[Federal Register Volume 73, Number 209 (Tuesday, October 28, 2008)]
[Rules and Regulations]
[Pages 64018-64066]
From the Federal Register Online via the Government Printing 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.

------------------------------------------------------------------------
                                     Secure flight       Secure flight
                                     proposed rule        final rule
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

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

    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
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------

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

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

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).
---------------------------------------------------------------------------

    \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