-VISIT specified biographic data (e.g.,
last name, first name, date of birth, country of citizenship, gender,
document type, document number), and carrier specific information
(e.g., carrier ID, flight number, port of departure, date and time of
fingerprint capture, device identification). US-VISIT will process the
biographic data to find the passenger's entry records in the DHS
Automated Biometric Identification System (IDENT) and the Arrival and
Departure Information System (ADIS) and then compare the exit biometric
to the entry biometric to verify identity.
When an alien arrives at the international departure air or sea
port, the carrier will collect the alien's biometric data. The
biometric data and the associated unique identifier will then be
transmitted, within 24 hours of departure, to US-VISIT for processing.
US-VISIT will use the unique identifier to associate the APIS
biographic and biometric data for each alien.
DHS will use the alien biometric data in conjunction with
biographic exit data to create an exit record for each departing alien.
Biometric exit records will be reconciled against biometric entry
records. Aliens who have overstayed their admission period could be
subject to adverse action upon subsequent encounters with the U.S.
Government, such as during visa application or renewal or application
for admission or re-admission to the United States. DHS will also use
this data to undertake larger statistical analyses to weigh specific
inclusions in the Visa Waiver Program (VWP), as required by INA section
217, 8 U.S.C. 1187.

B. Statutory Authority for US-VISIT

Numerous Congressional enactments provide for the creation of an
integrated and automated system to record the arrival and departure of
aliens; the deployment of equipment at all ports of entry to verify
aliens' identities and authenticate travel documents through the
comparison of biometric identifiers; and the recording of alien arrival
and departure information from biometrically authenticated travel
documents.1 DHS may control alien travel and inspect aliens under
sections 215(a) and 235 of the INA, 8 U.S.C. 1185, 1225. Aliens may be
required to provide fingerprints, photographs, or other biometric
identifiers upon arrival in, or departure from, the United States, and
select classes of aliens may be required to provide information at any
time. See, e.g., INA sections 214, 215(a), 235(a), 262(a), 263(a),
264(c), 8 U.S.C. 1184, 1185(a), 1225(a), 1302(a), 1303(a), 1304(c).
Pursuant to section 215(a) of the INA, and Executive Order No. 13323,
69 FR 241 (Jan. 2, 2004), the Secretary of Homeland Security, with the
concurrence of the Secretary of State, has the authority to require
certain aliens to provide requested biographic identifiers and other
relevant identifying information as they depart the United States.
Under section 214 of the INA, 8 U.S.C. 1184, DHS may make compliance
with US-VISIT departure procedures a condition of admission and
maintenance of status for nonimmigrant aliens while in the United
States.
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1 Implementation of the United States Visitor and Immigrant
Status Indicator Technology Program (``US-VISIT''); Biometric
Requirements, 69 FR 468, 468 (Jan. 5, 2004).
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The creation of an automated entry-exit system that integrates
electronic alien arrival and departure information was first authorized
in the Immigration and Naturalization Service Data Management
Improvement Act of 2000 (DMIA), Public Law No. 106-215, 114 Stat. 339,
8 U.S.C. 1365a. The DMIA provided that the entry-exit system consist of
the integration of all authorized or required alien arrival and
departure data that is maintained in electronic format. The DMIA also
provided for DHS to use the entry-exit system to match the available
arrival and departure data on aliens. DMIA section 2, 8 U.S.C.
1365a(e).
In addition, section 205 of the Visa Waiver Permanent Program Act
of 2000 (VWPPA), Public Law No. 106-396, 114 Stat. 1637 (October 30,
2000), amending INA section 217(h), 8 U.S.C. 1187(h), provides for the
creation of a system that contains a record of the arrival and
departure of every alien admitted under the VWP at air or sea ports of
entry. The provisions of the DMIA resulted in the integration of the
VWP arrival/departure information into the primary entry-exit system
component of US-VISIT.
Following the attacks on the United States on September 11, 2001,
Congress enacted the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (USA

[[Page 22068]]

PATRIOT Act), Public Law No. 107-56, 115 Stat. 353 (October 26, 2001),
and the Enhanced Border Security and Visa Entry Reform Act of 2002
(EBSVERA), Public Law No. 107-173, 116 Stat. 553 (May 14, 2002).
Section 403(c) of the USA PATRIOT Act, 8 U.S.C. 1379, required DHS and
DOS to jointly develop and certify a technology standard that can be
used to verify the identity of visa applicants and aliens seeking to
enter the United States pursuant to a visa and to do background checks
on such aliens. The technology standard was developed through the
National Institute of Standards and Technology (NIST), in consultation
with the Secretary of the Treasury, other appropriate Federal law
enforcement and intelligence agencies, and Congress. The standard
includes appropriate biometric identifier standards. The USA PATRIOT
Act further provided for DHS and DOS to ``particularly focus on the
utilization of biometric technology; and the development of tamper-
resistant documents readable at ports of entry.'' USA PATRIOT Act
section 414(b), 8 U.S.C. 1365a and note.
The statutory provisions for biometric identifiers to be utilized
in the context of the entry-exit system also were strengthened
significantly under EBSVERA. Section 302(a)(1) of EBSVERA provides that
the entry-exit system must use the technology and biometric standards
required to be certified by DHS and DOS under section 403(c) of the USA
PATRIOT Act. 8 U.S.C. 1731. Section 303(b)(1) of EBSVERA provides that
the United States may issue to aliens only machine-readable, tamper-
resistant visas and other travel and entry documents that use biometric
identifiers. 8 U.S.C. 1732(b)(1). Further, DHS and DOS must jointly
establish document authentication and biometric identifier standards
for alien travel documents from among those recognized by domestic and
international standards organizations. Id. However, unexpired travel
documents that have been issued by the U.S. Government but do not use
biometrics are not invalidated under section 302(c)(2) of EBSVERA. 8
U.S.C. 1732(c)(2). Section 303(b)(2) of EBSVERA provided for the
installation, at all ports of entry, of equipment and software that
allow biometric comparison and authentication of all United States
visas and machine-readable, tamper-resistant travel and entry documents
issued to aliens, as well as passports that are issued by countries
participating in the VWP. 8 U.S.C. 1732(b)(2).
The entry-exit system includes a database that contains alien
arrival and departure data from the machine-readable visas, passports,
and other travel and entry documents. EBSVERA section 302(a)(2), 8
U.S.C. 1731(a)(2). In developing the entry-exit system, EBSVERA
provided that the Secretaries of Homeland Security and State make
interoperable all security databases relevant to making determinations
of alien admissibility. EBSVERA section 302(a)(2), 8 U.S.C. 1731(a)(3).
In addition, EBSVERA provided that the entry-exit system share
information with other systems required by EBSVERA. Section 202 of
EBSVERA addresses requirements for an interoperable law enforcement and
intelligence data system and requires the integration of all databases
and data systems that process or contain information on aliens. 8
U.S.C. 1722.
In December 2004, further statutory provisions were enacted
pertaining to the entry-exit system. Section 7208 of the Intelligence
Reform and Terrorism Prevention Act of 2004 (IRTPA), Public Law No.
108-458, 118 Stat. 3638, 3817 (Dec. 17, 2004), 8 U.S.C. 1365b, provides
for DHS to collect biometric exit data for all categories of aliens who
are required to provide biometric entry data. IRTPA requires that the
system contain, as an interoperable component, the fully integrated
databases and data systems maintained by DHS, DOS and the Department of
Justice (DOJ) that process or contain information on aliens. IRPTA also
requires current and immediate access to information in the databases
of Federal law enforcement agencies and the intelligence community,
which is relevant in determining whether to issue a visa or the
admissibility or deportability of an alien. Section 7208 also provided
a complete list of entry-exit system goals, which include, among other
things, screening aliens efficiently.
Finally, section 711 of the 9/11 Recommendations Act directs the
Secretary of Homeland Security, within one year of enactment, to
``establish an exit system that records the departure on a flight
leaving the United States of every alien participating in the visa
waiver program[.]'' INA section 217(i), 8 U.S.C. 1187(i). This air exit
system must match the biometric information of aliens against relevant
watch lists and immigration information and compare such biometric
information against manifest information collected by air carriers on
passengers departing the country. Id. In addition, subsection (c) of
the 9/11 Recommendations Act permits the Secretary of Homeland Security
to waive the applicability of INA section 217(c)(2)(A), 8 U.S.C.
1187(c)(2)(A), which restricts eligibility for designation into the VWP
to countries that have a low nonimmigrant visa refusal rate, subject to
a determination that certain security-related measures are met.
Specifically, DHS must certify the following to exercise the waiver
authority: (1) An air exit system is in place that can verify the
departure of not less than 97% of foreign nationals who exit through
airports of the United States, and (2) an electronic travel
authorization system to collect biographic and other information in
advance of travel to the United States (as required under 9/11
Recommendations Act) subsection (d)(1)(E), adding INA section
217(h)(3), 8 U.S.C. 1187(h)(3), is fully operational. The VWP waiver
authority suspends on July 1, 2009, unless the Secretary of Homeland
Security provides notification that the air exit system fully satisfies
the biometric requirements of INA section 217(i), 8 U.S.C. 1187(i).2
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2 The House and Senate Conference Committee reported:
The Conference further agrees to provide the Secretary this
waiver authority upon certification by the Secretary to Congress
that there is an air exit system in place to verify the departure of
not less than 97% of foreign nationals who exit by air, which may or
may not be fully biometric. The Conference also agrees that the
ultimate goal is to achieve a fully biometric air exit system, as
described in subsection (i) of the bill. Therefore, if such a
biometric system is not implemented by June 30, 2009, the
Secretary's waiver authority that was based upon his certification
of 97 percent accuracy of any non-biometric exit system shall be
suspended until a biometric exit system is fully operational.
Establishment of this biometric system will implement a 9/11
Commission recommendation and will enhance our border security and
immigration enforcement by ensuring our ability to track the
arrivals and departures of foreign nationals.
Implementing Recommendations of the 9/11 Commission Act of 2007:
Conference Report to Accompany H.R. 1, H. R. Rept. 110-259, 110th
Cong., 1st Sess., at 318 (July 25, 2007) (H. R. Rept. 110-259). The
statutory provisions clearly indicate Congress's imperative to
create a biometric exit system for air travel.
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The VWP is important to U.S. international trade and tourism, and
preservation of the Secretary's discretion within the VWP program is
critical to balancing U.S. security interests and international trade
priorities. The program was established in 1986 with the objective of
eliminating unnecessary barriers to travel, stimulating the tourism
industry, and permitting the United States to focus resources on other
areas of greater risk or with problematic immigration issues.
Currently, VWP enables nationals of twenty-seven countries to travel to
the United States for tourism or business for stays of 90 days or less
without obtaining a visa.3 All VWP travelers,

[[Page 22069]]

regardless of age or type of passport used, must present individual
machine-readable passports. Effective September 30, 2004, nonimmigrants
seeking to enter the United States under the VWP also are required to
provide biometric information under US-VISIT. 69 FR 53318 (Aug. 31,
2004).
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3 The VWP countries are Andorra; Australia; Austria; Belgium;
Brunei; Denmark; Finland; France; Germany; Iceland; Ireland; Italy;
Japan; Liechtenstein; Luxembourg; Netherlands; New Zealand; Norway;
Portugal; San Marino; Singapore; Slovenia; Spain; Monaco; Sweden;
Switzerland; and United Kingdom.
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DHS's broad authority to control alien travel and inspect aliens
under INA sections 215(a) and 235, 8 U.S.C. 1185 and 1225, further
supports the requirements under US-VISIT that foreign nationals provide
biometric identifiers and other relevant identifying information upon
admission to, or departure from, the United States.

C. Program History of US-VISIT

On January 5, 2004, DHS implemented the first phase of the US-VISIT
program by requiring that aliens seeking admission into the United
States through nonimmigrant visas provide fingerprints, photographs, or
other biometric identifiers upon arrival in, or departure from, the
United States at air and sea ports of entry. 69 FR 468 (Jan. 5, 2004).
Since September 30, 2004, nonimmigrants seeking to enter the United
States without visas under the VWP also have been required to provide
biometric information under US-VISIT. 69 FR 53318 (Aug. 31, 2004). DHS
has expanded US-VISIT entry to 119 airports, 19 seaports, and 154 land
border ports of entry.
In many cases, US-VISIT biometric identification begins overseas at
DOS consular offices. There, biometrics (digital finger scans and
photographs) of aliens applying for visas are collected and checked
against a database of known criminals, suspected terrorists, and those
who have previously violated the immigration laws of the United States
or had other DHS or DOS encounters.
When any person, whether a U.S. citizen or an alien, arrives at a
port of entry by air, he or she enters a CBP inspection area for
immigration and customs inspection. At that time, every person must
show that he or she is either a U.S. citizen or an alien who is
admissible to the United States. 8 CFR 235.1.
While the alien remains before CBP, US-VISIT will verify that the
alien at the port of entry is the same alien who received the visa by
comparing the biometrics of the alien to the record created at the time
of visa application. For those aliens whose biometrics were not
captured overseas, such as VWP visitors, a CBP officer at the port of
entry will collect digital finger scans and a digital photograph of the
alien. These biometrics will be verified at the time of exit and, if
required, during subsequent applications for admission to the United
States.
DHS's ability to establish and verify the identity of an alien and
to determine whether that alien is admissible to the United States is
critical to the security of the United States and the enforcement of
the laws of the United States. By linking the alien's biometric
information with the alien's travel documents, DHS reduces the
likelihood that another individual could assume the identity of an
alien already recorded in US-VISIT or use an existing recorded identity
to gain admission to the United States.
US-VISIT biometrically screens alien arrivals at air and sea ports
of entry during primary inspection, but will only screen during
secondary inspection at land border ports of entry. At the land border
ports of entry, secondary inspection is used rather than primary
inspection because of the volume of traffic and facility limitations.
Referral of aliens to secondary inspection at the land border ports of
entry is premised on processes that already require secondary
inspection (e.g., issuance of a Form I-94 Arrival/Departure Record) or
an inspecting officer's determination that further investigation of the
alien's identity or admissibility is needed to properly determine
whether the alien is admissible to the United States.
From its inception on January 5, 2004 through February 29, 2008,
US-VISIT has biometrically screened 112,884,097 aliens at the time they
applied for admission to the United States. DHS has taken adverse
action against more than 3,039 of these aliens based on information
obtained through the US-VISIT biometric screening process. By ``adverse
action,'' DHS means that the aliens were:
Arrested pursuant to a criminal arrest warrant;
Denied admission, placed in expedited removal, or returned
to the country of last departure; or
Otherwise detained and denied admission to the United
States.
In addition, by quickly verifying the identities of aliens and the
validity of documents, US-VISIT has expedited the travel of millions of
legitimate entrants. Adding the biometric records of aliens visiting
the United States to the IDENT database will likely result in DHS
identifying other aliens who are inadmissible or who otherwise present
security and criminal threats, including those who may be traveling
under a previously established identity and potentially pose a threat
to the security or law enforcement interests of the United States.
The Secretary of State and the Secretary of Homeland Security may
jointly exempt classes of aliens from US-VISIT. The Secretary of State
and the Secretary of Homeland Security, as well as the Director of the
Central Intelligence Agency, also may exempt any individual from US-
VISIT. 8 CFR 235.1(f)(iv)(B). Aliens currently expressly exempt from
US-VISIT requirements by DHS regulations include:
Aliens admitted on an A-1, A-2, C-3, G-1, G-2, G-3, G-4,
NATO-1, NATO-3, NATO-4, NATO-5, or NATO-6 visa;
Children under the age of 14;
Aliens over the age of 79;
Taiwan officials admitted on an E-1 visa and members of
their immediate families admitted on E-1 visas.
8 CFR 235.1(f)(1)(iv).
On July 27, 2006, DHS proposed to expand the population of aliens
required to provide biometric information under US-VISIT. See 71 FR
42605. Under that proposed rule, DHS would extend US-VISIT requirements
to all aliens, including lawful permanent residents, with the exception
of aliens who are specifically exempted and Canadian citizens applying
for admission as B1/B2 visitors for business or pleasure. The
Department anticipates issuing a final rule before the end of 2008.

III. US-VISIT Exit Pilot Program

Under current regulations, DHS may conduct exit pilot programs at
up to fifteen air or sea ports of entry. 8 CFR 215.8(a). DHS conducted
a series of pilot programs from January 2004 through May 2007 at
fourteen ports of entry across the United States.4 The results of the
pilot programs, discussed below, were informative to DHS in its
determination to propose that the most effective method of collecting
biometric information from alien travelers and submitting such
information to DHS

[[Page 22070]]

would be to have commercial air and vessel carriers--who have the most
information and expertise in collecting information from travelers
during the travel process--to collect biometric information in addition
to the biographic information already collected by commercial carriers
for business purposes and as required under federal law.
---------------------------------------------------------------------------

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 leavin

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