[Federal Register Volume 73, Number 209 (Tuesday, October 28, 2008)]
[Rules and Regulations]
[Pages 64018-64066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25432]
[[Page 64017]]
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Part II
Department of Homeland Security
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Transportation Security Administration
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49 CFR Parts 1540, 1544, and 1560
Secure Flight Program; Final Rule
Federal Register / Vol. 73, No. 209 / Tuesday, October 28, 2008 /
Rules and Regulations
[[Page 64018]]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Parts 1540, 1544, and 1560
[Docket No. TSA-2007-28572; Amendment Nos. 1540-9, 1544-8, and 1560-
(New)]
RIN 1652-AA45
Secure Flight Program
AGENCY: Transportation Security Administration, DHS.
ACTION: Final rule.
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SUMMARY: The Intelligence Reform and Terrorism Prevention Act 2004
(IRTPA) requires the Department of Homeland Security (DHS) to assume
from aircraft operators the function of conducting pre-flight
comparisons of airline passenger information to Federal government
watch lists for domestic flights and international flights to, from,
and overflying the United States. The Transportation Security
Administration (TSA) is issuing this final rule to implement that
congressional mandate.
This final rule allows TSA to begin implementation of the Secure
Flight program, under which TSA will receive passenger and certain non-
traveler information, conduct watch list matching against the No Fly
and Selectee portions of the Federal government's consolidated
terrorist watch list, and transmit a boarding pass printing result back
to aircraft operators. TSA will do so in a consistent and accurate
manner while minimizing false matches and protecting personally
identifiable information.
On August 23, 2007, U.S. Customs and Border Protection (CBP)
published a final rule to implement pre-departure advance passenger and
crew manifest requirements for international flights and voyages
departing from or arriving in the United States using CBP's Advance
Passenger Information System (APIS). These rules are related. After the
compliance date of this Secure Flight final rule, aircraft operators
will submit passenger information to DHS through a single DHS portal
for both the Secure Flight and APIS programs. This will allow DHS to
integrate the watch list matching component of APIS into Secure Flight,
resulting in one DHS system responsible for watch list matching for
aviation passengers.
DATES: Effective December 29, 2008.
FOR FURTHER INFORMATION CONTACT: Kevin Knott, Policy Manager, Secure
Flight, Office of Transportation Threat Assessment and Credentialing,
TSA-19, Transportation Security Administration, 601 South 12th Street,
Arlington, VA 22202-4220, telephone (240) 568-5611.
SUPPLEMENTARY INFORMATION:
Availability of Rulemaking Documents
You can get an electronic copy using the Internet by--
(1) Searching the electronic Federal Docket Management System
(FDMS) Web page at http://www.regulations.gov;
(2) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html; or
(3) Visiting TSA's Security Regulations Web page at http://www.tsa.gov and accessing the link for ``Research Center'' at the top
of the page.
In addition, copies are available by writing or calling the
individual in the FOR FURTHER INFORMATION CONTACT section. Be sure to
identify the docket number of this rulemaking.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires TSA to comply with small entity requests for information
and advice about compliance with statutes and regulations within TSA's
jurisdiction. Any small entity that has a question regarding this
document may contact the person listed in FOR FURTHER INFORMATION
CONTACT. Persons can obtain further information regarding SBREFA on the
Small Business Administration's Web page at http://www.sba.gov/advo/laws/law_lib.html.
Abbreviations and Terms Used in This Preamble
APIS--Advance Passenger Information System
ATSA--Aviation and Transportation Security Act of 2001
AOIP--Aircraft Operator Implementation Plan
CBP--U.S. Customs and Border Protection
DHS--Department of Homeland Security
2006 DHS Appropriations Act--Department of Homeland Security
Appropriations Act, 2006
2007 DHS Appropriations Act--Department of Homeland Security
Appropriations Act, 2007
DHS TRIP--Department of Homeland Security Traveler Redress Inquiry
Program
FBI--Federal Bureau of Investigation
FISMA--Federal Information Security Management Act
GAO--Government Accountability Office
HSPD--Homeland Security Presidential Directive
IASTA--International Air Services Transit Agreement
IATA--International Air Transport Association
IRTPA--Intelligence Reform and Terrorism Prevention Act of 2004
NARA--National Archives and Records Administration
PNR--Passenger Name Record
PRI--Passenger Resolution Information
PIA--Privacy Impact Assessment
SFPD--Secure Flight Passenger Data
SSI--Sensitive Security Information
SORN--System of Records Notice
TSA--Transportation Security Administration
TSC--Terrorist Screening Center
TSDB--Terrorist Screening Database
VID--Verifying Identity Document
Outline of Final Rule
I. Background
II. Secure Flight Program Summary
A. Differences Between the Proposed Rule and the Final Rule
B. Secure Flight Passenger Data
C. 72-Hour Requirement
D. Instructions to Covered Aircraft Operators
E. Summary of Requirements
F. Implementation Phases of Secure Flight
1. Implementation of Secure Flight for Domestic Flights
2. Implementation of Secure Flight for Overflights and
International Flights
G. Privacy Documents
H. The Watch List Matching Process Under Secure Flight
I. Operational Testing of Secure Flight
III. Response to Comments
A. Scope of the Rulemaking
1. Overflights and Foreign Air Carriers
2. Include Other Aircraft Operators in Secure Flight Program
B. Coordination with CBP and Other Government Agencies
C. Implementation and Compliance
D. Secure Flight Passenger Data (SFPD)
1. General
2. SFPD Is Not Passenger Name Record (PNR)
3. Date of Birth and Gender
4. Redress Number and Known Traveler Number
E. Watch List Matching Process
1. Transmission of SFPD
2. 72-Hour Requirement
3. Boarding Pass Issuance
4. Passenger Resolution
5. Use of the Terrorist Screening Database (TSDB)
6. Non-Traveling Individuals
7. General Comments
F. Privacy
1. General Comments
2. Required Privacy Notice
3. Privacy Impact Assessment (PIA)
4. Privacy Act Exemptions
5. System of Records Notice (SORN)
6. Retention of Data
7. Sharing of Data with Other Agencies
8. Collection and Use by Private Entities
G. Redress
H. Consolidated User Guide/Aircraft Operator Implementation Plan
(AOIP)
I. Testing
J. Identification Requirements
K. Economic Comments
L. General Comments
M. Comments Beyond the Scope of the Rulemaking
IV. Rulemaking Analyses and Notices
[[Page 64019]]
A. Paperwork Reduction Act
B. Regulatory Impact Analysis
1. Regulatory Evaluation Summary
2. E.O. 12866 Assessment
3. Final Regulatory Flexibility Analysis (FRFA)
C. International Trade Impact Assessment
D. Unfunded Mandates Assessment
E. Executive Order 13132, Federalism
F. Environmental Analysis
G. Energy Impact
H. International Compatibility
List of Subjects
The Amendments
I. Background
TSA performs passenger and baggage screening at the Nation's
commercial airports.\1\ Covered aircraft operators currently supplement
this security screening by performing passenger watch list matching
using the Federal No Fly and Selectee portions of the consolidated
terrorist watch list maintained by the Federal government, as required
under security directives that TSA issued following the terrorist
attacks of September 11, 2001. Covered aircraft operators also conduct
this watch list matching process for non-traveling individuals
authorized to enter the sterile area \2\ of an airport within the
United States in order to escort a passenger or for some other purpose
approved by TSA.
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\1\ See the Aviation and Transportation Security Act (ATSA)
(Pub. L. 107-71, 115 Stat. 597, Nov. 19, 2001).
\2\ ``Non-traveling individual'' means as an individual to whom
a covered aircraft operator or covered airport operator seeks to
issue an authorization to enter the sterile area of an airport in
order to escort a minor or a passenger with disabilities or for some
other purpose permitted by TSA. It would not include employees or
agents of airport or aircraft operators or other individuals whose
access to a sterile area is governed by another TSA regulation or
security directive. 49 CFR 1540.3.
``Sterile Area'' means a portion of airport defined in the
airport security program that provides passengers access to boarding
aircraft and to which the access generally is controlled by TSA, or
by an aircraft operator under part 1544 of this chapter or a foreign
air carrier under part 1546 of this chapter, through the screening
of persons and property. 49 CFR 1540.5.
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Section 4012(a) of the Intelligence Reform and Terrorism Prevention
Act of 2004 (IRTPA) requires DHS to assume from air carriers the
comparison of passenger information to the Selectee and No Fly Lists
and to utilize all appropriate records in the consolidated and
integrated watch list that the Federal Government maintains.\3\ The
final report of the National Commission on Terrorist Attacks Upon the
United States (9/11 Commission Report) recommends that the watch list
matching function ``should be performed by TSA and it should utilize
the larger set of watch lists maintained by the Federal government.''
See 9/11 Commission Report at 393.
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\3\ Pub. L. 108-458, 118 Stat. 3638, Dec. 17, 2004; 49 U.S.C.
44903(j)(2).
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Consequently, pursuant to sec. 4012 (a) of the IRTPA, TSA issues
this final rule to implement the Secure Flight program. Under the
program, TSA will receive passenger and certain non-traveler
information from aircraft operators. After conducting watch list
matching, TSA will transmit boarding pass printing results based on
watch list matching results back to aircraft operators.
II. Secure Flight Program Summary
This final rule will affect all covered flights operated by U.S.
aircraft operators that are required to have a full program under 49
CFR 1544.101(a), \4\ and covered flights operated by foreign air
carriers that are required to have a security program under 49 CFR
1546.101(a) or (b). These aircraft operators generally are the
passenger airlines that offer scheduled and public charter flights from
commercial airports. This final rule refers to them as ``covered U.S.
aircraft operators'' and ``covered foreign air carriers'' respectively,
and ``covered aircraft operators'' collectively.
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\4\ Covered U.S. aircraft operators who also operate flights
under other security programs in 49 CFR 1544.101 may submit Secure
Flight Passenger Data (SFPD) for their operations to TSA. 49 CFR
1560.101(a)(5).
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TSA will assume the watch list matching function from aircraft
operators to more effectively and consistently prevent certain known or
suspected terrorists from boarding aircraft where they may jeopardize
the lives of passengers and others. The Secure Flight program is
designed to better focus enhanced passenger screening efforts on
individuals likely to pose a threat to civil aviation, and to
facilitate the secure and efficient travel of the vast majority of the
traveling public by distinguishing them from individuals on the watch
list.
In general, the Secure Flight program will compare passenger
information only to the No Fly and Selectee List components of the
Terrorist Screening Database (TSDB), which contains the Government's
consolidated terrorist watch list, maintained by the Terrorist
Screening Center (TSC).\5\ In general, comparing passenger information
against the No Fly and Selectee components of the TSDB during normal
security circumstances will be satisfactory to counter the security
threat versus using the entire TSDB. The No Fly and Selectee Lists are
based on all the records in the TSDB and the No Fly and Selectee Lists
represent the subset of names who meet the criteria of the No Fly and
Selectee designations. However, as recommended by the 9/11 Commission
and as required under the IRTPA, TSA may use ``the larger set of watch
lists maintained by the Federal government'' when warranted by security
considerations. For example, TSA may learn that flights on a particular
route may be subject to increased security risk. Under this
circumstance, TSA may decide to compare passenger information on some
or all of the flights on that route against the full TSDB or other
government databases, such as intelligence or law enforcement
databases. Thus, TSA defines ``watch list'' for purposes of the Secure
Flight program as the No Fly and Selectee List components of the
Terrorist Screening Database maintained by the Terrorist Screening
Center. For certain flights, the ``watch list'' may include the larger
set of watch lists maintained by the Federal government as warranted by
security considerations.
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\5\ The TSC was established by the Attorney General in
coordination with the Secretary of State, the Secretary of Homeland
Security, the Director of the Central Intelligence Agency, the
Secretary of the Treasury, and the Secretary of Defense. The
Attorney General, acting through the Director of the Federal Bureau
of Investigation (FBI), established the TSC pursuant to Homeland
Security Presidential Directive 6 (HSPD-6), dated September 16,
2003, which required the Attorney General to establish an
organization to consolidate the Federal government's approach to
terrorism screening and provide for the appropriate and lawful use
of terrorist information in screening processes.
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After the Secure Flight program completes the comparison of
passenger information, TSA will return to the covered aircraft
operators the boarding pass printing result to allow the aircraft
operators to begin the process for issuing boarding passes to
passengers. The boarding pass printing result for each passenger will
return one of the following instructions to the covered aircraft
operator regarding that passenger: (1) The covered aircraft operator
may issue an unrestricted boarding pass; (2) the aircraft operator may
issue a boarding pass indicating that the passenger has been selected
for enhanced screening; (3) or the covered aircraft operator may not
issue a boarding pass to the passenger, and the passenger must come to
the airport for resolution. If TSA instructs the covered aircraft
operator not to issue a boarding pass to a passenger, the covered
aircraft operator must comply with procedures in its security program
for requesting the passenger to present a verifying identity document
when the passenger checks in at the airport. The covered aircraft
operator may issue a boarding pass to that passenger only after
[[Page 64020]]
receiving a boarding pass printing result indicating that the passenger
is cleared or has been selected for enhanced screening.
The final rule covers all flights conducted by covered U.S.
aircraft operators, as well as all flights conducted by a covered
foreign air carrier arriving in or departing from the United States, or
overflying the continental United States, defined as the lower
contiguous 48 states. The final rule collectively refers to the flights
conducted by U.S. carriers and covered international flights that are
regulated under this final rule as ``covered flights.''
IRTPA also requires DHS to assume from air carriers the task of
comparing passenger information for international flights to or from
the United States against the Federal government's consolidated and
integrated terrorist watch list before departure of such flights.
Initially, CBP will implement this requirement and conduct pre-
departure watch list matching for international flights, through the
Advance Passenger Information System (APIS). APIS is a widely used
electronic data interchange system that commercial carriers with
flights or vessel voyages arriving to or departing from the United
States use to transmit electronically to CBP certain data on passengers
and crew members. The former U.S. Customs Service, in cooperation with
the former Immigration and Naturalization Service (INS) and the airline
industry, developed APIS in 1988. On August 23, 2007, CBP published the
Advance Electronic Transmission of Passenger and Crew Member Manifests
for Commercial Aircraft and Vessels final rule (APIS Pre-Departure
final rule) that requires air and vessel carriers to submit to CBP
passenger manifest information before departure of a flight to or from
the United States and for voyages from the United States to enable the
DHS system to conduct watch list matching on passengers before they
board an international flight or depart on certain voyages.\6\
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\6\ 72 FR 48320 (Aug. 23, 2007).
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In response to a substantial number of comments from the aviation
industry, DHS has developed a unified approach to watch list matching
for international and domestic passenger flights, to avoid unnecessary
duplication of watch list matching efforts and resources and reduce the
burden on aircraft operators. Pursuant to the APIS Pre-Departure final
rule, the CBP system currently performs the watch list matching
function for international flights to or from the United States as part
of its overall screening of travelers. Ultimately, the watch list
matching function for covered flights that are international air
arrivals and departures will be transferred to TSA through the phased
implementation of the Secure Flight rule. TSA will assume the aviation
passenger watch list matching function for domestic and international
passengers covered by this rule, while CBP will continue to conduct
border enforcement functions. To streamline the transmission of
passenger information, DHS has established one portal through which
aircraft operators will send their passenger information for both
programs and receive a printing result.
A. Differences Between the Proposed Rule and the Final Rule
Below is a table, which summarizes the difference between the
proposed rule text in the Secure Flight NPRM and the rule text in this
final rule.
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Secure flight Secure flight
proposed rule final rule
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Required Passenger Information 1. Covered 1. Covered
in the SFPD (49 CFR 1540.107 aircraft aircraft
and 1560.101). operators would operators must
be required to collect
request individuals' date
individuals' date of birth and
of birth and gender and
gender to transmit this
transmit this information to
information, if TSA.
available, to TSA.
2. Individuals 2. Individuals
would not be must provide
required to their date of
provide their birth and gender.
date of birth and
gender.
Definition of Overflight (49 CFR Overflights mean The final rule
1560.3). flights that clarifies that
overfly the continental
continental United States
United States. does not include
Hawaii or Alaska.
Request for and Transmission of Covered aircraft Covered aircraft
SFPD (49 CFR 1560.101). operators would operators may
not be able to accept a
accept a reservation
reservation or without a full
request to enter name, date of
the sterile area birth, or gender.
unless the For reservations
individual made 72 hours
provides his or prior to the
her full name. scheduled time of
departure for
each covered
flight, the
covered aircraft
operator may
choose to collect
full name,
gender, and date
of birth for each
passenger when
the reservation
is made or at a
time that is no
later than 72
hours prior to
the scheduled
time of departure
of the covered
flight. For an
individual that
makes a
reservation for a
covered flight
within 72 hours
of the scheduled
time of departure
for the covered
flight, the
covered aircraft
operator must
collect the
individual's full
name, date of
birth, and gender
at the time of
reservation.
Covered aircraft
operators may not
transmit SFPD to
TSA without these
data elements.
Implementation Schedule (49 CFR 1. Covered Implementation
1560.101) aircraft schedule will be
operators would set forth in the
be required to AOIP.
request passenger
information 60
days after the
effective date of
the final rule.
2. Covered
aircraft
operators would
be required to
begin
transmitting SFPD
to TSA on the
date set forth in
their AOIP.
[[Page 64021]]
Boarding Pass Issuance for a A covered aircraft A covered aircraft
Covered International Flight operator may not operator may
that was Connected to a Non- issue a boarding authorize the
Covered Flight (49 CFR pass for a issuance of a
1560.105). covered boarding pass for
international a covered
flight in international
conjunction with flight in
issuing a conjunction with
boarding pass for issuing a
the non-covered boarding pass for
flight unless the the non-covered
covered aircraft flight provided
operator has that the covered
obtained a aircraft operator
boarding pass takes the
printing result required actions
from TSA to confirm and to
permitting it to comply with the
issue a boarding boarding pass
pass for the printing result
covered for the passenger
international prior to the
flight. passenger
boarding the
aircraft.
Presenting Verifying Identity Covered aircraft The final rule
Document (VID) (49 CFR operators must clarifies that
1560.105). request VID from covered aircraft
passengers for operators must
whom TSA has not request the VID
provided a watch from passengers
list matching at the airport.
result or has The VID may be
placed on presented at a
inhibited status. kiosk that is
capable of
determining that
the
identification is
a valid VID,
authenticating
the VID, and
reading and
transmitting
passenger
information from
the VID.
Aircraft Operator Implementation Covered aircraft TSA will provide
Plan (49 CFR 1560.109). operators would the AOIP to each
be required to covered aircraft
submit their AOIP operator for them
to TSA within 30 to adopt as an
days of the amendment to
effective date of their security
the final rule program.
for approval.
Once approved,
the AOIP would be
part of the
covered aircraft
operator's
security program.
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B. Secure Flight Passenger Data
Under the Secure Flight program, TSA requires covered aircraft
operators to collect information from passengers, transmit passenger
information to TSA for watch list matching purposes, and process
passengers in accordance with TSA boarding pass printing results
regarding watch list matching results. 49 CFR 1560.101 and 1560.105.
TSA defines this passenger information, along with other information
summarized below, as Secure Flight Passenger Data (SFPD). See 49 CFR
1560.3.
For passengers on covered flights, TSA requires covered aircraft
operators to request a passenger's full name, gender, date of birth,
and Redress Number \7\ (if available) or Known Traveler Number \8\ (if
available once the known traveler program is implemented). Even though
covered aircraft operators are required to request all of the above
data elements from passengers, passengers are only required to provide
their full name, date of birth, and gender to allow TSA to perform
watch list matching. TSA is not requiring individuals to provide the
other data elements to aircraft operators. Covered aircraft operators
must transmit to TSA the information provided by the passenger in
response to the request described above.
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\7\ A Redress Number is a unique number that DHS currently
assigns to individuals who use the DHS Traveler Redress Inquiry
Program (TRIP). Under the Secure Flight program, individuals will
use the Redress Number in future correspondence with DHS and when
making future travel reservations. The Redress Number is further
discussed in the Secure Flight Information Collection Requirements
section below. See Sec. 1560.3.
\8\ A Known Traveler Number would be a unique number assigned to
``known travelers'' for whom the Federal government has already
conducted a threat assessment and has determined do not pose a
security threat. The Known Traveler Number is further discussed in
the Secure Flight Information Collection Requirements section. See
Sec. 1560.3.
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TSA notes that one of the changes between the NPRM and the final
rule is the addition of this requirement that individuals are required
to provide their date of birth and gender to aircraft operators. In the
Secure Flight NPRM, TSA had discussed its legal authority for this
rule, in general. See 72 FR 48357. With respect to this changed
provision, TSA notes that it has legal authority to do so under Sec.
4012 of the IRTPA. Section 4012 mandates that TSA obtain passenger
information in order to assume the function of conducting watch list
matching comparisons. In addition, TSA has broad authority to do so
under the Aviation and Transportation Security Act (ATSA) (Pub. L. 107-
71, Nov 19, 2001). Specifically, TSA can assess threats to
transportation; enforce security-related regulations and requirements;
oversee the implementation, and ensure the adequacy, of security
measures at airports and other transportation facilities; require
background checks for airport security screening personnel, individuals
with access to secure areas of airports, and other transportation
security personnel; and carry out such duties, and exercise such other
powers, relating to transportation security as appropriate. See 49
U.S.C. 114(f)(2), (7), (11), (12), and (15). In conjunction with these
provisions, TSA also has authority specifically for the Secure Flight
Program. Under 49 U.S.C. 44903(j)(2)(C)(iv), the Assistant Secretary
``shall require air carriers to supply the Assistant Secretary the
passenger information needed to begin implementing the advanced
passenger prescreening system.'' Given that TSA is required to collect
this information from air carriers, it follows that individuals must
provide that information to air carriers. Air carriers would be unable
to fulfill their obligation if there were not a corresponding
obligation on individuals to provide their information to air carriers.
Covered aircraft operators also must transmit to TSA passport
information, if available. Although TSA is not requiring covered
aircraft operators to request passport information under this final
rule, passengers may provide passport information pursuant to other
travel requirements such as CBP APIS if a passenger is traveling abroad
as part of the same reservation/itinerary. When passengers provide
passport information to covered aircraft operators, the operators must
transmit the passport information to a single DHS portal from which the
appropriate information will be sent to TSA and CBP.
Additionally, covered aircraft operators must transmit to TSA
certain non-personally identifiable information such as itinerary
information and record locator numbers. This information will allow TSA
to effectively prioritize watch list matching efforts, communicate with
the covered aircraft operator, and facilitate an operational response,
if necessary, to an individual who is on the watch list.
When a non-traveling individual seeks authorization from a covered
[[Page 64022]]
aircraft operator to enter an airport sterile area in the United States
(such as to escort a minor or assist a passenger with a disability),
covered aircraft operators must request from the non-traveler and
transmit to TSA the same information requested from passengers. Non-
travelers are only required to provide their full name, date of birth,
and gender to allow TSA to perform watch list matching, as well as
certain non-personally identifiable information, including the airport
code for the sterile area in the U.S. to which the non-traveler seeks
access.
The following chart details the information that TSA requires
covered aircraft operators to request from passengers and certain non-
traveling individuals, the information that those individuals are
required to provide, and the information covered aircraft operators
must transmit to TSA if available.
Information Collection Requirements for Secure Flight
----------------------------------------------------------------------------------------------------------------
Covered aircraft
operators must Passengers and Covered aircraft
request from certain non- operators must
Data elements passengers and travelers must transmit to TSA if
certain non- provide at time of available
travelers reservation
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Full Name..................................... X X X
Date of Birth................................. X X X
Gender........................................ X X X
Redress Number or Known Traveler Number....... X .................... X
Passport Information \9\...................... .................... .................... X
Itinerary Information \10\.................... .................... .................... X
Reservation Control Number.................... .................... .................... X
Record Sequence Number........................ .................... .................... X
Record Type................................... .................... .................... X
Passenger Update Indicator.................... .................... .................... X
Traveler Reference Number..................... .................... .................... X
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C. 72-Hour Requirement
Under the Secure Flight program, covered aircraft operators must
transmit the SFPD that is available in their system, to TSA
approximately 72 hours prior to the scheduled flight departure time.
For reservations created within 72 hours of flight departure, covered
aircraft operators must submit SFPD as soon as it becomes available.
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\9\ Passport information is the following information from a
passenger's passport: (1) Passport number; (2) country of issuance;
(3) expiration date; (4) gender; (5) full name. See Sec. 1560.3.
\10\ Itinerary information is the following information about a
covered flight: (1) Departure airport code; (2) aircraft operator;
(3) departure date; (4) departure time; (5) arrival date; (6)
scheduled arrival time; (7) arrival airport code; (8) flight number;
(9) operating carrier (if available). For non-traveling individuals
in the United States, the airport code for the sterile area to which
the non-traveling individual seeks access. See Sec. 1560.3.
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D. Instructions to Covered Aircraft Operators
TSA matches the SFPD provided by covered aircraft operators against
the watch list. Based on the watch list matching results, TSA will
instruct a covered aircraft operator in its boarding pass printing
result to process the individual in the normal manner, to identify the
individual for enhanced screening at a security checkpoint, or to deny
the individual transport or authorization to enter a U.S. airport's
sterile area. To ensure the integrity of the boarding pass printing
results and to prevent use of fraudulent boarding passes, TSA will also
provide instructions for placing bar codes on the boarding passes in
the future. TSA may provide instructions to the covered aircraft
operators through an amendment to their security programs.
E. Summary of Requirements
A brief summary of the requirements in this final rule is presented
below. A detailed explanation of these requirements and any applicable
changes from the NPRM are provided in Section III, Response to
Comments, of this final rule.
Requirements of Covered Aircraft Operators. This final rule
requires covered aircraft operators that conduct certain scheduled and
public charter flights to:
Adopt an Aircraft Operator Implementation Plan (AOIP). 49
CFR 1560.109(b).
Conduct Operational Testing with TSA in accordance with
their AOIP. 49 CFR 1560.109(a).
Request full name, date of birth, gender, and Redress
Number (if available) or Known Traveler Number (if implemented and
available) from passengers and certain non-traveling individuals. 49
CFR 1560.101(a).
Transmit full name, date of birth, and gender and any
other available SFPD for passengers and non-traveling individuals
seeking transport and/or authorization to enter a U.S. airport's
sterile area, in accordance with the covered aircraft operator's AOIP,
approximately 72 hours prior to the scheduled flight departure time. 49
CFR 1560.101(b).
Make a privacy notice available on public Web sites and
self-serve kiosks before collecting any personally identifiable
information from passengers or non-traveling individuals. 49 CFR
1560.103.
Request a verifying identity document (VID) at the airport
in either of the following situations: (1) TSA has not informed the
covered aircraft operator of the results of watch list matching for an
individual by the time the individual attempts to check-in; or (2) if
TSA informs the covered aircraft operator that an individual must be
placed on inhibited status \11\ and may not be issued a boarding pass
or authorization to enter a U.S. airport's sterile area. A verifying
identity document is one that has been issued by a U.S. Federal, State,
or tribal government that: (1) Contains the individual's full name,
photo, and date of birth; and (2) has not expired. 49 CFR 1560.3 and
1560.105(c).
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\11\ ``Inhibited status,'' as defined in this rule, means the
status of a passenger or non-traveling individual to whom TSA has
instructed a covered aircraft operator or a covered airport operator
not to issue a boarding pass or to provide access to the sterile
area. See 49 CFR 1560.3.
---------------------------------------------------------------------------
When necessary, submit information from the VID to TSA to
resolve potential watch list matches. In some cases, TSA may also
request that the covered aircraft operator communicate a physical
description of the individual. See 49 CFR 1560.105(c).
[[Page 64023]]
Not issue a boarding pass or permit an individual to board
an aircraft or enter a sterile area in a U.S. airport that serves
covered flights under this regulation until that individual provides a
VID when requested under the circumstances described above, unless
otherwise authorized by TSA. 49 CFR 1560.105(d).
Comply with instructions from TSA to designate identified
individuals for enhanced screening before boarding a covered flight or
accessing a sterile area in a U.S. airport. 49 CFR 1560.105(b)(2).
Place codes on boarding passes in accordance with TSA
instructions to be set forth in the Consolidated User Guide in the
future. 49 CFR 1560.105(b)(2) and (3).
Requirements of Individuals
Individuals who wish to make a reservation on a covered
flight or to access a sterile area must provide their full names, date
of birth, and gender to the covered aircraft operators.
Passengers and non-traveling individuals seeking access to
a U.S. airport's sterile area, for whom TSA has not provided a watch
list matching result or has provided inhibited status, must present a
VID to the covered aircraft operator if they wish to board their
flights. After presenting the VID, an individual may receive a boarding
pass to board an aircraft or enter a sterile area if the aircraft
operator receives a watch list matching result from TSA that permits
the issuance of a boarding pass or authorization to enter a sterile
area. 49 CFR 1540.107(c).
Government Redress Procedures Available to Individuals. This final
rule explains the redress procedures for individuals who believe they
have been improperly or unfairly delayed or prohibited from boarding a
flight as a result of the Secure Flight program. These individuals may
seek assistance through the redress process by submitting certain
personal information, as well as copies of certain identification
documents, to the existing DHS Traveler Redress Inquiry Program (DHS
TRIP).\12\ The final rule explains the process the Federal government
will use to review the information submitted and to provide a timely
written response. 49 CFR part 1560, subpart C.
---------------------------------------------------------------------------
\12\ Information about DHS TRIP is available at http://www.dhs.gov/trip.
---------------------------------------------------------------------------
F. Implementation Phases of Secure Flight
TSA will implement the Secure Flight program in two phases. The
first phase includes covered flights between two domestic points in the
United States. The second phase includes covered flights overflying the
continental United States, covered flights to or from the United
States, and all other flights (such as international point-to-point
flights) operated by covered U.S. aircraft operators not covered in the
first phase.
1. Implementation of Secure Flight for Domestic Flights
During the first phase of implementation, TSA will assume the watch
list matching function for domestic flights conducted by covered U.S.
aircraft operators, including those covered aircraft operators' private
charter flight operations. TSA will conduct operational testing with
such covered U.S. aircraft operators to ensure that the aircraft
operators' systems are compatible with TSA's system. After successful
operational testing with covered U.S. aircraft operators, TSA will
assume the watch list matching function for domestic flights from those
aircraft operators.
2. Implementation of Secure Flight for Overflights and International
Flights
During the second phase of Secure Flight, TSA will require all
covered aircraft operators to submit SFPD for covered flights that
overfly the continental United States. The continental U.S. is defined
as the contiguous lower 48 states and does not include Alaska or
Hawaii. Flights that transit the airspace of the continental United
States between two airports or locations in the same country, where
that country is Canada or Mexico, are not included in this final rule.
We discuss in further detail below the reason for excluding these
flights from this final rule. Covered aircraft operators that are
unsure whether a particular flight overflies the continental United
States may ask TSA for a determination on whether the flight is an
overflight.
The second phase of Secure Flight will also include international
flights. Until TSA implements the Secure Flight program for
international flights by covered U.S. and foreign aircraft operators,
the CBP system will conduct pre-departure watch list matching for
international flights under the APIS Pre-Departure final rule. This
interim approach will allow DHS to more quickly address the threat of
terrorism on flights arriving in and departing from the United States.
During the second phase of Secure Flight implementation, TSA will
assume the watch list matching function for covered international
flights from the CBP system. There are a few differences between TSA
and CBP processes. Under the Secure Flight program, covered aircraft
operators will need to request passenger information at the time of
reservation or prior to transmitting the passenger's SFPD; this is not
the case under the APIS Pre-Departure final rule. Also, as described
below, TSA requires collection of different data elements (SFPD) under
the Secure Flight program than CBP collects under the APIS regulations.
For its border-control functions, which CBP will continue to perform
under the APIS rule, the Department (through CBP) will continue to
collect APIS data. Given this, and to provide a single point of
contact, covered aircraft operators can transmit both APIS data and
SFPD in a single transmission to the DHS portal, which will route
information to TSA and CBP accordingly.\13\ In turn, aircraft operators
will receive one boarding pass printing result from DHS. The following
table lists the data elements that CBP collects under its APIS
regulations and that TSA will collect under the Secure Flight \14\
program.\15\
---------------------------------------------------------------------------
\13\ Covered aircraft operators may also submit Passenger Name
Record information to CBP through this DHS portal.
\14\ All APIS data elements are required, except country of
residence (which is not required for departure from the U.S.) and
passport information (which is required only when a passport is
required for travel).
\15\ Covered aircraft operators must provide data elements
listed for Secure Flight to the extent they are available.
------------------------------------------------------------------------
APIS regulation
Data elements (international Secure flight
flights) \14\ regulation \15\
------------------------------------------------------------------------
Full Name................... X X
Date of Birth............... X X
Gender...................... X X
Redress Number or Known .................... X*
Traveler Number............
Passport Number............. X X*
[[Page 64024]]
Passport Country of Issuance X X*
Passport Expiration Date.... X X*
Passenger Name Record X ....................
Locator....................
International Air Transport X X
Association (IATA) Foreign
Airport Code--place of
origination................
IATA Code--Port of First X X
Arrival....................
IATA Code of Final Foreign X ....................
Port for In-transit
Passengers.................
Airline Carrier Code........ X X
Flight Number............... X X
Date of Aircraft Departure.. X X
Time of Aircraft Departure.. X X
Date of Aircraft Arrival.... X X
Scheduled Time of Aircraft X X
Arrival....................
Citizenship................. X ....................
Country of Residence........ X ....................
Status on Board Aircraft.... X ....................
Travel Document Type........ X ....................
Alien Registration Number... X ....................
Address While in U.S.-- X ....................
(except for outbound
flights, U.S. citizens,
lawful permanent residents,
crew and in-transit
passengers)................
Reservation Control Number.. .................... X
Record Sequence Number...... .................... X
Record Type................. .................... X
Passenger Update Indicator.. .................... X
Traveler Reference Number... .................... X
------------------------------------------------------------------------
* If available.
If passenger information that is required under this final rule
resides in covered aircraft operators' systems, covered aircraft
operators must transmit the SFPD information to TSA. Covered aircraft
operators must submit this information, through the same DHS portal
used for APIS submissions, approximately 72 hours before departure of a
covered flight, or if a passenger books after this 72 hour mark, as
soon as that information becomes available. Those that elect to
transmit the SFPD and all manifest information required under the APIS
Pre-Departure final rule at the same time would be able to send a
single transmission to DHS for the Secure Flight and APIS Pre-Departure
programs and would receive a single boarding pass printing result in
return.
Additionally, for reservations made within 72 hours of the
scheduled flight departure time, covered aircraft operators must submit
SFPD as soon as the information becomes available. If the covered
aircraft operator is also required and ready to transmit APIS
information at that time, the covered aircraft operator is able to send
one transmission for both Secure Flight and APIS Pre-Departure and will
receive one boarding pass printing result. If the covered aircraft
operator does not have full and complete APIS data as required under
the APIS Pre-Departure rule, the covered aircraft operator must
transmit the passenger information required for Secure Flight, at a
minimum.
Covered aircraft operators will use the same portal to transmit
SFPD to TSA and APIS data to CBP. TSA will need to conduct operational
testing with the covered U.S. aircraft operators and covered foreign
air carriers to confirm that the Secure Flight process operates
properly from end-to-end with these carriers.
After TSA assumes responsibility for the watch list matching
function under phase two of the Secure Flight program, the CBP system
will no longer be responsible for pre-departure watch list matching or
the issuance of related boarding pass printing results for covered
flights based on watch list matching results. Consequently, covered
aircraft operators will receive, and have to comply with, one result
from DHS, via TSA, regarding the issuance of boarding passes to or the
boarding of passengers on covered international flights. CBP will,
however, continue to require carriers to provide APIS data to carry out
its border enforcement mission.
In some international airports, passengers may transit from one
international flight to another, where the flights are operated by
different aircraft operators and only the second flight may be covered
under this final rule. TSA understands that currently, in these
situations, the aircraft operator operating the first flight may issue
a boarding pass for both portions of the passenger's itinerary,
including the flight to the United States. Under the Secure Flight
program, TSA will not prevent the aircraft operator operating the first
flight from issuing a boarding pass for the second flight. The covered
aircraft operator whose flight will arrive in, or overfly the United
States is responsible for preventing the boarding of passengers for
whom TSA has returned an inhibited boarding pass printing result.
Additionally, the covered aircraft operator should ensure that
passengers for whom TSA has returned a Selectee boarding pass printing
result are subjected to enhanced screening prior to boarding. Covered
aircraft operators must also comply with measures in their security
program to ensure that they have confirmed the boarding pass status of
each passenger who receives a boarding pass for a covered flight under
these circumstances. They may not rely on a lack of markings on a
boarding pass issued by another aircraft operator; covered aircraft
operators must take their direction from TSA.
G. Privacy Documents
TSA is committed to safeguarding individuals' privacy in conducting
the Secure Flight program to the greatest extent possible. In
conjunction with this final rule, TSA has published a Privacy Impact
Assessment (PIA) and a Privacy Act System of Records Notice (SORN),\16\
DHS/TSA 019. A final rule that explains the Privacy Act exemptions for
the Secure Flight program was published in
[[Page 64025]]
the Federal Register.\17\ These three documents outline how TSA
collects, uses, stores, protects, retains, and shares personally
identifiable information collected and used as part of the Secure
Flight program. Furthermore, TSA has identified the privacy risks and
mitigation measures that will be employed to reduce or eliminate
privacy risks such as false positive matches or insufficient safeguards
for the information. All three documents are available at http://www.tsa.gov.
---------------------------------------------------------------------------
\16\ 72 FR 63711 (Nov. 9, 2007).
\17\ 72 FR 63706 (Nov. 9, 2007).
---------------------------------------------------------------------------
H. The Watch List Matching Process Under Secure Flight
This Secure Flight final rule requires all covered aircraft
operators to request the information discussed above from passengers on
a covered flight and certain non-traveling individuals. The final rule,
however, does not require all covered aircraft operators to begin
transmitting that information to TSA at the same time. TSA will bring
covered aircraft operators into the Secure Flight program in phases and
require all covered aircraft operators to begin providing passenger and
certain non-traveler information to TSA in accordance with the
deadlines set forth in their approved AOIP, discussed further below.
TSA requires covered aircraft operators to transmit information to
TSA approximately 72 hours in advance of departure unless one of the
following occurs: The individual makes a reservation with the covered
aircraft operators within 72 hours of the scheduled flight departure
time; there are changes to the name, date of birth, gender, Redress
Number, Known Traveler Number, or passport information on a reservation
within 72 hours of the scheduled flight departure time; there are
changes to a flight within 72 hours of the scheduled flight departure
time; or the individual requests to enter a sterile area upon arrival
at the airport. In such cases, TSA requires covered aircraft operators
to send the required information to TSA as soon as it becomes
available. TSA, in coordination with the TSC where necessary, will
compare the passenger and certain non-traveler information obtained
from each covered aircraft operator to information contained in the
watch list. TSA will also compare passenger and certain non-traveler
information to a list of individuals who have previously been
distinguished from persons on the watch list.
If an automated comparison using the information transmitted to TSA
indicates that the passenger is not a match to the watch list, TSA will
notify the covered aircraft operator that check-in and boarding pass
issuance for the individual can proceed normally. Such individuals will
undergo standard passenger and baggage screening, which may include
additional, random screening. If an automated comparison using the non-
traveler information identifies a potential match to the watch list,
the covered aircraft operator must not allow access to the sterile area
for that individual unless further resolution procedures indicate
otherwise or authorized by TSA.
TSA will complete the watch list matching process for, and permit
covered aircraft operators to issue boarding passes to, the vast
majority of passengers through this fully-automated initial comparison.
If the automated comparison indicates a reasonably similar or exact
match to a person on the watch list, TSA will inform the covered
aircraft operator that the individual must be placed on inhibited
status and consequently the covered aircraft operator may not issue a
boarding pass or other authorization to enter the sterile area for that
individual unless further resolution procedures indicate otherwise. If
the SFPD for that individual contains sufficient data, a TSA analyst
will review all available information to determine if the passenger
appears to be the individual on the watch list. If necessary, the TSA
analyst will check other classified and unclassified governmental
terrorist, law enforcement, and intelligence databases, including
databases maintained by the Department of Homeland Security, Department
of Defense, National Counter Terrorism Center, and Federal Bureau of
Investigation (FBI), in order to resolve the possible match between the
individual and a person on the watch list.
This careful review process is intended to significantly reduce the
number of false positive matches identified by the automated watch list
check. If the TSA analyst determines that the individual is not a match
to the watch list, TSA will inform the covered aircraft operator that
the individual no longer has inhibited status, and the covered aircraft
operator may issue a boarding pass or authorization to enter a sterile
area to that individual. If the TSA analyst identifies a possible match
between a passenger and an individual identified on the watch list, TSA
will send the passenger information to TSC and request confirmation of
the match.
The final rule provides that if TSA or TSC cannot determine from
the information provided by the covered aircraft operator whether an
individual is a match to the watch list prior to the individual's
arrival at the airport or online check-in, it will be necessary for the
individual to provide additional information at the airport. Pursuant
to the procedures in the security program, the covered aircraft
operator must request that the individual present a VID when he or she
arrives at the airport. A VID must be an unexpired form of
identification that was issued by a U.S. Federal, State, or tribal
government, and contains the individual's full name, photo, and date of
birth, or an unexpired passport issued by a foreign government. TSA may
also authorize other types of identity documents that may be used as a
VID. TSA will notify the public when it authorizes another type of
identity document that may be used as a VID. TSA may use one or more of
the following methods to notify the public: A notice published in the
Federal Register; a public affairs announcement; and an announcement on
TSA's Web site. This requirement would not replace current requirements
that covered aircraft operators request all passengers and non-
traveling individuals to provide identification, such as at check-in or
at the screening checkpoint.
Covered aircraft operators must follow the procedures in its
security program for requesting and reviewing a VID from an individual.
Examples of such procedures are that the covered aircraft operator may
request that the individual present a VID: (1) To an agent at a ticket
counter; and (2) at a self-serve kiosk that is capable of determining
that the identification is a valid VID, authenticating the VID, and
reading and transmitting passenger information from the VID. Covered
aircraft operators may also submit a request to TSA for approval of
other procedures for requesting and accepting a VID through the
security program amendment process in Sec. 1544.105(b).
Once the individual provides a VID to the covered aircraft operator
or swipes the VID at a kiosk, the aircraft operator must update the
passenger's SFPD with the additional information from the individual's
VID and transmit it to TSA. There may be occasions where the aircraft
operator will need to call TSA. In such cases, the aircraft operator
may be asked to provide additional identifying information, such as a
physical description referred to as ``Passenger Resolution
Information'' (PRI), that TSA may need to complete the watch list
matching process, in coordination with the TSC, and provide the
aircraft operator with watch list matching results for that individual.
[[Page 64026]]
Covered aircraft operators will not submit this PRI to TSA
electronically. Rather, an aircraft operator will provide this
information over the telephone to TSA.
Where warranted, TSA may notify another Federal agency or other
public, private, or foreign government entity as appropriate to
initiate an operational response to a potential watch list match.\18\
TSA will provide the agency or entity with sufficient information about
the passenger and his or her itinerary to facilitate coordination of
the operational response. TSA may also notify the Federal Security
Director, Federal Air Marshals, or other law enforcement personnel
responsible for airport security to facilitate a timely law enforcement
response to an individual identified in the watch list. Further inquiry
by law enforcement may, for example, help resolve a situation of
mistaken identity or confirm a determination made in the matching
process that an individual should be denied boarding or entry to a
sterile area.
---------------------------------------------------------------------------
\18\ For the types of public and private entities that TSA may
notify, see ``Routine Uses of Records Maintained in the System,
Including Categories of Users and Purpose of Such Uses'' in the
Federal Register notice entitled, ``Privacy Act of 1974: System of
Records; Secure Flight Records.'' 72 FR 63711 (Nov. 9, 2007).
---------------------------------------------------------------------------
If TSA determines that the passenger is a match to the Selectee
List, TSA will notify the covered aircraft operator that the passenger
and his or her baggage must be identified for enhanced screening by
TSA. If TSA determines that the passenger is a match to the No Fly
List, the covered aircraft operator must not issue a boarding pass to
the passenger unless authorized by TSA.
In the preamble to the Secure Flight NPRM, TSA described the
resolution process for the potential matches to the No Fly List but did
not discuss a resolution process for potential matches to the Selectee
List.\19\ Because it is an important security measure to confirm
whether a passenger is an individual on the Selectee List, TSA is
applying the same resolution process for potential matches to the
Selectee List as it applies to potential matches to the No Fly List.
This resolution process will reduce the number of passengers who may be
misidentified as a match to the Selectee List and will allow these
passengers to enter the sterile area without undergoing enhanced
screening for Selectees. (This does not ensure that such passengers
will not always avoid enhanced screening. Random procedures employed by
TSA result in enhanced screening.) TSA may also authorize alternate
resolution procedures in a covered aircraft operator's security program
to address unique circumstances.
---------------------------------------------------------------------------
\19\ 72 FR 48356, 48365-66 (Aug. 23, 2007).
---------------------------------------------------------------------------
The Secure Flight NPRM also proposed that passengers with an
inhibited status would present their VID to the agent at the airport
ticket counter. See proposed Sec. 1560.105(b)(1). TSA is revising the
rule text to state that covered aircraft operators must request VIDs
from individuals at the airport. The language change will allow a
covered aircraft operator the flexibility to request and accept VID at
the ticket counter, at a self-serve kiosk, or through other processes
or technology that the covered aircraft operator may develop, subject
to TSA approval.
I. Operational Testing of Secure Flight
As part of the implementation of the Secure Flight program, TSA
will conduct operational testing of TSA's capabilities to interact with
and perform watch list matching for each covered aircraft operator
shortly after the effective date of this final rule and before assuming
the watch list matching function from each covered aircraft operator.
During the operational testing for each covered aircraft operator, the
covered aircraft operator will establish data transmission connections
to TSA through an established DHS portal, and TSA will test its ability
to receive passenger and non-traveler information, conduct watch list
matching and transmit watch list matching results back to the aircraft
operator in real time. Operational testing will allow TSA to refine
program operations and ensure that TSA will be able to effectively
conduct watch list matching for passengers and non-traveling
individuals of each covered aircraft operator before TSA assumes the
watch list matching function.
Covered U.S. aircraft operators will continue to match passengers
against the watch lists for domestic flights under current procedures
during their operational test phase and will maintain responsibility
for denying issuance of boarding passes or identifying individuals for
enhanced screening as a result of their own watch list matching
determinations. If, during operational testing, TSA identifies a match
to the No Fly or Selectee Lists that a covered aircraft operator has
not identified, TSA may identify such passengers to the TSC and the
covered aircraft operator for appropriate action. Once TSA officially
notifies a carrier that they have successfully completed testing and
that TSA has assumed the watch list matching function from a covered
aircraft operator, the aircraft operator will discontinue conducting
watch list comparisons for passengers and non-traveling individuals.
For international flights, covered U.S. aircraft operators must
follow the CBP result in accordance with the APIS Pre-Departure final
rule until TSA informs the covered U.S. aircraft operator that it will
assume the watch list matching function. Foreign air carriers must also
follow the CBP system boarding pass printing results in accordance with
the APIS Pre-Departure final rule during operational testing and until
TSA informs the covered foreign air carriers that TSA will assume the
watch list matching function.
TSA will provide prior written notification to each covered
aircraft operator of the date on which it will assume the watch list
matching function from that covered aircraft operator. Because
operational testing will begin with covered aircraft operators in
phases, TSA will transition to implementation in phases as well and may
continue operational testing with some covered aircraft operators while
beginning implementation with others.
III. Response to Comments
TSA received 337 comments on the Secure Flight NPRM. These comments
were submitted by a broad cross-section of parties with an interest in
the function of conducting preflight comparisons of airline passenger
information to Federal government watch lists for international and
domestic flights. Commenters included domestic aircraft operators,
foreign air carriers, privacy advocacy groups, and travel agency
organizations. These comments are addressed below, and are organized by
major issue.
A. Scope of the Rulemaking
Comment: Many commenters argued that the Secure Flight program is
unconstitutional and infringes on an individual's freedom of movement,
assembly, and right to travel. A commenter also argued that the Secure
Flight program violates Article 12 of the International Covenant on
Civil and Political Rights (ICCPR) because it restricts ``liberty of
movement.''
TSA Response: TSA disagrees with the comments. The Government may
place reasonable restrictions on the right to travel in order to
protect compelling interests; in this case, transportation and national
security. The Secure Flight program does not deny individuals their
right to travel or other constitutional rights. Courts have
consistently held that travelers do not have a constitutional right to
travel by a single mode or the most convenient form of
[[Page 64027]]
travel. The Secure Flight program would only regulate one mode of
travel (aviation) and would not impose any restriction on other modes
of travel. Thus, Secure Flight does not unlawfully infringe or restrict
individuals' freedom of movement or assembly. Also, the Secure Flight
regulations are reasonable and are not onerous or unduly burdensome to
individuals.
Additionally, Article 12 of the ICCPR does not apply to laws that
are necessary to protect national security. Because the purpose of the
Secure Flight program is to protect national security, Article 12 would
not apply even if the Secure Flight program did somehow restrict
liberty of movement.
1. Overflights and Foreign Air Carriers
Comment: Several commenters expressed concern about the Federal
government collecting information in the case of overflights from
individuals who have no intention of entering the United States.
Several commenters argued that including overflights within the scope
of Secure Flight may violate international treaties such as the
Convention on International Civil Aviation (Chicago Convention).
TSA Response: U.S. regulations currently require aircraft touching
ground in the United States to deny transportation to any passenger
appearing on the U.S. No Fly List. The Secure Flight program will
extend application of this rule to aircraft that only fly through U.S.
airspace, without actually touching ground in the United States. The
international legal bases under which a State might deny overflight to
aircraft that fail to comply with the State's security-based
regulations are outlined below.
Although international law recognizes the general right of
overflight,\20\ it also recognizes a State's right to regulate aircraft
entering into, within or departing from its territory. Moreover, the
Chicago Convention expressly recognizes that each State has sovereignty
over its airspace.
---------------------------------------------------------------------------
\20\ For example, the Chicago Convention, Article 5 and the
International Air Services Transit Agreement (IASTA), Article I,
Section 1.
---------------------------------------------------------------------------
The Chicago Convention, the International Air Services Transit
Agreement (IASTA), and the U.S. model open skies agreement all contain
provisions requiring aircraft in U.S. territory to comply with a broad
array of U.S. laws and regulations. Article 11 of the Chicago
Convention requires compliance with ``the laws and regulations of a
contracting State relating to the admission to or departure from its
territory of aircraft engaged in international air navigation, or to
the operation and navigation of such aircraft while within its
territory.'' Similarly, Article 13 requires compliance with a State's
laws and regulations ``as to the admission to or departure from its
territory of passengers, crew or cargo of aircraft * * * upon entrance
into or departure from, or while within the territory of that State.''
These Chicago Convention obligations are incorporated by reference in
Article I, Section 2, of IASTA, and are restated in Article 5 of the
model open skies agreement.
The domestic laws and regulations with which compliance is mandated
are defined broadly and may include security-based measures, such as
Secure Flight. This is reinforced by the security provisions in most
U.S. bilateral air services agreements. Those provisions generally
obligate our bilateral partners to observe and assist the U.S.
Government in its enforcement of U.S. security-based regulations. For
instance, Article 7 of the U.S. model open skies agreement obligates
each party to observe the ``security provisions required by the other
party for entry into, for departure from, and while within the
territory of that other [p]arty, and to take adequate measures to
protect aircraft and to inspect passengers * * * prior to and during
boarding or loading.'' Model Article 7 also imposes specific
obligations on our bilateral partners to assist in preventing unlawful
acts against the safety of aircraft, and ``to address any other threat
to security of civil air navigation.''
Moreover, in the event that an airline fails to comply with the
laws and regulations with which compliance is mandated, both IASTA and
most U.S. bilateral agreements grant a State the option of revoking or
denying that airline's operating authorizations or technical
permissions. Under Article I, Section 5, of IASTA, each State reserves
the ``right to withhold or revoke a certificate or permit to an air
transport enterprise of another State * * * in case of failure of such
air transport enterprise to comply with the laws of the State over
which it operates.'' Similar rights exist in almost all U.S. bilateral
agreements. For example, Article 4 of the U.S. model open skies
agreement provides that either party may ``revoke, suspend or limit the
operating authorizations or technical permissions'' of an airline of
the other party in the event that that airline has failed to comply
with the laws and regulations with which compliance is mandated.
Accordingly, TSA's Secure Flight program does not violate
international treaties, such as the Chicago Convention, and is entirely
consistent with and is buttressed by international and bilateral
agreements.
Comment: TSA received several comments opposed to including
overflights in the scope of the final rule. Some commenters argued that
overflights are an overextension of the Secure Flight mission. Other
commenters suggested that overflights will cause costly system and
operational changes for flights that did not require collection of APIS
data or SFPD previously. Another commenter suggested that it would not
be possible for third party agents to know if data collection was
required for a particular flight since they do not have any knowledge
of which flights qualify as an overflight.
TSA Response: Flights that overfly the United States have the
potential to cause harm within the United States due their proximity to
sensitive areas that may be potential terrorist targets such as major
metropolitan areas and critical infrastructure. The Secure Flight
program will provide TSA the ability to determine whether a passenger
on an overflight poses a potential threat to national or transportation
security. TSA acknowledges that there are costs associated with
including overflights within the scope of Secure Flight but believes
that the security benefit justifies the cost. If a covered aircraft
operator is unsure whether a particular flight overflies the United
States, TSA will provide assistance in determining whether that flight
is an overflight. The covered aircraft operator will be responsible for
informing their third party agents of the flights that are overflights.
Comment: Several commenters raised concerns regarding unplanned
overflights. Commenters provided examples of situations such as
diversions for weather, emergency, medical, or mechanical reasons when
a flight may be diverted into U.S. airspace. These commenters suggested
that TSA not require data collection for unplanned overflights.
TSA Response: As stated above, TSA will assist covered aircraft
operators in determining which flights are overflights. TSA is not
likely to consider flights that occasionally overfly the United States
due to weather diversions or emergencies to be overflights.
Comment: Several commenters indicated concern that this provision
may set a precedent for other countries to invoke overflight data
collection requirements that would be costly to implement and present
an inconvenience to U.S. passengers.
[[Page 64028]]
TSA Response: The Federal government understands that countries
have a legitimate interest in protecting their territory from potential
threats from overflights. DHS will work and coordinate with the
governments of those countries to determine data collection
requirements that would enhance security.
Comment: TSA received several comments about exemptions to the
overflight provision. A commenter requested that any geographic
exceptions to the Secure Flight final rule allow for the designation of
low-risk areas to be consistent with the overall purpose of security
and to take into account the risk associated with diverting air traffic
to lower risk geographic areas. Another commenter expressed support for
any efforts to decrease the number of flights this would apply to,
based on selected geographic areas.
TSA Response: This final rule allows the Assistant Secretary
(Transportation Security Administration) to exempt certain overflights
from the Secure Flight program. In determining whether to exempt a
particular flight or category of flights, TSA will take into
consideration the security implications of exempting such flights,
including the geographic locations of the overflights.
Comment: One commenter questioned why flights that are not subject
to this final rule, for example those flights that overfly the U.S.
with an origin and destination in Canada, pose less of a risk to U.S.
aviation security than a flight originating in Canada and flying to
another destination, for example the Caribbean. One commenter sought
confirmation that all airlines overflying U.S. territory would be
subject to the same requirements, irrespective of their nationality.
The Canadian Embassy requested that all flights to, from, and within
Canada that overfly the U.S. be exempt from the Secure Flight final
rule in light of the security initiatives that Canada has in place and
the security cooperation between Canada and the United States.
TSA Response: Flights between two Canadian locations or between two
Mexican locations that overfly the United States are likely to merely
skirt the border with the United States or enter U.S. airspace only for
a brief period of time. This provision applies to all covered aircraft
operators regardless of their country of nationality. All covered
aircraft operators must comply with the Secure Flight rule for all
other flights that overfly the continental United States, regardless of
nationality.
TSA is not exempting all overflights that originate from Canada,
because most international flights originating from Canada overfly a
significant portion of the United States. As stated above, TSA has
determined that conducting watch list matching of passengers on these
flights is an important security measure to protect national and
transportation security.
However, the Assistant Secretary may exempt categories of flights
that overfly the United States as provided in Sec. 1560.3. TSA will
consider requests to exempt certain categories of flights and will
consider all the applicable factors, including the security risks and
the benefits from doing so. For instance, TSA will consider whether the
country requesting the exemption applies a no fly list system to
flights that may affect the security of the United States, whether that
no fly list system will provide robust protection from persons who may
endanger the flights, and whether the requesting country sufficiently
shares information with the United States.
Comment: Some commenters expressed support for the limitation of
the overflight provision to the continental United States. However, the
Canadian Embassy and other commenters requested clarification of the
definition of ``continental United States'' as it applies to the
overflight provision of the Secure Flight final rule.
TSA Response: TSA agrees that the definition should be clarified.
The definition of ``overflying the continental United States'' in this
final rule has additional language that clearly states that the
continental United States includes the lower 48 states and does not
include Alaska or Hawaii.
2. Include Other Aircraft Operators in Secure Flight Program
Comment: TSA received one comment from an individual who suggested
that TSA include all-cargo operators within the scope of the Secure
Flight rule, because many all-cargo aircraft operators also transport
individuals who are not flight crew members, such as couriers and
animal handlers. The commenter was concerned that these individuals may
be foreign nationals, and they frequently sit immediately outside the
flight deck on these all-cargo flights.
TSA Response: During development of the Secure Flight program, TSA
determined that the scope of the initial Secure Flight implementation
phases should include only those aircraft operators that are required
to have a full security program under 49 CFR 1544.101(a), and foreign
air carriers that are required to have a security program under 49 CFR
1546.101(a) or (b). These aircraft operators are the passenger airlines
that offer scheduled and/or public charter flights from commercial
airports. TSA has decided to limit the scope of the Secure Flight final
rule to these aircraft operators in order first to focus on those areas
that raise the most aviation security concerns. After successful
implementation of the original population of covered aircraft
operators, TSA will consider broadening Secure Flight's scope to
include other categories of aircraft operators. In the interim, the
all-cargo operators must conduct watch list matching for these
individuals.
Comment: A commenter requested TSA modify the Secure Flight final
rule to accommodate the processes of private charter carriers.
TSA Response: In the Secure Flight NPRM, TSA proposed to limit the
scope of the Secure Flight program to U.S. aircraft operators that are
required to have a full security program under 49 CFR 1544.101(a), and
covered flights operated by foreign air carriers that are required to
have a security program under 49 CFR 1546.101(a) or (b). Many U.S.
aircraft operators also operate private charter operations that are
subject to the requirements in 49 CFR 1544.101(f), which include
requiring aircraft operators to conduct watch list matching of the
passengers. TSA recognizes that it may be more efficient for the
covered U.S. aircraft operators to submit the names of passengers on
their private charters to Secure Flight for watch list matching.
Consequently, the definition of covered flight includes private charter
flights operated by covered U.S. aircraft operators. TSA intends to
implement Secure Flight for other private charter flights through
future rulemakings.
Comment: One commenter requested that TSA require foreign air
carriers conducting private charter passenger operations to and from
the United States to adopt and carry out a security program.
Alternatively, the commenter requested that TSA include foreign
operators of private charter flights within the scope of the Secure
Flight program instead of the existing TSA/FAA airspace waiver
procedures for flights entering, departing, or overflying U.S.
airspace.
TSA Response: TSA appreciates the comments received concerning
aircraft operators covered under this final rule. TSA did not propose,
however, to require foreign air carriers not currently subject to an
existing security program to adopt a security program or to apply the
Secure Flight requirements on these foreign air carriers as part of
this Secure Flight rulemaking.
[[Page 64029]]
However, foreign air carriers operating flights to and from the
United States are subject to the APIS Pre-Departure final rule under
which DHS will perform watch list matching of the passengers on their
flights.
Comment: TSA received several comments from aircraft operators
arguing that airlines do not have the ability to impose Secure Flight
requirements on travel agents and other third parties. A commenter
suggested the government should mandate travel agencies to collect full
name in the reservation and place a privacy notice on associated Web
sites.
TSA Response: TSA disagrees that covered aircraft operators are
unable to require travel agents and other third parties that sell
tickets for their flights to collect the necessary passenger
information. Because aircraft operators control the inventory of seats
on their airplanes, TSA believes that it is reasonable to expect that
aircraft operators will include in their agreements with third party
agents who sell tickets on the aircraft operator's behalf a requirement
to collect the necessary data for the aircraft operator to comply with
this rule.
Additionally, the requirement to include the Privacy Act Statement
on Web sites only applies to Web sites where passenger information is
collected to create the SFPD that will be sent to TSA. Third-party Web
sites that provide information about their services but do not collect
passenger information that create SFPD do not need to post the Privacy
Act Statement.
Comment: A commenter agreed with TSA's definition of a non-
traveling individual, which does not include employees or agents of an
airport or aircraft operator.
TSA Response: TSA appreciates the commenter's support of Secure
Flight's definition of a non-traveling individual.
Comment: TSA received some comments urging TSA to include watch
list matching of covered aircraft operators' employees and other
employees that must undergo watch list matching within the scope of
Secure Flight. Similarly, a few carriers requested clarification on
whether TSA plans to perform this function.
TSA Response: TSA agrees that comparing the names of covered
aircraft operators' employees and other employees against the watch
list is an important layer of security and that the Federal government
should assume the responsibility for conducting the watch list matching
for this population. TSA has decided to focus the Secure Flight program
on watch list matching of passengers as part of this final rule. TSA
plans to assume responsibility for watch list matching of employees.
TSA has begun the process by conducting watch list matching for certain
persons at commercial airports.
B. Coordination With CBP and Other Government Agencies
TSA received several comments expressing support for both the
Secure Flight and APIS Pre-Departure programs. Several commenters
indicated their support for the shift of responsibility for passenger
watch list matching from the air carriers and CBP to TSA. TSA received
several comments expressing support for the ``One DHS Solution''
approach proposed for the Secure Flight and CBP APIS Pre-Departure
programs whereby covered aircraft operators would send passenger
information through one portal for both programs.
Comment: One commenter requested that DHS and other agencies
coordinate Secure Flight's requirements with other U.S. and non-U.S.
government data collection requirements.
TSA Response: DHS oversaw the development of the Consolidated User
Guide to standardize requirements and minimize the impact to covered
aircraft operators for implementation of both the Secure Flight and the
APIS Pre-Departure programs. DHS will continue to work and coordinate
with other Federal government agencies and other countries to develop
and implement common data collection requirements to address the
security concerns of the Federal government and the governments of
other countries.
Comment: TSA received a comment expressing concern that CBP and
covered aircraft operators would be required to act upon TSA's watch
list matching results without a process in place for quality assurance
and review.
TSA Response: TSA will implement a number of quality control
measures as part of the Secure Flight program to ensure that the
processes and procedures for watch list matching and returning results
to covered aircraft operators are accurate and timely. TSA cannot
provide further detail as to the control measures in place as they are
Sensitive Security Information (SSI).\21\ However, TSA is confident
that these measures will ensure the accuracy of the program.
---------------------------------------------------------------------------
\21\ ``Sensitive Security Information'' or ``SSI'' is
information obtained or developed in the conduct of security
activities, the disclosure of which would constitute an unwarranted
invasion of privacy, reveal trade secrets or privileged or
confidential information, or be detrimental to the security of
transportation. The protection of SSI is governed by 49 CFR part
1520.
---------------------------------------------------------------------------
Comment: TSA received several comments expressing concern and
requesting clarification on the differences in requirements for the
APIS Pre-Departure final rule and Secure Flight NPRM. They questioned
the need to send TSA SFPD 72 hours before the flight departure while
APIS Pre-Departure requires batch transmission no later than 30 minutes
before the securing of the aircraft door or APIS Quick Query (AQQ)
transmission up to the securing of the aircraft door.
TSA Response: From the perspective of covered aircraft operators,
there are two major differences from APIS Pre-Departure and Secure
Flight. First, TSA and CBP require different sets of data elements for
their respective programs with some identical data elements. The chart
above in section II of this final rule, Secure Flight Program Summary,
compares the required and optional data elements for each program.
Additionally, the timing of the transmission of the data elements is
different for each program. As explained above in section II of this
final rule, Secure Flight Program Summary, TSA will require covered
aircraft operators to transmit all available SFPD 72 hours before the
scheduled departure of the flight and for reservations made within 72
hours, and other SPFD as soon as they become available. Under the APIS
Pre-Departure rule, CBP requires commercial air carriers to transmit
APIS information 30 minutes before the securing of the aircraft door if
the transmission is a batch transmission and up to the securing of the
aircraft doors for AQQ transmissions.
While both rules will be used in our nation's fight against
terrorism, the two rules have somewhat different purposes. The purpose
of the APIS rule is to protect our nation's borders by evaluating the
risk associated with passengers entering or leaving the United States.
Generally, CBP conducts this analysis prior to passengers arriving in
or departing the United States, to ensure more efficient and
expeditious processing of legitimate travelers. By the time passengers
arrive into the United States, CBP has completed its analysis and
determined the appropriate operational response when the passengers
present themselves to the CBP officer.
The purpose of the Secure Flight program is to protect aviation
security by conducting watch list matching of the names of passengers
and non-travelers. TSA must complete its watch list matching prior to
the individuals' receiving a boarding pass or
[[Page 64030]]
authorization to enter a sterile area. Many passengers prefer to obtain
their boarding passes 24 hours before departure. By receiving the SFPD
72 hours before departure, TSA will be able to allow the majority of
passengers to obtain their boarding passes 24 hours in advance.
DHS' goal is to consolidate the watch list matching process into
the Secure Flight program, including the timing of the transmission of
passenger information for watch list matching. The watch list matching
component of the APIS Pre-Departure final rule is an interim solution
until such time that the Secure Flight program can assume
responsibility for watch list matching for international flights.
Although CBP requires that aircraft operators send batch transmission
no later than 30 minutes before the securing of the aircraft doors, it
allows and encourages aircraft operators to transmit the passenger
information as early as 72 hours before the flight. As stated below in
the excerpt from the APIS Pre-Departure final rule, CBP and DHS
recognized that earlier transmission of the data benefits the aircraft
operators and the passengers, including reducing the risk that
passengers may miss their flights while TSA conducts further analysis.
Advance transmissions will enable earlier vetting by CBP and
earlier issuance of boarding passes by carriers if warranted by
vetting results, relieving the pressure that a high volume of later
transmitted data could have on the carriers' operations. DHS
believes that earlier transmissions, though not required, would be
to the carriers' advantage and encourages carriers to adopt it as a
best business practice.
* * * * *
In addition, carriers have requested that CBP allow manifest
data transmissions as early as 72 hours prior to departure. CBP
agrees that such early transmissions, which DHS encourages carriers
to adopt as a best business practice, would generate early vetting
results, subject to later validation by the carrier (swiping of
passport or other travel document or examination of document by
carrier personnel), and allow early issuance of boarding passes,
resulting in fewer passengers to be vetted within the 30-minute
window and a reduced risk of passengers missing their flights while
further vetting is conducted. APIS Pre-Departure final rule, 72 FR
at 48323, 48329.
Comment: Some commenters suggested that TSA did not fulfill the aim
of the ``One DHS Solution,'' because Secure Flight would create a
process for watch list matching that differs from the process already
under implementation by the airlines for APIS Pre-Departure programs
and systems. These commenters suggested that the Secure Flight
requirements would obstruct processing recently put into place and
require further investments by the covered aircraft operators to update
systems and processes. Several aircraft operators requested that Secure
Flight further align the two programs. Specifically, aircraft operators
suggested that Secure Flight require the same data elements and data
transmission timeframe as APIS in order to avoid the time and cost
associated with updating their systems twice. Several commenters also
requested that TSA align requirements with CBP so that aircraft
operators are only required to submit one data transmission to DHS and
receive one response in return.
TSA Response: TSA has worked with CBP to align the Secure Flight
and APIS Pre-Departure programs and systems. TSA and CBP jointly
created the Consolidated User Guide to standardize requirements and
minimize the impact to aircraft operators. In the Consolidated User
Guide, TSA provided additional clarification that describes the
technical and operational guidance for both programs.
Under the CBP APIS Pre-Departure final rule, aircraft operators are
required to send APIS data for international flights to CBP. Secure
Flight requires that covered aircraft operators provide SFPD to TSA as
outlined in this final rule.
Secure Flight will not necessarily require multiple data
transmissions to and responses from DHS. Covered aircraft operators may
transmit both APIS data and SFPD in a single transmission to the DHS
portal, which will route information to TSA and CBP as appropriate.
These covered aircraft operators will receive a single boarding pass
printing result in return.
CBP described the procedures for when aircraft operators submit
APIS data prior to a passenger's presenting his or her travel document
at the airport in its APIS Pre-Departure final rule:
[T]he CBP system has the ability to accept certain passenger
data up to 72 hours in advance, including APIS data. Such very early
transmissions would be more likely under either of the batch
transmission options, as AQQ transmissions are more likely to occur
in closer proximity to the time or day of the flight. However, as
mentioned previously, any early ``cleared'' vetting result obtained
in this process is considered provisional by CBP until the passport
or other travel document is validated, either by the swiping of the
travel document's machine-readable zone or through manual
verification by the carrier. Successful validation by the carrier of
any passenger holding a provisional boarding pass as herein
described (i.e., based on early data transmission and early receipt
of a ``cleared'' response) requires that the APIS passenger data
checked during validation be identical to the passenger data
transmitted early to obtain the boarding pass. Where the data
transmitted differs from data presented at validation, the carrier
must transmit the new data and obtain vetting clearance on that
data. Until that occurs, the carrier may not allow the passenger to
board. 72 FR at 43822.
Additionally, for reservations made within 72 hours of scheduled
flight departure time, covered aircraft operators must transmit SFPD as
soon as possible. If the covered aircraft operator is also ready to
transmit APIS information at that time, the covered aircraft operator
will be able to send one transmission for both Secure Flight and APIS
and will receive one boarding pass printing result. If the covered
aircraft operator is not ready to transmit passenger data under the
APIS Pre-Departure final rule at the same time, the covered aircraft
operator must transmit the passenger information separately for Secure
Flight and APIS.
Once TSA assumes responsibility under Secure Flight for the watch
list matching function for the majority of passengers covered by the
APIS Pre-Departure final rule, the CBP system will no longer be
responsible for pre-departure watch list matching or the issuance of
related boarding pass printing results for covered flights.
Consequently, covered aircraft operators will receive, and will have to
comply with, one result from DHS through TSA regarding the issuance of
boarding passes to, or the boarding of passengers on, covered
international flights. CBP will, however, continue to require carriers
to provide APIS data to carry out its border enforcement mission, and
the timing of that transmission will follow that of the Secure Flight
program, rather than APIS.
Comment: TSA received several comments indicating confusion
regarding how aircraft operators will determine the final boarding pass
printing result and which program, APIS or Secure Flight, will provide
that result throughout different phases of the program.
TSA Response: DHS plans to implement watch list matching in stages.
Initially, the CBP system will take over watch list matching for all
commercial flights into and out of the United States through the APIS
Pre-Departure program, and aircraft operators will continue to conduct
watch list matching for domestic flights. In the first phase of Secure
Flight, TSA will conduct watch list matching for all covered U.S.
aircraft operators' domestic flights under the Secure Flight Program.
The CBP system will continue to
[[Page 64031]]
conduct watch list matching for international flights into and out of
the United States.
In the second phase of Secure Flight, TSA will begin to conduct
watch list matching for covered aircraft operators' flights that
overfly the continental United States. Also in phase two, watch list
matching for the remaining covered aircraft operator international
flights will be transitioned from the CBP system to TSA under the
Secure Flight program. During phase two, if an itinerary contains an
international flight on a foreign-based aircraft operator covered by
the APIS Pre-Departure final rule with a connecting domestic code share
flight on a covered U.S.-based aircraft operator, the aircraft operator
will transmit one set of data to DHS and receive one boarding pass
printing result. The aircraft operator must comply with this boarding
pass printing result. As discussed above, the timing of the aircraft
operator's transmission of data to DHS will follow CBP's schedule under
the APIS Pre-Departure final rule, until such time as Secure Flight
assumes responsibility for international flights under phase two.
C. Implementation and Compliance
Comment: TSA received several comments objecting to the NPRM's
requirement that covered aircraft operators comply with the rule within
60 days after the Secure Flight final rule's effective date, or 120
days after publication of the final rule in the Federal Register. TSA
also received comments that 30 days after the effective date for
submission of the AOIP does not provide covered aircraft operators with
sufficient time to develop the AOIP. Several commenters proposed
various alternatives. Many commenters suggested that Secure Flight
align its compliance schedule with CBP's APIS Pre-Departure final rule,
which is 180 days from publication of the final rule in the Federal
Register. Another commenter suggested that TSA provide an 18-month
compliance schedule for covered aircraft operators.
TSA Response: Based on the comments received on this issue, TSA
agrees that full implementation of the collection and data transmission
requirements in Sec. 1560.101 within 120 days of publication of this
final rule in the Federal Register may be difficult, if not impossible,
for several covered aircraft operators. Consequently, TSA is changing
the implementation timing requirements in Sec. 1560.101 to allow for
greater flexibility in implementing the various elements of the Secure
Flight program.
Also, TSA is modifying the AOIP adoption process that was
originally proposed in the NPRM. Because the primary purpose of the
AOIP is to set forth a schedule for compliance with elements of the
Secure Flight program for each covered aircraft operator, TSA believes
that it is appropriate for TSA, rather than the covered aircraft
operator, to develop the AOIP. Therefore, under the final rule, TSA
will assume responsibility for drafting the AOIP for each covered
aircraft operator and will notify each covered aircraft operator of the
proposed AOIP for the covered aircraft operator.
After receiving the proposed AOIP from TSA, the covered aircraft
operator will have 30 days to submit written comments on the proposed
AOIP to TSA's designated official. This designated official will review
the covered aircraft operator's comments and other relevant materials.
After consideration of the written submission, the designated official
will notify the covered aircraft operator of the AOIP. The AOIP will be
effective not less than 30 days after notice is given, unless the
covered aircraft operator petitions the designated official or the
Assistant Secretary for reconsideration of the AOIP. In no case will an
AOIP become effective prior to the effective date of the final rule.
When TSA sends the covered aircraft operator their final AOIP, the
covered aircraft operator may petition the designated official or the
Assistant Secretary for reconsideration of the AOIP no later than 15
days before its effective date. A timely reconsideration petition will
stay the effective date of the AOIP. TSA will amend, affirm, or
withdraw the AOIP within 30 days of receipt of the petition for
reconsideration.
Many commenters stated that TSA did not provide sufficient time for
covered aircraft operators and third party agents to make all the
necessary technological and process changes to satisfy the requirements
of the Secure Flight program. To address this concern, TSA is not
requiring covered aircraft operators to be capable of collecting and
transmitting all of the SFPD elements at the same time. Instead, TSA
will allow them to implement the individual SFPD elements in phases.
TSA is not specifying in the rule text the dates by which covered
aircraft operators must be capable of collecting and transmitting the
different data elements in the SFPD. The covered aircraft operator's
AOIP will set forth these specific dates. By including the specific
implementation dates in the AOIP, TSA and covered aircraft operators
will have flexibility to develop a compliance schedule that satisfies
TSA's security needs to implement Secure Flight expeditiously while
taking into account the covered aircraft operators' operations and
technology.
The first SFPD element that covered aircraft operators will likely
be able to provide is a passenger's full name. Because covered aircraft
operators and third party agents currently collect the name as part of
their business practice, TSA expects that they will have little
difficulty collecting and transmitting full name within 120 days of
publication of this final rule in the Federal Register. Covered
aircraft operators will implement the other SFPD elements such as
gender and date of birth in subsequent months in accordance with the
AOIP. This approach will allow covered aircraft operators to make their
technological changes gradually. However, covered aircraft operators
may choose to make all their system changes for the Secure Flight
program at the same time provided that the covered aircraft operators
are capable of collecting and transmitting the full name within 120
days of publication of the final rule in the Federal Register.
TSA anticipates that covered aircraft operators will be capable of
collecting and transmitting all of the SFPD elements within nine months
of final rule publication in the Federal Register, because many covered
aircraft operators have already made changes to comply with CBP's APIS
Pre-Departure data submission requirements. TSA expects that these
covered aircraft operators would be able to use much of the data
submission and formatting system functions that they already execute. A
small number of covered U.S. aircraft operators do not have
international flights and, therefore, did not have to make any changes
to comply with the APIS Pre-Departure final rule. TSA anticipates that
the majority of the remaining covered U.S. aircraft operators that do
not have international routes will use the web-based alternative data
transfer mechanism. TSA will assist all covered aircraft operators in
their efforts to comply with the Secure Flight requirements.
The AOIP also will set forth the implementation schedule for other
aspects of the Secure Flight program such as when the covered aircraft
operators will begin transmitting SFPD for covered international
flights. Establishing the implementation schedule within the AOIP
framework allows for some flexibility with implementation dates, taking
into consideration both TSA security needs
[[Page 64032]]
and the covered aircraft operators' technological capabilities.
Comment: TSA received several comments regarding the Secure Flight
implementation phases. One commenter requested clarification as to when
foreign air carriers and international flights would be covered in the
second phase. One aircraft operator requested a single implementation
date for Secure Flight on the ground that it would be less expensive
for the aircraft operators than the proposed phased implementation.
Many aircraft operators offered suggested implementation timeframes and
strategies, including a suggestion to ``pilot'' Secure Flight with one
or two covered foreign air carriers in order to work out any software
and operational issues.
TSA Response: TSA will conduct extensive testing to confirm and
validate the Secure Flight watch list matching results, including
benchmark testing with voluntary aircraft operators and a period of
parallel testing with covered aircraft operators. TSA plans to resolve
software and operational issues during the various phases of testing
with participating aircraft operators and will only implement Secure
Flight once these issues are resolved. TSA and covered aircraft
operators will conduct the extensive testing prior to TSA assuming
responsibility for watch list matching and may face operational issues
in implementing Secure Flight after testing. Consequently, TSA believes
that Secure Flight should be implemented in phases to ensure that the
implementation process occurs as smoothly as possible and to minimize
disruption of covered aircraft operators' operations and inconvenience
to their passengers.
TSA will begin by implementing Secure Flight for U.S. domestic
flights operated by aircraft operators required to have a full security
program under 49 CFR 1544.101(a) after a period of parallel testing
with all covered aircraft operators. The second implementation phase
will include covered aircraft operators' flights that overfly the
continental United States. TSA will determine the timing of
implementing Secure Flight for covered flights that fly to and from the
United States after TSA assumes the watch list matching
responsibilities for covered U.S. aircraft operators' covered domestic
flights. The exact implementation dates for covered aircraft operators
will be in their AOIP.
Comment: One commenter observed that TSA developed the Secure
Flight program tailored for covered U.S. aircraft operators. The
commenter is concerned that TSA, in developing Secure Flight, did not
take into account the different systems that foreign air carriers use
for their reservation and document control systems.
TSA Response: TSA is aware of the existing differences between
international and domestic systems and business processes. Secure
Flight is working with covered foreign carriers to determine the best
way to address these differences during the implementation of the
Secure Flight program.
Comment: TSA received one comment that stated, ``Airlines should be
given not less than 60 days notice of the known traveler collection
requirement and that travel agents should receive no less than 55 days
notice. This approach gives the airlines an ample five days to
communicate the requirement to travel agents.''
TSA Response: TSA understands the concern regarding the
coordination of aircraft operator and travel agent systems to allow for
entry of the Known Traveler Number. TSA believes that any programming
that is required to comply with the Secure Flight implementation should
be sufficient to capture Known Traveler Number when it becomes
available. Thus, TSA believes that 30 days' notice should be sufficient
notification for the inclusion of the Known Traveler Number.
D. Secure Flight Passenger Data (SFPD)
1. General
Comment: One commenter stated that the U.S. government failed to
demonstrate how the scope of the information being required is
necessary to carry out the mandate of the Secure Flight program.
TSA Response: TSA has chosen a limited data set for use in watch
list matching. Based on automated watch list matching test results, TSA
has determined that it will be able to complete watch list matching for
the vast majority of individuals based on full name, date of birth, and
gender. As discussed below, the additional data elements may clear
individuals whose names indicate that they are potential matches to
individuals on the watch list. The data elements in the SFPD will help
prevent passenger misidentification and will allow TSA to more
effectively and consistently prevent certain known or suspected
terrorists from boarding aircraft.
Comment: A commenter stated that the Redress Number, the Known
Traveler Number, the Reservation Control Number, the Record Sequence
Number, Record type, Passenger update indicator, and the Traveler
Reference Number are passenger identifier codes that are used to access
subsets of individual passenger information and are most used for
customer service purposes such as special needs request. The commenter
questioned the need for TSA to obtain these subsets of individual
passenger information.
TSA Response: TSA will use the Redress Number and the Known
Traveler Number to attempt to distinguish a person who has been
identified as a potential match to the watch list from an individual on
the watch list. TSA will use the other numbers listed in the comment to
manage the SFPD as they are transmitted to and from TSA and are
processed through Secure Flight to ensure that results are matched
correctly with the appropriate SFPD and that results are transmitted to
covered aircraft operators timely and accurately. Under the Secure
Flight program, covered aircraft operators will transmit or ``push''
SFPD to TSA and TSA will not access or ``pull'' information from the
covered aircraft operators'' systems. Thus, TSA will not use the
numbers to pull the subsets of individual passenger information from
the covered aircraft operators' systems.
Comment: TSA received one comment expressing a concern that
domestic passengers may be required to submit the same data that is
required for international flights.
TSA Response: TSA will require covered aircraft operators to
request a passenger's full name, gender, date of birth, and Redress or
Known Traveler Number (if known). Unlike flights subject to APIS Pre-
Departure, TSA will not require covered aircraft operators to request
or collect passport information from individuals. However, if covered
aircraft operators collect passport information for passengers, then
they must transmit that information to TSA. For example, if a passenger
has a flight itinerary that includes a domestic flight that connects to
an international flight, the passenger may provide passport information
along with his or her full name, date of birth, and gender when he or
she purchases a ticket for the domestic and international flights. In
this situation, the covered aircraft operator must transmit the
passport information to TSA along with the other data elements in the
SFPD.
Comment: TSA received several comments requesting clarification of
the term ``passenger,'' and whether the term includes crew members who
are not on duty.
TSA Response: TSA is changing the definition of ``passenger'' as
proposed in the Secure Flight NPRM to exclude employees of aircraft
operators who are identified as crew members on the
[[Page 64033]]
manifest for that flight. TSA's Crew Vetting program conducts watch
list matching of individuals who are on the manifest as crew
members.\22\ The Secure Flight program will conduct watch list matching
of all other employees, including crew members traveling as passengers
and not identified as crew on the manifest.
---------------------------------------------------------------------------
\22\ The Crew Vetting program vets airline crews entering,
departing, or flying over U.S. airspace against terrorist-related
information to determine if they are a potential threat to the
aviation system. It uses computerized risk analysis and manual
review of automated vetting results and matching analysis (Vetting
Operations) to assess and evaluate potential threats of terrorists
posing as cleared aviation or other transportation system personnel.
The Crew Vetting program maintains a 24/7 operations center to
receive and analyze Flight Crew Manifests (FCM) and Master Crew List
(MCL) from the airlines throughout a 24-hour period. These
individuals are then vetted against the various watchlists to
identify potential security threats prior to an aircraft receiving
authorization for departure.
---------------------------------------------------------------------------
Comment: A commenter was concerned about Secure Flight's impact on
travelers engaged in unique religious and cultural activities.
TSA Response: TSA appreciates and respects both religious and
cultural diversity. As such, the Secure Flight program will match
travelers to entries on the TSDB without prejudice, placing no specific
emphasis on any particular religion. With this approach, the limited
information that individuals must provide, and the ability of the
Secure Flight program to respond to last minute SFPD transmissions, the
Secure Flight program is not likely to impact unique religious and
cultural activities.
Comment: Several commenters requested clarification on the
requirement for an aircraft operator to validate the underlying
accuracy of the collected passenger information on covered domestic
flights or non-traveler information.
TSA Response: The Secure Flight final rule mandates that covered
aircraft operators request SFPD, but that they need not validate the
accuracy of that information beyond rules currently governing
verifications of biographic data of international passengers. TSA would
not hold a covered aircraft operator responsible or subject the
aircraft operator to enforcement action if the information provided by
a passenger is found to be inaccurate unless the covered aircraft
operator knowingly provided the inaccurate information to TSA.
Comment: TSA received one comment that requested clarification on
how to record consumer refusals to provide optional SFPD.
TSA Response: TSA does not require a record of an individual's
refusal to provide optional elements of the SFPD when the covered
aircraft operator initially requests the information.
Comment: A commenter expressed concern that TSA may change the
required data elements in the SFPD after operational testing because
covered aircraft operators will have already made system changes based
on this final rule by the time they undergo operational testing.
TSA Response: TSA understands this concern based on the Secure
Flight NPRM. The SFPD elements in this final rule will not change as a
result of operational testing.
Comment: Several comments requested that TSA clarify SFPD
transmission requirements and the format for full name, date of birth,
and gender in the final rule. Several commenters requested that all
formats be standardized to ensure ease of collection and transmission
to TSA.
TSA Response: TSA developed transmission requirements and the
standard formats for the SFPD elements in the Consolidated User Guide.
TSA will provide the Consolidated User Guide to all covered aircraft
operators.
2. SFPD Is Not Passenger Name Record (PNR)
Comment: TSA received comments expressing concern about the
potential improper use of a Passenger Name Record (PNR). Many
commenters mistakenly believed that SFPD is PNR or a subset of PNR. TSA
also received a comment stating that PNR is already provided to CBP 72
hours prior to departure and should be sufficient for extraction by TSA
for Secure Flight watch list matching.
TSA Response: TSA is not requiring covered aircraft operators to
submit PNR, and TSA will not have direct access to PNR. Instead, TSA is
requiring covered aircraft operators to submit SFPD which is a separate
set of data elements. Covered aircraft operators may chose to extract
the data elements from the PNR to create the SFPD for operational
reasons. TSA, however, is not mandating that they do so nor is it
mandating where covered aircraft operators store SFPD. Covered aircraft
operators may choose to create a separate system to collect and store
SFPD. CBP has access to PNR under a separate regulatory requirement.
Comment: A commenter expressed concern that TSA will require
covered aircraft operators to include an individual's nationality in
the PNR that would be transmitted to the Secure Flight program.
TSA Response: As stated above, TSA is not requiring covered
aircraft operators to include any information in the PNR or to send PNR
to the Secure Flight program. Furthermore, TSA is not requiring covered
aircraft operators to request or to collect an individual's
nationality.
3. Date of Birth and Gender
Comment: TSA received several comments regarding the inclusion of
date of birth and gender as SFPD elements. Some commenters supported
date of birth and gender becoming mandatory data elements. One
commenter argued that unless TSA mandates the collection of this
additional information, many passengers would not be cleared by TSA.
Another commenter supported making both elements mandatory, but
objected to collecting this data at the time of booking. Other
commenters opposed TSA requiring individuals to provide date of birth
and gender. Another commenter sought clarification on whether
individuals must provide any information other than full name.
TSA Response: Through careful consideration of the public comments
and both privacy and security concerns, TSA has concluded that it will
require full name, date of birth, and gender from individuals under
Sec. 1540.107(b). It is expected that these data elements in
combination will be sufficient to conduct watch list matching for the
vast majority of individuals and to distinguish more persons from
individuals on the watch list as part of the automated process reducing
instances of misidentification. Reducing misidentification is an
important program goal mandated by Congress and collection of all three
data elements is an important step in reaching that goal.\23\
---------------------------------------------------------------------------
\23\ Section 518(a) of the Department of Homeland Security
Appropriations Act, 2006, Pub. L. 109-90 (Oct. 18, 2005) (2006 DHS
Appropriations Act), requires DHS to certify and purports to require
GAO to report that TSA satisfies 10 conditions before TSA may deploy
Secure Flight other than on a test basis. One of the conditions is
the Secure Flight system ``will not produce a large number of false
positives that will result in a significant number of passengers
being treated mistakenly * * *.'' Cf. INS v. Chadha, 462 U.S. 919
(1983).
---------------------------------------------------------------------------
Comment: TSA received several comments requesting that TSA require
covered aircraft operators only to request date of birth and gender if
a person is not cleared by submitting only their full name.
TSA Response: TSA believes that by requiring the airlines to ask
for and passengers to provide the data elements at time of original
submission, TSA can make a determination about the boarding pass
printing result quickly and efficiently. There would be no need
[[Page 64034]]
for a second transmission that may necessitate the individual going to
the ticket counter.
Comment: TSA received one comment requesting that TSA eliminate the
gender requirement from SFPD information and instead require passengers
to submit information regarding their ethnicity, race, or national
origin.
TSA Response: Many names are gender neutral. Additionally, names
not derived from the Latin alphabet, when translated into English, do
not generally denote gender. Providing information on gender will
reduce the number of false positive watch list matches, because the
information will distinguish persons who have the same or similar name.
Consequently, TSA is including gender as a required element of the
SFPD, which covered aircraft operators must request from individuals
and which individuals must provide to the covered aircraft operator.
TSA disagrees that ethnicity, race, or national origin should be
included in SFPD information provided by passengers of covered aircraft
operators and certain non-travelers seeking access to the sterile area
of a U.S. airport. Secure Flight matches names of passengers to entries
on the TSDB without prejudice or regard to an individual's race,
ethnicity, or national origin.
4. Redress Number and Known Traveler Number
Comment: TSA received several comments requesting that the final
rule clarify the handling of Redress Numbers and Known Traveler
Numbers. Some commenters expressed opposition to the Secure Flight
requirement for requesting these two numbers.
TSA Response: Individuals who believe they have been incorrectly
delayed, identified for enhanced screening, denied boarding, or denied
access to a U.S. airport's sterile area may apply for redress through
DHS TRIP. DHS will assign a unique Redress Number to each individual
who uses DHS TRIP. Individuals who have already undergone TSA's redress
process do not need to use DHS TRIP to reapply for redress once the
Secure Flight program is operational. Individuals will be less likely
to be delayed by misidentification as a match to the watch list if they
provide their Redress Number at the time they make a flight reservation
or request access to a U.S. airport's sterile area. While TSA requires
that each covered aircraft operator request a Redress Number, TSA does
not require individuals to provide a Redress Number when making a
reservation for a covered flight.
TSA intends to develop and implement the Known Traveler Number as
part of the Secure Flight program. Like the Redress Number, the Known
Traveler Number is a unique number assigned to ``known travelers'' for
whom the Federal government has already conducted terrorist security
threat assessments and has determined do not pose a terrorist security
threat. The Known Traveler Number may draw upon information from
programs such as the Transportation Worker Identification Card program.
Once TSA has determined the details of the Known Traveler Number
program, it will inform covered aircraft operators that they must begin
to request and transmit the number, if provided by the individual. The
covered aircraft operators must do so in the time specified in their
AOIP.
Similar to other optional information, TSA will not compel
individuals to provide a Redress Number or a Known Traveler Number upon
request from the aircraft operator. Without either of these numbers,
the individual may be more likely to experience delays, be subjected to
enhanced screening, be denied boarding, or be denied access to a U.S.
airport's sterile area.
Comment: TSA received several comments indicating support for the
development and implementation of the Known Traveler Number. TSA also
received several comments against the requirement for Known Traveler
Number as they claim it would be redundant. Several commenters also
suggested integration of the Known Traveler Number with existing
registered traveler schemes and with future plans between the U.S. and
other foreign governments. They suggested that TSA relate Known
Traveler Numbers for other groups of individuals, including those with
national security clearances or members of the U.S. or foreign
governments. Another commenter suggested that the name of the Known
Traveler Number be changed to ``Cleared Passenger Number'' to more
accurately identify those individuals who participate in the program.
TSA Response: TSA assures these commenters that all possible
solutions for the Known Traveler Number will be considered during
development efforts. At this time, however, TSA is unable to comment on
whether the Known Traveler Number will be fully integrated with
existing credentialing programs or future domestic or international
programs. Although ``Cleared Passenger Number'' is a possible alternate
name, TSA prefers ``Known Traveler Number'' because the number is
assigned to individuals ``known'' to the government through the
credentialing program. Finally, TSA has not determined which
individuals or programs will be included under the Known Traveler
Number but will continue to consider the proposed inclusion of certain
groups.
Comment: A commenter questioned whether or not TSA would continue
to conduct watch list matching for known travelers. The commenter
argued that if this watch list matching does occur, it would be
redundant and unnecessary.
TSA Response: TSA intends to continue to conduct watch list
matching for individuals who provide a Known Traveler Number for
covered flights to ensure that the individuals' Known Travel Numbers
have not expired or been revoked.
Comment: A covered aircraft operator stated that it will not be
able to request the Known Traveler Number from passengers who made
their reservation before TSA issued the 30-day written notice to them.
TSA Response: TSA will not require covered aircraft operators to
request the Known Traveler Number for reservations made before TSA
implements the Known Traveler Number program.
Comment: TSA received several comments regarding the requirement in
proposed Sec. 1560.101(a) prohibiting covered aircraft operators from
accepting a reservation from an individual who did not provide all the
required information at the time of booking. The commenters provided
examples such as when an individual or a tour operator is making a
reservation for a large group and does not have access to every
individual's full name or passport information.
TSA Response: The reason for proposed Sec. 1560.101(a) was to
ensure that the Secure Flight program receives full names to conduct
effective watch list matching. TSA does not intend for the Secure
Flight program to impact current business practices regarding the
blocking of group space without complete passenger information. TSA is
changing the language in proposed Sec. 1560.101(a) to provide that
covered aircraft operators may not submit a SFPD for an individual
until the individual provides his or her full name, date of birth, and
gender; the regulation does not prohibit covered aircraft operators
from accepting a reservation without a full name, date of birth, and
gender. Once a covered aircraft operator receives the full name, date
of birth, and gender associated with the blocked or group space, the
aircraft
[[Page 64035]]
operator must transmit that SFPD to TSA in accordance with this final
rule. Additionally, TSA has designed the data transmission processes to
receive changes and updates to these data elements.
This change will still ensure that individuals do not receive a
boarding pass or authorization to enter a sterile area without TSA's
conducting watch list matching based on a full name, date of birth, and
gender at a minimum. Also, the only data elements that passengers must
provide are full name, date of birth, and gender; other optional
information, such as passport information, does not need to be included
as part of the SFPD.
E. Watch List Matching Process
1. Transmission of SFPD
Comment: Numerous airlines commented that Secure Flight requires
data not currently contained in the airlines' systems or incorporated
in the UN-EDIFACT message standards. The UN-EDIFACT is the
international electronic data interchange (EDI) standard developed
under the United Nations for inter-industry electronic interchange of
business transactions. Many commenters expressed concern that the
requirements for collection and transmission of SFPD do not follow
international standards.
TSA Response: TSA recognizes that programming will be required to
add additional data to airline systems, but TSA has diligently limited
the data requested to the minimum required to support the security
processes and to provide the transactional support required for
airlines to apply the boarding pass printing result provided by Secure
Flight. As part of the implementation of APIS Pre-Departure, CBP has
defined the additional fields for UN-EDIFACT transmissions and the
Secure Flight program will use that message format. DHS has identified
and harmonized the modifications to UN-EDIFACT messaging standards for
these additional data with those required for APIS Pre-Departure
systems. TSA will coordinate with the appropriate worldwide standards
bodies, as required.
Comment: Several commenters expressed concern that Secure Flight
would be unable to efficiently process the transactions resulting from
airline passenger travel, especially during periods of irregular
operations and passenger re-accommodation.
TSA Response: TSA understands the need for Secure Flight to
efficiently process transactions, especially during periods of
irregular operations and passenger re-accommodations. In developing
Secure Flight, TSA has accounted for the additional transmission volume
associated with changes in passenger travel information, resolution of
boarding pass printing results, and changes caused by irregular
operations or passenger re-accommodation. All of these factors
contributed to the design decision to require that covered aircraft
operators provide available SFPD 72 hours in advance of flight
departure. This advance booking information allows Secure Flight to
increase real time resources available to respond to off schedule
operations and passenger re-accommodation and to process SFPD for
passengers who make reservations within 72 hours of the scheduled
departure of the flight.
Comment: One aircraft operator commented that TSA should not
dictate when, and from which system, the airline sends SFPD to TSA.
TSA Response: TSA does not specify the system from which a covered
aircraft operator must transmit SFPD, and covered aircraft operators
may choose the appropriate system from which to transmit SFPD. However,
obtaining passenger data in advance is an integral part of the Secure
Flight watch list matching process; it is designed to optimize the
number of boarding pass printing results available to the covered
aircraft operator prior to passenger check-in. The rule specifies that
a covered aircraft operator must submit the SFPD to TSA beginning 72
hours before departure or as soon as it becomes available.
Comment: Several airlines expressed concern that the Secure Flight
response time would adversely affect their passenger check-in processes
and levels of customer service.
TSA Response: Secure Flight's requirement for advance transmission
of SFPD is designed to provide a boarding pass printing result prior to
passenger check-in. Secure Flight has made considerable investments to
ensure a prompt response.
Comment: Several airlines and airline associations expressed
concern that even a short outage of the Secure Flight system would
severely impact airline operations.
TSA Response: TSA designed Secure Flight technical operations with
geographic and component redundancy to provide for continuous,
uninterrupted operations. Covered aircraft operators will receive
boarding pass printing results for a majority of passengers beginning
72 hours before flight departure. TSA believes the number of
individuals affected by a significant short term outage with multiple
redundancy failures would be comparatively small and likely limited to
those passengers making last minute reservations or changes. The
Consolidated User Guide includes a comprehensive plan to address
processes and procedures for outages.
2. 72-Hour Requirement
Comment: TSA received several comments about the requirement to
submit SFPD to Secure Flight beginning 72 hours before departure and
the potential impact to travelers who make last minute reservations or
changes.
TSA Response: Secure Flight will perform watch list matching on all
reservations for covered flights operated by covered aircraft operators
regardless of when the reservation is made. TSA is not requiring that
individuals make their reservations or purchase tickets 72 hours or
more before departure. In this final rule, TSA describes two scenarios
whereby a covered aircraft operator must submit SFPD to Secure Flight.
The first is when a covered aircraft operator accepts a reservation
with a full name, date of birth, and gender earlier than 72 hours
before departure. In this situation, the covered aircraft operator must
transmit the SFPD to Secure Flight 72 hours in advance of departure.
The second scenario occurs when a covered aircraft operator accepts a
reservation within 72 hours of departure, updates a TSA-requested SFPD
within 72 hours of departure, changes a flight within 72 hours of the
departure time, or seeks to authorize individuals to enter a sterile
area upon arrival at the airport. For those reservations or requests,
the covered aircraft operator must transmit the SFPD to Secure Flight
as soon as the SFPD is available.
Comment: TSA received several comments from covered aircraft
operators who indicated that they have two systems: A reservation
system and a departure control system (DCS). These commenters,
predominantly covered foreign air carriers, are concerned that Secure
Flight does not take into account that their reservations system does
not store all SFPD elements and that their DCS often captures SFPD
elements at check-in when the individual's passport is swiped. Several
comments noted that covered aircraft operators would incur costs to
program their reservation systems to accept SFPD. Some covered aircraft
operators indicated that they cannot transmit UN-EDIFACT messages from
their reservations system; they can only be transmitted from their DCS.
Many commenters also expressed concern that TSA will return a boarding
pass printing result to the incorrect
[[Page 64036]]
system, and passengers may experience difficulties in obtaining a
boarding pass.
TSA Response: TSA understands the concerns raised by these covered
aircraft operators. The Secure Flight program is developing a solution
for covered aircraft operators that have separate reservations systems
and DCS as described in the comments. The solution will support the
covered aircraft operators' systems as well as the transmission and
boarding pass printing requirements in this final rule.
Comment: TSA received several comments questioning TSA's
requirement that SFPD transmission begin 72 hours in advance
considering that CBP is willing to accept data up to departure time.
TSA Response: TSA considered a number of factors in determining
that covered aircraft operators should submit SFPD to TSA beginning 72
hours before departure time. The CBP system will conduct watch list
matching only for covered flights that involve a flight to or from the
United States. When TSA assumes watch list matching, the Secure Flight
program will conduct the watch list matching for (1) all flights
conducted by U.S. aircraft operators (including flights between two
international points); (2) flights operated by foreign air carriers
that fly to or from the United States or overfly the United States; and
(3) non-travelers who are seeking authorization to enter a sterile
area. While TSA believes that the automated process alone for vetting
this significantly larger population of travelers may not take 72
hours, several factors that suggest a 72-hour lead time is appropriate.
These include the volume of data involved, the increase in records
requiring a manual review due to a potential match or an insufficient
amount of information to differentiate someone from an individual on
the watch list, and the time required to coordinate an operational
response when necessary.
By requiring covered aircraft operators to transmit available SFPD
72 hours prior to departure, TSA will be able to prioritize SFPD by
departure time. This prioritization will permit TSA to return boarding
pass printing results for the vast majority of passengers in time for
them to print their boarding passes 24 hours in advance of their
flights while also returning boarding pass printing results for
individuals who make reservations within 72 hours of the scheduled
departure in time for them to obtain their boarding passes prior to the
scheduled departure.
TSA understands that a certain amount of expense is involved in
making programming changes for Secure Flight. TSA believes, however,
that the security benefit to covered aircraft operators and passengers
is such that the 72 hour requirement is a necessity.
Comment: A few commenters expressed concern that there will still
be a number of changes to reservations within the 72 hour period that
will require messaging back and forth between the covered aircraft
operator and TSA. The commenters suggest that reducing the time from 72
hours to something less than 72 hours will reduce the need for such
messages.
TSA Response: TSA believes that, on average, an overwhelming
majority of reservations become stable at 72 hours before departure
time. However, TSA understands that there are still some reservations
that continue to change within the 72 hour period. As explained above,
TSA believes that the security benefits to covered aircraft operators
and passengers of providing SFPD for passengers who have made their
reservations more than 72 hours before departure time are important
enough to require this timeframe.
3. Boarding Pass Issuance
Comment: Several commenters argued that prohibiting covered
aircraft operators from issuing a boarding pass until they receive a
boarding pass printing result from TSA would unnecessarily impact the
check-in of connecting passengers, specifically those inbound to the
United States who are connecting/transferring through airports outside
of the United States.
TSA Response: In the United States, the boarding pass is used to
designate to personnel at the security checkpoint whether passengers
are permitted to enter the sterile areas and whether passengers must
first undergo enhanced screening. TSA recognizes that, outside the
United States, access and enhanced screening are determined by the
applicable operating authority of the airport. In some international
airports, passengers may transit from one international flight to
another where the flights are operated by different aircraft operators;
only the second flight would be covered under this final rule. TSA
understands that currently, in these situations, the aircraft operator
operating the first, non-covered flight may issue a boarding pass for
both legs of the passenger's itinerary, including the covered flight to
the United States.
Accordingly, TSA has modified Sec. 1560.105(b) to allow for the
issuance of connecting boarding passes inbound to the United States for
connecting passengers without complying with the requirements regarding
boarding pass printing result in Sec. 1560.105(b). Under the Secure
Flight program, the aircraft operator operating the first, non-covered
flight is able to issue a boarding pass for the second, covered flight
without obtaining a boarding pass printing result from TSA. The second
aircraft operator, however, must submit SFPD or APIS data to DHS and
confirm the boarding pass printing results prior to permitting the
passenger to board the aircraft for the covered flight. The covered
aircraft operator must comply with the measures in its security program
to prevent the boarding of any individual who is identified as a No Fly
match by TSA and to ensure that any passenger TSA identifies as a
Selectee undergoes enhanced screening prior to boarding the aircraft.
These conditions mitigate the security vulnerability associated with
issuance of a boarding pass for covered flights outside of the Secure
Flight program. These provisions will also apply to passengers whose
connecting flight is a covered overflight.
Comment: One aircraft operator recommended that TSA eliminate the
requirement for applying the Secure Flight requirements on subsequent
connecting flights.
TSA Response: TSA believes that the elimination of the watch list
matching requirements on subsequent connecting flights is inconsistent
with the security mandate of Secure Flight. One of the benefits of the
Secure Flight program is that any update to the watch list will be
compared against all active SFPD. This update comparison will allow TSA
and the covered aircraft operators to take appropriate action regarding
any passenger whose status changes during his or her travel.
Comment: A commenter requested that TSA clarify the provision
``that carriers can choose to designate a more restrictive boarding
pass status in conjunction with other TSA or aircraft operator
procedures.'' Secure Flight NPRM at 48374.
TSA Response: Covered aircraft operators must designate passengers
for enhanced security screening for reasons unrelated to watch list
matching pursuant to a TSA security directive such as the Computer
Assisted Passenger Prescreening System (CAPPS). TSA will continue to
require aircraft operators to conduct these programs once Secure Flight
is implemented and a passenger may receive a more restrictive boarding
pass status based on the results of these other programs. Also, TSA
recognizes that covered aircraft operators may designate a more
restrictive boarding pass status
[[Page 64037]]
based on their own policies and procedures.
Comment: A few commenters supported the implementation of bar codes
on boarding passes to authenticate the boarding passes, because it will
enhance security in the sterile area. Another commenter stated that the
inability to authenticate boarding passes minimizes the benefits of the
Secure Flight program. The commenter argues that Secure Flight should
not be implemented until this security issue is adequately addressed.
TSA Response: As one commenter noted, bar codes on the boarding
pass will address the security issue of altered or fraudulent boarding
passes. TSA is developing the protocols and standards for placing a bar
code on boarding passes and the requirement for covered aircraft
operators to place the code on their boarding passes is part of this
final rule in Sec. Sec. 1560.105(b) and (c). When TSA updates the
Consolidated User Guide with the protocols and standards for the code,
covered aircraft operators must implement this requirement in
accordance with their AOIP.
Comment: Several airlines requested additional clarification on the
bar code requirements. Some commenters raised concerns that bar code
requirements would be costly to implement. Many commenters suggested
that TSA take advantage of existing bar code standards such as the
International Air Transport Association standards and business
processes. The commenters also requested more information about how TSA
would intend to use the bar code in addition to any verification
procedure.
TSA Response: TSA recognizes the importance and potential impact of
requiring bar codes to be placed on boarding passes. As stated above,
TSA believes that bar codes are an important security measure to
authenticate boarding passes. TSA is continuing to research new and
existing technologies to develop a technologically sound solution that
meets the TSA mission and budgetary requirements and minimizes impacts
to aircraft operators. TSA will take into consideration the IATA bar
code standard in developing its protocols and standards to determine
the most effective solution that meets the TSA mission.
Comment: Several commenters noted that the airline industry was
seeking alternatives to the traditional paper boarding pass. They
expressed concern that Secure Flight would hinder innovation in this
respect.
TSA Response: Secure Flight uses ``boarding pass'' to refer to an
entitlement for aircraft enplanement issued by an aircraft operator.
TSA will consider alternative means of conveying that boarding
entitlement, subject to specific requirements like bar coded
information. This final rule refers to the issuance of ``a boarding
pass or other authorization'' thereby providing for alternatives to
paper boarding passes.
Comment: TSA received comments suggesting that TSA should inform
passengers and non-traveling individuals of their boarding status at
the checkpoint, rather than send boarding pass printing results to the
covered aircraft operators.
TSA Response: TSA believes that moving this process from the
individual aircraft operators to the security checkpoint will create
unacceptably long lines at the checkpoint, will cause unnecessarily
lengthy delays for individuals who are not a potential match to the No
Fly or Selectee lists, and will cause travelers to miss flights.
Comment: TSA received comments requesting that TSA not include in
the Secure Flight program a provision for enhanced screening of
randomly selected cleared passengers.
TSA Response: TSA believes that randomly selecting individuals for
enhanced screening is an important layer of security and adds
unpredictability to the screening process. While the current CAPPS
program includes a random selection element, TSA does not anticipate
that Secure Flight will initially include a random selection element.
TSA may, however, include a random selection element to Secure Flight
as part of its continuous efforts to review and improve its screening
procedures.
Comment: One aircraft operator commented that the Secure Flight
Service Center should be adequately and continuously staffed.
TSA Response: The Secure Flight Service Center will be staffed 24-
hours a day, 7-days a week to receive telephone calls from covered
aircraft operators' staff and assist in the clearance of inhibited
passengers. If additional information such as a physical description is
required, covered aircraft operators' staff would provide that
information during a conversation with Secure Flight Service Center
personnel.
Comment: Several commenters suggested that TSA expand the period in
which boarding passes can be issued to a period greater than 24 hours
prior to scheduled flight departure.
TSA Response: While TSA appreciates that covered aircraft operators
and passengers would prefer greater advance boarding pass issuance,
expansion of the advance time period for boarding pass issuance
increases the potential that changes to the watch list will not be
correctly reflected in the traveler's boarding pass. This potential for
inaccurate boarding passes may create additional security and operation
exposure. Therefore, TSA does not plan to expand the authority to issue
boarding passes beyond 24 hours prior to the scheduled flight
departure.
Comment: A commenter objected to a perceived restriction to
issuance of a ``single boarding pass.''
TSA Response: The Secure Flight NPRM and final rule contain no
restriction on the issuance of duplicate or replacement boarding
passes. The rule provides for a ``single boarding pass printing
result'' in those cases in which a passenger itinerary would result in
a watch list evaluation by both TSA and CBP.
4. Passenger Resolution
Comment: TSA received several comments requesting further
information about the provision of PRI by aircraft operators for those
passengers to whom TSA has provided an inhibited boarding pass printing
result. A few commenters question the need for this requirement. Some
commenters suggested that TSA should not require the PRI to be
transmitted electronically or it should be eliminated altogether.
TSA Response: TSA may require covered aircraft operators to provide
PRI for individuals who have been identified as a potential match to
the watch list. Without the PRI, individuals for whom TSA has returned
an inhibited status result will not be able to obtain a boarding pass,
because TSA would not have the means to distinguish that individual
from the individual on the watch list.
In the event that it is necessary to collect additional information
when there is a potential watch list match, including certain physical
description information about the passenger, the covered aircraft
operator will contact the Secure Flight Service Center and provide the
information. Covered aircraft operators will provide PRI, including
physical description information, to TSA only via a telephone call to
the Secure Flight Service Center. TSA is not requiring PRI to be
transmitted electronically.
Comment: TSA received one comment asking if a foreign passport is
the only foreign document that is acceptable to TSA for VID purposes.
TSA Response: The definition of VID in Sec. 1560.3 includes a
valid, unexpired passport issued by a foreign government. TSA has
determined that,
[[Page 64038]]
at this time, an unexpired foreign passport is the only document issued
by a foreign government that can serve as a VID. This is because the
process of issuing the passport involves procedures for verifying the
identity of the individual. Also, passports universally contain
required identifying information, such as full name, date of birth, and
a photograph of the individual. TSA, however, may authorize covered
aircraft operators to accept other foreign documents as valid VIDs.
5. Use of the Terrorist Screening Database (TSDB)
Comment: Several commenters expressed a concern that the watch
lists used by Secure Flight contain errors and inaccuracies. One of
these commenters further stated that using the watch lists would not
expedite the pre-boarding process or improve transportation security.
TSA Response: TSA seeks to ensure that data used in the watch list
matching process is as thorough, accurate, and current as possible. TSA
has worked with the Terrorist Screening Center (TSC) to review the No
Fly list name by name, and many names have been removed; a similar
process for Selectee names is ongoing. TSA continues to be committed to
eliminating erroneous and out-of-date information from the watch list
matching process. DHS TRIP will facilitate the redress process for
Secure Flight. DHS TRIP provides the opportunity for individuals who
believe that they have been delayed or prohibited from boarding or
denied entry to the airport sterile area as the result of the Secure
Flight program to seek redress and relief.
Comment: TSA has received several comments on the proposed
requirement to use a larger subset list in the Terrorist Screening
Database (TSDB) when the threat level changes in a particular airport,
airline, and/or region in the United States. The commenters were
concerned that the use of a larger list to select a particular group of
travelers would be based solely on nationality.
TSA Response: During normal Secure Flight operations, the watch
list check will consist of the No Fly and Selectee components of the
TSDB. TSA will only use a larger list when warranted for security
purposes, such as intelligence that terrorists are targeting a specific
route. The decision to use the larger list will not be based on
nationality.
Comment: TSA received one comment expressing concern that TSA's use
of the watch list would result in individuals with criminal records
being arrested.
TSA Response: The watch list identifies individuals with a nexus to
terrorism. We believe that the commenter's concern about those with
criminal records without a nexus to terrorism is a misunderstanding of
the mission of Secure Flight.
6. Non-Traveling Individuals
Comment: TSA received several comments regarding the issuance of
gate passes for non-traveling individuals and the collection of these
individuals' data for Secure Flight purposes. Many international
carriers expressed a concern that their systems are not capable of
capturing such data and asserted that the function of collecting non-
traveler data and issuing gate passes should remain in the hands of
airports or other authorities. A commenter suggested that TSA provide a
manual alternative for covered aircraft operators to provide the non-
traveler information to Secure Flight. Furthermore, several foreign air
carriers believe it is outside of the purview of TSA's authority to
require such data collection and submission for airports outside of the
United States. Commenters also argued that submission of information
for non-travelers should be the responsibility of airport authorities.
TSA Response: TSA is clarifying that the requirement to submit
information on non-travelers seeking entry to a sterile area is limited
to airports within the United States. Moreover, TSA recognizes that
covered aircraft operators' systems for collecting non-traveler
information vary. Thus, while covered aircraft operators may create an
SFPD for the non-traveler in their systems and submit the information
in the same manner that they submit SFPD for passengers, they are not
required to do so. They may instead opt to submit the information in a
manner that is consistent with their particular system and business
practices for collecting non-traveler information. TSA also is
developing an alternative method for covered aircraft operators to
submit information for non-travelers through the internet.
Comment: A commenter expressed concern that the Secure Flight NPRM
fails to adequately address the needs of non-travelers to be quickly
provided access to an airport's sterile area, because it will be
difficult for the covered aircraft operator to advise non-travelers
that they must provide their personal information 72 hours in advance.
TSA Response: Covered aircraft operators may submit a non-
traveler's information to TSA at any time before departure or whenever
that individual wishes to access the sterile area. Furthermore,
aircraft operators also have the option of using the alternative data
transfer mechanism, such as a web-based alternative, for non-travelers
who must be vetted and need a response quickly.
7. General Comments
Comment: TSA received a number of comments about Secure Flight's
ability to reduce false positives. TSA received a comment that
suggested that the only improvement as a result of implementing Secure
Flight is that a significant effort has been made to reduce false
positives. Another commenter suggested that better use of a ``cleared
list'' in the existing process alone would be sufficient to reduce
false positives. One commenter questioned the capability of the Secure
Flight watch list matching process to distinguish between similar
sounding names, and argued that this could result in more false
positives. Another commenter suggested that travelers who have been
previously misidentified (false positives) would benefit from
enrollment in the Registered Traveler program.
TSA Response: TSA agrees that a significant benefit of Secure
Flight watch list matching is the expected outcome of relatively few
misidentified passengers (or false positive matches). We disagree with
those comments that suggest TSA retain the current system. In addition
to meeting the IRPTA requirement that the government assume watch list
matching from the airlines, we believe that Secure Flight brings needed
consistency to the watch list matching process that does not exist
currently, including more consistent application of the cleared list.
With this consistency, there is the expected outcome of a low number of
false positive matches.
Comment: A commenter expressed concern that the Secure Flight NPRM
does not state that Secure Flight will supersede any current TSA
security directives that require carriers to match their passengers
against the watch lists. The commenter feels that this leaves carriers
unable to comply with both conflicting regulations.
TSA Response: TSA will update security directives and programs to
make them consistent with the Secure Flight regulation.
Comment: The commenter asks what the procedures will be for law
enforcement officials to question an
[[Page 64039]]
individual who is a potential match to the No Fly List in a foreign
country.
TSA Response: Today, foreign air carriers perform watch list
matching and contact the TSA Office of Intelligence (OI) to resolve any
potential No Fly matches. In the future, foreign air carriers will
contact the Secure Flight Service Center to resolve any potential No
Fly matches. Secure Flight does not change existing procedures related
to law enforcement officials' involvement in questioning individuals.
Comment: A commenter asked what procedures will be in place to
ensure other airlines are alerted when an identified No Fly passenger
has attempted to purchase a ticket on an airline within a certain
region.
TSA Response: TSA is sensitive to the commenter's concern about an
identified No Fly individual attempting to purchase a ticket from one
carrier after being refused by another. One of the benefits of Secure
Flight is the consistency it will provide. In this scenario, TSA will
send an inhibited response back to the covered aircraft operator when
that operator submits the SFPD for the individual.
Comment: TSA received a comment requesting that the Secure Flight
final rule not require repetitive requests for information for
subsequent flights by the same passenger.
TSA Response: TSA requires covered aircraft operators to request
passenger information and to submit a SFPD for each passenger on every
covered flight. Covered aircraft operators may program their systems to
store passenger information for future use to alleviate the burden on
passengers to input the passenger information every time they make a
reservation or purchase a ticket. Covered aircraft operators may also
program their systems to automatically use the stored information to
populate the SFPD data fields for future flights. TSA is not mandating
that covered aircraft operators program their systems in this manner.
If they choose, however, to use systems that automatically populate the
fields in their reservation system, TSA is requiring covered aircraft
operators to submit passenger information that is automatically entered
into the SFPD.
F. Privacy
1. General Comments
Comment: TSA received comments stating that U.S. carriers should
not be subjected to conflicting privacy data requirements between the
U.S. Government and foreign governments.
TSA Response: SFPD is security data provided pursuant to government
directive and typically exempted from data privacy requirements around
the world.
Comment: Several commenters expressed a concern with the Federal
government collecting any data from U.S. citizens flying domestically.
TSA Response: The threat to aviation security exists for both
domestic and international flights and watch list matching of
passengers on these flights is an important security measure. TSA has
carefully selected the minimal personal information that TSA believes
is necessary to conduct effective watch list matching for aviation
security and is collecting it only for watch list matching purposes.
2. Required Privacy Notice
Comment: TSA received several comments objecting to providing the
privacy notice outlined in this final rule.
TSA Response: While TSA appreciates the concerns posed by these
commenters, TSA has deemed sufficient privacy notice to passengers a
key element of the program in order to ensure passengers are adequately
aware that their data will be shared with the government. TSA will also
develop a public awareness campaign to educate the traveling public
regarding information collection and TSA's use of that information.
Comment: TSA received several comments suggesting that TSA take
into account that privacy notices are already a requirement of European
law and the wording is provided by data protection agencies in European
Union (EU) Member States.
TSA Response: This final rule requires covered aircraft operators
to use specific language to provide the complete privacy notice, unless
TSA approves alternative language. For instance, if a governmental
entity or entities develops a common privacy notice for use for
international flights, that common privacy notice may be approved for
use in lieu of the privacy notice specified in this final rule.
Individuals who wish further information with respect to TSA's privacy
policies should refer to TSA's Web site. The proposed privacy notice
requirement applies to all passengers who travel and who will be
screened by Secure Flight, not just individuals traveling to/from EU
member states.
The privacy notice in this final rule does not affect the covered
aircraft operators' responsibilities under other countries' laws or
regulations regarding notice and consent. In addition to the
requirements in 49 CFR 1560.103, covered aircraft operators should
comply with any notice and consent requirements of other countries,
such as Canada, in which they operate.
Comment: TSA received several comments expressing a concern that
enforcing third parties' inclusion of a privacy notice on their Web
sites or elsewhere cannot be controlled by covered aircraft operators.
TSA Response: TSA believes that privacy is an important component
of the Secure Flight program. Because of its importance, TSA is
requiring covered aircraft operators to post the privacy notice on
their Web sites and on Web sites of third parties if the third party's
Web site is capable of creating a reservation for the covered aircraft
operator's reservation system. This comment is closely related to
comments indicating that covered aircraft operators cannot require
third parties to collect the required SFPD when they sell tickets for
the covered aircraft operators' flights. As stated above in response to
this comment, TSA believes that it is reasonable to expect that covered
aircraft operators will include a requirement that the third parties
post the privacy notice on their Web sites in agreements with third
parties that have Web sites capable of making a reservation for covered
aircraft operators' reservation systems.
Comment: A commenter argued that the privacy notice must be
provided to individuals prior to collection of SFPD.
TSA Response: TSA seeks to have the privacy notice provided through
a layered approach to reach the greatest number of passengers
practicable. TSA is requiring covered aircraft operators to make the
privacy notice available on their Web sites and to ensure that third
parties that maintain Web sites capable of making a reservation for the
covered aircraft operators' reservation system also make the privacy
notice available on their Web sites. TSA will also post the privacy
notice on its Web site. TSA believes that making the privacy notice
available on Web sites is the most cost-effective and efficient method
for providing notice. Requiring covered aircraft operators to provide
the privacy notice for individuals who make reservations via the
telephone, through a travel agent, and via other non-internet based
methods would be costly and burdensome.
Comment: TSA received a comment requesting clarification on how
covered aircraft operators should comply with the privacy notice
requirement. The comment stated that the NPRM did not provide any
guidance regarding how to manage the display and traveler
acknowledgement of the privacy notice, when the privacy notice is
required to
[[Page 64040]]
be shown (one time or during each subsequent reservation made by that
traveler) and, where the notice must be shown.
TSA Response: The PIA TSA published in conjunction with the NPRM as
well as this final rule explains that, prior to collecting information
from an individual through a Web site or an airport kiosk, a covered
aircraft operator must make the privacy notice available to the
individual. The aircraft operator can achieve this by posting the
privacy notice on its Web site or by providing a link to the TSA Web
site.
TSA requested comments from the public on how a privacy notice
could be provided during the collection of information through means
not identified in section 1560.103 of the NPRM, but did not receive
any.
3. Privacy Impact Assessment (PIA)
Comment: A commenter stated that DHS must address the privacy
implications of the Secure Flight program and ensure that it remains
within the scope of the Intelligence Reform and Terrorism Prevention
Act of 2004 (IRTPA).
TSA Response: In conjunction with this final rule, DHS is
publishing a Privacy Impact Assessment on the DHS Web site at http://www.dhs.gov which assesses the privacy impacts of the final rule. TSA
will also post the Privacy Impact Assessment on the TSA Web site at
http://www.tsa.gov. TSA has designed Secure Flight to implement the
Fair Information Principles and the Privacy Act \24\ to the greatest
extent possible. TSA will collect the minimum amount of personal
information necessary to conduct effective watch list matching, adding
more consistency and efficiency to the process by minimizing false
positives and negatives while preventing known and suspected terrorists
from boarding an airplane, and will provide notice and choice where
possible.
---------------------------------------------------------------------------
\24\ 5 U.S.C. 552a.
---------------------------------------------------------------------------
Comment: TSA received several comments expressing concern about
the requirement that covered aircraft operators submit passenger
information stored in their system even though the passenger did not
provide the information when he or she made the reservation. One
commenter suggested that this requirement is not voluntary submission
of personal data and TSA should not require SFPD to be collected in
this manner.
TSA Response: The requirement to transmit passenger information
that is stored but not provided at the time of reservation is limited
to covered aircraft operators that program their systems to
automatically use the stored information to populate the SFPD data
fields for future flights. TSA notes that individuals may refuse to
provide covered aircraft operators with passenger information that is
stored for use to populate SFPD fields when making reservations.
This requirement allows TSA to rule out individuals as a watch list
match and subsequently precludes that individual from being delayed or
denied boarding or access to the sterile area. Reduction of
misidentification is an important program goal that can be accomplished
with the addition of data passengers have already provided to aircraft
operators.
Comment: TSA received a comment stating that TSA does not provide
adequate assurance that personal information other than that listed in
the SFPD will not be collected and stored. The commenter was concerned
that, according to the SORN, TSA's database will include communications
between TSA and covered aircraft operators and the communications may
include information about individuals' belongings screened during
secondary screening at the security checkpoint.
TSA Response: TSA will employ processes to filter out and prevent
any additional personal information beyond what is identified in this
final rule as SFPD from being accessible to TSA for use. As a result,
the Secure Flight program will only receive the Personally Identifiable
Information that would be required under the Secure Flight final rule
and described in its PIA. The Secure Flight system will not collect
information about an individual's belongings that are screened at the
security checkpoint.
The SFPD reflects the minimal amount of personal information
necessary to conduct watch list matching. This information will be
transmitted, stored, used, shared, retained, and destroyed consistent
with stringent privacy laws, principles, and guidance.
4. Privacy Act Exemptions
Comment: TSA received approximately 12 comments regarding the
Privacy Act of 1974: Implementation of Exemption and System of Records;
Secure Flight Records; final rule and notice, 72 FR 63705 (Nov. 9,
2007) (Exemption final rule).
TSA Response: TSA appreciates the time the commenters took to
review and comment on the Exemption final rule. The Exemption final
rule became effective on December 10, 2007 and is beyond the scope of
this final rule. The commenters raised many of the issues addressed in
the Exemption final rule. A full discussion of these issues and the
Privacy Act exemptions that TSA claimed for the Secure Flight program
is in the Exemption final rule and the PIA that TSA is publishing in
conjunction with this final rule.
5. System of Records Notice (SORN)
Comment: TSA received several comments expressing a concern that
the Secure Flight program does not provide sufficient access to an
individual's personal information under the Privacy Act. Commenters
argued that individuals will not be able to access most of the
information collected about them, and the program does not have a
requirement to provide personal information upon request. The
commenters stated that the NPRM did not provide an explanation for the
restricted access and this restriction is contradictory to the Privacy
Act of 1974.
TSA Response: Secure Flight complies with the Privacy Act access
provisions, has published a SORN describing its Privacy Act system of
records and providing access procedures, and also published a NPRM in
connection with its exemptions as permitted under the Privacy Act. TSA
fully considered public comment on the exemptions before publishing the
Exemption final rule in the Federal Register on November 9, 2007.
Comment: TSA received several comments expressing concern that the
public does not have sufficient information regarding the way TSA will
use personal information as part of its watch list matching function.
One commenter sought clarification on which databases TSA intends to
use within Secure Flight.
TSA Response: In this final rule, TSA has determined that it will
use the No Fly and Selectee components of the TSDB to perform its watch
list matching function. In addition, TSA may decide to compare
passenger information on some or all flights on a particular route or
routes to the entire TSDB or other government databases, such as
intelligence or law enforcement databases, when warranted by security
considerations.
Comment: TSA received one comment arguing that, under the Privacy
Act, an agency must collect information directly from individuals, to
the extent practicable, when the agency may use the information to make
a decision that adversely affects an individual's rights, benefits, and
privileges under a Federal program.
TSA Response: TSA notes that covered aircraft operators currently
[[Page 64041]]
collect information directly from passengers and non-travelers that is
necessary for security purposes. Under this final rule, TSA requires
covered aircraft operators to collect passenger and certain non-
traveler information, by electronic means or verbally, at the time of
reservation or when the traveler provides passenger information as part
of a group or blocked space reservation, and to accurately transmit the
SFPD to TSA. It is neither practical nor economically feasible for TSA
to collect SFPD directly from the individual. TSA will leverage the
existing practice of the aircraft operator, or a third party acting on
behalf of the aircraft operator, collecting passenger and non-traveler
reservation information for the purposes of conducting watch list
matching comparisons. Any concern that data may be inaccurate unless
collected directly from the individuals is mitigated by other factors
and redress processes.
Comment: TSA received comments that expressed concern that the
collection of SFPD ``exceeds the purposes of the Secure Flight
Program.'' The commenters also raised concerns that Secure Flight may
become a law enforcement tool that collects information that may be
shared with other agencies without appropriate safeguards, legal
standards, or oversight. The comment stated that the SORN and NPRM lack
any explanation of the proper safeguards and protocols that TSA has put
in place to protect the information that will be collected.
TSA Response: TSA has strictly limited the function of Secure
Flight to accomplish watch list matching as mandated by Congress. Data
collection has been limited to minimal identifying data elements and
information used to manage the watch list matching and to notify the
appropriate aircraft operator in the event of a possible match.
Additional protections include the very short data retention (seven
days) for the vast majority of individuals affected by the program, and
integrating administrative, technical, and physical security safeguards
as outlined in the PIA to place limitations on the collection of
Personally Identifiable Information and to protect information against
unauthorized disclosure, use, modification or destruction.
Specifically, administrative safeguards will restrict the permissible
uses of personal information and implement the controls for adherence
to those uses. As part of the many technical safeguards employed,
Secure Flight will implement role-based access controls and audit
logging (the chronicling of information accesses and uses of
information) as described in section 8.0 of the PIA to control and
monitor the use of personal information. Privacy risks have been
mitigated by a defense-in-depth strategy, access controls, auditing,
and appropriate oversight.
6. Retention of Data
Comment: TSA received a number of comments expressing the opinion
that the retention of SFPD must be consistent with European Union/
United States data privacy rules as well as privacy laws of other
countries. A few commenters argued that TSA should not require covered
aircraft operators to comply with regulations that conflict with
European Union laws and other countries' national data privacy laws.
TSA Response: SFPD is security information exempt from European
Union Data Protection Directives and typically from other data privacy
governance around the world. It is not the same as PNR data and thus,
it is not subject to the DHS-EU PNR agreement. TSA will retain Secure
Flight data pursuant to published record retention schedules as
specified in the final rule. The records retention schedule for this
rule requires that the Secure Flight program retain records for most
individuals encountered by Secure Flight for only a short period.
Records for individuals who are cleared by the automated matching tool
would only be retained for seven days after the completion of the
individual's directional travel. This 7-day period will be the
retention period for the majority of people who travel. Records for
individuals who are potential matches would be retained for seven years
after the completion of the individual's directional travel in order to
expedite future screening and to enable TSA to respond to any possible
legal action. Records for individuals confirmed as a positive match to
an individual on the watch list will be retained for 99 years after the
completion of the individual's directional travel to support law
enforcement and intelligence activities.
Comment: A commenter argued that the data retention schedule for
overflights should be the same as the data retained for all other
covered flights.
TSA Response: The retention schedule for Secure Flight records
will be applicable to all flights, including overflights, regardless of
origin or destination.
Comment: TSA received several comments concerned that TSA would be
free to use SFPD for commercial or marketing activities.
TSA Response: TSA does not engage in commercial or marketing
activities. It is only authorized to share information in accordance
with the applicable routine uses under the governing SORN as required
by the Privacy Act. In general, information may be shared with external
organizations for national security, law enforcement, immigration, or
intelligence purposes and as necessary to facilitate an operational
response to threats to transportation or national security. Privacy
risks that personal information may be disclosed to unauthorized
individuals is minimized using a set of layered privacy safeguards that
include physical, technical, and administrative controls to protect
personal information as appropriate.
Comment: A commenter expressed concern that TSA will retain
information for seven years about individuals who are identified as
potential matches, but are in fact misidentified and will use the
information to track these individuals. Although these individuals may
obtain a Known Traveler Number or a Redress Number after being
misidentified by Secure Flight, the commenter was also concerned that
TSA will retain information about the misidentification for seven
years.
TSA Response: The Secure Flight program will employ processes to
prohibit tracking of itinerary information for those individuals not
identified as a potential or confirmed match; it will permit controlled
access to Personally Identifiable Information related to only those
individuals identified as a potential or confirmed match. Retaining the
record of potential matches for seven years provides the individual
with the greatest opportunity for legal review.
Comment: TSA received several comments that argue TSA's self-
imposed data retention restrictions are meaningless.
TSA Response: TSA disagrees with the commenters. TSA is committed
to the enforcement of the records retention schedule approved by the
National Archives and Records Administration (NARA).
Comment: TSA received one comment from a foreign government that
expressed an unspecified concern regarding the retention of potential
watch list matches' information for seven years, without those
individuals' consent.
TSA Response: While TSA is sensitive to the concerns posed by this
commenter, the seven-year retention provides the individual with the
maximum opportunity to seek legal
[[Page 64042]]
review under the law.\25\ Consequently, TSA will retain potential
matches for seven years in accordance with the approved data retention
schedule for Secure Flight records.
---------------------------------------------------------------------------
\25\ Under 28 U.S.C. 2401(a), the statute of limitation to bring
suit against the U.S. Government is six years. Retaining the records
for seven years ensures that the records are available should an
individual file suit against the U.S. Government within the statute
of limitation period.
---------------------------------------------------------------------------
7. Sharing of Data With Other Agencies
Comment: Several commenters were concerned about TSA's authority
to collect personal information from private citizens.
TSA Response: The authority for TSA to collect passenger
information is section 4012 of the IRTPA, which mandates that TSA
obtain passenger information in order to assume the function of
conducting watch list comparisons.
Comment: TSA received several comments related to the sharing of
data with other agencies.
TSA Response: External sharing will be conducted in accordance
with the applicable routine uses under the governing SORN as required
by the Privacy Act. Information is shared with external organizations
for national security, law enforcement, immigration, or intelligence
purposes and as necessary to facilitate an operational response to
threats to transportation or national security. Privacy risks that
personal information may be disclosed to unauthorized individuals is
minimized using a set of layered privacy safeguards that include
physical, technical, and administrative controls to protect personal
information as appropriate. Any Federal agency receiving information is
required to handle those data in accordance with the requirements of
the Privacy Act and their applicable SORNs.
8. Collection and Use by Private Entities
Comment: TSA received several comments regarding the collection
and use of passenger information by private entities, such as covered
aircraft operators, for marketing and sales purposes.
TSA Response: TSA notes that the identified entities already
collect passenger information that may be used for marketing and sales
purposes, including data not mandated by TSA such as address or phone
number. TSA limits the use of a boarding pass printing result that TSA
provides to covered aircraft operators and airport operators for any
purposes other than those necessary for Secure Flight. TSA will also
instruct covered aircraft operators to appropriately safeguard the data
related to Secure Flight, in terms of the SFPD it generates through the
collection of information from passengers. TSA lacks the authority,
however, to dictate any rules for data retention for aircraft
operators. The cost associated with the storage of passenger data
collected for Secure Flight purposes is beyond the scope of this final
rule.
Comment: One association commented that some carriers might also
not be allowed to collect and transmit data for these passengers
according to their national data privacy laws.
TSA Response: SFPD is security data, which is typically exempt
from privacy governance requirements around the world.
Comment: TSA received several comments that expressed concern that
the required and ``voluntary'' data gathered and retained by TSA under
Secure Flight could lead to traveler dossiers.
TSA Response: The Secure Flight program will not create ``traveler
dossiers.'' TSA has established a very short (seven day) retention
period for those individuals who are not a match or potential match in
the automated matching process. This is expected to be the vast
majority of individuals, and the addition of gender and date of birth
to the mandatory data elements is expected to reduce even further the
number of individuals identified as possible matches. For those
individuals whose status cannot be resolved through the initial
automated comparison, TSA may be unable to rule out such individuals as
a watch list match, and consequently, they may be subjected to
additional screening or denied boarding or authorization to enter a
sterile area. TSA will make every attempt to clear these individuals
through validation of an identity document or the collection of
additional information provided via telephone to the Secure Flight
Service Center. The seven-year data retention period established for
these individuals is to provide the greatest ability to seek review.
G. Redress
Comment: TSA received two comments expressing general support for
the DHS TRIP program. The commenters expressed support for DHS TRIP as
the proper mechanism for individuals who believe that they have been
improperly or unfairly delayed or prohibited from boarding an aircraft
or entering a sterile area as a result of Secure Flight to seek
redress. A commenter noted that DHS TRIP will minimize the number of
people who will be misidentified. Other commenters noted that DHS TRIP
will not be successful unless misidentified passengers who receive
redress are no longer identified as potential matches to the watch
list.
TSA Response: DHS TRIP is a robust and effective mechanism for
individuals to seek redress and relief when they believe that they have
been delayed or prohibited from boarding or denied entry to the airport
sterile area as the result of the Secure Flight program to seek redress
and relief. With the implementation of the Secure Flight program, TSA
believes that it will become even more effective with uniform
application by the Government rather than relying on application by
individual covered aircraft operators. TSA has a continuing commitment
to ensure the integrity and ease of the DHS TRIP process.
Comment: Various commenters objected to using DHS TRIP as the
redress process for the Secure Flight program. They claim it does not
meet the access and amendment criteria as required by the Privacy Act,
that DHS TRIP is insufficiently transparent, and that DHS TRIP is
ineffective, vague, and inadequate. Another commenter argued for the
need for judicial review of TSA decisions regarding redress
applications.
TSA Response: TSA disagrees that DHS TRIP is ineffective, vague,
and inadequate. DHS TRIP is a Web-based customer service initiative
developed as a voluntary program to provide a one-stop mechanism for
individuals to request redress.
If TSA determines that the delay or prohibition from boarding or
access to a sterile area resulted from a misidentification of the
individual, TSA will retain the information provided by the individual
as part of the redress process to facilitate authentication of the
individual's identity during future air travel and to prevent repeated
and unnecessary delays of misidentified individuals. Once the redress
process is complete, an individual who has applied for redress may
provide his or her Redress Number to covered aircraft operators. With
this Redress Number, the Secure Flight program will have greater
success in clearing this individual when it receives and processes the
SFPD for the individual.
TSA is committed to minimizing misidentifications by continuously
updating information as it becomes available to ensure the accuracy of
the watch lists and the Cleared List.
Comment: One commenter stated concerns regarding the cost to
airlines
[[Page 64043]]
for accommodating individuals who have been delayed or inhibited and
are unable to make their scheduled flights.
TSA Response: TSA believes that the DHS TRIP redress process
addresses the issue of individuals who have been delayed or inhibited.
TSA does not require covered aircraft operators to absorb costs
associated with passengers' inability to board their scheduled flights
because of the Secure Flight program. Covered aircraft operators may
make the appropriate customer service decisions for their operations.
Comment: One comment states that TSA should not require
misidentified individuals to seek redress through DHS TRIP.
TSA Response: Individuals who believe they have been misidentified
are not required to go through the redress process. DHS TRIP is
designed as a voluntary program to provide a mechanism for individuals
to request redress. In addition, a redress mechanism is required under
the IRTPA. For individuals who choose not to seek redress through DHS
TRIP, TSA does not have another mechanism to obtain the necessary
information to determine whether the individual is a match to a person
on the watch list.
Comment: Several commenters expressed concerns about the DHS TRIP
redress process and offered recommendations on how to improve the DHS
TRIP process.
TSA Response: TSA will share these commenters' concerns and
recommendations with DHS TRIP.
Comment: One commenter stated that TSA should describe ``the names
on the list'' and questioned the validity of the stated rationale for
not disclosing the names as protecting national security.
TSA Response: TSA cannot respond to non-specific concerns. To the
extent the commenter is referring to the watch list used by Secure
Flight, it is made up of the Selectee and No Fly components of the
TSDB. In certain circumstances set out in the NPRM, broader components
of the TSDB might be used. Only individuals who are known or
appropriately suspected to be or have been engaged in conduct
constituting, in preparation for, in aid of, or related to terrorism
are included in the TSDB.
As stated in the Secure Flight NPRM, TSA will not disclose the
names on the watch list, because this information is derived from
classified and sensitive law enforcement and intelligence information.
Releasing this information would hamper the Federal government's
efforts to protect national security.
H. Consolidated User Guide/Aircraft Operator Implementation Plan (AOIP)
Comment: TSA received several comments requesting that TSA clarify
the following questions regarding the interaction between CBP's APIS
Pre-Departure program and Secure Flight: (1) Whether CBP's APIS Quick
Query (AQQ) message and the SFPD message can be combined; (2) whether a
``result'' will still be received in response to an AQQ submission; and
(3) whether an AQQ result can amend a Secure Flight result. The
commenters suggest that DHS should also provide a single process for
submitting data sets and receiving responses, given that DHS is
providing a single window for data submission. Comments also request
more clarity in defining data elements terminology referenced in the
rule, and that additional data feeds and varying formats (from the APIS
Pre-Departure final rule) not be included in the Secure Flight final
rule. One commenter felt that additional programming burdens would be
placed on covered aircraft operators to program for AQQ requirements to
receive two results for an international itinerary that contains both
travel into and out of the United States, while Secure Flight would
only require a single result for the same transaction.
TSA Response: The Consolidated User Guide, which is Sensitive
Security Information (SSI), offers much of the guidance and
requirements that covered aircraft operators designing and/or modifying
their systems to interact with DHS programs, such as AQQ and Secure
Flight, will need. The Consolidated User Guide also offers answers to
many of the comments above. The Consolidated User Guide provides more
detailed information in support of the rule by describing the data
elements required to satisfy AQQ and Secure Flight requirements.
Additionally, the Consolidated User Guide draws attention to those
areas that are unique to either program by flagging them with a ``TSA''
or ``CBP'' marker. Data submission requirements, which are necessary to
comply with AQQ and Secure Flight, have been aligned wherever possible
and can be combined. The data submitted to DHS will be transmitted via
the same portal. Once received, the data required by each program are
extracted from the submission by the portal. A single boarding pass
printing result will be returned to the submitter. There should never
be an occurrence where a submitter would receive a boarding pass
printing result from more than one agency.
DHS has attempted to align the data submission process for these
two programs wherever possible. There will, however, be some areas
where the programs are just not compatible. One example would be when
submitting data for a passenger that will be flying into and out of the
U.S. on the same directional itinerary. While Secure Flight's result
can persist for the entire directional itinerary, APIS data are
required by law for each segment of a trip into or out of the United
States for the purpose of border enforcement.
Comment: A commenter questioned the need to re-examine a previous
Secure Flight result during Irregular Flight Operations (IRROP) when
APIS Pre-Departure does not.
TSA Response: In most IRROPS situations, Secure Flight only
requires an informational update. Details are spelled out in the
Consolidated User Guide that defines when an informational update is
required and when a new boarding pass printing result is required.
Comment: Several commenters provided comments on the technical
guidance and requirements in the Consolidated User Guide.
TSA Response: TSA appreciates the comments on the Consolidated User
Guide. The comments are not within the scope the Secure Flight NPRM.
TSA will provide responses to the comments to the covered aircraft
operators in conjunction with release of the updated Consolidated User
Guide reflecting the Secure Flight program requirements in this final
rule.
Comment: TSA received comments suggesting that the AOIP not be made
a part of the Aircraft Operator Standard Security Program (AOSSP).
Commenters believe that incorporating the implementation instructions
to the program will make the AOIP subject to a lengthy process that is
required for making changes to the AOSSP.
TSA Response: The AOIP describes how and when a covered aircraft
operator or airport operator transmits passenger, flight, and non-
traveler information to TSA, as well as other related matters. Because
the AOIP contains requirements that covered aircraft operators must
comply with, TSA has determined that it should be part of the covered
aircraft operators' security programs. TSA disagrees that amending the
AOSSP to incorporate the AOIP would be a lengthy process.
Although TSA is not amending 49 CFR 1560.103 to state that the AOIP
is a specific element of foreign air carriers' security programs, TSA
will incorporate the AOIP into covered foreign air
[[Page 64044]]
carriers' security programs through 49 CFR 1560.109.
Comment: TSA received a comment suggesting that the proposed Secure
Flight program be amended to allow an airport, at its discretion, to
develop its own AOIP, rather than adopt the AOIP of affected aircraft
operators. This commenter indicated that aircraft operator plans do not
address the particular data systems at the airport.
TSA Response: TSA will work with airport operators to develop an
implementation plan as appropriate. TSA anticipates that the
implementation plan for airport operators will be similar to the AOIP
but will take into account the data systems of the airport.
I. Testing
Comment: A few commenters expressed concerns about and requested
further clarification on the program's performance standards, as well
as its methodology for measuring them for all testing phases, such as
benchmark and parallel testing. Additionally, a commenter argued that
covered aircraft operators should neither be subject to Secure Flight,
nor should they incur various costs until the program is proven to
work. Additionally, this commenter believes that the government should
incur the cost for the test phase, not the covered aircraft operators.
TSA Response: TSA has separated the testing process into two
different phases. First, benchmark testing will take place to test the
Secure Flight watch list matching capability against the current
results of a covered aircraft operator. TSA has requested voluntary
participation in benchmark testing and appreciates those who have
participated in this testing. From the benchmark testing, TSA will
determine whether the Secure Flight program meets the standards
required to successfully accomplish watch list matching.
Following benchmark testing, the second phase of Secure Flight
testing will be mandatory parallel testing. During parallel testing,
all covered aircraft operators will participate. It is necessary to
involve each covered aircraft operator to ensure that all components--
watch list matching, connectivity, etc.--successfully meet the
standards established for TSA to assume the watch list matching
responsibility from each covered aircraft operator. This is part of the
set of regulatory requirements and must be borne by the covered
aircraft operators. Therefore, TSA will not absorb the covered aircraft
operators' costs for this initiative.
TSA appreciates the concerns regarding the response time standards.
TSA has established a standard response of not more than four seconds
for the system to process a boarding pass printing result using the
interactive messages that will occur when a reservation is made or
updated information is provided from 24 hours prior to and up to flight
departure. One commenter stated that four seconds is not a sufficient
response time. TSA believes that the 4-second standard is sufficient
for the interactive period, especially when the transmission of a
majority of the data will occur as early as 72 hours before departure,
with the boarding pass printing results returned to the covered
aircraft operator well in advance of the 24-hour period during which a
boarding pass can be issued.
Comment: Some commenters suggested that TSA has underestimated the
number of messages between TSA and the aircraft operators associated
with the volume of passengers and have expressed concern that Secure
Flight cannot process this volume.
TSA Response: TSA has taken into account the anticipated number of
messages associated with the forecasted volume of passengers and will
be conducting stress testing to ensure that the system is capable of
handling the volume.
Comment: One commenter noted that DHS must certify to the
Government Accountability Office (GAO) that the Secure Flight program
has successfully tested the system before TSA can assume the watch list
matching function from covered aircraft operators.
TSA Response: The 2006 DHS Appropriations Act requires DHS to
certify and GAO to report to Congress that TSA meets ten conditions set
forth in section 522(a) of the Department of Homeland Security
Appropriations Act, 2005, Public Law 108-334 (Oct. 18, 2004), including
several that relate to system testing, before it can implement Secure
Flight.\26\ As the President has instructed in his signing statement
dated October 24, 2005, DHS treats this provision as advisory to the
extent it purports to allow GAO to prevent implementation of the law
unless GAO reports to Congress that DHS has met certain conditions.
Upon due consideration, TSA does not plan to assume watch list matching
from the covered aircraft operators until DHS makes the required
certification and GAO reports to Congress.
---------------------------------------------------------------------------
\26\ TSA may, however, implement Secure Flight on a test basis
prior to the DHS certification and the GAO report.
---------------------------------------------------------------------------
Comment: One commenter believes that parallel testing should not e
validated unless it has been approved by both TSA and the participating
covered aircraft operator.
TSA Response: TSA recognizes that parallel testing must result in
the successful exchange of data between covered aircraft operators and
the Secure Flight program. Therefore, TSA will work with covered
aircraft operators throughout parallel testing to ensure that it is
successful before TSA assumes the watch list matching function from the
covered aircraft operators.
Comment: One commenter suggested that the portal through which SFPD
will be submitted may not need further testing if CBP has already
performed testing on the same portal, which TSA and CBP will share.
TSA Response: TSA believes that complete end-to-end testing between
the Secure Flight program and covered aircraft operators must be
successfully completed before TSA assumes the watch list matching
function from covered aircraft operators. While portal testing may have
occurred with CBP, complete end-to-end testing of Secure Flight will
ensure the successful exchange of data between Secure Flight and
covered aircraft operators.
Comment: One commenter stated that it is necessary to determine by
the final rule what data elements will be used.
TSA Response: TSA agrees with this commenter, and therefore, the
Secure Flight data elements are clearly identified in this final rule.
J. Identification Requirements
Comment: A number of commenters expressed concerns that mandating
travelers to present a VID to travel restricts citizens' ability and
constitutional right to travel. Concerns were also raised that some
individuals may not have and/or cannot afford an applicable VID.
TSA Response: TSA notes that VID requirements only apply to
individuals who are potential matches to individuals on the Selectee or
No Fly portions of the watch list. These individuals will be required
to present a VID to resolve any misidentification. Individuals who are
confirmed Selectee matches will be subject to enhanced screening.
Individuals who are confirmed No Fly matches may not fly. Courts have
consistently held that travelers do not have a constitutional right to
travel by a single mode or the most convenient form of travel. The
Secure Flight program would only regulate one mode of travel
(aviation), and would not impose any restriction
[[Page 64045]]
on other modes of travel. Therefore, a restriction on an individual's
ability to board an aircraft as a result of the Secure Flight program
would not interfere with a constitutional right to travel.
Comment: One commenter states that travelers would be required to
display their identification whenever TSA orders and that the order
would be given to the covered aircraft operators in secret. The
commenter raised the potential threat of an airline contractor
committing identity theft.
TSA Response: Under the Secure Flight program, TSA will not
arbitrarily require travelers to display identification. As detailed in
the final rule, VID are required (1) when TSA is unable to distinguish
a traveler from an individual on the watch list and needs additional
information to help resolve the match and (2) when the covered aircraft
operator has not received watch list matching results on an individual
prior to check-in. This requirement does not change the other
requirements currently in place requiring individuals to provide
identification at the security screening checkpoint or to undergo
enhanced screening. However TSA and CBP continue to work closely
together to harmonize and streamline systems and procedures to maximize
efficiency and benefit to the traveling public.
TSA recognizes the importance of protecting against identity theft
for SFPD. As to the specific comment, TSA notes that covered aircraft
operators are generally in possession of significant information that
could be used for identity theft, including name, address, phone
number, credit card numbers, and other information. It is the covered
aircraft operators' responsibility to prevent unauthorized access to
and use of personal information to commit identity theft.
Comment: Several commenters requested clarification on whether the
requirement for covered aircraft operators to not issue a boarding pass
or authorization to enter a sterile area or permit an individual to
board an aircraft if the individual does not provide a VID when
requested applies to cleared individuals. These commenters also
requested clarification on the number of times and/or the location of
security checkpoints travelers will be required to display
identification.
TSA Response: Currently, aircraft operators must request that all
passengers and non-travelers provide identification at the time of
check-in. Additionally, TSA requires individuals to present appropriate
identification at the screening checkpoint or to undergo enhanced
screening under existing security directives. With the implementation
of Secure Flight, if an individual has an ``inhibit'' boarding pass
printing result, covered aircraft operators will not issue a boarding
pass to the individual if he or she does not provide a VID when
requested at the airport. Passengers for whom Secure Flight has not
inhibited boarding pass issuance will not be required to present a VID.
This does not change the other requirements currently in place
requiring individuals to provide identification at the security
screening checkpoint or to undergo enhanced screening.
Comment: Several commenters agree that travelers' identification
should be verified, but do not agree that TSA should specify how and
where it takes place, due to different airline operating procedures,
roles and responsibilities, and the possibility of delays.
TSA Response: TSA only requires covered aircraft operators to
request a VID at the airport pursuant to procedures in its security
program, when TSA has not informed the covered aircraft operator of the
results for watch list matching for an individual by the time the
individual attempts to check-in, or when TSA informs the covered
aircraft operator that an individual must be placed on inhibited
status. This procedure is required for the security of all travelers,
as well as airline personnel.
Comment: One commenter suggests that TSA be responsible for just
screening passengers and their cargo and to have Federal agencies, such
as the Federal Bureau of Investigations (FBI) and the Central
Intelligence Agency (CIA), assume responsibility for watch list
matching activity.
TSA Response: The Intelligence Reform and Terrorism Prevention Act
(IRPTA) requires DHS to assume the function of pre-flight watch list
matching activity from aircraft operators. In accordance with IRPTA,
TSA has developed the Secure Flight program to implement this
congressional mandate. Under this rule, TSA will receive passenger and
certain non-traveler information, conduct watch list matching against
the No Fly and Selectee lists, and transmit boarding pass printing
results back to covered aircraft operators.
Comment: TSA received several comments regarding the difficulty for
passengers and non-travelers to clarify who is authorized to ask for a
VID.
TSA Response: TSA expects to complete the watch list matching
process and permit covered aircraft operators to issue boarding passes
to the vast majority of passengers through the Secure Flight fully-
automated, initial comparison. However, for the instances where TSA is
unable to complete the watch list matching process for an individual,
covered aircraft operators must ask the individual to present a VID.
This requirement is in alignment with current practices that require
covered aircraft operators to request all passengers and non-travelers
to provide identification at check-in or at the screening checkpoint.
Comment: One commenter requested clarification on how TSA would
account for passengers who make reservations under a name or nickname
that differs from what is listed on their VID.
TSA Response: Under Sec. 1540.107(b), travelers must provide their
full name at the time of reservation. The Secure Flight final rule
defines ``full name'' as the name that matches the full name listed on
the individual's VID. Therefore, individuals may not submit nicknames
unless that nickname is the name on the VID.
Comment: TSA received several comments that addressed the fact that
certain identification requirements under Secure Flight are already
current practice.
TSA Response: TSA is aware that travelers currently present
identification to check in luggage and to enter the checkpoint.
Additionally, passengers who travel on international flights must
present a passport or another acceptable travel document to board an
aircraft. Presenting identification in these situations serves a
different purpose than the requirement to present a VID under this
final rule. The requirement to present a VID applies only to passengers
for whom TSA has asked the covered operator to place on inhibited
status. This requirement assists TSA in resolving potential matches to
the watch list. While this final rule includes a separate requirement
to present identification, this requirement will apply to only a
limited number of individuals and serves an important step in the watch
list matching process. Including the requirement in this final rule
also informs the public of the process and the affected individuals
will know that they need to have a VID when they go the airport.
K. Economic Comments
Comment: TSA received several comments stating that the estimated
time for employees of airline reservations centers or travel agents to
collect personal information data from those making flight reservations
by telephone should be longer than 20 seconds, the time used in the
NPRM.
[[Page 64046]]
These comments also suggested that 30 seconds was a more accurate
estimate of the average data collection time.
TSA Response: Based on information received from subject matter
experts and used to develop the NPRM estimates, TSA disagrees that on
average this collection of personal information will take considerably
longer than 20 seconds. Nonetheless, in the high estimate cost for the
regulatory evaluation, TSA used 30 seconds as the cost to airline
reservation centers, travel agents, and passengers themselves, who
incur opportunity costs when this additional data collection
requirement impinges on time that could have been used in other ways.
Because of this, the regulatory evaluation contains estimates of the
contribution to Secure Flight costs of a change in TSA's primary
assumption on this matter. TSA recognizes that in some instances and
for some reservations this data collection time could require
additional time, but believes that in many if not most instances the
additional data collection effort will be very modest. To balance these
concerns, TSA will use a primary estimate of 25 seconds for the time
required to collect personal information required by Secure Flight
during the telephone reservation process.
Comment: TSA received a comment stating that messaging costs
related to Secure Flight appear underestimated and that an average
message cost of $0.20 should be assumed. This value would be consistent
with the value used by CBP in the APIS regulatory evaluation.
TSA Response: TSA agrees with this comment. Both in the text of the
NPRM evaluation and for the final rule TSA has used a per message value
of $0.20, just as the CBP analysis in the APIS regulatory evaluation.
Comment: TSA received a comment that travel agencies using
electronic profiles will be obliged to reprogram these profiles to
accommodate the additional data fields required for reservations under
Secure Flight, and that these costs should be included in the Secure
Flight cost analysis. In addition, costs associated with updating agent
scripts for taking passenger reservations should be included as a
compliance cost.
TSA Response: TSA concurs with this comment and has relied on data
provided by the commenter to estimate these costs in the final rule
regulatory evaluation. TSA includes the updating of agent reservation
scripts as part of this reprogramming activity.
Comment: TSA received a comment that travel agents would incur
training costs to prepare agency employees for the new data collection
requirements of Secure Flight, and that these costs should be included
as a cost of compliance with Secure Flight.
TSA Response: TSA agrees that these training costs to travel agents
are among the compliance costs for Secure Flight, and has included an
estimate of these costs in the final rule regulatory evaluation.
Comment: TSA received a comment stating that as part of the costs
of Secure Flight, TSA should include the costs of holding flights that
are awaiting Secure Flight clearance, and should use the estimate of
these costs used by CBP in its evaluation of the APIS rule.
TSA Response: The Secure Flight program addresses the issuance of
boarding passes to passengers, and not the clearance of flight
manifests or passenger lists. Additionally, since the process of
clearing passengers already exists along with delays as described
above, there is a fundamental difference in the baseline between the
APIS and Secure Flight rules. When implemented, the program is required
to improve over the current situation and thus either the same or
better than existing delays. Therefore, the cost of holding a flight is
not relevant for the workings of the Secure Flight program.
Comment: TSA received a comment regarding reservations for
international air travel and the distribution of these reservations
among airline call centers, brick and mortar travel agencies and online
reservation services. The comment questioned whether reservation making
is distributed for international travel in the same way as it is for
domestic travel, and stated that historically travel agencies have been
more prominent in providing reservation services for international
itineraries. Because of this the commenter requested that travel
agencies should be given a greater proportion of international travel
reservations. The commenter also claimed that these international
reservations handled by travel agencies are typically the more
difficult and time-consuming reservation assignments.
TSA Response: Because of the significant changes that have occurred
in airline ticket distribution in the past decade, with the rise of
more direct and transparent distribution of tickets to passengers via
the internet and the growing use of the internet in all aspects of
public life, TSA believes that forecasting the future of airline ticket
distribution channels is difficult at best. Given this great
uncertainty, TSA does not think changing the current distribution used
in the regulatory evaluation is justified. With respect to the greater
difficulty or complexity of international reservations that are handled
by travel agencies, the regulatory evaluation takes note only of the
cost to reservation makers and passengers of the incremental time added
to the reservation process by Secure Flight requirements, and this
increment does not change with the complexity of the travel itinerary
or related reservation details.
Comment: Numerous commenters stated that TSA had failed to consider
the costs of delay to travelers and the airlines as the APIS rulemaking
did.
TSA Response: In TSA's view, the effect of Secure Flight will be to
improve the system-wide passenger clearing process, not reduce its
effectiveness with increased delays. Any costs that may be imposed by
Secure Flight should be measured as an increment from today's baseline,
which itself already includes these types of consequential disruptions
to travel plans. Numerous examples of how delays will be reduced were
provided in the NPRM evaluation and there is no evidence that the
centralized processing would increase the frequency or duration of
associated delays. Furthermore, there are several material differences
between Secure Flight and APIS implementation. The APIS rule had to
consider that the screening and potential delays were being added to a
baseline that did not already include those same delays. Additionally,
the CBP rules were designed around giving a flight manifest a go/no-go
decision for the whole flight. In this context, it is very prudent to
consider the possibility of an entire flight being delayed. For Secure
Flight, the screening process and delays already exist and the
clearance is reservation by reservation. There is no reason to believe
that air carriers would hold a flight for a single individual. TSA
believes strongly, that if anything the calculation should have been a
reduction and attributed as a benefit. Instead, TSA examined the
federal published data on flight delays due to security causes. Using
that data, TSA provided an example of what doubling those costs would
look like. TSA does not believe the example is at all probable but
included the information in the regulatory evaluation to assure the
public TSA did not ignore the issue.
Comment: Numerous commenters stated that this rulemaking was an
unfunded mandate.
TSA Response: Both the NPRM and final regulatory evaluations
require application of the provisions of the Unfunded Mandates Reform
Act
[[Page 64047]]
(UMRA). UMRA defines an unfunded mandate as one that ``may result in
the expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any 1 year. * * *'' This final rule does not
contain such a mandate on State, local, and tribal governments. The
overall impact on the private sector does exceed the $100 million
threshold in the aggregate.
Comment: Many commenters suggested that the private sector could
not afford the program.
TSA Response: There are legislative mandates to implement federal
passenger name matching. TSA has attempted to balance very real
security needs with the appropriated funds provided to it and costs
imposed on the rest of the economy.
Comment: A private citizen said the program should be judged by a
terrorist's cost to defeat the program.
TSA Response: TSA is uncertain how such an approach could be
presented. TSA's goal is to provide a program that is difficult for the
terrorist to defeat by improving the multiple levels of security TSA
uses. Strengthened security does increase the costs to the terrorist
but not such that a useful comparison could be made for regulatory
consideration.
Comment: A private citizen stated that GAO should review the costs.
TSA Response: There is considerable review outside TSA of both
program costs and the evaluation for purposes of the rulemaking. GAO is
not a part of the review at this stage.
Comment: At least one commenter felt being denied access to travel
was detrimental to professional position.
TSA Response: One of the requirements and goals of Secure Flight is
to reduce the current number of instances where individuals are
inappropriately delayed or denied access. This rulemaking should
improve over the status quo.
Comment: Numerous comments suggested TSA had inadequately addressed
various travel agent costs.
TSA Response: TSA used much of the suggested data and process
description in completing a final estimate that included considerably
more expense for programming, training, and day to day implementation.
Approximately $80 million in additional expenses was added to reflect
these travel agent costs.
Comment: Air carrier comments generally stated that the rule cost
too much and TSA had omitted some cost categories. In some cases the
carrier comments speculated about what might be changed in the final
rule.
TSA Response: TSA is not addressing the speculative comments; but
where specific examples related to the final rule were provided TSA
incorporated the information as appropriate. Specific examples are
covered in other comment responses. TSA did identify and included
slightly more than $800 million in additional air carrier expenses
based upon the public input. TSA has considered cost and security as a
delicate balancing process but must achieve the security needs of the
country.
Comment: Numerous comments suggested opportunity costs were not
fully understood. Numerous comments suggested flat rates or the
addition of costs already presented as opportunity costs.
TSA Response: TSA reviewed these comments to verify that
opportunity costs had in fact been included in the Regulatory Impact
Analysis. These comments included concerns with opportunity costs for
passengers making reservations and compensation costs to businesses
associated with collecting new passenger data from those making
reservations. Based on these comments, TSA increased the average time
per reservation transaction for requesting and providing this Secure
Flight passenger information from the 20 seconds used for the NPRM to
25 seconds in the regulatory evaluation for the final rule. This change
affected costs to travel agents taking reservations by telephone and
costs to airline telephone reservation centers. The change also
affected opportunity costs for passengers making telephone reservations
using either of these two channels for reservation making. TSA
identified opportunity costs of time that are incurred by passengers
making reservations, who must spend additional increments of time
providing Secure Flight required information over the telephone or
internet in the course of making an airline reservation. These spans of
time were valued using the average passenger value of time developed
for DOT and FAA regulatory guidelines. In TSA's view, which is
consistent with customary practice in this type of analysis, it is more
accurate to estimate average spans of time spent, and value these using
a consensus value of time, rather than assigning a flat value per
passenger.
Additionally, TSA verified that it fully assessed business costs
that mirror passenger opportunity costs. For increased transactions
times, this involves both estimating the additional labor costs borne
by these firms, and using fully-burdened compensation rates to monetize
these labor costs, because meeting the Secure Flight data collection
requirements may necessitate additional staff for affected firms. In
some cases, commenters indicated that Secure Flight requirements would
lead to additional reaccommodation costs for travelers who were kept
from boarding their intended flights. In TSA's view, the effect of
Secure Flight will be to improve these matters, relative to the current
baseline environment, rather than worsen them. Commenters suggested
that businesses affected by Secure Flight must devote additional
employee time for fulfilling Secure Flight information requirements or
for assisting passengers whose travel itineraries are disrupted by
factors related to Secure Flight. To assess time-related costs, such as
the time associated with the solicitation and recording of additional
data elements from passengers, TSA used hourly compensation rates from
the Bureau of Labor Statistics. It is TSA's view that Secure Flight
will improve the management of security-related passenger identity
data.
Comment: Several air carriers stated that the estimates for the
AOIP implementation were considerably low.
TSA Response: The rule describes the change from a carrier
developed-AOIP to a TSA-developed AOIP. This substantial change could
mean the cost estimate is now too high because the workload has been
reduced for the carriers.
Comment: Numerous comments mentioned the impact and interaction of
the Secure Flight and APIS rules.
TSA Response: TSA and CBP worked very hard to eliminate
redundancies and minimize the combined impact of the rules. A
Consolidated User Guide has been issued that outlined to the carriers
the details showing that both agencies have adapted the process to
satisfy security requirements while not causing unnecessary redundancy
of work and expenses. Additionally, the costs related to that
interaction were reviewed to avoid double counting in the final
evaluation.
Comment: Several commenters provided feedback on the benefits and
break-even analysis. One said that a reduction in false positives would
be a benefit, but TSA needs to clean up the No Fly list. Two others
noted that the benefits claimed were also claimed by CBP for the AQQ
program, so they should not be double counted for Secure Flight.
Several comments showed dissatisfaction with the concept of a break-
even analysis.
TSA Response: The Federal government is constantly working to
improve the quality of all matching lists.
[[Page 64048]]
A break-even analysis is not a traditional benefit-cost ratio. The
qualitative description of benefits in both rules is appropriate as no
assertion is made of an exact level. All DHS components are working
hard to improve the methods of presenting security benefits in
relationship to costs. The very nature of terrorism makes it impossible
to assign traditional probabilities to events or to describe a risk as
a specific probability. At present, the break-even analysis balances
the need to present comparable methodologies among rules while not
disclosing any highly sensitive intelligence.
Comment: Several comments addressed cost issues related to the
Consolidated User Guide and that the government should pay the expenses
imposed on the private sector.
TSA Response: TSA does not separately identify costs as
Consolidated User Guide costs. Rather, TSA considers all of the known
changes from the status quo and provides its best estimate of those
costs in total. Status quo costs are the starting baseline for
evaluating the rule, not an element TSA can add and reimburse the
private sector.
Comment: One organization stated that the analyses required by
constitutional and international law, the Airline Deregulation Act, the
Privacy Act, and the Regulatory Flexibility Act must be conducted and
published for additional comment before the proposed rules or any
similar rules are finalized.
TSA Response: TSA has complied with analysis requirements for both
the NPRM and final rule. The requirements of the Regulatory Flexibility
Act are very clearly identified in the regulatory evaluations.
Comment: One public interest group stated that frequent flyer
programs provide billions of dollars of benefits each year in exchange
for the information they collect. Travelers will now be required to
provide the information for free. This rule could have a significant
impact on the frequent flyer programs--perhaps making them obsolete.
The air carriers will now be able to collect the information and sell
it or use it in marketing without compensation. TSA must account for
those costs.
TSA Response: Air carriers have already begun to change their
loyalty programs. TSA cannot speculate on the future of these programs,
because expenses, such as fuel costs, are resulting in less end-user
value. Some air carriers have stated that they did not have this
information in other systems (such as frequent flyer programs) that
would fully satisfy the data acquisition requirements. If TSA
calculated a marketing sales value on the data, that value would be a
benefit offsetting some of the carriers' costs. Based upon carrier
comments, TSA believes the carriers would not agree that such sales
would be beneficial.
Comment: According to the Small Business Administration's Office of
Advocacy (SBA Office of Advocacy), TSA's statement in the NPRM that it
was withholding RFA certification implied that TSA had already
predetermined that the rule would not have a significant economic
impact on a significant number of small entities. The SBA Office of
Advocacy believed that TSA was not making a reasonable effort to
explore all effects of the rule.
TSA Response: TSA's intent in the Initial Regulatory Flexibility
Analysis (IRFA) was to convey that TSA had not made a determination on
whether there was a significant economic impact on a significant number
of small entities. TSA did not intend to imply that it had
predetermined that the rule would not have a significant economic
impact on a significant number of small entities. Unfortunately, the
word choice conveyed the opposite meaning. TSA explored all effects of
the rule and used economic information from all commenters to improve
the final estimates throughout the evaluation. TSA expanded a
sensitivity analysis in the Final Regulatory Flexibility Analysis
(FRFA) to show that we examined the various degrees of impact. TSA
concluded that the rule did not have a significant economic impact on a
significant number of small entities in section 2.2.2. of the final
regulatory evaluation.
Comment: SBA Office of Advocacy stated that TSA has underestimated
the cost to small business and did not consider certain costs. These
costs include the impact of flights that may be delayed waiting for
TSA, which is an economic cost and could lead to loss of future
business. Additionally, airlines may need additional staff to deal with
unhappy customers. The SBA Office of Advocacy suggested that TSA should
address the cost of negative customer satisfaction.
TSA Response: TSA reviewed the small business analysis and has
presented a FRFA that TSA believes is representative of impacts and
costs. Not all air carriers are regulated under this rule. After
reviewing all comments, TSA became aware that some commenters had
assumed that all carriers would be regulated under this rule.
Additionally, the SBA Office of Advocacy comments fail to recognize
that many of the items identified as supposedly new impacts are
actually in the existing baseline today. The evaluation presents the
change, not the baseline plus change. In TSA's view, the effect of
Secure Flight will be to improve the system-wide passenger clearing
process, not reduce its effectiveness with increased delays. Any costs
that may be imposed by Secure Flight should be measured as an increment
from today's baseline, which itself already includes these types of
consequential disruptions to travel plans. In the NPRM evaluation, TSA
provided numerous examples of how delays will be reduced. There is no
evidence that the centralized processing would increase the frequency
or duration of associated delays. Additionally, the performance
standards for final implementation require an improvement in overall
service. TSA believes the clarification on baseline events cited as new
and the strict implementation requirements provide a contrary
conclusion to the SBA Office of Advocacy.
Comment: The SBA Office of Advocacy suggested that TSA should
consider alternatives that commenters suggested.
TSA Response: TSA is unaware of the specific alternatives the SBA
Office of Advocacy may be suggesting. TSA reviewed and considered all
comments. TSA believes the final rule and evaluation reflect the viable
alternatives.
Comment: The SBA Office of Advocacy and other commenters stated
that TSA underestimated the impact on travel agents and that the impact
is direct. They suggested that TSA should prepare a supplemental IRFA.
Response: The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq., as amended by the Small Business Regulatory Enforcement Fairness
Act (SBREFA) of 1996) requires agencies to analyze the economic impact
of regulatory changes on small entities that would be directly
regulated by proposed rules. An agency is not required to prepare such
an analysis, however, if the agency head certifies that the rule will
not ``have a significant economic impact on a substantial number of
small entities'' and supports the certification with a statement of the
factual basis for the certification. 5 U.S.C. 605(b). This final rule
does not directly regulate travel agents, because the final rule
requires only covered aircraft operators, not travel agents, to collect
and transmit SFPD to TSA. Although TSA proposed in the Secure Flight
NPRM to require covered aircraft operators to collect passenger
information at the time an individual makes a reservation for a flight,
TSA has decided not to include
[[Page 64049]]
this requirement in this final rule. Instead, covered aircraft
operators cannot transmit a SFPD to TSA for processing unless they have
the individual's full name, date of birth, and gender. Thus, it is up
to the covered aircraft operators to decide how and when it will
collect passenger information, provided that the covered operator
collects full name, date of birth, and gender for all reservations 72
hours prior to the scheduled time of flight departure.
TSA used much of the information from the comments to increase the
costs that travel agents will incur by approximately $80 million. Even
in the NPRM, TSA did not dismiss the costs to the travel agents;
rather, as stated in the legal citations above, TSA believes it has
made the appropriate presentation in the FRFA.
Comment: A commenter stated that TSA's count of small airlines is
wrong particularly in the case of Alaska.
TSA Response: TSA worked from an exact list of regulated entities.
TSA believes that many commenters assumed that TSA, through this rule,
would regulate all air carriers.
Comment: A commenter argued that setting the threshold for
determining whether an entity experienced an impact at 2 percent or
higher of their revenue is too high.
TSA Response: TSA included a sensitivity table with different
thresholds but TSA's intent was to convey no decision on the Regulatory
Flexibility Act determination. TSA revised the analysis in the FRFA in
section 2.2.2. of the final regulatory evaluation.
Comment: A commenter stated that the use of an internet portal is
not practical for any operator other than the very smallest.
TSA Response: TSA is developing a software application to enable
Secure Flight connectivity for the very smallest carriers. The use of
the term ``internet portal'' was merely a way to label this
alternative. TSA is developing this alternative system specifically
with the small carriers' needs in mind. TSA also developed a system
whereby air carriers may communicate directly with DHS and will be able
to send SFPD to TSA and receive results through this system. TSA
adjusted both the cost levels and distribution among the air carriers
to better reflect costs.
Comment: A commenter stated that some small airlines do not
participate in APIS and therefore will have first time programming
costs to connect with Secure Flight.
TSA Response: TSA adjusted both the cost levels and distribution
among the air carriers to better reflect costs that are reflected in
the FRFA. TSA is unable to differentiate or provide relief separately
to non-APIS carriers. TSA calculations did attempt to estimate the
number in APIS versus original programming. This information, however,
is not air carrier specific.
Comment: A commenter stated that this rule would affect small
businesses in instances where individuals representing the small
businesses would attempt to travel without proper documents.
TSA Response: Except under the limited circumstance in which a
passenger must present a verifying identity document at the airport,
the rule does not change the current requirements for presenting
documents at the airport and does not impact passengers who do not need
to present a verifying identity document. Section 1.6.6 of the final
regulatory evaluation includes an analysis of the impact of passengers
who must present a verifying identity document.
Comment: A commenter stated that there are several sections in the
rule where Secure Flight appears to be in conflict with international
law, specifically, article 12 of the International Covenant on Civil
and Political Rights (ICCPR).
TSA Response: The commenter mischaracterized this issue as a small
business issue. The relationship between Secure Flight and various
international agreements has been discussed, as appropriate, in section
III.A of this preamble. TSA does not consider this a comment on the
IRFA or appropriate to address in the FRFA.
L. General Comments
TSA received numerous general comments on the Secure Flight NPRM as
a whole without comment on any specific provision of the NPRM. TSA
received several comments expressing general support for the Secure
Flight program and its mission to enhance the security of commercial
air travel through preflight comparisons of airline passenger
information to Federal government watch lists for international and
domestic flights. TSA also received several comments expressing general
opposition to the Secure Flight NPRM without noting specific
objections.
Comment: TSA received several comments stating that the Secure
Flight NPRM fails to improve on the current process and/or flight
safety. Other commenters similarly claim the increased bureaucracy and
costs of Secure Flight are not warranted by the benefits of the
program.
TSA Response: TSA disagrees that Secure Flight will fail to improve
on current processes and/or flight safety. IRTPA requires DHS to assume
from aircraft operators the function of conducting pre-flight
comparisons of airline passenger information to Federal government
watch lists for international and domestic flights. TSA has designed
Secure Flight to implement this congressional mandate.
The Secure Flight program will streamline and simplify the watch
list matching process by moving watch list matching responsibilities
currently performed by dozens of air carriers to TSA. There are many
benefits of the Secure Flight program. The program will create
consistency for the traveler and help prevent passenger
misidentification and will allow airlines to focus on other aspects of
their operations. TSA will be able to prevent more effectively and
consistently certain known or suspected terrorists from boarding
aircraft where they may jeopardize the lives of passengers and others.
Furthermore, TSA will be able to identify individuals who must undergo
enhanced screening because they pose a threat to civil aviation. TSA
will also be able to facilitate the secure and efficient travel of the
vast majority of the traveling public by distinguishing them from
individuals on the watch list, thereby minimizing the likelihood of a
passenger being incorrectly identified as an individual on the watch
list.
Comment: TSA received requests for an extension of the comment
period due to the complexity and scope of the NPRM. There were requests
to extend the comment period from October 22, 2007, to both December
21, 2007, and January 21, 2008.
TSA Response: TSA appreciates the concern and desire for additional
time to provide substantive comments on the rule. TSA extended the
comment period an additional 30 days (to November 21, 2007) in a notice
published in the Federal Register on October 24, 2007.\27\ TSA believes
this provided a sufficient amount of time for commenters to fully
understand and comment on the impacts and implications of the Secure
Flight NPRM.
---------------------------------------------------------------------------
\27\ 72 FR 60307 (Oct. 24, 2007).
---------------------------------------------------------------------------
Comment: TSA received several comments expressing a concern that
the Secure Flight program would increase the likelihood and length of
delays at airports for passengers.
TSA Response: The covered aircraft operators will provide the
majority of the requested passenger information and will receive
boarding pass printing results in advance of a passenger's
[[Page 64050]]
arrival at the airport. This process will reduce the need for
passengers to go to the ticket counter to provide passenger
information. For the majority of passengers, Secure Flight will not
impact their ability to obtain a boarding pass in the manner that they
currently do so. Additionally, DHS must certify that Secure Flight will
not produce a significant number of misidentified passengers.\28\ For
many passengers who currently need to go to the ticket counter to
obtain a boarding pass, Secure Flight will allow them to obtain their
boarding passes in advance or at the airport kiosks. Therefore, TSA
believes that the Secure Flight program will not cause additional
airport delays.
---------------------------------------------------------------------------
\28\ Section 522(a)(2) of the 2005 DHS Appropriations Act (Pub.
L. 108-334, 118 Stat. 1298, Oct. 18, 2004).
---------------------------------------------------------------------------
Comment: A commenter requests that TSA coordinate with the aircraft
operators during Secure Flight development.
TSA Response: TSA has been coordinating, and will continue to
coordinate, with covered aircraft operators, as well as other affected
parties, during development and implementation of Secure Flight.
Comment: One aircraft operator questions what TSA has done to
address the issue of following a disciplined life cycle development
approach outlined in the August 4, 2006, GAO Report on Secure Flight.
TSA Response: TSA has implemented processes and a program
management organization to address the concerns identified in the GAO
report on Secure Flight. These include the development of program goals
and requirements, a detailed program schedule, cost estimates and
tracking mechanisms, and system and data security programs. GAO
continues to review Secure Flight progress in these areas. DHS will
certify that TSA has followed a disciplined life cycle program for the
Secure Flight program before TSA assumes responsibility for watch list
matching.
Comment: TSA received several comments asking if TSA or DHS plans
to launch a public awareness campaign to ensure that the traveling
public understands the new requirements for providing additional
personal information such as full name, date of birth and gender.
Several of these commenters indicated they would support such a
program. One commenter suggested that the definition of full name
should simply be explained as matching the identity document of the
individual and should become a focal point of the campaign.
TSA Response: TSA agrees that the full name provided by a passenger
or non-traveler must match that which appears on their VID. Under
Sec. Sec. 1640.107(a) and 1560.3, passengers and non-travelers must
provide their full name as it appears in their VID.
Additionally, TSA plans to launch a public awareness campaign to
ensure the traveling public understands the new requirements for
providing additional personal information such as full name and gender.
The campaign is still being developed and will be described in further
detail in the future.
M. Comments Beyond the Scope of the Rulemaking
Comment: TSA received one comment that expressed support for Secure
Flight, but also requested that TSA mandate ``no movement between
cabins out of the U.S., as well as into the U.S.'' In order to achieve
this, the commenter proposes that a ``chain mesh curtain must be
mandated.''
TSA Response: Restrictions on movement between cabins on flights
into and out of the United States is outside of the scope of this final
rule.
Comment: Several comments indicated support for the APIS Pre-
Departure final rule and resulting changes in the definition of
``departure.'' Other commenters suggested changes to the APIS Pre-
Departure final rule, including recommendations that CBP use the
Cleared List in watch list matching.
TSA Response: The APIS Pre-Departure final rule and resulting
changes, such as the change in the definition of ``departure,'' are
outside of the scope of the Secure Flight final rule.
Comment: Several commenters suggested that DHS address other
threats to our nation's security, for example, threats involving port
security and border security.
TSA Response: Comments on other actions taken by DHS to ensure our
nation's security, by means other than Secure Flight, are beyond the
scope of this final rule.
Comment: TSA received several comments expressing concern that
covered aircraft operators operating the first flight of a connecting
flight would not be able to issue a boarding pass for the second flight
until the covered aircraft operator received an appropriate boarding
pass printing result from TSA. Some commenters requested that Secure
Flight develop a standard for transmission and sharing of messages
between covered aircraft operators to enhance the security process,
with respect to connecting passengers.
TSA Response: The decision to share data between covered aircraft
operators is beyond the purview of TSA's authority and outside of the
scope of this final rule. While data sharing agreements between covered
aircraft operators are decisions unique to the business of each carrier
or carrier alliance, TSA acknowledges that such agreements would
enhance the Secure Flight data transmission/security clearance process,
particularly with respect to connecting passengers.
Comment: A commenter suggested that DHS ``sunset'' the 2007 APIS
Pre-Departure final rule once Secure Flight takes over watch list
matching for international flights. The commenter believes that the
2007 APIS Pre-Departure final rule is unnecessary once Secure Flight is
in place for watch list matching.
TSA Response: TSA appreciates the commenters concerns related to
``One DHS Solution,'' however, any changes to the APIS Pre-Departure
final rule are outside of the scope of this rulemaking.
Comment: TSA received one comment requesting information on what
TSA's contingency plans are for accommodating passengers on another
carrier in the event of a Secure Flight outage.
TSA Response: TSA will provide outage information to covered
aircraft operators in the Consolidated User Guide. Rebooking airline
passengers is outside the scope of the Secure Flight program.
Comment: A commenter suggested that TSA indemnify covered aircraft
operators for any and all claims related to that information
collection.
Response: While TSA understands the concern expressed in this
comment, indemnification of covered aircraft operators is beyond the
scope of this rulemaking and TSA's authority to implement.
IV. Rulemaking Analyses and Notices
A. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that TSA consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of section 3507(d), obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations.
This final rule contains new information collection activities
subject to the PRA. Accordingly, TSA has submitted the following
information requirements to OMB for its review.
[[Page 64051]]
TSA is establishing this information collection in accordance with
49 U.S.C. 44903(j)(2)(C), which requires TSA to assume the passenger
matching function of comparing passenger information to Federal watch
lists. In order to carry out effective watch list matching, TSA has
determined that it must receive each individual's full name, gender,
date of birth, and, to the extent available, Redress Number, Known
Traveler Number (in the future), and passport information. Therefore,
TSA is requiring covered aircraft operators to request this information
from passengers or non-travelers seeking sterile area access on covered
flights. The covered aircraft operator must then communicate this
information, as well as message management information and itinerary
information to TSA. The covered aircraft operator must also transmit
relevant updates to the passengers' or non-travelers' information.
Additionally, TSA may need the covered aircraft operators to obtain and
communicate information from an individual's form of identification or
a physical description (e.g., height, weight, hair color, or eye color)
of the individual. TSA would use all of this information during watch
list matching.
After the final rule is published, TSA will provide an Aircraft
Operator Implementation Plan (AOIP) to each covered aircraft operator,
outlining each covered aircraft operator's specific requirements for
implementing Secure Flight. These requirements include the specific
compliance dates on which each covered aircraft operator must begin
testing and providing SFPD to TSA. Although the AOIP was described in
the preamble of the NPRM as a reporting burden, under the final rule,
TSA will provide the AOIP to covered aircraft operators. Therefore, the
AOIP is now a recordkeeping requirement, and, as such, the covered
aircraft operators must adopt the AOIP into their Aircraft Operator
Standard Security Plan (AOSSP) upon finalization of the AOIP.
Under this final rule, TSA will provide authorization for non-
travelers to enter a sterile area to accompany a traveling passenger
(such as to escort a minor or assist a passenger with a disability). In
the future, TSA plans to authorize non-travelers seeking authorization
to enter a sterile area for other purposes, and TSA will collect
information about those non-travelers. TSA is not able to estimate the
information collection burden for this future aspect of the Secure
Flight program and therefore has not included them in the burden
estimates.
TSA is requiring covered aircraft operators to submit passenger
information for covered flights and certain non-traveling individuals
to TSA for the purpose of watch list matching. This information
includes data elements that are already a part of the routine
collection by the covered aircraft operators (e.g., name, itinerary
info), as well as the additional information required in the Secure
Flight final rule.
TSA assumes that the great majority of covered aircraft operators
will use an automated transmission process to submit passenger
information and information for non-traveling individuals. The
transmission time for an automated system is instantaneous and, as
such, TSA believes the additional time-related burden of transmission
is too small to be significant. TSA has determined that the information
that covered aircraft operators must collect or request from passengers
(e.g., date of birth, gender, Redress Number (if available)) will take
no more than 25 seconds per transaction to collect. TSA estimates that
the annual hour burden for this activity is 548,843 hours. For the
remaining 16 covered aircraft operators (see table 1.4.1.e of the
Regulatory Analysis) who will potentially leverage the Web-based
alternative data transfer mechanism, TSA has estimated the time
required to build and transmit initial messages and updated messages to
TSA at 4,013 total annual hours. Thus, TSA estimates the total annual
hour burden for an annual 163 respondents to be 552,856 hours [548,843
+ 4,013].
As a protection provided by the Paperwork Reduction Act, as
amended, an agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid OMB control number.
TSA received several comments generally on the information
collection burden. Below is a summary of the comments and TSA responses
to the comments.
Comment: One commenter noted that the additional passenger
information that TSA is requiring covered aircraft operators to submit
to TSA is already available to the aircraft operator. This additional
information, however, still represents an additional transmission
burden than that already required for APIS.
TSA Response: As part of its PRA analysis, TSA has recognized a
transmission burden, but because for most aircraft operators the
transmission is automated and therefore instantaneous, as stated above,
TSA believes the additional time-related burden is too small to be
significant. Also above, TSA has calculated an hour burden for the
remaining 16 covered aircraft operators who will potentially leverage a
Web-based alternative data transfer mechanism to transmit data to TSA.
Comment: With regard to specific data elements, a commenter
expressed the view that with the exception of name and some flight
information, no SFPD is routinely collected or contained within a
passenger's reservation booking.
TSA Response: TSA recognizes that aircraft operators have different
systems in which they maintain passenger information. TSA does not
require that aircraft operators submit SFPD from their reservation
systems. Aircraft operators may use any system in which the data
resides to transmit the passenger information.
Comment: A commenter held the view that TSA did not consider costs
other than transmission of the passenger data in its annual burden
estimate, such as costs of collecting the SFPD, resource costs to meet
new requirements, training costs, costs of responding to inhibited
vetting responses, and the cost of delay to aircraft where TSA is
unable to provide a vetting response in a timely manner.
TSA Response: Within the PRA analysis, TSA has not calculated a
cost burden on aircraft operators for collecting SFPD from passengers
that is separate from the cost of the hour burden to collect these
data. The other additional costs are not part of the PRA cost analysis,
but are considered in the regulatory evaluation. In its Information
Collection Request (ICR) submitted to OMB as part of the NPRM, TSA did
consider the costs to respondent covered aircraft operators to modify
and maintain systems in order to accommodate the new communication
requirements.
Comment: Another commenter asked how TSA derived its annual cost
estimate to respondents of $129.2 million in the first three years to
modify and maintain systems to accommodate the new communication
requirements.
TSA Response: In the NPRM, TSA estimated that covered aircraft
operators will incur $125,200,000 in capital startup costs in the first
two years and $4,000,000 for operations and maintenance costs in the
second and third years. The estimate of $129.2 million was the
combination of these two cost amounts and represents the total cost for
three years, not an annual cost. TSA estimated that the annual average
costs will be approximately $43 million. For this final rule, TSA
revised its estimates. TSA estimates that covered aircraft operators
will incur $285,400,000 in capital startup costs in
[[Page 64052]]
the first two years and $9,400,000 for operations and maintenance costs
in the second and third years. The estimate of $294.8 million is the
combination of these two cost amounts and represents the total cost for
three years, not an annual cost. TSA estimates that the annual average
costs for the first three years will be approximately $98.3 million.
Comment: A commenter questioned TSA's time-related burden estimate
for transmission of the information covered aircraft operators must
collect or request from passengers, which TSA had estimated will take
no more than 20 seconds per transaction to collect.
TSA Response: After considering this comment and reviewing the
information concerning the collection of information, TSA is revising
its estimate. TSA now estimates that it will take covered aircraft
operators no more than 25 seconds per transaction to collect the
information.
B. Regulatory Impact Analysis
1. Regulatory Evaluation Summary
Changes to Federal regulations must undergo several economic
analyses. TSA has prepared a separate detailed analysis document, which
is available to the public in the docket. Although the regulatory
evaluation attempts to mirror the terms and wording of the regulation,
no attempt is made to precisely replicate the regulatory language and
readers are cautioned that the actual regulatory text, not the text of
the evaluation, is binding. With respect to these analyses, TSA
provides the following conclusions and summary information. Each of
these findings is explained in the corresponding sections which follow:
Executive Order 12866 and Significance. This rulemaking is
an economically significant rule within the definition of E.O. 12866,
as estimated annual costs or benefits exceed $100 million in any year.
The mandatory OMB Circular A-4, Regulatory Analysis, accounting
statement is included in the separate complete analysis and is not
repeated here.
Final Regulatory Flexibility Analysis (FRFA). TSA believes
that it is unlikely the final rule has a significant economic impact on
a substantial number of the small entities subject to this rulemaking.
A detailed FRFA is provided in the separate full regulatory analysis.
International Trade Assessment. TSA has assessed the
potential effect of this final rule and has determined this rule would
not have an adverse impact on international trade.
Unfunded Mandates. This final rule does not contain such a
mandate on State, local, and tribal governments. The overall impact on
the private sector does not exceed the $100 million threshold in the
aggregate.
2. E.O. 12866 Assessment
a. Benefits
Benefits of the rule will occur in two phases: the first during
operational testing and the second post-implementation. During
operational testing, Secure Flight will screen passengers in parallel
with the airlines. Primary responsibility for watch list matching will
remain with covered aircraft operators during this period, but Secure
Flight may notify aircraft operators if its watch list matching
technology enables it to detect a potential match the aircraft operator
may have missed. Therefore, during the operational testing phase,
benefits may include increased aviation security resulting from the
detection of threats not identified by covered carriers participating
in the testing.
Most of the rule's benefits occur post-implementation. Secure
Flight standardizes the watch list matching process across domestic and
foreign commercial airlines. Resulting benefits will include more
accurate, timely, and comprehensive screening, and a reduction in false
positives. This occurs because Secure Flight has access to more initial
data with which to distinguish passengers from records in the watch
lists than is currently available to airlines. Further, the airlines
will be relieved of watch list matching responsibilities, and TSA will
be relieved of distributing the watch lists. Together, these factors
contribute to the overall objective of focusing resources on passengers
identified as potential threats to aviation security.
This benefit is further augmented by the requirement that covered
airlines must print on boarding passes a code generated by the Secure
Flight system that is unique for each watch list result returned.
Depending on the final implementation method, this requirement will, at
a minimum, allow checkpoint personnel to verify that a boarding or gate
pass has been processed by the Secure Flight system. This will prevent
individuals from passing through the checkpoint with a boarding or gate
pass that has not originated in an airline system.
By transferring responsibility for watch list matching of
international passengers from the CBP system to TSA, the final rule
consolidates passenger prescreening operations within DHS, thereby
reducing redundancies between similar programs and facilitating better
governance. The rule enables CBP to focus its resources on its mission
of protecting U.S. borders while permitting TSA to apply its expertise
in watch list matching consistently across all commercial air traffic
within and overflying the United States. DHS expects that reducing
overlap between these agencies' missions will improve national security
through more efficient and targeted use of national resources.
Other benefits include increased security due to the watch list
matching of non-traveling individuals who request access to a sterile
area. Also, TSA anticipates it may allow airports to authorize non-
traveling individuals to enter the airport sterile area. As a result,
the final rule establishes requirements related to airports'
transmission of data from non-traveling individuals to Secure Flight
for watch list matching. These requirements only apply to airports that
request and receive authorization from TSA to grant non-traveling
individuals access to the airport sterile area.
Once TSA assumes primary responsibility for watch list matching,
airlines will be relieved of their passenger watch list matching
responsibilities. For the purpose of the estimates in this analysis,
TSA assumed that domestic implementation will be completed in the first
year of the rule and international implementation will be completed in
the second year. However, the actual date the carriers will be
completely relieved is unknown and is contingent on several factors,
such as the impact of budgetary constraints and the results of
operational testing. Prior to full implementation, operational testing
will have to demonstrate that Secure Flight does not produce a large
number of false positives, processes all matching requests in an
efficient and accurate manner, and interfaces with a redress system for
passengers who believe they have been incorrectly delayed or denied
boarding as a result of Secure Flight matching. Elimination of their
watch list matching responsibilities enables airlines to reallocate to
other tasks some of their operational resources currently dedicated to
comparing passenger information to the watch lists and will offset some
costs imposed by the regulation. Due to the difference in resources
used by each airline for watch list matching and uncertainty regarding
the actual date each will be relieved of watch list duties, TSA was
unable to quantify these cost savings.
Further, while TSA conducted significant testing using previously
[[Page 64053]]
collected passenger name record (PNR) data, no testing has been
completed in a live environment using all of the passenger information
requested by this proposed rule. The operational testing phase provides
TSA the opportunity to work with the airlines and other stakeholders to
refine Secure Flight to achieve optimal results while the airlines
continue to have primary responsibility for watch list matching.
TSA has included a rough break-even analysis which indicates the
tradeoffs between program cost and program benefits (in the form of
impact on baseline risk of a significant aviation-related terror
attack) that would be required for Secure Flight to be a cost
beneficial undertaking.
b. Costs
All costs in the following summary are discounted present value
costs using a 7 percent discount rate over ten years unless noted
otherwise. The table below provides totals in constant 2005 dollars as
well as totals discounted at 7 percent and 3 percent. Cost tables in
section 1.6 of the full regulatory evaluation present year-by-year
costs in constant 2005 dollars. Both in this summary and the economic
evaluation, descriptive language conveys the consequences of the
regulation.
Given the global nature of commercial aviation and the prevalence
of airline partnerships, TSA was unable to divide the incidence of the
estimated costs between the domestic and foreign economies. Thus, the
table below presents the aggregate costs attributable to the Secure
Flight final rule. TSA has divided its discussion within each of the
cost sections in the regulatory evaluation between domestic and
international operations, reflecting the scope and phasing of the rule.
However, this distinction between costs accruing to domestic and
international operations should not be confused with costs to the
domestic and foreign economies.
Table B-1--Total and Average Costs
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average annual Average annual Average annual
costs, costs, costs, 10 Year total 10 Year total
Cost category undiscounted discounted 3% discounted 7% costs, discounted costs, discounted
(Low-High) (Low-High) (Low-High) 3% (Low-High) 7% (Low-High)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Air Carrier Reprogramming Costs............................ $36.2-$63.5 $38.6-$66.3 $41.8-$70.0 $329.5-$565.3 $293.8-$491.8
Airline Collection Costs................................... 10.5-15.7 10.4-15.5 10.3-15.3 88.6-132.4 72.2-107.8
Travel Agency Costs........................................ 26.1-39.4 26.0-39.3 26.0-39.3 221.9-278.8 182.4-276.1
Federal Costs.............................................. 137.0-167.5 135.9-166.2 134.4-164.5 1,159.3-1418 943.9-1,155.7
--------------------------------------------------------------------------------------------
Outlay Subtotal Costs.................................. 209.8-286.1 210.9-287.3 212.5-289.2 1,799.3-2,451.0 1,492.4-2,031.3
Passenger Opportunity Costs................................ 79.4-96.2 78.7-95.3 77.8-94.3 671.3-813.1 546.5-662.0
--------------------------------------------------------------------------------------------
Total Costs............................................ 289.2-382.2 289.6-382.7 290.3-383.5 2,470.5-3,264.1 2,038.9-2,693.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
TSA estimated a range of possible costs to reflect uncertainty in
TSA's assumptions about the additional time the rule adds to the
airline reservation process. The summary table above presents the
minimum and maximum of this range. TSA did not have sufficient
information from industry, however, to determine a likely cost
distribution; therefore, the minimum and maximum should be taken as
extremes, with the actual cost falling somewhere in between.
TSA estimated the cost impacts of this rulemaking will total from
$2.039 billion to $2.693 billion over ten years, discounted at 7
percent. At the 7 percent discount rate, air carriers will incur total
costs of $366.0 million to $599.6 million, and travel agents will incur
costs of $182.4 to $276.1 million. TSA projected Federal government
costs will be from $943.9 million to $1.156 billion. The total cost of
outlays by all parties, discounted at 7 percent, will be from $1.492
billion to $2.031 billion. Additionally, the opportunity costs to
individuals (value of time), discounted at 7 percent, will be between
$546.5 and $662.0 million. The following paragraphs discuss these
costs.
Air carriers will incur costs to comply with requirements of this
rulemaking. Over the 10-year period from 2008 to 2017, TSA estimated
air carriers will incur average annual costs of $41.8 to $70.0 million,
discounted at 7 percent, to reprogram their computer systems to
accommodate the additional data fields required by the rule and achieve
two-way connectivity with TSA and the recurring costs to operate and
maintain system modifications. Because the rule requires air carriers
to request additional information from passengers, additional time will
be required for airline call centers to complete reservations. TSA
estimated these costs will be between $10.3 and $15.3 million per year.
Together, the air carriers' discounted average annual costs will range
from $52.1 to $85.3 million.
The rule does not directly regulate travel agents. However, the
rule requires aircraft operators to ensure that travel agencies request
the additional passenger information. Therefore, travel agents, like
covered aircraft operators, must spend additional time to complete
airline reservations. TSA estimated the average annual cost to travel
agents, discounted at 7 percent, will range from $26.0 to $39.3
million.
The Federal government incurs several costs as a result of the
rule. These costs include network infrastructure to enable
communication between TSA and covered aircraft operator data systems,
hardware and software procurement, operations and maintenance, and
general support for implementation. The government further incurs costs
to complete adjudication of name similarities or watch list matches and
also for redress activities. Finally, the government incurs costs to
implement a system at checkpoints to verify the codes that the Secure
Flight system will issue and the covered aircraft operators will print
on boarding and gate passes. The government's estimated average annual
cost, discounted at 7 percent, will be from $134.4 million ($137.0
million, undiscounted) to $164.5 million ($167.5 million,
undiscounted).
The final rule also impacts individuals. Time is a valuable
economic resource, like labor, capital, and other factors of
production, which may be used for work or relaxation. The loss of time
imposes an opportunity cost on individuals. TSA attempted to quantify
opportunity costs to individuals based on the incremental additional
time required to make a reservation. TSA estimated the average annual
cost to individuals, discounted at 7 percent, will range from $77.8
[[Page 64054]]
($79.4 million, undiscounted) to $94.3 million ($96.2 million,
undiscounted).
Due to program refinements and information gleaned from public
comments, these cost estimates differ in some respects from those
reported in the Secure Flight NPRM. The table below identifies these
cost differences and their origins, by the entity bearing the cost.
Changes in Secure Flight Cost Estimates from NPRM Cost Estimates
----------------------------------------------------------------------------------------------------------------
Undiscounted 10 year total costs
($millions)
Cost component --------------------------------------- Notes
NPRM Final rule Difference
----------------------------------------------------------------------------------------------------------------
Reprogramming Costs to Carriers.... $318.5 $498.8 $180.3 In response to public comments,
carrier reprogramming costs for
Secure Flight were increased.
Airline Data Collection Costs...... 104.8 130.7 25.9 In response to public comments,
average data collection time for
obtaining Secure Flight data
elements during telephone
reservations was increased from 20
seconds to 25 seconds.
Travel Agency Reprog/Training Costs n/a 16.7 16.7 In response to public comments,
first year costs for travel agent
training and reprogramming costs
for larger travel agencies were
included.
Travel Agency Data Collection Costs 249.0 310.7 61.7 In response to public comments,
average data collection time for
obtaining Secure Flight data
elements during telephone
reservations was increased from 20
seconds to 25 seconds.
Federal Costs...................... 1,670.3 1,427.5 (242.8) Program costs revised based on
recent Congressional
appropriations; costs change
principally in Implementation,
Operations Planning and Service
Center cost areas.
----------------------------------------------------------------------------
Total Cash Outlay.............. 2,342.6 2,384.4 41.8
----------------------------------------------------------------------------------------------------------------
Passenger Opportunity Costs........ 787.3 877.9 90.5 In response to public comments,
average time to provide Secure
Flight data elements during
telephone reservations was
increased from 20 seconds to 25
seconds; added complexity risk.
----------------------------------------------------------------------------
Total Program Costs........ 3,129.9 3,262.3 132.4
----------------------------------------------------------------------------------------------------------------
3. Final Regulatory Flexibility Analysis (FRFA)
The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
business, organizations, and governmental jurisdictions subject to
regulation.'' To achieve that principle, the RFA requires agencies to
solicit and consider flexible regulatory proposals and to explain the
rationale for their actions. The Act covers a wide range of small
entities, including small businesses, not-for-profit organizations, and
small governmental jurisdictions. Agencies must perform a review to
determine whether a proposed or final rule will have a significant
economic impact on a substantial number of small entities. If the
determination is that it will, the agency must prepare a regulatory
flexibility analysis as described in the Act.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the RFA provides that the
head of the agency may so certify and a regulatory flexibility analysis
is not required. The certification must include a statement providing
the factual basis for this determination, and the reasoning should be
clear. Although TSA does not believe the final rule will have a
significant impact on a substantial number of small entities, the
agency has prepared a Final Regulatory Flexibility Analysis (FRFA).
Section 1: Reasons for and Objectives of the Final Rule
2.1.1 Reason for the Final Rule
Section 4012(a) of the Intelligence Reform and Terrorism Prevention
Act requires the Transportation Security Administration (TSA) to assume
from aircraft operators the function of conducting pre-flight
comparisons of airline passenger information to Federal Government
watch lists.
2.1.2 Objective of the Final Rule
This rule allows TSA to begin implementation of the Secure Flight
program, under which TSA will receive passenger and non-traveler
information, conduct watch list matching, and transmit gate and
boarding pass printing instructions back to aircraft operators
indicating whether individuals should be cleared to enter the sterile
area, marked as selectees, or prohibited from receiving a boarding or
gate pass.
Section 2: Affected Small Business Population and Estimated Impact of
Compliance
2.2.1 Aircraft Operator Small Business Population
The final Secure Flight rule affects all aircraft operators
conducting flight operations under a full security program per 49 CFR
1544.101(a). In general, these aircraft operators are the major
passenger airlines that offer scheduled and public charter flights from
commercial airports. Specifically, the covered carriers are those
performing scheduled service or public charter passenger operations
either with an aircraft having a passenger seating configuration of 61
or more seats or having 60 or fewer seats if the aircraft enplanes from
or deplanes into a sterile area.
Of the 66 aircraft operators that are covered by the final rule,
TSA estimated that 24 of these can be identified as small business
entities. This is based on the Small Business Administration (SBA)
Office of Size Standards' size standard of ``fewer than 1,500
[[Page 64055]]
employees'' for small businesses within NAICS Code 481111, Scheduled
Passenger Air Transportation, and those within NAICS Code 481211,
Nonscheduled Chartered Passenger Air Transportation.\29\ For this
analysis, air carrier employee counts were developed from publicly
available information and from carrier filings with the U.S. Department
of Transportation's Bureau of Transportation Statistics (BTS) and
Federal Aviation Administration (FAA).
---------------------------------------------------------------------------
\29\ Small Business Administration. Table: ``Small Business Size
Standards matched to North American Industry Classification
System.'' Available at http://www.sba.gov/size/sizetable2002.html.
Accessed May 4, 2006.
---------------------------------------------------------------------------
In the Secure Flight regulatory evaluation, TSA divided covered
carriers into four ``cost groups'' based on the nature of their
reservations systems and BTS size classification (i.e., major,
national, large regional, etc.).\30\ These groupings correspond to the
estimated costliness of reprogramming airline reservation systems to
comply with the Secure Flight requirements. Implementation Group 1
represents all legacy marketing carriers and their affiliates utilizing
an older Global Distribution System (GDS) or host Airline Reservation
System (ARS). Legacy airlines, those flying prior to the Airline
Deregulation Act of 1978, are all major airlines and have the oldest
computer systems. Accordingly, TSA assumed this group incurs the
highest compliance costs. Implementation Group 2 includes marketing
carriers utilizing a newer GDS or host ARS, as well as national
carriers subscribing to an older GDS. Implementation Group 3 represents
carriers with independently maintained reservation systems TSA
determined were capable of receiving a direct connection to Secure
Flight, as well as regional, commuter, and small airlines subscribing
to an older GDS or host ARS. Airlines with very simple or no
computerized reservation systems form Group 4. Rather than requiring
Group 4 carriers to establish complex systems capable of connecting
directly with Secure Flight, TSA allows them to transmit passenger
information through a secure Internet portal.
---------------------------------------------------------------------------
\30\ For more information, please see section 1.4.1.
---------------------------------------------------------------------------
In Groups 1 and 2, smaller airlines often use the reservation
systems of larger airlines. For example, a passenger may book a
reservation with a large, marketing airline, but the flight may be
operated by a smaller airline owned by or contracting with the
marketing airline (an affiliate). In such cases, TSA assumed in its
regulatory evaluation that the marketing airline bears the cost of
changes to the reservation system and designated those carriers as
``points of implementation.'' Section 1.4.1 of the regulatory
evaluation describes this distinction in greater detail.
In the discussion below, TSA relaxes this assumption and treats
affiliate carriers as if they are marketing carriers. Since no Group 1
affiliate carriers are major airlines, they were re-categorized as
Group 3 carriers (regional, commuter, or small carriers using an older
GDS). Specifically, these are Carriers 3, 4, 8, and 9 in the
tables.\31\ Although this method ensures a potential cost is estimated
for all small business carriers, TSA notes that it likely overstates
the actual cost that will be incurred. Thus, for this small business
analysis, TSA considers ten carriers under Implementation Groups 2 and
3. The remaining 14 carriers belong to Group 4.
---------------------------------------------------------------------------
\31\ Since in some cases the reported revenue data are
proprietary, TSA substituted an ID number in place of company names.
---------------------------------------------------------------------------
Table 2.2.1.a reports annual 2005 employment and operating revenues
or sales \32\ TSA gathered for these 24 airlines (in one case the
financial data are from 2002). These small air carriers are active in
different areas of the passenger air transportation marketplace. Some
provide scheduled passenger service in small niche markets, often as
part of the larger route system of an established hub and spoke
carrier; others provide charter transportation services to tour groups
or organizations such as professional sports teams. Some of those that
provide scheduled passenger services use reservation systems hosted by
one of the existing ARS providers, while others handle phone
reservations or receive reservations from travel agents. All of these
small airlines are subject to the rule, however, due to the size of
aircraft they use and/or because of the airport environments in which
they operate. Thus, these airlines will collect more information from
passengers, but TSA will take over their current requirement to compare
passenger manifests to the watch lists.
---------------------------------------------------------------------------
\32\ In cases for which annual revenues were not available,
carrier filings of total annual sales were used as a proxy for
revenue.
Table 2.2.1.a--Secure Flight Small Business Air Carriers
[2005 Data]
----------------------------------------------------------------------------------------------------------------
Share of total
Employees Annual covered carrier
Small business carrier ID No. (total full- operating Enplanements enplanements
and part-time) revenues (percent)
----------------------------------------------------------------------------------------------------------------
Aircraft Operators in Implementation Groups 2 and 3
----------------------------------------------------------------------------------------------------------------
1....................................... 914 $204,000,000 1,266,293 0.199
2....................................... 893 80,300,000 1,132,207 0.178
3....................................... 546 78,100,000 838,959 0.051
4....................................... 545 60,000,000 440,865 0.069
5....................................... 400 45,100,000 636,768 0.100
6....................................... 380 42,800,000 570,291 0.090
7....................................... 255 18,600,000 49,242 0.008
8....................................... 230 39,600,000 355,607 0.056
9....................................... 220 24,000,000 141,252 0.022
10...................................... 50 5,000,000 48,221 0.008
----------------------------------------------------------------------------------------------------------------
Aircraft Operators in Implementation Group 4
----------------------------------------------------------------------------------------------------------------
11...................................... 964 $74,300,000 208,120 0.033
12...................................... 826 76,392,000 344,741 0.054
13...................................... 739 137,900,000 506,292 0.080
14...................................... 600 68,600,000 91,571 0.014
[[Page 64056]]
15...................................... 593 132,500,000 836,409 0.132
16...................................... 549 33,400,000 329,418 0.052
17...................................... 411 105,266,000 82,529 0.013
18...................................... 220 6,330,000 18,707 0.003
19...................................... 212 35,649,000 329,083 0.052
20...................................... 159 12,000,000 35,788 0.006
21...................................... 75 14,230,000 22,511 0.004
22...................................... 19 930,000 (\a\) (\a\)
23...................................... (\a\) (\a\) 38,471 0.006
24...................................... (\a\) (\a\) 17,521 0.003
----------------------------------------------------------------------------------------------------------------
\a\ Unavailable.
2.2.2 Estimated Impact to Aircraft Operator Small Businesses
TSA determined that the rule does not cause a significant economic
impact for a substantial number of these small business entities based
on several considerations. First, under the current procedures, these
small airlines must devote effort to matching passenger identification
information to TSA watch lists but are not able to establish staff and
back office activities that are dedicated to these security functions
due to the small scale of their operations. Instead, the existing
security responsibilities are fulfilled by airline personnel who may
have other unrelated duties. These scale considerations suggest that
the benefits of changing the current responsibilities by implementing
the rule may be weighted toward these smaller airlines, when considered
on a per enplanement basis.
In addition, given the variety of business activities pursued by
the small carriers under consideration--scheduled passenger operations
or charter operations, operations that collaborate with a larger hub
and spoke carrier or that are independent of larger carriers, and
operations that do or do not make use of an existing ARS host for
processing reservations-it is difficult to estimate the costs that are
incurred by these small carriers when the rule is implemented. In order
to evaluate the possible economic impact of the rule on small aircraft
operators, TSA utilized two calculation methods: one for carriers in
Groups 2 and 3 and a second for carriers in Group 4.
Since reprogramming and data collection costs have already been
presented in the aggregate for Groups 2 and 3 in sections 1.6.2 and
1.6.3 of the regulatory evaluation, TSA used the same techniques to
calculate the potential impact to small business carriers in these two
groups. Table 2.2.2.a below shows the outcome of these calculations.
TSA first assigned an estimated initial reprogramming cost to each
small business carrier based on whether it belonged to Group 2 or 3
(column B). The initial reprogramming cost was used since this is the
highest expenditure in any one year. Each carrier will also experience
an increase in the time required to collect passenger data during
reservations, as discussed in section 1.6.3. To arrive at the maximum
annual collection cost (column D), TSA annualized the total High
Scenario Airline Collection Costs from Table 1.6.3.a. These airline
collection costs are a function of reservations and TSA assumed an
airline's share of reservations is proportional to its share of
enplanements. Thus, TSA multiplied the total annual collection cost by
each carrier's share of enplanements (column C) to arrive at its
proportion of the annual collection cost (column E). Adding the
collection cost to the initial reprogramming cost yielded a per-carrier
estimated cost of compliance (column F). TSA divided these estimated
compliance costs by each carrier's reported revenue to determine the
percent of revenue that will be expended on Secure Flight (column G).
Although there is no hard and fast definition for ``significant
economic impact,'' agencies frequently use 2 percent of an entity's
revenue as a threshold. As can be seen in the table, in one case the
estimated compliance cost exceeds 2 percent of the carriers' reported
2005 revenues and in one case it exceeds 8 percent. After reviewing the
relevant information, however, TSA determined the threshold may not be
applicable in this particular case. This is because the percentage is
extremely sensitive to the estimated reprogramming cost (column B).
TSA's estimated reprogramming costs for these carriers are based on
assumptions about limited data and may overstate the costs to smaller
carriers. This consideration is especially true of carrier ten. This
carrier maintained its own reservation system until August 2005, when
it began subscribing to a GDS. Consequently, its reprogramming costs
may be significantly lower than projected here. Further, these carriers
have the option to use the Secure Flight Web interface rather than
reprogram their reservation systems if they determine reprogramming to
be too costly.
Based on these considerations, TSA determined the estimated
compliance cost likely does not meet the requirements of a significant
economic impact under the RFA.
[[Page 64057]]
Table 2.2.2.a--Estimated Small Business Impact, Carrier Groups 2 and 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Share of Annualized Share of Estimated
2005 annual Estimated total airline airline total Compliance
Small business carrier ID No. operating carrier covered collection collection compliance cost as %
revenues reprogram carrier enp costs\*\ costs\*\ cost\*\ of
(000) costs (000) (percent) (000) (000) (000) revenues\*\
(A) (B) (C) (D) (E) = C*D (F) = B+E (G) = F/A
--------------------------------------------------------------------------------------------------------------------------------------------------------
1............................................................ $204,000 $850 0.20 $11,690 $23 $873 0.43
2............................................................ 80,300 425 0.18 11,690 21 446 0.56
3............................................................ 78,100 425 0.13 11,690 15 440 0.56
4............................................................ 60,000 425 0.07 11,690 8 433 0.72
5............................................................ 45,100 425 0.10 11,690 12 437 0.97
6............................................................ 42,800 425 0.09 11,690 11 436 1.02
7............................................................ 18,600 425 0.01 11,690 1 426 2.29
8............................................................ 39,600 425 0.06 11,690 7 432 1.09
9............................................................ 24,000 425 0.02 11,690 2 427 1.78
10........................................................... 5,000 425 0.01 11,690 1 426 8.52
--------------------------------------------------------------------------------------------------------------------------------------------------------
\*\Reflect totals from the high case scenario presented in the regulatory evaluation.
As discussed in section 1.6.2 of the regulatory evaluation, TSA
assumed Group 4 carriers will not have any reprogramming costs
associated with implementation of Secure Flight but that 13 of the 16
Group 4 carriers will spend $100,000 in the first year of the program
on staff retraining and customer outreach. TSA did not have sufficient
information, however, to reliably estimate costs incurred by these
carriers due to changes in their reservation process. For the purpose
of discussion, TSA here calculates a unit compliance cost per
enplanement in order to illustrate the average impact of the rule. The
results of this calculation are shown in Table 2.2.2.b.
TSA chose to use a broad assumption in developing its unit cost and
therefore included the annual costs related to the entire reservations
process for air transportation providers. As reported in Tables 1.6.3.a
and 1.6.4.a, costs associated with the reservations process include
airline and travel agency costs to make available privacy notices and
request additional passenger information. In TSA's high scenario, these
two categories total to approximately $34.2 million in fiscal year
2008. This value can be normalized to a per enplanement basis using the
reservations forecast reported in Table 1.4.1.a, which totals 672.1
million in 2008. This normalized cost per enplanement equals $34.2/
672.1, or about $0.05 per enplanement (column B).
Multiplying this normalized value by each carrier's 2005 annual
enplanements total (column B) and adding in the implementation
expenditure where applicable (column A), TSA estimated the cost to each
of the small business entities identified (column D). As column F of
Table 2.2.2.b indicates, this estimate for costs never exceeds 2
percent of 2005 annual revenues for these small carriers. Note further
that the annual enplanements value is unadjusted for round trip
itineraries or for reservations that may have been generated as part of
a marketing carrier's reservations process. Thus, the estimated values
in Table 2.2.2.b are very likely to be overstatements of the impact of
the rule on these small carriers.
Finally, as noted previously, DHS will make available a Secure
Flight Internet portal for the transmittal of passenger and other
itinerary data from Group 4 small airlines to TSA. The availability of
this interface simplifies the transition to the environment that will
prevail once the rule is implemented, while providing greater assurance
regarding the provision of the relevant security data to TSA for
comparison to the watch lists.
Table 2.2.2.b--Illustrative Small Business Impact, Carrier Group 4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maximum unit
Assumed start- FY 2005 compliance Compliance 2005 Annual Compliance
Small business carrier ID No. up outlay enplanements cost per cost operating cost as % of
enplanement revenues 2005 revenues
(A) (B) (C) (D) = A+B*C (E) (F) = D/E
--------------------------------------------------------------------------------------------------------------------------------------------------------
11...................................................... $100,000 208,120 $0.05 $110,400 $74,300,000 0.15
12...................................................... 100,000 344,741 0.05 117,200 76,392,000 0.15
13...................................................... 100,000 506,292 0.05 125,300 137,900,000 0.09
14...................................................... 100,000 91,571 0.05 104,600 68,600,000 0.15
15...................................................... 100,000 836,409 0.05 141,800 132,500,000 0.11
16...................................................... 100,000 329,418 0.05 116,500 33,400,000 0.35
17...................................................... 100,000 82,529 0.05 104,100 105,265,872 0.10
18...................................................... 100,000 18,707 0.05 100,900 6,330,280 1.59
19...................................................... 100,000 329,083 0.05 116,500 35,649,201 0.33
20...................................................... 100,000 35,788 0.05 101,800 12,000,000 0.85
21...................................................... 100,000 22,511 0.05 101,100 14,229,510 0.71
22...................................................... 0 0\*\ 0.05 0 930,000 (**)
23...................................................... 0 38,471 0.05 1,900 0 (**)
24...................................................... 0 17,521 0.05 900 0 (**)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\*\ Carrier had not yet begun reporting enplanements to BTS.
** Data not available.
[[Page 64058]]
The estimates provided in Table 2.2.2.b show how Group 4 small
businesses would be impacted by Secure Flight were their operations
comparable to those of airlines in Groups 1 through 3. As has been
noted above, however, this is not the case. Consequently, the costs
Group 4 airlines actually incur to comply with Secure Flight may
diverge significantly from the estimates presented. Nevertheless, the
table illustrates that these costs would have to increase dramatically
before they would constitute a significant economic impact.
2.2.3 Travel Agency Small Business Population
The Small Business Administration (SBA) classifies any travel
agency as a small business if it has revenues of less than $3.5 million
annually.\33\ The SBA data provided in Table 2.2.3.a indicate that in
2003 more than 98 percent of travel agencies had annual revenues less
than $5 million. Although the division of the SBA revenue categories do
not allow for a precise count of the number of small businesses, the
average revenue per firm of $1.9 million for the $1 million to $5
million category indicates that many of the firms in this category have
revenues below the $3.5 million threshold. Consequently, the discussion
of small businesses in the travel agency industry will be a discussion
about the vast number of firms.
---------------------------------------------------------------------------
\33\ Small Business Administration. Table: ``Small Business Size
Standards matched to North American Industry Classification
System.'' Available at http://www.sba.gov/size/sizetable2002.html.
Note: The SBA size standard for travel agencies is based on ``total
revenues, excluding funds received in trust for an unaffiliated
third party, such as bookings or sales subject to commissions. The
commissions received are included as revenue.''
Table 2.2.3.a--Distribution of Travel Agencies (NAICS 561510) by Revenue, 2003 \34\
--------------------------------------------------------------------------------------------------------------------------------------------------------
$100,000- $500,000- $1,000,000- Total Total
Total $0- $99,999 $499,999 $999,999 $4,999,999 <$5,000,000 >$5,000,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Firms....................................... 14,838 6,125 6,627 1,098 714 14,564 274
Percent of Total...................................... 100.00 41.28 44.66 7.40 4.81 98.15 1.85
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tables 2.2.3.b through 2.2.3.d below reflect the recent story of
the travel agent industry. The first two tables are based on 2002 data
provided by the Airlines Reporting Corporation (ARC) to the National
Commission to Ensure Consumer Information and Choice in the Airline
Industry (the Commission).
---------------------------------------------------------------------------
\34\ Small Business Administration. Table: ``All Industries by
NAICS codes, 2003.'' See TXT file ``2003'' available at http://www.sba.gov/advo/research/data.html.
---------------------------------------------------------------------------
When the Commission prepared its report ``Upheaval in Travel
Distribution: Impact on Consumers and Travel Agents, Report to Congress
and the President'' (Commission Report), the SBA had just increased the
small business revenue threshold from $1 million to $3 million for
travel agents. Consequently, the Commission used $5 million in total
revenue (approximately $2.5 million in commission and fee revenue) as a
proxy threshold for small businesses when creating Tables 2.2.3.b and
2.2.3.c below. Although these tables do not capture the full universe
of travel agency small businesses, they nevertheless illustrate general
trends affecting these entities.
As can be seen in Tables 2.2.3.b and 2.2.3.c, the number of travel
agencies whose sales are less than $5 million per year declined
steadily through 2001. Correspondingly, the share of industry sales by
these smaller firms also fell. At the same time, however, the largest
firms increased both their share of industry sales and the dollar value
of their sales.
Table 2.2.3.b--Number of Travel Agencies by Size Category \35\
------------------------------------------------------------------------
Agency size 1995 1997 1999 2001
------------------------------------------------------------------------
$2M or Less................. 19,851 19,226 17,855 15,253
$2M-$5M..................... 2,356 2,803 2,482 1,770
$5M-$50M.................... 1,059 1,277 1,236 1,015
Greater than $50M........... 77 107 117 117
-------------------------------------------
Total................... 23,343 23,413 21,690 18,425
------------------------------------------------------------------------
Table 2.2.3.c--Share of Travel Agent Sales by Size Category \36\
[Percent]
------------------------------------------------------------------------
Agency size 1995 1997 1999 2001
------------------------------------------------------------------------
$2M or Less......................... 25.3 20.6 16.9 14.2
$2M-$5M............................. 13.5 12.8 10.7 8.4
$5M-$50M............................ 24.8 24.5 22.5 20.1
Greater than $50M................... 36.4 42.1 49.9 57.2
------------------------------------------------------------------------
Table 2.2.3.d shows aggregate monthly statistics released by the
Airlines Reporting Corporation indicating that the travel agent
industry continued to contract and consolidate through 2005.
Corresponding revenue data, however, were not available.
---------------------------------------------------------------------------
\35\ Commission Report, p. 114.
\36\ Ibid.
[[Page 64059]]
Table 2.2.3.d--Travel Agencies Accredited by the Airlines Reporting Corporation \37\
----------------------------------------------------------------------------------------------------------------
2001 2002 2003 2004 2005
----------------------------------------------------------------------------------------------------------------
Retail Locations......................................... 27,633 24,679 22,244 20,729 19,871
Home Offices......................................... 1,651 1,368 1,203 1,118 1,041
Independent/Single Entities.......................... 15,057 13,206 11,670 10,578 9,874
Branch............................................... 6,696 6,171 5,695 5,474 5,451
Restricted Access.................................... 862 950 1,039 1,120 1,205
On-site branch....................................... 3,367 2,984 2,637 2,439 2,300
Satellite Ticket Providers............................... 6,347 4,693 3,204 2,413 1,975
Corporate Travel Departments............................. 108 150 172 182 197
------------------------------------------------------
TOTAL LOCATIONS.................................. 34,088 29,522 25,620 23,324 22,043
Change over previous year (percent).......... N/A -13.39 -13.22 -8.96 -5.49
------------------------------------------------------
TOTAL ENTITIES*.................................. 17,678 15,674 14,084 12,998 12,317
Change over previous year (percent).......... N/A -11.34 -10.14 -7.71 -5.24
----------------------------------------------------------------------------------------------------------------
*Sum of Home Offices, Independent/Single Entities, Restricted Access, and Corporate Travel Departments.
2.2.4 Estimated Impact to Travel Agency Small Businesses
While not directly regulated, small travel agencies will certainly
be affected by the implementation of Secure Flight. TSA anticipated the
most significant burden on these entities results from the increased
time to collect additional passenger information. Small travel agencies
may also incur incremental costs due to retraining of staff and
reaching out to clients in order to update customer profiles prior to
their next trip.
---------------------------------------------------------------------------
\37\ ``End of Year Reporting and Settlement Results,'' Airlines
Reporting Corporation press release, December 2002, December 2003,
December 2004, December 2005. Available at http://www.arccorp.com/regist/news_sales_doc_stats.jsp.
---------------------------------------------------------------------------
In section 1.6.4 of the regulatory evaluation, TSA estimated a cost
that is borne by non-Internet (brick-and-mortar) travel agencies as a
result of the requirements. Detailed industry data did not exist,
however, that would allow TSA to determine the portion of that cost
that is borne by small travel agencies. In lieu of such information,
TSA chose to calculate a minimum number of airline reservations the
smallest travel agency size category would have to process in order for
the requirements of the rule to result in a ``significant economic
impact.'' This calculation corresponds to the high estimate scenario
and depends on a number of assumptions:
1. The average hourly wage of small business travel agents is
$20.69 (including benefits).
2. In TSA's highest cost scenario, an additional 30 seconds per
airline reservation is needed to collect additional passenger
information.
3. The additional time to collect passenger information will be
incurred for every airline reservation booked through a travel agency.
4. The average revenue of the smallest travel agency firms
(revenues between $0 and $99,999) is $47,204.\38\
---------------------------------------------------------------------------
\38\ Small Business Administration. Table: ``All Industries by
NAICS codes, 2003.'' See TXT file ``2003'' available at http://www.sba.gov/advo/research/data.html. Estimated receipts divided by
number of firms, revenue class 0-99,999.
---------------------------------------------------------------------------
5. Two percent of a small travel agency's revenue constitutes a
``significant economic impact.''
Accepting these assumptions, 2 percent of the smallest firm revenue
would constitute an impact of $942 ($47,204 x 0.02). Reversing the
calculations used in section 1.6.4, this total must be converted into
the additional reservation time it represents. This is accomplished by
dividing $942 by the travel agent hourly wage, which yields 45.5 hours
($942 / $20.69/hour). This cumulative 45.5 hours can then be broken
down into individual reservations by dividing by the total incremental
time per reservation, which is 0.008 hours (30 incremental seconds /
3600 seconds/hour). Thus, 45.5 hours represent approximately 5,690
airline reservations (45.5 hours / 0.008 hours/reservation). Under the
most burdensome scenario, then, on average the smallest travel agencies
would need to book 5,690 airline reservations in a year in order to
potentially incur a significant economic impact as a result of the
final rule.
Table 2.2.4.a presents this threshold number of reservations for
the range of data collection times presented in the Secure Flight
regulatory evaluation. Alternatively, the table also presents the
number of airline reservations a travel agency would have to process to
meet 2 percent of the SBA small business threshold for travel agents.
These estimates below should be considered as a range of ``worst
case scenarios.'' For example, reservations made for clients for whom a
travel agency already has the requested Secure Flight information saved
in a profile will not incur the additional data collection time.
Table 2.2.4.a--Airline Reservations Threshold for Small Business Travel Agencies
----------------------------------------------------------------------------------------------------------------
Revenue class $0-$99,999 SBA small business threshold
----------------------------------------------------------------------------------------------------------------
Firm Revenue (A).............. $47,120 $3,500,000
2% of Revenue (B)............. $942 $70,000
Average Agent Hourly Wage (C). $20.69 $20.69
Total Incremental Hours (D) = 45.5 3,383.5
B/C..........................
----------------------------------------------------------------------------------------------------------------
Estimate Scenario High Primary Low High Primary Low
----------------------------------------------------------------------------------------------------------------
Additional Hours per Reservation 0.008 0.006 0.003 0.008 0.006 0.003
(E).............................. (30 sec.) (20 sec.) (10 sec.) (30 sec.) (20 sec.) (10 sec.)
[[Page 64060]]
Reservations (F) = D/E............ 5,690 7,580 15,170 422,900 563,900 1,127,800
----------------------------------------------------------------------------------------------------------------
Section 3: Significant Alternatives Considered
The final rule provides small business carriers the flexibility of
either reprogramming their reservation systems to interface directly
with the Secure Flight system or to transmit passenger and non-traveler
information to Secure Flight through a secure Internet interface. Thus,
small business carriers identified in Groups 2 and 3 have the option of
joining Group 4 and using the Internet portal if they determine
reprogramming their systems to communicate directly with Secure Flight
is too costly. Similarly, small business carriers TSA has identified in
this analysis as scheduled to use the Secure Flight Internet portal
have the option to reprogram their systems to communicate directly with
Secure Flight if they determine using the portal is too burdensome on
their business processes.
While either method imposes some costs on small businesses, TSA
determined that exempting these carriers from the requirements of the
rule would fail to meet the mandate within the IRTPA that TSA assume
the watch list matching function. Taking this into consideration, TSA
determined the options described above would effectively minimize the
impact to small businesses.
Section 4: Identification of Duplicative or Overlapping Federal Rules
TSA is aware that other Federal agencies, such as the Centers for
Disease Control and Prevention (CDC) and Customs and Border Protection
(CBP), collect data concerning aviation passengers and may conduct or
will conduct watch list matching for these passengers. TSA is working
with other agencies, including the CDC and CBP, to develop ways to
eliminate unnecessary duplication of comparable screening efforts and
thereby reduce governmental and private sector costs. Therefore, the
rule allows TSA to relieve covered aircraft operators of the
requirement to transmit passenger information if TSA determines that
the U.S. government is conducting watch list matching for a passenger
on a particular flight that is comparable to the screening conducted
pursuant to part 1560. TSA will work with each covered aircraft
operator to establish the specific procedures and times for these
transmissions as it develops its Aircraft Operator Implementation Plan.
Section 5: Final Determination of No Significant Impact
Based on the considerations above, TSA believes that it is unlikely
the final rule has a significant economic impact on a substantial
number of the small entities subject to this rulemaking. In conducting
this analysis, TSA acknowledges that the ability of carriers to share
the incidence of security costs with their customers has been limited.
While not required by the RFA, TSA has also considered the
potential impact to small business travel agencies, as these entities
are likely to be indirectly impacted by the rule given their role in
the airline reservation process. TSA does not believe the final rule
will have a significant economic impact on a substantial number of
these small business travel agencies.
C. International Trade Impact Assessment
The Trade Agreement Act of 1979 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 security, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and, where appropriate, that they be the basis for U.S.
standards. In addition, consistent with the Administration's belief in
the general benefits and desirability of free trade, it is the policy
of TSA to remove or diminish, to the extent feasible, barriers to
international trade, including both barriers affecting the export of
American goods and services to foreign countries and barriers affecting
the import of foreign goods and services into the United States. TSA
has assessed the potential effect of this rulemaking and has determined
that it does not create barriers to international trade.
D. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 is intended, among other
things, to curb the practice of imposing unfunded Federal mandates on
State, local, and tribal governments. Title II of this Act requires
each Federal agency to prepare a written statement assessing the
effects of any Federal mandate in a proposed or final agency rule that
may result in an expenditure of $100 million or more (adjusted annually
for inflation) in any one year by State, local, and tribal governments,
in the aggregate, or by the private sector. Such a mandate is deemed to
be a ``significant regulatory action.'' This final rule does not
contain such a mandate on State, local, and tribal governments. The
overall impact on the private sector does exceed the $100 million
threshold in the aggregate. The full regulatory evaluation documents
the costs, alternatives, and TSA accommodation of the public comments.
E. Executive Order 13132, Federalism
TSA has analyzed this final rule under the principles and criteria
of Executive Order 13132, Federalism. We determined that this action
will not have a substantial direct effect on the States, on the
relationship between the Federal government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and therefore, does not have federalism implications.
F. Environmental Analysis
TSA has analyzed this final rule under the Department of Homeland
Security (DHS) Management Directive 5100.1, ``Environmental Planning
Program'' (see also 71 FR 16790, April 4, 2006), which guides TSA
compliance with the National Environmental Policy Act of 1969 (NEPA)
(42 U.S.C. 4321-4370f). TSA has determined that this final rule is
categorically excluded from further NEPA analysis under the following
categorical exclusions (CATEXs) listed in MD 5100.1, Appendix A, Table
1:
Administrative and Regulatory Activities:
CATEX A3 (Promulgation of rules, issuance of rulings or
interpretations and the development and publication of policies that
implement, without substantive change, statutory or regulatory
requirements);
CATEX A4 (Information gathering, data analysis and
processing, information dissemination, review, interpretation and
development of documents).
Operational Activities:
CATEX B3 (Proposed activities and operations conducted in
an existing structure that would be compatible with and similar in
scope to ongoing functional uses).
Unique Categorical exclusions for TSA:
[[Page 64061]]
CATEX H1 (Approval or disapproval of security plans
required under legislative or regulatory mandates unless such plans
would have a significant effect on the environment).
Additionally, TSA has determined that no extraordinary
circumstances exist (see MD 5100.1, Appendix A, paragraph 3.B.(1)-(3))
which would limit the application of a CATEX with regard to these
activities.
G. Energy Impact
The energy impact of this action has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163,
as amended (42 U.S.C. 6362). We have determined that this rulemaking is
not a major regulatory action under the provisions of the EPCA.
H. International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is TSA's policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. TSA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to the regulatory standards established by this final
rule. TSA has assessed the potential effect of this rulemaking and has
determined that it does not create barriers to international trade.
However, when TSA reviewed the impact of foreign carrier
overflights, the conclusion is not clear. The right of airlines from
one country to overfly another country in the course of traveling to
the destination country is the first of the well known ``freedoms of
the air.'' This technical freedom has been engrained in international
aviation since the Chicago Convention of 1944, qualified, however, by
the right of countries to regulate the airspace over their territory.
How countries might react to the new conditions being placed on the
fulfillment of this freedom is uncertain. International trade in travel
and international shipping may be negatively impacted should foreign
countries choose to respond in a retaliatory manner. One response by
foreign carriers might be to avoid overflying the U.S. entirely,
thereby lengthening flight routes and the costs of operation to those
carriers. These re-routings would change airline costs and thus
contribute to fare increases, which would affect trade between the
departure and arrival countries, even though it would not directly
affect trade involving the U.S. If the foreign carrier response is to
reroute, it is not clear that such a change would eliminate all risks,
since aircraft skirting the boundaries of U.S. airspace could be
redirected into U.S. airspace by hijackers or terrorists.
List of Subjects
49 CFR Part 1540
Air carriers, Aircraft, Airports, Civil aviation security, Law
enforcement officers, Reporting and recordkeeping requirements,
Security measures.
49 CFR Part 1544
Air carriers, Aircraft, Aviation safety, Freight forwarders,
Incorporation by reference, Reporting and recordkeeping requirements,
Security measures.
49 CFR Part 1560
Air carriers, Aircraft, Reporting and recordkeeping requirements,
Security measures.
The Amendments
0
For the reasons set forth in the preamble, the Transportation Security
Administration amends Chapter XII, of Title 49, Code of Federal
Regulations to read as follows:
Subchapter C--Civil Aviation Security
PART 1540--CIVIL AVIATION SECURITY: GENERAL RULES
0
1. The authority citation for part 1540 continues to read as follows:
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44907, 44913-44914,
44916-44918, 44935-44936, 44942, 46105.
0
2. Revise Sec. 1540.107 to read as follows:
Subpart B--Responsibilities of Passengers and Other Individuals and
Persons
Sec. 1540.107 Submission to screening and inspection.
(a) No individual may enter a sterile area or board an aircraft
without submitting to the screening and inspection of his or her person
and accessible property in accordance with the procedures being applied
to control access to that area or aircraft under this subchapter.
(b) An individual must provide his or her full name, as defined in
Sec. 1560.3 of this chapter, date of birth, and gender when--
(1) The individual, or a person on the individual's behalf, makes a
reservation for a covered flight, as defined in Sec. 1560.3 of this
chapter, or
(2) The individual makes a request for authorization to enter a
sterile area.
(c) An individual may not enter a sterile area or board an aircraft
if the individual does not present a verifying identity document as
defined in Sec. 1560.3 of this chapter, when requested for purposes of
watch list matching under Sec. 1560.105(c), unless otherwise
authorized by TSA on a case-by-case basis.
PART 1544--AIRCRAFT OPERATOR SECURITY: AIR CARRIERS AND COMMERCIAL
OPERATORS
0
3. The authority citation for part 1544 continues to read as follows:
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44905, 44907,
44913-44914, 44916-44918, 44932, 44935-44936, 44942, 46105.
0
4. Amend Sec. 1544.103 by adding new paragraph (c)(22) to read as
follows:
Subpart B--Security Program
Sec. 1544.103 Form, content, and availability.
* * * * *
(c) * * *
(22) The Aircraft Operator Implementation Plan (AOIP) as required
under 49 CFR 1560.109.
0
5. Add a new part 1560, to read as follows:
PART 1560--SECURE FLIGHT PROGRAM
Subpart A--General
Sec.
1560.1 Scope, purpose, and implementation.
1560.3 Terms used in this part.
Subpart B--Collection and Transmission of Secure Flight Passenger Data
for Watch List Matching
1560.101 Request for and transmission of information to TSA.
1560.103 Privacy notice.
1560.105 Denial of transport or sterile area access; Designation for
enhanced screening.
1560.107 Use of watch list matching results by covered aircraft
operators.
1560.109 Aircraft Operator Implementation Plan.
1560.111 Covered airport operators.
Subpart C--Passenger Redress
1560.201 Applicability.
1560.203 Representation by counsel.
1560.205 Redress process.
1560.207 Oversight of process.
Authority: 49 U.S.C. 114, 40113, 44901, 44902, 44903.
Subpart A--General
Sec. 1560.1 Scope, purpose, and implementation.
(a) Scope. This part applies to the following:
(1) Aircraft operators required to adopt a full program under 49
CFR 1544.101(a).
[[Page 64062]]
(2) Foreign air carriers required to adopt a security program under
49 CFR 1546.101(a) or (b).
(3) Airport operators that seek to authorize individuals to enter a
sterile area for purposes approved by TSA.
(4) Individuals who seek redress in accordance with subpart C of
this part.
(b) Purpose. The purpose of this part is to enhance the security of
air travel within the United States and support the Federal
government's counterterrorism efforts by assisting in the detection of
individuals identified on Federal government watch lists who seek to
travel by air, and to facilitate the secure travel of the public. This
part enables TSA to operate a watch list matching program known as
Secure Flight, which involves the comparison of passenger and non-
traveler information with the identifying information of individuals on
Federal government watch lists.
(c) Implementation. Each covered aircraft operator must begin
requesting the information described in Sec. 1560.101(a)(1) and have
the capability to transmit SFPD to TSA in accordance with its Aircraft
Operator Implementation Plan (AOIP) as approved by TSA. Each covered
aircraft operator must begin transmitting information to TSA as
required in Sec. 1560.101(b) on the date specified in, and in
accordance with, its AOIP as approved by TSA. TSA will inform each
covered aircraft operator 60 days prior to the date on which TSA will
assume the watch list matching function from that aircraft operator.
Sec. 1560.3 Terms used in this part.
In addition to the terms in Sec. Sec. 1500.3 and 1540.5 of this
chapter, the following terms apply to this part:
Aircraft Operator Implementation Plan or AOIP means a written
procedure describing how and when a covered aircraft operator or
airport operator transmits passenger and flight information and non-
traveler information to TSA, as well as other related matters.
Airport code means the official code, designated by the
International Air Transport Association (IATA), for an airport.
Consolidated User Guide means a document developed by the
Department of Homeland Security (DHS) to provide guidance to aircraft
operators that must transmit passenger information to one or more
components of DHS on operational processing and transmission of
passenger information to all required components in a unified manner.
The Consolidated User Guide is part of the covered aircraft operator's
security program.
Covered aircraft operator means each aircraft operator required to
carry out a full program under 49 CFR 1544.101(a) or a security program
under 49 CFR 1546.101(a) or (b).
Covered airport operator means each airport operator that seeks to
authorize non-traveling individuals to enter a sterile area for a
purpose permitted by TSA.
Covered flight means any operation of an aircraft that is subject
to or operates under a full program under 49 CFR 1544.101(a). Covered
flight also means any operation of an aircraft that is subject to or
operates under a security program under 49 CFR 1546.101(a) or (b)
arriving in or departing from the United States, or overflying the
continental United States. Covered flight does not include any flight
for which TSA has determined that the Federal government is conducting
passenger matching comparable to the matching conducted pursuant to
this part.
Date of birth means the day, month, and year of an individual's
birth.
Department of Homeland Security Traveler Redress Inquiry Program or
DHS TRIP means the voluntary program through which individuals may
request redress if they believe they have been:
(1) Denied or delayed boarding transportation due to DHS screening
programs;
(2) Denied or delayed entry into or departure from the United
States at a port of entry; or
(3) Identified for additional (secondary) screening at U.S.
transportation facilities, including airports, and seaports.
Full name means an individual's full name as it appears on a
verifying identity document held by the individual.
Inhibited status means the status of a passenger or non-traveling
individual to whom TSA has instructed a covered aircraft operator or a
covered airport operator not to issue a boarding pass or to provide
access to the sterile area.
Itinerary information means information reflecting a passenger's or
non-traveling individual's itinerary specified in the covered aircraft
operator's AOIP. For non-traveling individuals, itinerary information
is the airport code for the sterile area to which the non-traveler
seeks access. For passengers, itinerary information includes the
following:
(1) Departure airport code.
(2) Aircraft operator.
(3) Scheduled departure date.
(4) Scheduled departure time.
(5) Scheduled arrival date.
(6) Scheduled arrival time.
(7) Arrival airport code.
(8) Flight number.
(9) Operating carrier (if available).
Known Traveler Number means a unique number assigned to an
individual for whom the Federal government has conducted a security
threat assessment and determined does not pose a security threat.
Non-traveling individual or non-traveler means an individual to
whom a covered aircraft operator or covered airport operator seeks to
issue an authorization to enter the sterile area of an airport in order
to escort a minor or a passenger with disabilities or for some other
purpose permitted by TSA. The term non-traveling individual or non-
traveler does not include employees or agents of airport or aircraft
operators or other individuals whose access to a sterile area is
governed by another TSA requirement.
Overflying the continental United States means departing from an
airport or location outside the United States and transiting the
airspace of the continental United States en route to another airport
or location outside the United States. Airspace of the continental
United States includes the airspace over the lower 48 states of the
United States, not including Alaska or Hawaii, and the airspace
overlying the territorial waters between the U.S. coast of the lower 48
states and 12 nautical miles from the continental U.S. coast.
Overflying the continental United States does not apply to:
(1) Flights that transit the airspace of the continental United
States between two airports or locations in the same country, where
that country is Canada or Mexico; or
(2) Any other category of flights that the Assistant Secretary of
Homeland Security (Transportation Security Administration) designates
in a notice in the Federal Register.
Passenger means an individual who is traveling on a covered flight.
The term passenger does not include:
(1) A crew member who is listed as a crew member on the flight
manifest; or
(2) An individual with flight deck privileges under 49 CFR 1544.237
traveling on the flight deck.
Passenger Resolution Information or PRI means the information that
a covered aircraft operator or covered airport operator transmits to
TSA for an individual who TSA places in an inhibited status and from
whom the covered aircraft operator or covered airport operator is
required to request additional information and a Verifying Identity
Document. Passenger
[[Page 64063]]
Resolution Information includes, but is not limited to, the following:
(1) Covered aircraft operator's agent identification number or
agent sine.
(2) Type of Verifying Identity Document presented by the passenger.
(3) The identification number on the Verifying Identity Document.
(4) Issue date of the Verifying Identity Document.
(5) Name of the governmental authority that issued the Verifying
Identity Document.
(6) Physical attributes of the passenger such as height, eye color,
or scars, if requested by TSA.
Passport information means the following information from an
individual's passport:
(1) Passport number.
(2) Country of issuance.
(3) Expiration date.
(4) Gender.
(5) Full name.
Redress Number means the number assigned by DHS to an individual
processed through the redress procedures described in 49 CFR part 1560,
subpart C.
Secure Flight Passenger Data or (SFPD) means information regarding
a passenger or non-traveling individual that a covered aircraft
operator or covered airport operator transmits to TSA, to the extent
available, pursuant to Sec. 1560.101. SFPD is the following
information regarding a passenger or non-traveling individual:
(1) Full name.
(2) Date of birth.
(3) Gender.
(4) Redress number or Known Traveler Number (once implemented).
(5) Passport information.
(6) Reservation control number.
(7) Record sequence number.
(8) Record type.
(9) Passenger update indicator.
(10) Traveler reference number.
(11) Itinerary information.
Self-service kiosk means a kiosk operated by a covered aircraft
operator that is capable of accepting a passenger reservation or a
request for authorization to enter a sterile area from a non-traveling
individual.
Sterile area means ``sterile area'' as defined in 49 CFR 1540.5.
Terrorist Screening Center or TSC means the entity established by
the Attorney General to carry out Homeland Security Presidential
Directive 6 (HSPD-6), dated September 16, 2003, to consolidate the
Federal government's approach to terrorism screening and provide for
the appropriate and lawful use of terrorist information in screening
processes.
Verifying Identity Document means one of the following documents:
(1) An unexpired passport issued by a foreign government.
(2) An unexpired document issued by a U.S. Federal, State, or
tribal government that includes the following information for the
individual:
(i) Full name.
(ii) Date of birth.
(iii) Photograph.
(3) Such other documents that TSA may designate as valid verifying
identity documents.
Watch list refers to the No Fly and Selectee List components of the
Terrorist Screening Database maintained by the Terrorist Screening
Center. For certain flights, the ``watch list'' may include the larger
set of watch lists maintained by the Federal government as warranted by
security considerations.
Subpart B--Collection and Transmission of Secure Flight Passenger
Data for Watch List Matching
Sec. 1560.101 Request for and transmission of information to TSA.
(a) Request for information. (1) Each covered aircraft operator
must request the full name, gender, date of birth, and Redress Number
for passengers on a covered flight and non-traveling individuals
seeking access to an airport sterile area. For reservations made 72
hours prior to the scheduled time of departure for each covered flight,
the covered aircraft operator must collect full name, gender, and date
of birth for each passenger when the reservation is made or at a time
no later than 72 hours prior to the scheduled time of departure of the
covered flight. For an individual that makes a reservation for a
covered flight within 72 hours of the scheduled time of departure for
the covered flight, the covered aircraft operator must collect the
individual's full name, date of birth, and gender at the time of
reservation. The covered aircraft operator must include the information
provided by the individual in response to this request in the SFPD.
(i) Except as provided in paragraph (a)(1)(ii) of this section,
each covered aircraft operator must begin requesting the information
described in paragraph (a)(1) of this section in accordance with its
AOIP as approved by TSA.
(ii) An aircraft operator that becomes a covered aircraft operator
after the effective date of this part must begin requesting the
information on the date it becomes a covered aircraft operator.
(2) Beginning on a date no later than 30 days after being notified
in writing by TSA, each covered aircraft operator must additionally
request the Known Traveler Number for passengers on a covered flight
and non-traveling individuals seeking access to an airport sterile
area. The covered aircraft operator must include the Known Traveler
Number provided by the passenger in response to this request in the
SFPD.
(3) Each covered aircraft operator may not submit SFPD for any
passenger on a covered flight who does not provide a full name, date of
birth and gender. Each covered aircraft operator may not accept a
request for authorization to enter a sterile area from a non-traveling
individual who does not provide a full name, date of birth and gender.
(4) Each covered aircraft operator must ensure that each third
party that accepts a reservation, or accepts a request for
authorization to enter a sterile area, on the covered aircraft
operator's behalf complies with the requirements of this section.
(5) If the covered aircraft operator also has an operation of an
aircraft that is subject to 49 CFR 1544.101(b) through (i), the covered
aircraft operator may submit SFPD for passengers on these operations
for watch list matching under this part, provided that the covered
aircraft operator--
(i) Collects and transmits the SFPD for the passengers in
accordance with this section;
(ii) Provides the privacy notice to the passengers in accordance
with 49 CFR 1560.103; and
(iii) Complies with the requirements of 49 CFR 1560.105 and
1560.107.
(b) Transmission of Secure Flight Passenger Data to TSA. Beginning
on the date provided in a covered aircraft operator's AOIP, the covered
aircraft operator must electronically transmit SFPD to TSA, prior to
the scheduled departure of each covered flight, in accordance with its
AOIP as approved by TSA.
(1) To the extent available, each covered aircraft operator must
electronically transmit SFPD to TSA for each passenger on a covered
flight.
(2) Each covered aircraft operator must transmit SFPD to TSA prior
to the scheduled flight departure time, in accordance with its AOIP as
approved by TSA.
(c) Transmission of non-traveler information to TSA. Beginning on
the date provided in a covered aircraft operator's AOIP, the covered
aircraft operator must electronically transmit SFPD to TSA for each
non-traveling individual, prior to authorizing access to an airport
sterile area.
(d) Retransmission of information. Each covered aircraft operator
must retransmit to TSA updates to the information listed in paragraphs
(b) and
[[Page 64064]]
(c) of this section to reflect most recent changes to that information,
as specified in its AOIP as approved by TSA.
Sec. 1560.103 Privacy notice.
(a) Electronic collection of information--(1) Current electronic
collection of information. Prior to collecting information through a
Web site or self-service kiosk from a passenger or non-traveling
individual in order to comply with Sec. 1560.101(a), a covered
aircraft operator must make available the complete privacy notice set
forth in paragraph (b) of this section.
(2) Other electronic collection of information. If a covered
aircraft operator collects information directly from a passenger or
non-traveling individual in order to comply with Sec. 1560.101(a)
through an electronic means not described in paragraph (a)(1) of this
section, the covered aircraft operator must make available the complete
privacy notice set forth in paragraph (b) of this section.
(3) Third party Web site. Each covered aircraft operator must
ensure that each third party that maintains a Web site capable of
making a reservation for the covered aircraft operator's reservation
system, make available on its Web site the complete privacy notice set
forth in paragraph (b) of this section prior to collecting information
through the Web site.
(b) Privacy notice. The covered aircraft operator may substitute
its name for the word ``us,'' but the complete privacy notice otherwise
must be identical to the following paragraph unless TSA has approved
alternative language:
The Transportation Security Administration of the U.S.
Department of Homeland Security requires us to collect information
from you for purposes of watch list screening, under the authority
of 49 U.S.C. section 114, and the Intelligence Reform and Terrorism
Prevention Act of 2004. Providing this information is voluntary;
however, if it is not provided, you may be subject to additional
screening or denied transport or authorization to enter a sterile
area. TSA may share information you provide with law enforcement or
intelligence agencies or others under its published system of
records notice. For more on TSA Privacy policies, or to view the
system of records notice and the privacy impact assessment, please
see TSA's Web site at www.tsa.gov.
Sec. 1560.105 Denial of transport or sterile area access; Designation
for enhanced screening.
(a) Applicability. (1) This section applies to each covered
aircraft operator beginning on the date that TSA assumes the watch list
matching function for the passengers and non-traveling individuals to
whom that covered aircraft operator issues a boarding pass or other
authorization to enter a sterile area. TSA will provide prior written
notification to the covered aircraft operator no later than 60 days
before the date on which it will assume the watch list matching
function from that covered aircraft operator.
(2) Prior to the date that TSA assumes the watch list matching
function from a covered aircraft operator, the covered aircraft
operator must comply with existing watch list matching procedures for
passengers and non-traveling individuals, including denial of transport
or sterile area access or designation for enhanced screening for
individuals identified by the covered aircraft operator or TSA.
(b) Watch list matching results. Except as provided in paragraph
(b) of this section, a covered aircraft operator must not issue a
boarding pass or other authorization to enter a sterile area to a
passenger or a non-traveling individual, and must not allow that
individual to board an aircraft or enter a sterile area, until TSA
informs the covered aircraft operator of the results of watch list
matching for that passenger or non-traveling individual, in response to
the covered aircraft operator's most recent SFPD submission for that
passenger or non-traveling individual.
(1) Denial of boarding pass. If TSA sends a covered aircraft
operator a boarding pass printing result that says the passenger or
non-traveling individual must be placed on inhibited status, the
covered aircraft operator must not issue a boarding pass or other
authorization to enter a sterile area to that individual and must not
allow that individual to board an aircraft or enter a sterile area.
(2) Selection for enhanced screening. If TSA sends a covered
aircraft operator a boarding pass printing result that says the
passenger has been selected for enhanced screening at a security
checkpoint, the covered aircraft operator may issue a boarding pass to
that individual and must identify the individual for enhanced
screening, in accordance with procedures approved by TSA. The covered
aircraft operator must place a code on the boarding pass that meets the
requirements described in the Consolidated User Guide. If TSA sends a
covered aircraft operator a boarding pass printing result that says the
non-traveling individual has been selected for enhanced screening at a
security checkpoint, the covered aircraft operator must not issue an
authorization to enter a sterile area to that individual.
(3) Cleared for boarding or entry into a sterile area. If TSA sends
a covered aircraft operator a boarding pass printing result that
instructs a covered aircraft operator that a passenger or non-traveling
individual is cleared, the covered aircraft operator may issue a
boarding pass or other authorization to enter a sterile area to that
individual, unless required under another TSA requirement to identify
the passenger or non-traveling individual for enhanced screening or to
deny entry into the sterile area. The covered aircraft operator must
place a code on the boarding pass or authorization to enter the sterile
area that meets the requirements described in the Consolidated User
Guide.
(4) Override by a covered aircraft operator. No covered aircraft
operator may override a TSA boarding pass printing result that
instructs a covered aircraft operator to place a passenger or non-
traveling individual in an inhibited status or to identify a passenger
or non-traveling individual for enhanced screening, unless explicitly
authorized by TSA to do so.
(5) Updated SFPD from covered aircraft operator. When a covered
aircraft operator sends updated SFPD to TSA under Sec. 1560.101(d) for
a passenger or non-traveling individual for whom TSA has already issued
a boarding pass printing result, all previous TSA results concerning
the passenger or non-traveling individual are voided. The covered
aircraft operator may not issue a boarding pass or grant authorization
to enter a sterile area until it receives an updated result from TSA
authorizing the issuance of a boarding pass or authorization to enter a
sterile area. Upon receiving an updated result from TSA, the covered
aircraft operator must acknowledge receipt of the updated result,
comply with the updated result, and disregard all previous boarding
pass printing results.
(6) Updated boarding pass printing results from TSA. After TSA
sends a covered aircraft operator a result under paragraph (b)(1),
(b)(2), or (b)(3) of this section, TSA may receive additional
information concerning the passenger or non-traveling individual and
may send an updated boarding pass printing result concerning that
passenger or non-traveling individual to the covered aircraft operator.
Upon receiving an updated boarding pass printing result from TSA, the
covered aircraft operator must acknowledge receipt of the updated
result, comply with the updated result, and disregard all previous
results.
(7) Boarding pass issuance for covered flights to or overflying the
United States. Covered aircraft operators may permit another aircraft
operator to issue a boarding pass for a covered flight
[[Page 64065]]
departing from a foreign location to the United States or overflying
the United States without regard to the requirements in paragraphs
(b)(1) through (b)(6) of this section provided that--
(i) Before allowing the individual to board the aircraft for a
covered flight, the covered aircraft operator confirms that it has
received a boarding pass printing result from DHS for individuals who
are issued boarding passes under paragraph (b)(7) of this section;
(ii) Before allowing the individual to board an aircraft for a
covered flight, the covered aircraft operator applies the measures in
its security program to prevent an individual for whom DHS has returned
an inhibited status boarding pass printing result under paragraph
(b)(1) of this section from boarding the aircraft; and
(iii) The covered aircraft operator applies the measures in its
security program, as provided in 49 CFR part 1544, subpart B or 49 CFR
part 1546, subpart B, to ensure that an individual for whom DHS returns
a Selectee result under paragraph (b)(2) of this section undergoes
enhanced screening pursuant to the covered aircraft operator's security
program prior to that individual boarding the aircraft.
(c) Request for identification--(1) In general. If TSA has not
informed the covered aircraft operator of the results of watch list
matching for an individual by the time the individual attempts to check
in, or informs the covered aircraft operator that an individual has
been placed in inhibited status, the aircraft operator must request
from the individual a verifying identity document pursuant to
procedures in its security program., as provided in 49 CFR part 1544,
subpart B or 49 CFR part 1546, subpart B. The individual must present a
verifying identity document to the covered aircraft operator at the
airport.
(2) Transmission of Updated Secure Flight Passenger Data. Upon
reviewing a passenger's verifying identity document, the covered
aircraft operator must transmit the SFPD elements from the individual's
verifying identity document to TSA.
(3) Provision of Passenger Resolution Information. If requested by
TSA, the covered aircraft operator must also provide to TSA the
individual's Passenger Resolution Information as specified by TSA.
(4) Exception for minors. If a covered aircraft operator is
required to obtain information from an individual's verifying identity
document under this paragraph (c), and the individual is younger than
18 years of age and does not have a verifying identity document, TSA
may, on a case-by-case basis, authorize the minor or an adult
accompanying the minor to state the individual's full name and date of
birth in lieu of providing a verifying identity document.
(d) Failure to obtain identification. If a passenger or non-
traveling individual does not present a verifying identity document
when requested by the covered aircraft operator, in order to comply
with paragraph (c) of this section, the covered aircraft operator must
not issue a boarding pass or give authorization to enter a sterile area
to that individual and must not allow that individual to board an
aircraft or enter a sterile area, unless otherwise authorized by TSA.
Sec. 1560.107 Use of watch list matching results by covered aircraft
operators.
A covered aircraft operator must not use any watch list matching
results provided by TSA for purposes other than those provided in Sec.
1560.105 and other security purposes.
Sec. 1560.109 Aircraft Operator Implementation Plan.
(a) Content of the Aircraft Operator Implementation Plan (AOIP).
Each covered aircraft operator must adopt and carry out an AOIP that
sets forth the following:
(1) The covered aircraft operator's test plan with TSA.
(2) When the covered operator will begin to collect and transmit to
TSA each data element of the SFPD for each covered flight.
(3) The specific means by which the covered aircraft operator will
request and transmit information under Sec. 1560.101, the timing and
frequency of transmission, and any other related matters, in accordance
with the Consolidated User Guide.
(b) Adoption of Aircraft Operator Implementation Plan (AOIP). Each
covered aircraft operator must adopt an AOIP pursuant to the procedures
set forth in this paragraph (b).
(1) TSA notifies each covered aircraft operator in writing of a
proposed AOIP, fixing a period of not less than 30 days within which
the covered aircraft operator may submit written information, views,
and arguments on the proposed AOIP.
(2) After considering all relevant material, TSA's designated
official notifies each covered aircraft operator of its AOIP. The AOIP
becomes effective not less than 30 days after the covered aircraft
operator receives the notice of its AOIP, unless the covered aircraft
operator petitions the Assistant Secretary or designated official to
reconsider no later than 15 days before the effective date of the AOIP.
The covered aircraft operator must send the petition for
reconsideration to the designated official. A timely petition for
reconsideration stays the effective date of the AOIP.
(3) Upon receipt of a petition for reconsideration, the designated
official either amends the AOIP or transmits the petition, together
with any pertinent information, to the Assistant Secretary or designee
for reconsideration. The Assistant Secretary or designee disposes of
the petition within 30 days of receipt by either directing the
designated official to withdraw or amend the AOIP, or by affirming the
AOIP.
(4) TSA may, at its discretion, grant extensions to any schedule
deadlines, on its own initiative or upon the request of a covered
aircraft operator.
(c) Incorporation into Security Program. Once an AOIP is approved,
the AOIP becomes part of the covered aircraft operator's security
program as described in 49 CFR part 1544, subpart B, or 49 CFR part
1546, subpart B, as appropriate, and any amendments will be made in
accordance with the procedures in those subparts.
(d) Handling of Aircraft Operator Implementation Plan (AOIP). An
AOIP contains sensitive security information (SSI) and must be handled
and protected in accordance with 49 CFR part 1520.
Sec. 1560.111 Covered airport operators.
(a) Applicability. This section applies to a covered airport
operator that has a program approved by TSA through which the covered
airport operator may authorize non-traveling individuals to enter a
sterile area.
(b) Requirements. A covered airport operator must adopt and carry
out an AOIP in accordance with Sec. 1560.109. Each covered airport
operator must comply with the procedures required of covered aircraft
operators in Sec. Sec. 1560.101(a), (c), and (d), 1560.103, and
1560.107 of this part and any other applicable TSA requirements when
authorizing non-traveling individuals to enter a sterile area.
Subpart C--Passenger Redress
Sec. 1560.201 Applicability.
This subpart applies to individuals who believe they have been
improperly or unfairly delayed or prohibited from boarding an aircraft
or entering a sterile area as a result of the Secure Flight program.
[[Page 64066]]
Sec. 1560.203 Representation by counsel.
A person may be represented by counsel at his or her own expense
during the redress process.
Sec. 1560.205 Redress process.
(a) If an individual believes he or she has been improperly or
unfairly delayed or prohibited from boarding an aircraft or entering a
sterile area as a result of the Secure Flight program, the individual
may seek assistance through the redress process established under this
section.
(b) An individual may obtain the forms and information necessary to
initiate the redress process on the DHS TRIP Web site at http://www.dhs.gov/trip or by contacting the DHS TRIP office by mail.
Individuals should send written requests for forms to the DHS TRIP
office and include their name and address in the request. DHS will
provide the necessary forms and information to individuals through its
Web site or by mail.
(c) The individual must send to the DHS TRIP office the personal
information and copies of the specified identification documents. If
TSA needs additional information in order to continue the redress
process, TSA will so notify the individual in writing and request that
additional information. The DHS TRIP Office will assign the passenger a
unique identifier, which TSA will recognize as the Redress Number, and
the passenger may use that Redress Number in future correspondence with
TSA and when making future travel reservations.
(d) TSA, in coordination with the TSC and other appropriate Federal
law enforcement or intelligence agencies, if necessary, will review all
the documentation and information requested from the individual,
correct any erroneous information, and provide the individual with a
timely written response.
Sec. 1560.207 Oversight of process.
The redress process and its implementation are subject to review by
the TSA and DHS Privacy Offices and the TSA and DHS Offices for Civil
Rights and Civil Liberties.
Issued in Arlington, Virginia, on October 20, 2008.
Kip Hawley,
Assistant Secretary.
[FR Doc. E8-25432 Filed 10-27-08; 8:45 am]
BILLING CODE 9110-05-P