[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]


========================================================================
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: http://www.regulations.gov. 
Follow the instructions for submitting the comments.
     Mail: Michael Hardin, Senior Policy Advisor, US-VISIT, 
Department of Homeland Security; 1616 North Fort Myer Drive, 18th 
Floor, Arlington, VA 22209.

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

SUPPLEMENTARY INFORMATION: 

Table of Contents

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

Table of Abbreviations and Acronyms

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

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

[[Page 22066]]

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

I. Request for Public Comments

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

II. Background and Purpose

A. Need for a US-VISIT Exit System

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

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

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

[[Page 22067]]

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

B. Statutory Authority for US-VISIT

    Numerous Congressional enactments provide for the creation of an 
integrated and automated system to record the arrival and departure of 
aliens; the deployment of equipment at all ports of entry to verify 
aliens' identities and authenticate travel documents through the 
comparison of biometric identifiers; and the recording of alien arrival 
and departure information from biometrically authenticated travel 
documents.\1\ DHS may control alien travel and inspect aliens under 
sections 215(a) and 235 of the INA, 8 U.S.C. 1185, 1225. Aliens may be 
required to provide fingerprints, photographs, or other biometric 
identifiers upon arrival in, or departure from, the United States, and 
select classes of aliens may be required to provide information at any 
time. See, e.g., INA sections 214, 215(a), 235(a), 262(a), 263(a), 
264(c), 8 U.S.C. 1184, 1185(a), 1225(a), 1302(a), 1303(a), 1304(c). 
Pursuant to section 215(a) of the INA, and Executive Order No. 13323, 
69 FR 241 (Jan. 2, 2004), the Secretary of Homeland Security, with the 
concurrence of the Secretary of State, has the authority to require 
certain aliens to provide requested biographic identifiers and other 
relevant identifying information as they depart the United States. 
Under section 214 of the INA, 8 U.S.C. 1184, DHS may make compliance 
with US-VISIT departure procedures a condition of admission and 
maintenance of status for nonimmigrant aliens while in the United 
States.
---------------------------------------------------------------------------

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

    The creation of an automated entry-exit system that integrates 
electronic alien arrival and departure information was first authorized 
in the Immigration and Naturalization Service Data Management 
Improvement Act of 2000 (DMIA), Public Law No. 106-215, 114 Stat. 339, 
8 U.S.C. 1365a. The DMIA provided that the entry-exit system consist of 
the integration of all authorized or required alien arrival and 
departure data that is maintained in electronic format. The DMIA also 
provided for DHS to use the entry-exit system to match the available 
arrival and departure data on aliens. DMIA section 2, 8 U.S.C. 
1365a(e).
    In addition, section 205 of the Visa Waiver Permanent Program Act 
of 2000 (VWPPA), Public Law No. 106-396, 114 Stat. 1637 (October 30, 
2000), amending INA section 217(h), 8 U.S.C. 1187(h), provides for the 
creation of a system that contains a record of the arrival and 
departure of every alien admitted under the VWP at air or sea ports of 
entry. The provisions of the DMIA resulted in the integration of the 
VWP arrival/departure information into the primary entry-exit system 
component of US-VISIT.
    Following the attacks on the United States on September 11, 2001, 
Congress enacted the Uniting and Strengthening America by Providing 
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 
2001 (USA

[[Page 22068]]

PATRIOT Act), Public Law No. 107-56, 115 Stat. 353 (October 26, 2001), 
and the Enhanced Border Security and Visa Entry Reform Act of 2002 
(EBSVERA), Public Law No. 107-173, 116 Stat. 553 (May 14, 2002). 
Section 403(c) of the USA PATRIOT Act, 8 U.S.C. 1379, required DHS and 
DOS to jointly develop and certify a technology standard that can be 
used to verify the identity of visa applicants and aliens seeking to 
enter the United States pursuant to a visa and to do background checks 
on such aliens. The technology standard was developed through the 
National Institute of Standards and Technology (NIST), in consultation 
with the Secretary of the Treasury, other appropriate Federal law 
enforcement and intelligence agencies, and Congress. The standard 
includes appropriate biometric identifier standards. The USA PATRIOT 
Act further provided for DHS and DOS to ``particularly focus on the 
utilization of biometric technology; and the development of tamper-
resistant documents readable at ports of entry.'' USA PATRIOT Act 
section 414(b), 8 U.S.C. 1365a and note.
    The statutory provisions for biometric identifiers to be utilized 
in the context of the entry-exit system also were strengthened 
significantly under EBSVERA. Section 302(a)(1) of EBSVERA provides that 
the entry-exit system must use the technology and biometric standards 
required to be certified by DHS and DOS under section 403(c) of the USA 
PATRIOT Act. 8 U.S.C. 1731. Section 303(b)(1) of EBSVERA provides that 
the United States may issue to aliens only machine-readable, tamper-
resistant visas and other travel and entry documents that use biometric 
identifiers. 8 U.S.C. 1732(b)(1). Further, DHS and DOS must jointly 
establish document authentication and biometric identifier standards 
for alien travel documents from among those recognized by domestic and 
international standards organizations. Id. However, unexpired travel 
documents that have been issued by the U.S. Government but do not use 
biometrics are not invalidated under section 302(c)(2) of EBSVERA. 8 
U.S.C. 1732(c)(2). Section 303(b)(2) of EBSVERA provided for the 
installation, at all ports of entry, of equipment and software that 
allow biometric comparison and authentication of all United States 
visas and machine-readable, tamper-resistant travel and entry documents 
issued to aliens, as well as passports that are issued by countries 
participating in the VWP. 8 U.S.C. 1732(b)(2).
    The entry-exit system includes a database that contains alien 
arrival and departure data from the machine-readable visas, passports, 
and other travel and entry documents. EBSVERA section 302(a)(2), 8 
U.S.C. 1731(a)(2). In developing the entry-exit system, EBSVERA 
provided that the Secretaries of Homeland Security and State make 
interoperable all security databases relevant to making determinations 
of alien admissibility. EBSVERA section 302(a)(2), 8 U.S.C. 1731(a)(3). 
In addition, EBSVERA provided that the entry-exit system share 
information with other systems required by EBSVERA. Section 202 of 
EBSVERA addresses requirements for an interoperable law enforcement and 
intelligence data system and requires the integration of all databases 
and data systems that process or contain information on aliens. 8 
U.S.C. 1722.
    In December 2004, further statutory provisions were enacted 
pertaining to the entry-exit system. Section 7208 of the Intelligence 
Reform and Terrorism Prevention Act of 2004 (IRTPA), Public Law No. 
108-458, 118 Stat. 3638, 3817 (Dec. 17, 2004), 8 U.S.C. 1365b, provides 
for DHS to collect biometric exit data for all categories of aliens who 
are required to provide biometric entry data. IRTPA requires that the 
system contain, as an interoperable component, the fully integrated 
databases and data systems maintained by DHS, DOS and the Department of 
Justice (DOJ) that process or contain information on aliens. IRPTA also 
requires current and immediate access to information in the databases 
of Federal law enforcement agencies and the intelligence community, 
which is relevant in determining whether to issue a visa or the 
admissibility or deportability of an alien. Section 7208 also provided 
a complete list of entry-exit system goals, which include, among other 
things, screening aliens efficiently.
    Finally, section 711 of the 9/11 Recommendations Act directs the 
Secretary of Homeland Security, within one year of enactment, to 
``establish an exit system that records the departure on a flight 
leaving the United States of every alien participating in the visa 
waiver program[.]'' INA section 217(i), 8 U.S.C. 1187(i). This air exit 
system must match the biometric information of aliens against relevant 
watch lists and immigration information and compare such biometric 
information against manifest information collected by air carriers on 
passengers departing the country. Id. In addition, subsection (c) of 
the 9/11 Recommendations Act permits the Secretary of Homeland Security 
to waive the applicability of INA section 217(c)(2)(A), 8 U.S.C. 
1187(c)(2)(A), which restricts eligibility for designation into the VWP 
to countries that have a low nonimmigrant visa refusal rate, subject to 
a determination that certain security-related measures are met. 
Specifically, DHS must certify the following to exercise the waiver 
authority: (1) An air exit system is in place that can verify the 
departure of not less than 97% of foreign nationals who exit through 
airports of the United States, and (2) an electronic travel 
authorization system to collect biographic and other information in 
advance of travel to the United States (as required under 9/11 
Recommendations Act) subsection (d)(1)(E), adding INA section 
217(h)(3), 8 U.S.C. 1187(h)(3), is fully operational. The VWP waiver 
authority suspends on July 1, 2009, unless the Secretary of Homeland 
Security provides notification that the air exit system fully satisfies 
the biometric requirements of INA section 217(i), 8 U.S.C. 1187(i).\2\
---------------------------------------------------------------------------

    \2\ The House and Senate Conference Committee reported:
    The Conference further agrees to provide the Secretary this 
waiver authority upon certification by the Secretary to Congress 
that there is an air exit system in place to verify the departure of 
not less than 97% of foreign nationals who exit by air, which may or 
may not be fully biometric. The Conference also agrees that the 
ultimate goal is to achieve a fully biometric air exit system, as 
described in subsection (i) of the bill. Therefore, if such a 
biometric system is not implemented by June 30, 2009, the 
Secretary's waiver authority that was based upon his certification 
of 97 percent accuracy of any non-biometric exit system shall be 
suspended until a biometric exit system is fully operational. 
Establishment of this biometric system will implement a 9/11 
Commission recommendation and will enhance our border security and 
immigration enforcement by ensuring our ability to track the 
arrivals and departures of foreign nationals.
    Implementing Recommendations of the 9/11 Commission Act of 2007: 
Conference Report to Accompany H.R. 1, H. R. Rept. 110-259, 110th 
Cong., 1st Sess., at 318 (July 25, 2007) (H. R. Rept. 110-259). The 
statutory provisions clearly indicate Congress's imperative to 
create a biometric exit system for air travel.
---------------------------------------------------------------------------

    The VWP is important to U.S. international trade and tourism, and 
preservation of the Secretary's discretion within the VWP program is 
critical to balancing U.S. security interests and international trade 
priorities. The program was established in 1986 with the objective of 
eliminating unnecessary barriers to travel, stimulating the tourism 
industry, and permitting the United States to focus resources on other 
areas of greater risk or with problematic immigration issues. 
Currently, VWP enables nationals of twenty-seven countries to travel to 
the United States for tourism or business for stays of 90 days or less 
without obtaining a visa.\3\ All VWP travelers,

[[Page 22069]]

regardless of age or type of passport used, must present individual 
machine-readable passports. Effective September 30, 2004, nonimmigrants 
seeking to enter the United States under the VWP also are required to 
provide biometric information under US-VISIT. 69 FR 53318 (Aug. 31, 
2004).
---------------------------------------------------------------------------

    \3\ The VWP countries are Andorra; Australia; Austria; Belgium; 
Brunei; Denmark; Finland; France; Germany; Iceland; Ireland; Italy; 
Japan; Liechtenstein; Luxembourg; Netherlands; New Zealand; Norway; 
Portugal; San Marino; Singapore; Slovenia; Spain; Monaco; Sweden; 
Switzerland; and United Kingdom.
---------------------------------------------------------------------------

    DHS's broad authority to control alien travel and inspect aliens 
under INA sections 215(a) and 235, 8 U.S.C. 1185 and 1225, further 
supports the requirements under US-VISIT that foreign nationals provide 
biometric identifiers and other relevant identifying information upon 
admission to, or departure from, the United States.

C. Program History of US-VISIT

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

III. US-VISIT Exit Pilot Program

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

[[Page 22070]]

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

    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 APIS or at any 
subsequent point up to 24 hours following the departure of the vessel. 
Aliens will be informed of these requirements by the vessel carrier. 
Vessel carriers may not transmit the data earlier than three hours from 
the time of the vessel's scheduled departure. DHS seeks comment as to 
whether this proposal will be effective in the sea environment.
5. Technical Requirements
a. Data Transfer
    An alien's electronic fingerprint file is substantially larger than 
an alien's biographic (text) file of manifest information. For this 
reason, carriers may need to create or enhance systems to handle the 
larger amount of data inherent in biometric (image) transmissions. DHS 
proposes operational testing requirements to ensure that all biometric 
data transferred to DHS can be placed into IDENT.
    Overall, the process outlined above is designed to complement CBP's 
and TSA's biographic data collection with the collection of biometric 
data, without interfering with existing APIS data collection and 
transmission processes. DHS believes that to the extent carriers can 
use the APIS departure manifest transmission system as a means of 
transmitting the biometric data to DHS, that would ease the cost burden 
on the carriers. DHS encourages carriers to adjust their systems 
currently to account for APIS, and US-VISIT exit simultaneously to 
minimize the later technical changes that will occur over time and 
maximize their efficiency.
b. Time of Transfer
    DHS is proposing that carriers submit the biometric data to DHS not 
later than 24 hours after securing the aircraft doors for departure of 
the flight, or departure of the vessel, from the United States. DHS 
notes that the Department may reduce this period of time in which 
carriers must submit biometric data to DHS through subsequent 
rulemakings. As technology improves, DHS and the carriers will have 
increased capacity and ability to provide the biometric data to DHS at 
an earlier point in time, including up to the point in which APIS data 
is submitted prior to departure of the aircraft or vessel. The ability 
to submit biometric information to DHS before departure of the carrier, 
would provide DHS with additional security benefits by allowing DHS to 
compare the biometric information against government databases and 
terrorist watchlists prior to the departure of the aircraft or vessel.
c. Substantive Performance Standard for Biometrics
    Air and vessel carriers collecting biometrics on behalf of DHS will 
be required to register their system with US-VISIT and receive 
certification of the quality and security of their transmission 
capabilities. The biometric departure manifest information data files 
must comply with the Federal Bureau of Investigation, Criminal Justice 
Information Services, Electronic Fingerprint Transmission 
Specifications, Appendix F, sections 2 and 3 (``IAFIS Image Quality 
Specifications'') (May 2, 2005). Data transmission standards and 
methods for transmitting biometric departure manifest information are 
expected to be the current standards for the transmission to DHS of 
other electronic manifest data for carriers.
    Carriers must take steps to protect the privacy of the information 
collected and should only retain the biometrics collected on behalf of 
US-VISIT for a reasonable time. Carriers will be required to meet 
applicable technical standards for transmission of data in the 
Consolidated User's Guide (CUG).\9\
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    \9\ The Consolidated User Guide was jointly developed by CBP and 
TSA to provide consistent guidance to airlines on information and 
other requirements, including biographic data collection and 
transfer under APIS. The CUG is SSI and, therefore, is not released 
to the public. The CUG has been provided to carriers. The CUG will 
be modified to include biometric data transfer and storage 
requirements in a similar manner.
---------------------------------------------------------------------------

    The proposed rule would establish a performance standard for 
carriers to provide biometric identification of alien passengers 
departing the United States, consistent with current Integrated 
Automotaed Fingerprint Identification System (IAFIS) technical 
standards within 24 hours of securing the aircraft doors on an 
international departure or the vessel's departure. This performance 
standard expresses carrier requirements in terms of outcomes rather 
than specifying the means by which the carrier must operate. DHS 
believes that this approach is superior to specific design, behavior, 
or manner of compliance standards because a performance standard 
permits the carriers the flexibility to achieve the required objective 
in the most cost-effective manner, given the diversity of

[[Page 22074]]

their circumstances, including diverse airport layout. DHS believes 
that this approach permits carriers to achieve the greatest cost 
efficiency while assuring compliance through monitoring results and 
other means.
d. Enforcement and Penalties on Carrier Performance
    The enforcement mechanisms for failure to meet the standards 
proposed in this rule are similar to those that currently apply to 
carriers who fail to provide APIS passenger data to DHS. See INA 
section 231(g), 8 U.S.C. 1221(g) (per passenger fines for failure to 
comply; limitations on departure clearance while determination of fines 
pending except on deposit of sufficient sums to cover penalties). For 
example, a carrier may face enforcement action for failing to create 
and transmit a biometric departure record for an alien. A carrier may 
also be penalized if their overall collection and transmission 
performance is inadequate. For example, if a carrier's biometric 
transmissions are of insufficient quality to be processed by US-VISIT 
and thereby degrades the performance of IDENT, in accordance with 8 CFR 
217.6, the Secretary may terminate a carrier's authorization to 
transport aliens under the VWP. Carriers will also be subject to the 
data transmission requirements of the Consolidated User's Guide 
developed for carriers by CBP and TSA in developing the APIS Pre-
Departure Final Rule. Finally, carriers will remain liable for civil 
penalties for improper carriage of aliens, as well as potential 
limitations on their clearance to depart the United States or engage in 
international commerce under existing law. See INA section 215, 231(g), 
8 U.S.C. 1185, 1221(g).
    This proposed rule would add one new enforcement provision to 
ensure security and compliance. The proposed rule would permit DHS to 
specifically require a carrier to collect biometrics under more 
restrictive requirements if the carrier fails to collect alien 
biometric data and transmit adequate data files in a timely fashion. 
The proposed rule would permit DHS to require a carrier to collect 
biometrics under supervision at a specified place, including the 
collection of biometrics before issuing boarding passes to alien 
passengers, thus restricting the carrier's discretion to manage 
biometric collection and transmission as is generally provided in the 
proposed rule. Central to this enforcement mechanism, which DHS 
considers to be a last resort if compliance and other enforcement 
mechanisms do not adequately ensure compliance, is the possibility that 
DHS will require the carrier to collect biometric information at a 
specific location to permit DHS to supervise the collection. DHS 
proposes this penalty provision to ensure that DHS will be able to 
comply with the requirements of the 9/11 Recommendations Act and other 
Congressional enactments discussed above.
6. Alternatives Considered
    DHS considered several operational alternatives to meet the need of 
biometric data collection at air and sea exit locations. These 
alternatives only concentrated on the location of collection and the 
collecting entity. Specific technological solutions were not taken into 
account. The alternatives considered were:
    Alternative A: At the Check-in Counter--Air/Vessel Carrier 
collection. An air/vessel carrier representative collects biometric 
data of the alien at the air/vessel carrier check-in counter.
    Alternative B: At the Check-in Counter--DHS Collection. A DHS 
representative collects biometric data of the alien at the air/vessel 
carrier check-in counter.
    Alternative C: At Security Check-Point--DHS Collection. A DHS 
representative collects biometric data of the alien at the security 
checkpoint.
    Alternative D: At Gate-Air/Vessel Carrier Collection. An air/vessel 
carrier representative collects biometric data of the alien at the 
departure gate.
    Alternative E: At Gate--DHS Collection. A DHS representative 
collects biometric data of the alien at the departure gate.
    Alternative F: At Check-in Counter--Air/Vessel Carrier collection 
with verification at gate. An air/vessel carrier representative 
collects biometric data of the alien at the air/vessel carrier check-in 
counter, and a DHS representative randomly verifies the data at the 
departure gate.
    Alternative G: At Check-in Counter--DHS collection with 
verification at gate. A DHS representative collects biometric data of 
the alien at the air/vessel carrier check-in counter and a DHS 
representative randomly verifies the data at the departure gate.
    Alternative H: At Security Checkpoint--DHS collection with 
verification at gate. A DHS representative collects biometric data of 
the alien at the security checkpoint and a DHS representative randomly 
verifies the data at the departure gate.
    Alternative I: Within Sterile Area--DHS collection based on Data 
from Carriers. A DHS representative collects biometric data of the 
alien within the airport's sterile area (and a similar area within 
seaports) based on the biographic information (e.g. passport number) 
provided by carriers on the departing alien.
    DHS compared these possible alternatives using the following: 
confidence of departure; percentage of population captured; operational 
impacts to aliens, the carriers, and DHS; conceptual financial burden 
to the carriers and DHS; need for additional network/connectivity; 
information technology (IT) security concerns; privacy; and cost.
a. Confidence of Departure
    Confidence of departure measures the perceived ability to provide a 
level of confidence that the alien subject to US-VISIT processing who 
submitted biometric information did, in fact, depart the United States. 
The departure gate alternatives provided a higher level of confidence 
of departure regardless of the collecting entity. For example, if 
biometric collection occurs at the departure point, the ability of an 
alien to submit biometrics and exit the airport, without actually 
leaving the United States, is very low, thus providing for a higher 
confidence of departure. In contrast, collection of biometrics at the 
check-in counter provides the lowest confidence of departure because 
the alien may exit the airport after submitting biometrics and without 
actual departure from the United States. The TSA security screening 
checkpoint has a confidence of departure that was in between the other 
two locations considered. In addition, random biometric verification of 
aliens at the departure gate, who were originally processed at the 
check-in counter, provided a higher level of confidence of departure.
    Use of the APIS manifest data in concert with the US-VISIT 
biometric data is expected to add an extra layer of security and 
confidence that an alien did, in fact, depart the United States and is 
the same alien who originally entered the United States under that 
biographic identity. As explained above, the main purpose of APIS is 
for screening passengers before boarding the aircraft or departure of 
the vessel. APIS will continue to collect biographic departure 
information on passengers traveling internationally. The US-VISIT 
biometric data will, in turn, support this function by ensuring that an 
alien claiming an identity with biographic information is that person. 
The programs, therefore, support each other: US-VISIT exit ensures that 
an alien really is the person he or she claims to be when supplying 
their biographic data. Comparison of US-VISIT and

[[Page 22075]]

APIS will ensure that the same alien actually departs the United States 
and does not walk out of the airport after supplying DHS with only 
biometric or biographic data.
b. Percentage of Population Captured
    Each alternative was measured for its ability to capture the 
biometric information from all affected aliens. Where the alternative 
relied on a collection location that is a mandatory location that the 
alien must encounter, the percentage of population collected increases. 
Since all aliens are processed at the departure gate and at TSA 
security screening, these alternatives were the most favorable 
regardless of collecting entity. Since not every alien currently checks 
in at the check-in counter, this alternative was less favorable.
c. Operational Impacts to the Alien, Carrier, and DHS
    The alternatives were compared based on the expected additional 
time and/or additional process that the alien, carrier, or U.S. 
Government may experience for each implemented solution. The rankings 
for operational impacts varied not only with location, but also with 
the collecting entity as well. Overall, the alternatives where existing 
processes exist and that rely on staffed collection points that already 
exist were more favorable than locations where no current process or 
staffed collection point exists.
    For international travel, most aliens currently interface with the 
carrier at the check-in counter. Therefore, operational impacts to the 
alien were more favorable for biometric collection by the carrier at 
the check-in counter. In most cases, the alien is already providing 
identification and other information at the check-in counter. A 
biometric collection can be taken in conjunction with these already 
existing processes at the check-in counter without the alien 
experiencing significant additional processing time. In addition, DHS 
expects that information collected through APIS will be verified 
primarily at the check-in counter, and so collection of biometrics at 
that location would minimize the impact to the carriers in trying to 
coordinate requirements from multiple DHS programs. DHS seeks comments 
and data from the carriers on these assumptions and conclusions.
    The remaining alternatives were less favorable to the alien due to 
possible additional time for that collection. For example, although 
aliens already proceed through the security checkpoint and are 
processed by carriers at the departure gate, biometric collection at 
these locations would be an entirely separate process and could result 
in additional time. Likewise, DHS collection at the check-in counter or 
departure gate adds a DHS process where one currently does not exist.
    Currently, carriers process aliens at check-in counters and at the 
departure gate. However, adding biometric collection at these locations 
will add a process and lengthen wait times for the carrier. Therefore, 
for carriers, the carrier collection alternatives rank less favorable 
to the DHS collection. If DHS collects the biometric information, the 
carrier experiences a much less significant change in current 
operations.
    DHS has a presence at airports at the TSA security screening 
checkpoint and, at international arrival airports, at CBP's secure 
federal inspection service. However, adding biometric collection at the 
security screening checkpoint was determined to be unfavorable, as the 
processes at the security screening checkpoint are primarily concerned 
with the screening of individuals and luggage for prohibited items.
    In addition, several security and operational reasons make DHS 
collection at TSA security screening a less workable solution. 
Biometric collection at the screening checkpoint could cause delays. In 
addition, many TSA locations have space limitations that make these 
areas infeasible for biometric collection. Biometric collection at the 
security screening checkpoint could not append to an existing process, 
but rather would add time as a new process for aliens subject to US-
VISIT.
    Furthermore, DHS biometric collection at the check-in counter or 
departure gate would also add a process (and time) where none currently 
exists, and would add also to existing airport space concerns as a 
government officer would be conducting biometric capture in the same 
space as airline employees conduct their business. All DHS alternatives 
were deemed unfavorable to DHS due to the additional DHS processes, 
while carrier alternatives were deemed more favorable.
    Recognizing the need to identify and control aliens subject to US-
VISIT departure biometric capture also leads to favoring use of 
existing system parameters (such as APIS) to generate applicable 
documentation of aliens to be fingerprinted by DHS, with the limitation 
that some documentation would need to be created to permit the carrier 
to board an alien. The alternative encompassing each of these 
parameters would minimize the burden on airlines and DHS, but would 
require close coordination of information flow within a short period of 
time.
d. Conceptual Financial Burden to the Carriers and DHS
    The alternatives analysis assumed that the collecting entity would 
be responsible for the purchase, deployment, and maintenance of all 
biometric collection equipment and software needed. Therefore, each 
alternative was compared based on the conceptual financial burden for 
the collecting entity to develop, deliver, and implement the solution. 
Accordingly, financial burden on the carriers was most favorable when 
DHS collected the biometrics, and financial burden on DHS was most 
favorable when the carriers collected biometrics.
e. Need for Additional Network or Connectivity
    Each alternative was analyzed for its potential need for the DHS-
supplied local and wide area data communications infrastructure between 
the port and the IDENT system that is used to securely transport 
biometric information. The carrier alternatives were moderately more 
favorable than the other alternatives, since those locations have 
existing network and connectivity infrastructure, although biometric 
collection would have to be integrated into that process. Further, 
carriers will already be required to make significant efforts to 
transmit APIS data. DHS proposes similar testing of the transmission of 
biometric data in this proposal. DHS will attempt to ensure that 
carriers need not conduct multiple testing and submission requirements 
to comply with separate but related DHS programs.
f. IT Security Complexity
    The alternatives were compared for the possibility that: (1) There 
would be unauthorized use or misuse of the equipment, data, or network; 
(2) equipment may be open to intentional or accidental compromise; (3) 
U.S. Government standards may not be implemented as specified; and/or 
(4) there would be an intentional compromise of equipment, data, 
software, or communications infrastructure that would endanger the 
integrity of the biometric data collected. The alternatives where 
carriers collected the biometric information were less favorable than 
the alternatives where DHS collected the biometric information, 
regardless of location. Information in the sole custody of an entity 
has less possibility of being breached than information passed from one 
entity's network to another entity's

[[Page 22076]]

network. The carrier collection alternatives require biometric 
information to pass between the carrier's network and DHS's network. 
Comparatively, DHS is in sole custody of the biometric information at 
all times for the DHS collection alternatives.
g. Privacy
    The privacy criteria looked at the likelihood of satisfying US-
VISIT responsibility for compliance with the Privacy Act, 5 U.S.C. 
552a, the Homeland Security Act of 2002, Public Law No. 107-296, 116 
Stat. 2135 (Nov. 25, 2002) (as amended, found at 6 U.S.C.), the E-
Government Act, Public Law 107-347, 116 Stat. 2899 (Dec. 17, 2002) 
(codified or found in various sections of 40 and 44 U.S.C.), and 
applicable DHS and US-VISIT policies. Successful compliance requires 
limiting the collection of personally identifiable information (PII), 
and securing the PII against unauthorized access, use, disclosure, or 
retention, such as the use of the PII collected on behalf of the 
government for non-government purposes. Like the IT security complexity 
analysis, the carrier collection alternatives were less favorable than 
the DHS collection alternatives, regardless of location. When DHS does 
not maintain custody of PII throughout its lifecycle, there is a lower 
degree of confidence of compliance with privacy requirements than when 
DHS does maintain full custody over the PII.
h. Cost
    US-VISIT has prepared a regulatory evaluation of the alternatives 
considered. See section V.A. The costs and benefits are more fully 
explained in the Air/Sea Biometric Exit Project Regulatory Evaluation, 
which has been placed on the docket and is available at http://
www.regulations.gov docket DHS-2008-0039-0002.
i. Constraints
    After comparing the alternatives based on the identified criteria, 
DHS further weighed the alternatives against a number of constraints 
based on DHS goals and the evaluations of the US-VISIT biometric exit 
program pilot. Crucial among the operating constraints was the need for 
the biometric exit solution to be, to the extent practical, consistent 
with, and not redundant of, existing information collection 
requirements and submission systems for carriers. An additional 
constraint was to minimize disruption of existing processes from the 
traveling public's perspective. By making biometric collection 
consistent with the APIS departure manifest data collection to the 
extent practical (such as using the same event, e.g. securing of 
aircraft doors, for time thresholds, even though the times must be 
different), DHS has attempted to streamline requirements and promote 
efficiency. US-VISIT exit requirements will be applicable only to a 
subset of departing passengers, i.e., departing aliens.
    The US-VISIT air exit solution that records any departures by 
flight for all aliens participating in the VWP must be implemented by 
August 3, 2008 in order to meet the legislative deadline embodied in 
the 9/11 Recommendations Act. DHS is committed to meeting statutory 
mandates and preserving the Secretary's discretion to manage the VWP 
effectively.
    Each airport in the United States has a unique design. No Federal 
or private infrastructure exists in all international airports 
specifically for the processing of departing aliens. CBP inspects 
arriving aliens \10\ and TSA inspects all passengers for dangerous 
materials. Consequently, any implementation of biometric exit 
capabilities must be worked into existing airport and carrier 
infrastructure and processes. DHS must, accordingly consider the wide 
variation in the floor plans and terminal designs from one airport to 
another in developing an alien biometric exit solution.
---------------------------------------------------------------------------

    \10\ An airport must provide the physical infrastructure to 
support inspection of all arriving international passengers to be 
certified as an international airport. 8 CFR 234.4.
---------------------------------------------------------------------------

    Of the alternatives considered by DHS, the most promising 
alternatives were carrier collection of alien biometrics at the 
departure check-in counter or at the boarding gate. By offering 
carriers the alternative of using the check-in counter or the boarding 
gate, or both, DHS has provided carriers with the flexibility to 
implement biometric exit collection capabilities that are most 
convenient to carriers in consideration of airport design variation.
    In addition, as recommended from the US-VISIT biometric exit pilot 
evaluations, integrating biometric collection into an existing process, 
such as the check-in counter or boarding gate process, improves 
compliance and provides consistency and integration that will ensure 
that each alien will have a record collected prior to departure.
    The majority of aliens departing the United States by air must 
check baggage; all aliens must provide identification and present 
travel documents prior to departure. Concern that aliens could ``drop 
out'' of the travel process following collection of biometrics is 
mitigated by integration into the standard departure procedures and by 
the APIS biographic manifest program. The US-VISIT exit program and 
APIS are able to support each other. DHS will continue to review 
program integration in the future.
    APIS pre-departure verification, additionally, based on biographic 
information, is applicable to direct departing international flights, 
not domestic flights. Approximately 27% of all international departing 
passengers arrive at the international departure airport on a 
connecting flight from a domestic airport. DHS accordingly scaled the 
exit program to those carriers and ports with direct international 
departure flights. This scaling reduces the number of air carriers from 
approximately 247 to 138, and airports from 450 to 73.
    DHS is, therefore, proposing a rule that gives carriers the 
flexibility to implement biometric exit collection capabilities at the 
check-in counter, at the boarding gate, or to employ differing 
locations at differing airports. The proposed rule would not limit an 
air carrier's ability to collect biometrics at other locations within 
an airport.
    As discussed above, and in the Regulatory Impact Assessment (RIA) 
accompanying this proposed rule, DHS has analyzed a significant number 
of alternatives to the performance standards proposed in this rule. DHS 
welcomes public comment on additional alternatives to the performance 
standards proposed under this rule, including any combination of 
alternatives analyzed in the rule and RIA, and the potential economic 
impacts of such alternatives. DHS may consider implementing a 
combination of alternatives, such as the use of kiosks operated by DHS 
to collect biometrics from aliens with concomitant requirements on 
carriers to verify that aliens have submitted biometrics before 
boarding a flight or vessel leaving a U.S. port of entry. The 
Department will take those comments into consideration in development 
of the final rule.
    Similarly, vessel carriers may integrate the biometric collection 
process into their existing vessel boarding processes. All vessel 
passengers have their reservations validated, travel documents checked 
and collected by some carriers, APIS biographic data collected, 
verified, and transmitted, and on-board identification issued. DHS is 
proposing the same flexibility for vessel carriers in selection of a 
location for sea exit biometric collection.

[[Page 22077]]

7. Non-Air/Vessel Carrier Departures
    The proposed rule would apply only to certain commercial air and 
vessel carriers. The proposed rule would not apply to charters and 
other small carriers for hire. General aviation aircraft and privately 
owned and operated vessels are not included in this rule, but will be 
considered separately. Later consideration of general aviation aircraft 
and privately owned and operated vessels is consistent with the past 
development of security standards based on risk analysis. See Advance 
Information on Private Aircraft Arriving or Departing the United 
States, 72 FR 53394 (Sept. 18, 2007) (proposed rule). Similarly, ferry 
operators are exempt from this rule, as for DHS purposes these are 
considered as part of initiatives dealing with land ports-of-entry. See 
Documents Required for Travelers Departing From or Arriving in the 
United States at Sea and Land Ports-of-Entry From Within the Western 
Hemisphere, 73 FR 18384, 17404 (April 3, 2008) (final rule) (ferries 
treated as land border port of entry inspections).
8. Small Air/Vessel Carriers
    In developing this proposed rule, DHS considered whether the rule 
could be effectively applied to small air and vessel carriers. Small 
air and vessel carriers appear to handle only a small percentage of 
alien departures.
    After considering the risks relative to the costs of requiring 
small air and vessel carriers to undertake biometric exit data capture 
and transmission, DHS has determined to exempt small air and vessel 
carriers from the requirements of this proposed rule for the time 
being. Utilizing the definitions of the Small Business Administration 
(SBA), air carriers (whether scheduled passenger or charter air 
transportation) that employ fewer than 1,500 employees are exempted. 13 
CFR 121.201 (NAICS codes 481111 (Scheduled Passenger Air 
Transportation) and 481211 (Nonscheduled Chartered Passenger Air 
Transportation)). Vessel owners or operators that employ fewer than 500 
employees are small entities. 13 CFR 121.201 (NAICS code 483112 (Deep 
Sea Passenger Transportation)).
    DHS has determined that the costs of equipment purchases and 
installation, infrastructure modification, and personnel support 
outweighs the risks to the United States of not obtaining the 
biometrics of this small population of aliens departing the United 
States or the benefits to DHS in requiring these costs to obtain the 
benefits of biometric acquisition (as compared to only biographic 
information) from this small population of aliens departing the United 
States. Ultimately, US-VISIT estimates that the percentage of 
biometrics not captured from aliens departing the United States by 
small air and vessel carriers to be substantially less than 1%. As with 
US-VISIT and other DHS programs, DHS's incremental development of US-
VISIT may decide to remove exemption and apply these requirements to 
such small air and vessel carriers as necessary in a future rulemaking 
action.
9. Additional ``Kiosk'' Option
    As noted above, DHS did not formally consider a ``kiosk'' option as 
part of its alternatives analysis. This was largely due to the 
conclusions of the exit pilot, as described in section III above, in 
which DHS concluded that the exit process needed to be made an integral 
part of the existing departure process to be feasible, and that such an 
option would face challenges that would make implementation very 
difficult. Kiosks, for example, require the installation of expensive 
cabling; negotiation of lease space with port authorities for the 
placement of kiosk in areas where aliens can have the most effective 
and efficient access; and the installation of signage instructing 
aliens as to the location of kiosks, how to use the kiosks, and their 
responsibilities for compliance with the exit requirements. The exit 
pilot encountered numerous problems with port authorities regarding 
space and signage. For example, US-VISIT was restricted in where it 
could place directional and educational signage. Some ports required 
that signage be coordinated with other types of signage in that port. 
This inconsistency in placement and visual appearance caused confusion 
when aliens attempted to comply.
    DHS wishes to solicit comments on a potential kiosk option here and 
provides this analysis as a means of informing commenters. Additional 
documentation for this option can be found in the published docket for 
this rulemaking at http://www.regulations.gov.
a. Requirement for Carrier Participation
    The kiosk scenario would require participation by the carriers at 
two specific points: As part of the boarding pass issuance (whether in-
person and on-paper, or remote and electronic) and at the gate as the 
alien departs. Carriers would be responsible for determining that a 
specific alien is subject to US-VISIT procedures and also ensuring that 
those aliens have in fact complied with the law and provided those 
biometrics, thus providing the at-gate enforcement mechanism that the 
pilot lacked.
b. Air Processes
    i. Reservation: When an international traveler makes the initial 
travel reservation, whether in person, on-line, at a travel agency, or 
by telephone, the carrier determines by means of a US-VISIT supplied 
decision tree if the traveler is subject to US-VISIT procedures upon 
departure from the United States. If so, the carrier notifies the 
passenger, when providing him or her with a boarding pass (whether 
paper or electronic), that they must proceed to a US-VISIT exit kiosk 
at the time of their departure from the United States.
    ii. Kiosk Location: An alien originating at an international 
airport may have the option of using a kiosk located before the 
security-screening checkpoint or using a kiosk located within the 
sterile area of the terminal. Kiosks may also be located at domestic 
terminals of international airports or domestic terminals. Multiple 
locations allow for ease of compliance and reduce the cost of the 
system. For example, a system located only at the departure gate would 
require sufficient kiosks and attendants to enable the entire departing 
alien population to provide their biometrics within a limited window of 
time. By enabling aliens to provide their biometrics at multiple 
locations and over a longer time frame within the departure process, 
the number of kiosks/attendants required is less than a sole point of 
compliance solution would require. A connecting alien (i.e., who 
originated at a domestic airport and is transferring to an 
international flight) may be able to use a kiosk located within the 
sterile area.
    iii. Kiosk Procedure. The alien's boarding pass will have a two-
dimension bar code printed on it. The kiosk will read the bar code. 
After the bar code is read, the alien submits the biometric 
fingerprints. The kiosk prints a receipt that the alien provides to the 
carrier upon departure. Carriers will be required to modify their 
reservations system so that when a boarding pass (either printed or 
electronic) is printed or sent to the alien, it will include a bar code 
containing the passenger's name, travel document number, airline code 
(e.g., ``CO'' or ``UA''), flight number, and date and time of 
departure. This information is required to build the biometric manifest 
and to link the biometric with the APIS manifest.
    iv. Gate Procedure: The alien will be required to provide, to the 
carrier agent at the gate, either a receipt from the kiosk or a 
separate boarding pass created by a kiosk that demonstrates the person 
has complied with the requirement to provide biometrics.

[[Page 22078]]

c. Vessel Processes
    The vessel carrier context uses the preferred solution assumption 
of 33 seaports. The reservation system would be equivalent to the air 
carrier scenario described above. Because the business model for vessel 
carriers is slightly different from the business model for an air 
carrier, however, the kiosk location would be different. All vessel 
carrier passengers originate at the United States port-of-departure, 
there are no boarding passes per se, and the check-in agent is also the 
functional gate agent. Therefore, the scenario for vessel carriers 
would be that the alien provides the biometric at the time of check-in. 
Since vessel carriers do not provide their passengers a boarding pass, 
aliens would be required to insert the biographic page of their 
passport into a document reader. After the passport is read, the 
passenger provides the biometric fingerprints The kiosk would print a 
receipt that the alien would present to the vessel carrier's agent.
    There is no equivalent gate procedure to the air scenario as the 
check-in area is the functional gate area.
d. Kiosk Scenario Assumptions
    This scenario makes several assumptions about carriers and DHS 
operations that may require further modification:
     Carriers will be required to incorporate into their 
reservations system a US-VISIT provided ``decision tree'' to determine 
if a passenger is an alien subject to US-VISIT and will be required to 
develop a passenger notification process;
     Air carriers will be required to print a compliance 
advisement on paper boarding passes and include a compliance advisement 
on an electronic boarding pass;
     Air carriers will incorporate into their departure control 
systems a means to identify an alien subject to US-VISIT exit 
requirements to verify that the passenger has provided their biometric 
prior to boarding the international flight;
     DHS would be required to develop the software to collect 
and transmit the biographic and biometric information;
     DHS would use existing communication paths or develop a 
direct kiosk/US-VISIT communication path;
     DHS would develop new kiosks with a fingerprint scanner, a 
boarding pass reader, and a printer, and the kiosk would be compliant 
with the Americans with Disability Act;
     Carriers would be subject to penalties for boarding aliens 
subject to US-VISIT exit requirements who have not complied with the 
exit process;
     The APIS and biometric manifests will be compared by US-
VISIT to identify non-compliant passengers;
     The carrier's gate agent would be able to identify the 
relevant aliens and would deny boarding to any alien who has not 
complied with US-VISIT exit requirements;
     Carriers would either collect the kiosk receipt and/or 
build a verification process into their departure control system;
     DHS would be required to negotiate with each individual 
port authority for kiosk and administrative space;
     DHS would be responsible for ``first level'' kiosk 
maintenance, which is defined as tasks such as cleaning the fingerprint 
platen, changing receipt paper rolls, and ink cartridges;
     DHS would be responsible for providing a kiosk attendant 
to assist aliens experiencing difficulty using the kiosk or to validate 
that an alien is physically unable to provide an exit biometric;
     DHS would provide one attendant per cluster of kiosks up 
to a ratio of one attendant for every three co-located kiosks;
     The attendants would be aligned with a DHS entity such as 
TSA or CBP for supervision, support, and interface with the port 
authority and carriers;
     The attendants would require office and storage space, 
uniforms, and clearance to enter the security area.
e. Cost of Kiosk Option
    US-VISIT estimates that the costs for implementation of this 
option, to both government and private industry collectively, over a 
ten-year period, would be $3,132,900,000. A more detailed analysis, 
including a breakdown of costs, additional assumptions, and cost 
comparisons to the proposed option included in this rule, as well as 
cost breakdowns of the proposed option and other alternatives, can be 
found in the docket for this proposed rule at http://
www.regulations.gov.

C. Statutory Authority To Require Air and Vessel Carriers to Collect 
Exit Biometrics

    The proposed rule would impose on certain commercial air and vessel 
carriers additional manifest requirements for the collection and 
transmission of biometric identifiers relative to certain passengers, 
crew members, and non-crew departing the United States. The biometric 
manifest information required will depend upon whether an alien is 
required to satisfy the biometric exit requirements established under 
US-VISIT.
    Commanding officers, masters, owners and others of any aircraft and 
vessel transporting any person out of the United States are required to 
file manifests:

    For each commercial vessel or aircraft taking passengers on 
board at any seaport or airport of the United States, who are 
destined to any place outside the United States, it shall be the 
duty of an appropriate official specified in subsection (d) of this 
section to provide any United States border officer (as defined in 
subsection (i) of this section) before departure from such port 
manifest information about each passenger, crew member, and other 
occupant to be transported.

INA section 231(b), as amended, 8 U.S.C. 1221(b). The contents of the 
passenger manifest are set forth with particularity in INA section 
231(c)(1)-(9), but the Secretary is also delegated authority to add 
specific requirements in INA section 231(c)(10) to include:

Such other information the [Secretary], in consultation with the 
Secretary of State, * * * determines as being necessary for the 
identification of the persons transported and for the enforcement of 
the immigration laws and to protect safety and national security.

INA section 231(c)(10), 8 U.S.C. 1221(c)(10). Other provisions of law 
have been historically used to require biographic manifest information. 
See 19 U.S.C. 1431, 1433 and 1644a; 46 U.S.C. 60105; 49 U.S.C. 44909. 
Currently, advance passenger manifest data for commercial flights and 
voyages to and from the United States are collected by CBP through 
APIS. To enforce these requirements, an aircraft or vessel may not be 
granted departure clearance until the manifest information is provided:

    No operator of any private or public carrier that is under a 
duty to provide manifest information under this section shall be 
granted clearance papers until the appropriate official specified in 
subsection (d) of this section has complied with the requirements of 
this subsection, except that, in the case of commercial vessels or 
aircraft that the [Secretary] determines are making regular trips to 
the United States, the [Secretary] may, when expedient, arrange for 
the provision of manifest information of persons departing the 
United States at a later date.

INA section 231(f), 8 U.S.C. 1221(f); see also 19 U.S.C. 1644a (customs 
law by which outbound clearance requirements under 46 U.S.C. 60105 are 
incorporated and made applicable to departing carriers). Additionally, 
civil penalties may be levied for failure to comply with manifest 
provisions. INA section 231(g), 8 U.S.C. 1221(g); see also 19 U.S.C. 
1433, 1436 and 1644a.

[[Page 22079]]

    The INA prohibits aliens boarding a vessel or aircraft from 
departing the United States, except as authorized by the Secretary:
    Unless otherwise ordered by the President, it shall be unlawful--

    (1) For any alien to depart from or enter or attempt to depart 
from or enter the United States except under such reasonable rules, 
regulations, and orders, and subject to such limitations and 
exceptions as the President may prescribe;
    (2) For any person to transport or attempt to transport from or 
into the United States another person with knowledge or reasonable 
cause to believe that the departure or entry of such other person is 
forbidden by this section;

INA section 215(a), as amended, 8 U.S.C. 1185(a). The President has 
delegated his authority to prescribe regulations regarding aliens under 
this provision to the Secretary of Homeland Security. Executive Order 
13323, Assignment of Functions Relating to Arrivals in and Departures 
from the United States, 69 FR 241 (Jan. 2, 2004).
    Both the plain language and the history of these statutes supports 
the Secretary's authority to impose upon carriers the responsibility to 
positively identify arriving and departing aliens to protect the 
national security of the United States and the safety of U.S. citizens 
and aliens and to better enforce the immigration laws of the United 
States.\11\ Positive identification can be achieved with most 
certainty, and most efficiently, through the use of biometrics. It is 
well within the Secretary's authority to require carriers to employ 
today's technology when he effectuates the objectives set forth in INA 
section 231(c)(10), 8 U.S.C. 1221(c)(10).
---------------------------------------------------------------------------

    \11\ Vessel and air carriers often have extra responsibilities 
and obligations that have involved engagement of their own personnel 
in detailed questioning, and even physical inspections, of 
passengers. See 25 Ops. Atty. Gen. 336, 339 (1905) (as to the heavy 
burden on carriers); McInerney v. United States, 143 F. 729, 737 
(1st Cir. 1906) (as to the quasi-public character of the 
responsibility of making a manifest and of the manifest itself--
assisting the government to enforce its laws, imbuing it with a 
force it would not otherwise possess); see, e.g., Oceanic Steam 
Navigation Company v. Stranahan, 214 U.S. 320 (1909) (as to medical 
inspections applied in relation to the manifest under a 1903 law).
---------------------------------------------------------------------------

    The collection of biometrics from departing aliens incident to 
their departure also supports DHS' missions in developing, analyzing, 
and sharing intelligence information, both within the U.S. Government 
and with our international allies. The location of an alien deemed to 
be a threat may profitably be learned upon a delayed basis and relayed 
to the appropriate international authority to support U.S. intelligence 
and criminal law enforcement functions. Accordingly, the rule is 
proposed under the Secretary's authority and responsibility to ensure 
the security of the homeland.
    The rule is also proposed under the Secretary's authority to 
require air carrier security screening and manifesting. 49 U.S.C. 
44909. Accordingly, the Secretary views his authority over homeland 
security as a whole, not as separate and distinct authorities.
    The Secretary relies upon all of the authorities delegated to him 
and his subordinates under the Homeland Security Act of 2002 (HSA), 
Public Law No. 107-296, sections 101, 102, 116 Stat. 1135 (Nov. 26, 
2002), 6 U.S.C. 111, 112, including his plenary regulatory authority 
over immigration under INA section 103(a), 8 U.S.C. 1103(a), as well as 
regulatory authority delegated by the customs and shipping laws. The 
Secretary exercises all of these authorities to fulfill the provisions 
of various enactments providing programmatic authority for a 
comprehensive entry--exit information management system, including 
biometric identifiers, to match an alien's available arrival data with 
the alien's available departure data (as authorized or required to be 
created or collected under law) in an electronic format to assist the 
United States to identify, through on-line searching procedures, 
lawfully admitted nonimmigrants who may have remained in the United 
States beyond the period authorized.

D. Impetus for Carrier Participation

    The 9/11 Recommendations Act requires biometric exit processing by 
August 3, 2008. As discussed above, the Secretary's authority to waive 
limitations on the VWP will be suspended on July 1, 2009, unless the 
Secretary provides notification that the air exit system fully 
satisfies the biometric requirements of INA section 217(i), 8 U.S.C. 
1187(i). A lapse in this waiver authority could be detrimental to air 
carriers if a significant number of aliens would be removed from VWP 
and be required to acquire visas to be admitted to the United States.
    Biometric collection was required by IRTPA and was contemplated by 
Congress much earlier. The manner in which such processing can be 
successfully and efficiently accomplished by the U.S. Government alone, 
however, has been complicated by several practical constraints that 
were reinforced in the pilot programs. The chief constraints include 
the limited, privately owned, high-value space at air and vessel 
terminals needed to install equipment at optimal locations for exit 
processing; the apparent necessity for a concentrated (and potentially 
expensive) enforcement presence to assure compliance with exit 
requirements; and the addition of ``another separate process'' with 
which aliens and carriers will need to contend before boarding.
    Space constraints for exit equipment forced many pilot sites to be 
located at a considerable distance from the appropriate gates, which 
worked against passenger participation and contributed to low 
compliance. The constraints revealed by the pilots are tied to the 
absence of statutes controlling, and national experience with, rigorous 
inspection upon departure and the attendant lack of facilities and 
space that, by contrast, are made available by carriers and authorities 
for inspection upon arrival.
    These factors have led to the conclusion that integration of 
biometric exit capture into the existing departure process will best 
serve processing objectives and be least disruptive to the traveling 
public.

V. Summary of the Proposed Rule

    DHS proposes to add a new 8 CFR 231.4 requiring the collection and 
transmission of biometric departure manifest information by carriers. 
This section provides for the collection of biometric departure 
manifest information from all aliens subject to US-VISIT requirements 
regardless of the specific commercial air or vessel carrier on which 
they depart the United States. Proposed section 231.4 specifies that 
biometrics for any alien who is required to provide biometrics under 
proposed 8 CFR 215.8 must be collected prior to boarding that alien on 
transportation for departure from the United States. Initially, the 
biometrics must be transmitted to DHS within 24 hours of securing the 
doors of the aircraft for departure from the United States or departure 
of the vessel from the United States, using existing manifest 
transmission standards. DHS recognizes that capacity will change over 
time and further amendment to reduce the time for transmission is 
likely. The biometrics collected must meet Federal Bureau of 
Investigation specifications. The carriers are required to use the 
biometrics for no other purpose except as designated in 8 CFR 231.4 and 
use the biometrics only pursuant to the CUG.
    In addition, the rule updates 8 CFR 217.7, to include, in the last 
sentence concerning aliens departing the United States, a reference to 
8 CFR 231.4. The proposed rule also corrects citation

[[Page 22080]]

errors that currently exist in 8 CFR 235.1.
    DHS proposes to revise 19 CFR 4.64, 122.75a, and 122.75b 
(pertaining to electronic departure manifests) to add paragraphs cross-
referencing the proposed 8 CFR 231.4, which requires the biometric 
collection as an additional carrier manifest responsibility. Although 
the manifest information required by the APIS system is different from 
the biometric departure manifest information and its underlying system 
(US-VISIT), and the information has different uses and processing and 
retention requirements, the requirement for both derive from the same 
statutes, and the communications medium and transmission standards for 
the existing system are leveraged for the transmission of the biometric 
departure manifest information. DHS proposes to amend 8 CFR 215.8 to 
remove the reference to the number of pilots and the numerical 
limitation on the number of air or sea ports where aliens are required 
to provide biometric exit data and to reference new carrier 
responsibilities.
    Finally, although DHS does not expect enforcement of these 
requirements to be problematic, DHS proposes to add a supplemental 
enforcement provision to the regulations. Upon making any of the 
determinations that would result in civil penalties or denial of 
departure clearance, DHS proposes to retain the authority to require a 
carrier to collect alien biometric data and transmit that data to DHS 
under a more restrictive system of DHS oversight, specifically 
including designating the location where the carrier must collect the 
biometric data.

VI. Statutory and Regulatory Requirements

A. Executive Order 12866

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993), as amended, requires a determination whether a 
regulatory action is ``significant'' and therefore subject to review by 
the Office of Management and Budget (OMB) and subject to the 
requirements of the Executive Order. DHS has determined that this 
proposed rule is a ``significant regulatory action'' under Executive 
Order 12866, section 3(f) because there is significant public interest 
in issues pertaining to national security and because this is an 
economically significant rule pursuant to this Executive Order. 
Accordingly, this proposed rule has been submitted to OMB for review 
and approval.
    In order for DHS to maintain the integrity of the United States 
immigration system, immigration benefits should only be given to those 
that truly deserve those benefits. Accurate and timely information on 
an alien's departure can inform decision makers so correct decisions on 
visa renewal, re-admittance into the United States, and granting of 
permanent residence or citizenship can be made.
    Biometric confirmation that an alien has departed the United States 
provides two key elements for immigration and border security 
management: (1) Certainty that the alien in question did, in fact, 
leave; and (2) an accurate identification of that alien.
    Presently, DHS is able to match the vast majority of international 
aliens' entry and exit records with biographic information. Biographic 
(i.e. name, date of birth, etc.) information can sometimes be 
inaccurate, however, for a variety of reasons. For example, names and 
other biographic data are sometimes inadvertently changed when manually 
typed (if the machine-readable zone of the passport is worn or 
unreadable), or the data can differ from travel document to boarding 
pass. Other factors can make it difficult for DHS to match some sets of 
records. Consistent with the authorizing legislation, DHS proposes to 
require air and vessel carriers to collect alien fingerprints prior to 
departure and transmit that data to DHS. Biometric collection will 
increase the confidence that an alien did, in fact, depart, as opposed 
to carrier biographic manifest data, which are tied more to an alien's 
document than to the alien in question.
    DHS has performed a preliminary analysis of the expected costs and 
benefits of this proposed rule.
1. Alternatives to the Proposed Rule Evaluated
    This proposed rule would require air and vessel carriers to collect 
biometrics from aliens departing the United States. As discussed more 
fully in section III.B, there are four alternatives being evaluated for 
the regulatory evaluation of air and sea exit. Alternatives vary by the 
location of the biometric collection and the entity which pays for and 
operates the system:
    Proposed Rule: At a Location at the Carrier's Discretion--Air and 
Vessel carriers implement and manage. An air or vessel carrier 
representative collects biometric data of the aliens at any 
international airport or seaport location selected at the discretion of 
the carrier based on airport or seaport terminal layout, current and 
future business practices and operational efficiency. Possible 
locations for collection include, but are not limited to, the ticket 
counter and the boarding gate.
    Alternative 1: At Airline Check-in Counter--Air and Vessel carriers 
implement and manage. An air or vessel carrier representative collects 
biometric data of the aliens at the air or vessel check-in counter. No 
boarding pass or other vessel identification documentation may be 
issued prior to the collection of biometrics.
    Alternative 2: At Security Check-Point--United States Government 
implements and manages. A U.S. Government representative collects 
biometric data of the alien traveler at the TSA security checkpoint. 
This is not applicable to vessel carriers because there are no TSA 
checkpoint at seaports.
    Alternative 3: At a Location at the Carrier's Discretion--United 
States Government implements and manages. A U.S. Government 
representative collects biometric data from aliens at any airport or 
seaport location selected at the discretion of the carrier based on air 
or sea port terminal layout, current and future business practices and 
operational efficiency.
    Alternative 4: At a Kiosk--United States Government implements and 
manages. An alien passenger will be instructed by the carrier to 
proceed to a US-VIST exit kiosk at the time of their departure. The 
carrier will be required to notate on the boarding pass (whether paper 
or electronic) that the person must provide biometrics before 
departure. The kiosk will be available before or after the security 
checkpoint. The carrier is subject to penalty for boarding an alien 
passenger who has not complied with exit requirements. A vessel carrier 
passenger provides biometrics at the time of check-in.
2. Costs
    Table 1 shows that the proposed rule expenditure and delay costs 
for a ten-year period are estimated at $3.5 billion. That estimate is 
approximately $2.6 billion using a discount rate of 7% and $3.1 billion 
using a discount rate of 3%.

[[Page 22081]]



                                  Table 1.--Air/Sea Biometric Exit Cost Summary
                                           [$ millions, 2008 dollars]
----------------------------------------------------------------------------------------------------------------
                                                   Proposed      Alt 1:                    Alt 3:
                                                    Rule:       carrier     Alt 2: TSA    carrier       Alt 4:
     Expenditure and delay costs estimates         carrier      check-in     security    determined  fixed kiosk
                                                  discretion    counter     checkpoint    location
----------------------------------------------------------------------------------------------------------------
10 Year total Expenditure plus Delay Costs.....     $3,549.3     $6,404.4     $4,775.6     $3,696.3     $3,123.9
20 Year total Expenditure plus Delay Costs.....      7,457.0     13,330.2     10,079.0      7,960.3      6,772.5
10 Year Present Value 7% discounting...........      2,623.6      4,725.8      3,480.9      2,685.9      2,303.6
10 Year Present Value 3% discounting...........      3,096.3      5,583.2      4,142.9      3,202.0      2,722.5
----------------------------------------------------------------------------------------------------------------

    The analysis incorporates risk analysis to estimate a range of 
costs to carriers resulting from the proposed rule.
    Table 2 provides a summary of the costs to carriers. For the high 
end of each range, US-VISIT assumes that first year costs will be 
$379.2 million with an average recurring annual cost of $443.6 million. 
This would result in a 10 year present value total of $3,685.1 million 
at a 3% discount rate and $3,116.5 million at a 7% discount rate. For 
the low end of each range, US-VISIT assumes that first year costs will 
be $223.0 million with an average recurring annual cost of $206.1 
million. This would result in a 10 year present value of $1,855.6 
million at a 3% discount rate and $1,594.1 million at a 7% discount 
rate.

                           Table 2.--Air/Sea Biometric Exit Costs to Carriers Summary
                                           [$ millions, 2008 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                               Avg.       10 year      10 year
                                                               First year   recurring     present      present
                                                                 costs        costs      value (3%)   value (7%)
----------------------------------------------------------------------------------------------------------------
Median Estimates:
    Large Airlines..........................................        229.1        270.4      2,301.8      1,955.5
    Medium Airlines.........................................          7.1          8.4         71.2         60.5
    Vessel Carriers.........................................         57.6         34.3        317.9        273.4
                                                             ---------------------------------------------------
        Total...............................................        282.7        313.1      2,690.9      2,289.4
High Estimates:
    Large Airlines..........................................        295.7        382.5      3,151.5      2,662.6
    Medium Airlines.........................................          9.1         11.8         97.5         82.3
    Vessel Carriers.........................................         74.4         49.2        436.1        371.5
                                                             ---------------------------------------------------
        Total...............................................        379.2        443.6      3,685.1      3,116.5
Low Estimates:
    Large Airlines..........................................        174.0        178.1      1,582.8      1,356.9
    Medium Airlines.........................................          5.4          5.5         49.0         42.0
    Vessel Carriers.........................................         43.6         22.5        223.8        195.2
                                                             ---------------------------------------------------
        Total...............................................        223.0        206.1      1,855.6      1,594.1
----------------------------------------------------------------------------------------------------------------

    US-VISIT has assessed seven categories of economic impacts other 
than direct expenditures. Of these two are economic costs.
     Social costs resulting from increased traveler queue and 
processing time; and
     Social costs resulting from increased flight delays.
3. Benefits
    Table 3 shows that the ten-year benefits are estimated at $1,093.6 
million, which is about $771.7 million with a discount rate of 7% and 
$935.6 million with a discount rate of 3%.

                                Table 3.--Air/Sea Biometric Exit Benefit Summary
                                           [$ millions, 2008 dollars]
----------------------------------------------------------------------------------------------------------------
                                                   Proposed      Alt 1:                    Alt 3:
                                                    Rule:       carrier     Alt 2: TSA    carrier       Alt 4:
               Benefits estimates                  carrier      check-in     security    determined  fixed kiosk
                                                  discretion    counter     checkpoint    location
----------------------------------------------------------------------------------------------------------------
10 Year total Economic Benefits................     $1,093.3     $1,093.3     $1,093.3     $1,093.3     $1,093.3
20 Year total Economic Benefits................      2,901.5      2,901.5      2,901.5      2,901.5      2,901.5
10 Year Present Value 7% discounting...........        771.7        771.7        771.7        771.7        771.7
10 Year Present Value 3% discounting...........        935.6        935.6        935.6        935.6        935.6
----------------------------------------------------------------------------------------------------------------

    US-VISIT has assessed seven categories of economic impacts other 
than direct expenditures. Of these five are benefits, which include 
costs that could be avoided, for each alternative:
     Cost avoidance resulting from improved detection of aliens 
overstaying visas;

[[Page 22082]]

     Cost avoidance resulting from improved U.S. Immigrations 
and Customs Enforcement (ICE) efficiency attempting apprehension of 
overstays;
     Cost avoidance resulting from improved efficiency 
processing Exit/Entry data;
     Improved compliance with NSEERS requirements due to the 
improvement in ease of compliance; and
     Improved National Security Environment.
    These benefits are measured quantitatively or qualitatively. For a 
more detailed assessment of the benefits, see section 5.3. of the 
Regulatory Evaluation.\12\
---------------------------------------------------------------------------

    \12\ Some negative economic impacts, such as an increase in air 
and sea carrier personnel and government employee processing time 
have been addressed as direct costs, i.e., the financial value of 
additional resources needed to staff any new operational processes.
---------------------------------------------------------------------------

    As DHS has noted in prior US-VISIT program rulemakings, the 
anticipated benefits of this proposed rule include:
    Better Allocated Enforcement Resources. ICE is responsible for 
locating aliens who overstay their admission period. With a greater 
certainty of who has left the United States comes a greater certainty 
of who has not. With biometric exit, US-VISIT can more accurately tell 
if an alien has overstayed their admission period. If so, ICE will be 
notified. This improves the efficiency of ICE's allocation of scarce 
interior enforcement resources to track down ``confirmed'' overstays, 
as opposed to those that may have left, but due to biographic data 
inaccuracies appear to have overstayed.
    Ability to Determine Eligibility for Future Immigration Benefits. A 
more accurate assessment of an individual alien's compliance with 
immigration law allows for a more accurate adjudication of subsequent 
immigration benefit applications, such as visa adjudication, re-
admission to the United States, or adjustment to lawful permanent 
resident status. Biometric exit data will enhance the U.S. Government's 
ability to restrict those benefits to aliens who have complied with 
their previous admission periods.
    Visa Waiver Program Eligibility. Biometric exit data will be used 
in the aggregate to assist in the calculation of overstay rates for 
nationals of countries designated in the VWP. Overstay rates are used 
to evaluate whether the designation of countries in the VWP are 
inconsistent with the interest of the United States in enforcing its 
immigration laws. See, e.g., Attorney General's Evaluations of the 
Designations of Belgium, Italy, Portugal, and Uruguay as Participants 
Under the Visa Waiver Program, 68 FR 10,954, 10,956 (2003) (terminating 
designation of Uruguay in part because of apparent overstay rate of 
37%, more than twice the rate of average apparent overstay rate for all 
air arrival nonimmigrants); see generally INA section 217(c)(2)(C), 8 
U.S.C. 1187(c)(2)(C). Finally, INA section 217(h)(1), 8 U.S.C. 
1187(h)(1), requires DHS to calculate a VWP overstay rate and to 
include that rate as part of the annual report required by DMIA section 
2, 8 U.S.C. 1365a(e)(1).
    Improved Analysis Capabilities. Exit information will be analyzed 
in the aggregate to identify weak areas in our immigration and border 
management system where overstays are prevalent. This will require the 
development of new analytic capabilities within DHS and DOS. 
Comprehensive trend analysis will allow DHS and DOS to identify 
specific visa-issuing posts, visa categories, or other locations or 
factors reflecting an unacceptably high overstay rate, allowing 
opportunities for self-assessment and more focused enforcement, 
including increased areas for scrutiny when deciding on immigration 
benefit or visa renewal applications.
4. Accounting Statement
    As required by OMB Circular A-4, US-VISIT has prepared an 
accounting statement indicating the classification of the expenditures 
associated with this proposed rule. Table 4 provides our best estimate 
of the dollar amount of these costs and benefits, expressed in 2008 
dollars, at 3% and 7% discount rates. US-VISIT estimates that the cost 
of this rule will be approximately $366.9 million annualized (7% 
discount rate) and approximately $369.9 million annualized (3% discount 
rate). Quantified benefits are $99.9 million annualized (7% discount 
rate) and $103.5 million annualized (3% discount rate). The non-
quantified benefits are enhanced security and enabling the expansion of 
the VWP.

                Table 4.--Accounting Statement: Classification of Expenditures, 2008 Through 2017
----------------------------------------------------------------------------------------------------------------
                                     Estimates                                            Discount
                                      primary        Low          High      Units year      rate        Period
                                      estimate     estimate     estimate      dollar     (percent)     covered
----------------------------------------------------------------------------------------------------------------
Benefits Annualized...............        $99.9        $47.9       $164.4         2008            7    2008-2017
Monetized ($millions/year)........        103.5         49.6        170.4         2008            3    2008-2017
----------------------------------------------------------------------------------------------------------------
                                              0            0            0  ...........            7  ...........
Annualized Quantified.............            0            0            0  ...........            3  ...........
----------------------------------------------------------------------------------------------------------------
Qualitative.......................     Improvement to National Security; Enables Expansion of the VWP Program
----------------------------------------------------------------------------------------------------------------
Costs Annualized..................        366.9        252.9        495.8         2008            7    2008-2017
Monetized ($millions/year)........        369.9        254.5        500.6         2008            3    2008-2017
----------------------------------------------------------------------------------------------------------------
                                              0            0            0  ...........            7  ...........
Annualized Quantified.............            0            0            0  ...........            3  ...........
----------------------------------------------------------------------------------------------------------------
Qualitative.......................
----------------------------------------------------------------------------------------------------------------

    DHS lacks data concerning several of the variables used in this 
analysis. Therefore, DHS made assumptions and calculated estimates in 
an environment of uncertainty and variance in industry and government 
operations. The key assumptions that drive the cost and benefit 
analyses are described in detail in the regulatory evaluation, which 
may be found on the docket, DHS-2008-0039-0002. DHS solicits comments 
to improve the analysis to the greatest extent possible. Comments may 
be submitted to the regulatory docket using any of the methods listed 
under ADDRESSES in the preamble to this proposed rule.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 604, as amended by 
the Small

[[Page 22083]]

Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), 
requires an agency to prepare and make available to the public a 
regulatory flexibility analysis that describes the effect of the rule 
on small entities (i.e., small businesses, small organizations, and 
small governmental jurisdictions). A ``small entity'' is defined under 
the RFA to be the same as a ``small business concern'' as defined under 
the Small Business Act, 15 U.S.C. 632. Thus, a small entity (also 
referred to as a small business or small carrier) for RFA purposes is 
one that: (1) Is independently owned and operated; (2) is not dominant 
in its field of operation; and (3) meets any additional criteria set 
forth under the SBA.
    In accordance with provisions of the SBA, air carriers (scheduled 
passenger air transportation) that employ fewer than 1,500 employees 
are small entities. 13 CFR 121.201 (NAICS codes 481111 (Scheduled 
Passenger Air Transportation) and 481211 (Nonscheduled Chartered 
Passenger Air Transportation)). Vessel owners or operators that employ 
fewer than 500 employees are small entities. 13 CFR 121.201 (NAICS code 
483112 (Deep Sea Passenger Transportation)).
    As discussed in section IV.B.8, these carriers would be exempt from 
collecting biometric information for US-VISIT exit requirements under 
this proposed rule. Based on information obtained from CBP regarding 
current eAPIS users, DHS estimates that approximately 500 small U.S. 
air carriers could be affected by the proposed rule if the proposed 
rule did not contain the proposed exemption. DHS estimates that three 
small U.S. vessel carriers could be affected by the proposed rule if 
the proposed rule did not contain the proposed exemption. DHS continues 
to analyze the potential number of air and vessel carriers that would 
be directly affected by the proposed rule were it not for the 
exemption.
    Additionally, costs to airports owned by small governmental 
jurisdictions must be considered. DHS estimates that 73 international 
airports would be directly affected by this proposed rule. These 
airports host primarily the large carriers that will be required to 
comply with the proposed rule. In addition to these 73 airports, an 
additional 40 smaller airports could be affected by this proposed rule 
because they service a small number of international flights. However, 
DHS does not believe that these airports will be affected because they 
service primarily chartered international flights by small air carriers 
that are exempted from the proposed rule. Finally, DHS estimates that 
13 seaports are likely to be directly affected by this proposed rule.
    The number of exempted small carriers is not known with certainty. 
Thousands of entities are registered to use CBP's eAPIS, a Web-based, 
no-fee transmission system that is used to transmit APIS data to CBP 
prior to an aircraft's departure. eAPIS users include not only small 
air passenger carriers but also large air passenger carriers, air 
ambulance providers, aircraft leasing companies, flight instruction 
schools, large and small air cargo carriers, large and small passenger 
vessel carriers, large and small cargo vessel carriers, and several bus 
and truck operators. CBP reviewed the eAPIS users (as of February 
2007), and based on a representative sample of this database estimated 
that approximately 500 small air carriers would be affected by the 
proposed US-VISIT exit requirements except for the exemptions set forth 
in the proposed rule.\13\ Additionally, CBP identified three small 
passenger vessel carriers that would be affected.
---------------------------------------------------------------------------

    \13\ The line of business and size of business for eAPIS users 
was determined using the Dun & Bradstreet Business Database (http://
www.dnb.com) and ReferenceUSA's Business Database (http://
www.referenceusa.com) accessed September 17 to September 20, 2007.
---------------------------------------------------------------------------

    Additionally, some airports may need to work with the large air 
carriers to make modifications to accommodate the US-VISIT exit 
process. As presented in the analysis for Executive Order 12866 above, 
US-VISIT identified 73 airports where significant modifications would 
need to be made due to the large number of international passengers 
that these airports host. Additionally, US-VISIT identified 40 airports 
that service international passengers but because of the exemptions 
proposed are unlikely to be affected, as they host small air carriers.
    Of the 73 airports included in the primary cost-benefit analysis, 
24 are owned by a city, 17 are owned by a local airport authority, 17 
are owned by a county, 11 are owned by a port authority, 12 are owned 
by a state or U.S. territory, and one is privately owned. Of those 
airports owned by cities, none are owned by small jurisdictions, i.e. a 
jurisdiction with a population 50,000 people or less based on 2006 
Census data.\14\ Of those airports owned by counties, none are owned by 
small jurisdictions. None of the airport authorities or port 
authorities, usually quasi-government organizations at the local, 
regional, or state level, serves a small jurisdiction. The one 
privately owned airport (in Kenmore, WA), is a small business based on 
the threshold for airport services (NAICS code 488119 (Other Airport 
Operations)) because it earns revenues of less than $6.5 million 
annually.
---------------------------------------------------------------------------

    \14\ ``Population Finder'' on http://www.census.gov, accessed 
September 17, 2007.
---------------------------------------------------------------------------

    Of the 13 seaports included in the primary cost-benefit analysis, 
all are owned by a port authority serving a large jurisdiction.
    Of the 40 airports not included in the primary cost-benefit 
analysis due to the proposed exemption of the small air carriers, 12 
are owned by a city, eight are owned by a local airport authority, 
eight are owned by a county, eight are owned by a port authority, two 
are owned by the U.S. Government, and two are privately owned. Of those 
airports owned by cities, four are owned by small jurisdictions 
(Bangor, ME; Del Rio, TX; International Falls, MN; and Juneau, AK). Of 
those airports owned by counties, none are owned by small 
jurisdictions. One airport authority (Portsmouth, NH) serves a small 
jurisdiction. US-VISIT does not believe that these 40 smaller airports 
will be directly affected by the rule because they will not host 
carriers that must comply with US-VISIT exit requirements.
    None of the seaport authorities serves a small jurisdiction.
    The two privately owned airports (in Kenmore, WA; and Sandusky, OH) 
are both small businesses based on the threshold for airport services.
    Based on this analysis, DHS does not believe the rule would have a 
significant economic impact on a substantial number of small entities. 
Individual aliens to whom this rule applies are not considered small 
entities as that term is defined in 5 U.S.C. 601(6). Indirect economic 
impacts are not considered within the scope of the Regulatory 
Flexibility Act. See Mid-Tex Elect. Coop. Inc. v. FERC, 773 F.2d 327, 
342 (D.C. Cir. 1985).
    As discussed above, US-VISIT considered a host of regulatory 
alternatives. See section IV.B. The chosen alternative, the proposed 
rule, minimizes the burden to small entities to the extent possible 
because it specifically exempts small air and vessel carriers.
    DHS has posted the assessment of the costs and benefits of the rule 
on the public docket at DHS-2008-0039-0002. DHS invites public comments 
from small entities on the impact of the proposed rule.

C. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA),

[[Page 22084]]

Public Law 104-4, 109 Stat. 48 (March 22, 1995), 2 U.S.C. 1531-1538, 
requires Federal agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local or 
tribal governments, in the aggregate, or by the private sector of more 
than $100 million in any one year (adjusted for inflation with 1995 
base year). Before promulgating a rule for which a written statement is 
needed, section 205 of the UMRA requires DHS to identify and consider a 
reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective, or least burdensome option that achieves 
the objective of the rule. Section 205 allows DHS to adopt an 
alternative, other than the least costly, most cost-effective, or least 
burdensome option if DHS publishes an explanation with the final rule.
    As summarized previously, DHS acknowledges that this proposed rule 
will have an impact of $100 million in any one year, and DHS has 
considered a number of regulatory options to achieve the objective of 
the rule. The economic impacts of the rule to air and vessel carriers 
and ports where these carriers operate were described above (see 
section on Executive Order 12866). Impacts to the private sector 
include costs to the affected air and vessel carriers. Additionally, 
DHS estimates that 73 airports and 13 seaports are likely to be 
affected by the proposed rule, as these ports will need to work with 
the large carriers to make modifications to accommodate the US-VISIT 
exit process.
    Of the 73 airports included in the primary cost-benefit analysis, 
23 are owned by a city, 17 are owned by a local airport authority, 15 
are owned by a county, 11 are owned by a port authority, and seven are 
owned by a State or U.S. territory. Of the 13 seaports included in the 
primary cost-benefit analysis, all are owned by a port authority.
    DHS has posted the assessment of the costs and benefits of the rule 
on the public docket at DHS-2008-0039-0002. DHS invites public comments 
from State, local or tribal governments on the impact of the proposed 
rule.

D. Executive Order 13132

    Executive Order 13132 requires DHS to develop a process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
Such policies are defined in the Executive Order to include rules that 
have ``substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.''
    DHS has analyzed this proposed rule in accordance with the 
principles and criteria in the Executive Order and has determined that 
the provisions of the proposed rule will not have a substantial direct 
effect on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, DHS 
has determined that this rule does not have federalism implications. 
This rule provides for the collection by international air carriers and 
vessel operators, for use by the U.S. Government, of biometric 
identifiers from a defined group of aliens seeking to exit and possibly 
re-enter the United States, for the purpose of improving the 
administration of federal immigration laws and for national security. 
States do not conduct activities with which the provisions of this 
specific rule would interfere.

E. Executive Order 12988

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988. That Executive 
Order requires agencies to conduct reviews, before proposing 
legislation or promulgating regulations, to determine the impact of 
those proposals on civil justice and potential issues for litigation. 
The Order requires that agencies make reasonable efforts to ensure the 
regulation clearly identifies preemptive effects, effects on existing 
federal laws and regulations, identifies any retroactive effects of the 
proposal, and other matters. DHS has determined that this regulation 
meets the requirements of Executive Order 12988 because it does not 
involve retroactive effects, preemptive effects, or other matters 
addressed in the Order.

F. Trade Impact Assessment

    The Trade Impact Agreement Act of 1979, 19 U.S.C. 2531-2533, 
prohibits Federal agencies from engaging in any standards or related 
activities that create unnecessary obstacles to the foreign commerce of 
the United States. Legitimate domestic objectives, such as safety, are 
not considered unnecessary obstacles. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for United States standards. DHS has determined that 
this proposed rule will not create unnecessary obstacles to the foreign 
commerce of the United States and that any minimal impact on trade that 
may occur is legitimate in light of this rule's benefits for the 
national security and public safety interests of the United States. In 
addition, DHS notes that this effort considers and utilizes 
international standards concerning biometrics, and will continue to 
consider these standards when monitoring and modifying the program. 
Finally, implementation of biometric exit will permit the Secretary to 
waive the 3 percent nonimmigrant visa refusal rate requirements under 
INA section 217(c)(2)(A), 8 U.S.C. 1187(c)(2)(A), after June 30, 2009, 
pursuant to the 9/11 Recommendations Act, and thus enhance, rather than 
restrict, foreign trade.

G. National Environmental Policy Act

    DHS is required to analyze the proposed rule for purposes of 
complying with the National Environmental Policy Act of 1969 (NEPA), 42 
U.S.C. 4321 et seq., the Council on Environmental Quality (CEQ) 
regulations, 40 CFR parts 1501-1508, and DHS Management Directive 
5100.1. 71 FR 16790 (April 4, 2006).
    In April 2006, DHS analyzed potential changes to the immigration 
and border management processes in the US-VISIT Programmatic 
Environmental Assessment (PEA), which resulted in a Finding of No 
Significant Impact (FONSI). (US-VISIT Programmatic Environmental 
Assessment on Potential Changes to Immigration and Border Management, 
April 10, 2006; Finding of No Significant Impact on Potential Changes 
to Immigration and Border Management, April 11, 2006.) The PEA examined 
the environmental impacts of implementing strategic, high-level changes 
to the immigration and border management environment. The Proposed 
Action in the PEA examined implementation of a system for capturing the 
unique identity of aliens, including establishing a biometrically-based 
unique identity for aliens, such as finger scans. The PEA was available 
for public comment for a 30-day period prior to being published. The 
FONSI concluded that, unless extraordinary circumstances existed that 
could impact the environment (e.g., expansion of physical 
infrastructure), no further NEPA analysis is needed for implementation 
of the Proposed Action at air and sea ports of entry.
    The implementation of the proposed rule will occur wholly within 
the previously analyzed air and sea port environment. Biometric 
collection will occur within the existing departure

[[Page 22085]]

process and is expected to not require expansion of existing physical 
infrastructure. These changes have been analyzed in the PEA, and will 
not require further NEPA analysis.
    US-VISIT commits to monitoring the rulemaking process, as 
necessary, in accordance with NEPA, the White House Council on 
Environmental Quality Regulations for Implementing the Procedural 
Provisions of NEPA (40 CFR parts 1500-1508), the DHS Management 
Directive 5100.1, and the US-VISIT PEA and FONSI.

H. Paperwork Reduction Act

    This proposed rule will permit DHS to require aliens who exit the 
United States on commercial air carriers and vessels to provide 
biometric identifiers to the carrier or vessel owner or operator for 
transmission to DHS. These requirements constitute an information 
collection under the Paperwork Reduction Act (PRA), 44 U.S.C. 507 et 
seq. OMB, in accordance with the Paperwork Reduction Act, has 
previously approved this information collection for use. The OMB 
Control Number for this collection is 1600-0006.
    This proposed rule would require air and vessel carriers to 
electronically provide biometric data on certain passengers and crew as 
manifest information for commercial vessels departing from the United 
States and crew members and non-crew members onboard commercial 
aircraft operating, serving on, and traveling on flights from within 
the United States. This requirement is considered an information 
collection requirement under the Paperwork Reduction Act (44 U.S.C. 
3501, et seq.).
    The collection of information in this proposed rule, with respect 
to passenger manifests for commercial vessels and aircraft departing 
from the United States, had in part already been reviewed by OMB and 
assigned OMB Control Numbers 1651-0088 (Electronic manifest information 
required for passengers and crew on board commercial aircraft arriving 
in the United States) and 1651-0104 (Electronic manifest information 
required for passengers and crew on board commercial vessels and 
aircraft arriving in and departing from the United States). An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless the collection of information 
displays a valid control number. This final rule's collection of 
information is contained in 8 CFR 231.4 (some of which are referenced 
in 19 CFR part 4 and 19 CFR 122.75a and 122.75b). This information is 
necessary to ensure national security and the security of commercial 
vessel travel to and from the United States and commercial air travel 
to, from, continuing within (foreign air carriers only), the United 
States. The information will also enhance enforcement of the 
immigration and customs laws relating to passengers and crew members 
traveling to and from the United States on board commercial vessels and 
aircraft. The likely respondents and record keepers are commercial 
passenger and cargo air and vessel carriers. The fingerprint collection 
covered by 1600-0006 is unchanged from the previously published 
documentation.

I. Public Privacy Interests

    This proposed rule would amend DHS regulations pertaining to the 
filing of commercial vessel and aircraft manifests for alien passengers 
and crew members. The amendments include expanding the number of ports 
of departure supporting the biometric collection from aliens covered by 
US-VISIT and requiring carriers to collect biometric information from 
alien passengers departing the United States in addition to their 
responsibilities to collect biographic passenger manifest information 
and terrorist watch-list matching information.
    The primary privacy risk raised by the proposed rule includes 
unauthorized use, disclosure and retention of the biometrics collected 
by the carrier, in violation of this proposed rule and the duly 
published System of Records Notice (SORN) for IDENT. Furthermore, there 
is the risk of identity theft that often accompanies collections of 
PII. The addition of biometric data to biographic data already 
collected by the carrier represents a qualitative change to that risk, 
and may alter the threat posed by identity theft as operations and 
technologies develop. These privacy risks are mitigated with technical, 
physical, and administrative controls. Carriers will be required to 
ensure that their systems and transmission methods of biometric data 
would meet the standards of the CUG, which provides specific technical 
and other details regarding the collection, storage, and transmission 
of personally identifiable information. As part of the technical 
specifications, US-VISIT is soliciting comment on the use of encryption 
at the point of biometric collection to provide additional mitigation 
against the risk of carrier misuse, modification, or disclosure of 
biometrics. Furthermore, carriers will be prohibited from using the 
biometrics for purposes other than transmitting a biometric departure 
manifest to US-VISIT. Compliance with the system and data transmission 
requirements, to potentially include encryption upon collection, is 
subject to the penalties associated with performance failure.
    Upon receipt of the aliens' biometric data from the carriers, US-
VISIT secures the data in accordance with a robust privacy and security 
program. As discussed in the January 5 and August 31, 2004, interim 
rules, US-VISIT records will be protected consistent with all 
applicable privacy laws and regulations. Personal information on aliens 
will be kept secure and confidential and will not be discussed with, 
nor disclosed to, any person within or outside DHS other than as 
authorized by law and as required for the performance of official 
duties. In addition, careful safeguards, including appropriate security 
controls, will ensure that the data is not used or accessed improperly. 
Affected persons can seek redress through the DHS Traveler Redress 
Inquiry Program (TRIP), at http://www.dhs.gov/trip, if there is concern 
about the accuracy of information.
    The DHS Privacy Office continues to exercise privacy oversight of 
US-VISIT to ensure that the information collected and stored in IDENT 
and other systems associated with US-VISIT is being properly protected 
under the privacy laws and guidance. US-VISIT also has a program-
dedicated Privacy Officer to handle specific inquiries and to provide 
additional oversight of the program. A compilation of US-VISIT Privacy 
Impact Assessments is available online at http://www.dhs.gov/us-visit, 
and a complete discussion of the privacy implications of this proposed 
rule can be found in the US-VISIT Privacy Impact Assessment Update.
    US-VISIT is committed to providing transparency about the US-VISIT 
Exit program. To inform covered individuals about the use of their PII, 
US-VISIT will publish on its Web site a privacy notice that explains 
why US-VISIT is collecting this information, how it will use the 
information, and the effect of not providing this information. US-VISIT 
is also soliciting comment on whether carriers should make a privacy 
notice available before the carrier collects the information 
potentially through their Web sites, through a link to US-VISIT's Web 
site, or through a posting at the point of collection.
    Finally, DHS will continue to maintain secure computer systems that 
will ensure that the confidentiality of an individual's PII is 
maintained. In doing so, DHS and its information technology personnel 
will comply with all laws and

[[Page 22086]]

regulations applicable to government systems, such as the Federal 
Information Security Management Act of 2002, Title X, Public Law 107-
296, 116 Stat. 2259-2273 (2002) (codified at various sections of 5, 6, 
10, 15, 40, and 44 U.S.C.); Information Management Technology Reform 
Act (Clinger-Cohen Act), Public Law No. 104-106, Div. E, codified at 40 
U.S.C. 11101 et seq.; Computer Security Act of 1987, Public Law 100-
235, 40 U.S.C. 1441 et seq. (as amended); Government Paperwork 
Elimination Act, Title XVII, Public Law 105-277, 112 Stat. 2681-749--
2681-751 (1998) (codified, as amended, at 44 U.S.C. 101; 3504 note); 
and Electronic Freedom of Information Act of 1996, 5 U.S.C. 552.
    Individuals with further questions about how the US-VISIT program 
is applying the Privacy Act to enrollees may contact the US-VISIT 
Privacy Officer, by mail addressed to US-VISIT Privacy Officer, 
National Protection and Programs Directorate, Department of Homeland 
Security, 1616 North Ft. Myer Drive, 18th Floor, Arlington, VA 22209; 
by telephone at (202) 298-5200; or by e-mail at USVISITPRIVACY@dhs.gov.

List of Subjects

8 CFR Part 215

    Administrative practice and procedure, Aliens, Travel restrictions.

8 CFR Part 217

    Air carriers, Aliens, Maritime carriers, Passports and visas.

8 CFR Part 231

    Arrival and Departure manifests.

8 CFR Part 235

    Aliens, Immigration, Registration, Reporting and recordkeeping 
requirements.

19 CFR Part 4

    Aliens, Customs duties and inspection, Immigration, Maritime 
carriers, Passenger vessels, Reporting and recordkeeping requirements, 
Vessels.

19 CFR Part 122

    Air carriers, Aircraft, Airports, Air transportation, Commercial 
aircraft, Customs duties and inspection, Entry procedure, Reporting and 
recordkeeping requirements, Security measures.

    Accordingly, for the reasons set forth in the preamble 8 CFR 
chapter I and 19 CFR chapter 1 are proposed to be amended as follows:

TITLE 8--ALIENS AND NATIONALITY

    1. The authority citation for part 215 is revised to read as 
follows:

    Authority: 8 U.S.C. 1104; 1184; 1185 (pursuant to E.O. 13323, 
published January 2, 2004), 1365a and note, 1365b, 1379, 1731-32.

    2. Section 215.8 is amended by revising paragraph (a)(1) to read as 
follows:


Sec.  215.8  Requirements for biometric identifiers from aliens on 
departure from the United States.

    (a)(1) An alien required to provide fingerprints, photograph(s) or 
other specified biometric identifiers upon application for admission to 
the United States is also required to provide biometric identifiers to 
an appropriate official of the air carrier or vessel owner or operator 
prior to departure from the United States. The collection of the 
biometric identifiers covered by this section for subsequent 
transmission to the Secretary is governed by 8 CFR 231.4. The Secretary 
of Homeland Security may also establish pilot programs for biometric 
collection at land border ports of entry through which the Secretary or 
his delegate may require any alien admitted to the United States to 
provide biometric identifiers or other evidence upon exiting the United 
States.
* * * * *

PART 217--VISA WAIVER PROGRAM

    3. The authority citation for part 217 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.

    4. Paragraph (a) of Sec.  217.7 is revised to read as follows:


Sec.  217.7  Electronic data transmission requirement.

    (a) An alien who applies for admission under the provisions of 
section 217 of the Act after arriving via sea or air at a port of entry 
will not be admitted under the Visa Waiver Program unless an 
appropriate official of the carrier transporting the alien 
electronically transmits to Customs and Border Protection (CBP) the 
passenger arrival manifest data relative to that alien passenger in 
accordance with 19 CFR 4.7b or 19 CFR 122.49a. Upon departure from the 
United States by sea or air of an alien admitted under the Visa Waiver 
Program, an appropriate official of the transporting carrier must 
electronically transmit to CBP departure manifest data, including any 
biometric data required by 8 CFR 231.4, relative to that alien 
passenger in accordance with 19 CFR 4.64 and 19 CFR 122.75a.
* * * * *

PART 231--ARRIVAL AND DEPARTURE MANIFESTS

    5. The authority citation for part 231 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1185, 1187, 1221, 1228, 
1229; 8 CFR part 2; 19 U.S.C. 1431, 1433, 1434, 1644, 1644a; 46 
U.S.C. 60105.

    6. Paragraph (a) of Sec.  231.2 is amended by adding, at the end, 
the following sentence:


Sec.  231.2  Electronic manifest and I-94 requirement for passengers 
and crew onboard arriving vessels and aircraft.

    (a) * * * Additional provisions setting forth requirements 
applicable to commercial carriers regarding the collection and 
transmission of biometric information covering passengers and crew and 
non-crew members as part of their departure manifest responsibilities 
under section 231 of the Act are set forth in 8 CFR 231.4.
* * * * *
    7. New Sec.  231.4 is added to read as follows:


Sec.  231.4  Biometric manifest information for passengers, crew, and 
non-crew onboard departing aircraft and vessels.

    (a) Definitions. (1) The definitions set forth in 19 CFR 122.49a(a) 
apply for purposes of this section except as provided in this section.
    (2) Biometric collection location, for the purposes of this 
section, means a location within an airport or seaport, and within the 
path of the departing alien, such that they would not need to 
significantly deviate from that path to comply with biometric exit 
requirements at which air or vessel carrier employees, as applicable, 
either present or routinely available if an alien needs processing 
assistance; and which is equipped with a device with network 
connectivity for data collection and transmission of biometric 
departure manifest information to DHS in accordance with the standards 
established in the Consolidated User's Guide.
    (b) Biometric Departure Manifest Information--(1) Biometric 
collection requirement. Except as provided in paragraph (c) of this 
section, an appropriate official of each commercial aircraft or vessel 
departing from the United States to any port or place outside the 
United States must ensure transmission to Customs and Border Protection 
(CBP) biometric departure manifest information covering alien

[[Page 22087]]

passengers, crew, and non-crew to whom the requirements for biometric 
identifiers apply under 8 CFR 215.8. The biometric departure manifest 
information must be transmitted to CBP at the place and time specified 
in paragraph (b)(3) of this section by means approved by the Secretary 
and must set forth the information specified in paragraph (b)(4) of 
this section or as otherwise required by the Secretary.
    (2) Manner of collection. Carriers boarding alien passengers, crew, 
and non-crew subject to US-VISIT processing shall collect biometric 
departure manifest information from each alien at a biometric 
collection location at the airport or seaport before boarding that 
alien on transportation for departure from the United States, no more 
than 3 hours prior to the originally scheduled departure of that 
passenger's aircraft or sea vessel.
    (3) Time and manner of submission. The appropriate official 
specified in paragraph (b)(1) of this section must ensure transmission 
of the biometric departure manifest information required and collected 
under paragraphs (b)(1) and (2) of this section to the CBP Data Center, 
CBP Headquarters, or such other data center as may be designated by the 
Secretary, by not later than 24 hours after securing the aircraft for 
departure. The biometric departure manifest information may be 
transmitted to DHS over any means of communication authorized by the 
Secretary for the transmission of other electronic manifest information 
containing personally identifiable information and under transmission 
standards currently applicable to other electronic manifest 
information. Files containing the biometric departure manifest 
information may be sent with other electronic manifest data prior to 
departure or may be sent separately from any topically related 
electronic manifest data. Files containing the biometric departure 
manifest information may be sent in batch mode.
    (4) Information Required. The biometric departure manifest 
information required under paragraphs (b)(1)-(b)(3) of this section for 
each covered passenger or crew member must contain an electronic scan 
of the fingers (not thumb) of one hand that complies with the technical 
standards in Federal Bureau of Investigation (FBI), Criminal Justice 
Information Services (CJIS) Electronic Fingerprint Transmission 
Specifications, Appendix F (``IAFIS Image Quality Specifications''), 
sections 2 and 3 (May 2, 2005), or any subsequent standard adopted for 
IAFIS or subsequent system. Data transmission standards and methods for 
transmitting biometric departure manifest information must meet the 
current standards for the transmission of other electronic manifest 
data for air and vessel carriers.
    (c) Exception. The biometric departure manifest information 
specified in this section is not required for any alien active duty 
military personnel traveling as passengers on board a departing 
Department of Defense commercial chartered aircraft.
    (d) Carrier Maintenance and Use of Biometric Departure Manifest 
Information. Carrier use of biometric departure manifest information 
for purposes other than as described in standards set by DHS in the 
Consolidated User's Guide (CUG) is prohibited. Carriers shall 
immediately notify the Chief Privacy Officer of US-VISIT in writing in 
event of unauthorized use or access, or breach, of biometric departure 
manifest information.
    (e) Limitation on Air and Vessel Carriers Affected. This section 
does not apply to an air or vessel carrier that is a small entity as 
defined in 13 CFR 121.201 (NAIC Codes 481111, 481212, 483112), or such 
other category as may be determined by the Secretary.
    (f) Additional Requirements. If the Secretary determines that an 
air or vessel carrier has not adequately complied with the provisions 
of this section, and imposes any penalty or fine under section 215 or 
231 of the Act or denies departure clearance, the Secretary may, in his 
discretion, require the air or vessel carrier to collect biometric 
departure manifest information at a specific location prior to the 
issuance of a boarding pass or other document on the international 
departure, or the boarding of crew, in any port through which it boards 
aliens for international departure under the supervision of the 
Department of Homeland Security for such period as the Secretary 
considers appropriate to ensure the adequate collection and 
transmission of biometric departure manifest information.

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

    8. The authority citation for part 235 continues to read as 
follows:

    Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to 
E.O. 13323 published on January 2, 2004), 1201, 1224, 1225, 1226, 
1228, 1365a note, 1379, 1731-32.


Sec.  235.1  [Amended]

    9. Section 235.1 is amended in paragraphs (f)(1)(iii), (1)(iv), and 
(1)(iv)(B) by removing the citation to ``(d)(1)(ii)'', whenever that 
term appears, and adding in its place ``(f)(1)(ii)''.

TITLE 19--CUSTOMS DUTIES

 PART 4--VESSELS IN FOREIGN AND DOMESTIC TRADES

    10. The general authority citation for part 4 and the specific 
authority for section 4.64 continue to read as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624; 
2071 note; 46 U.S.C. 60105.

* * * * *
    Section 4.64 also issued under 8 U.S.C. 1221;
* * * * *
    11. Section 4.64 is amended by adding paragraph (b)(4) to read as 
follows:


Sec.  4.64  Electric passenger and crew member departure manifests.

* * * * *
    (b) * * *
    (4) Biometric Information. Biometric manifest information is 
governed by 8 CFR 231.4.
* * * * *

PART 122--AIR COMMERCE REGULATIONS

    12. The general authority citation for part 122 and the specific 
authority for section 122.75a and 122.75b continue to read as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 1431, 1433, 1436, 
1448, 1459, 1590, 1594, 1623, 1624, 1644, 1644a, 2071 note.

* * * * *
    Section 122.75a also issued under 8 U.S.C. 1221, 19 U.S.C. 1431, 49 
U.S.C. 114. Section 122.75b also issued under 8 U.S.C. 1221, 19 U.S.C. 
1431, 49 U.S.C. 114.
* * * * *
    13. Section 122.75a is amended by adding a paragraph (b)(2)(iv) and 
paragraph (b)(4) to read as follows:


Sec.  122.75a  Electric manifest requirement for passengers onboard 
commercial aircraft departing from the United States.

* * * * *
    (b) * * *
    (2) * * *
    (iv) For biometric portions of the manifest pursuant to 8 CFR 
231.4, within 24 hours of the departure of the aircraft from the United 
States.
* * * * *
    (4) Biometric Information. Biometric manifest information is 
governed by 8 CFR 231.4.
* * * * *
    14. Section 122.75b is amended by revising adding paragraph 
(b)(2)(iv) and

[[Page 22088]]

adding paragraph (b)(4) to read as follows:


Sec.  122.75b  Electronic manifest requirement for crew members and 
non-crew members onboard commercial aircraft departing from the United 
States.

* * * * *
    (b) * * *
    (2) * * *
    (iv) For biometric portions of the manifest pursuant to 8 CFR 
231.4, within 24 hours of the departure of the aircraft from the United 
States.
* * * * *
    (4) Biometric Information. Biometric manifest information is 
governed by 8 CFR 231.4.
* * * * *

Michael Chertoff,
Secretary.
 [FR Doc. E8-8956 Filed 4-23-08; 8:45 am]
BILLING CODE 4410-10-P