[Federal Register: October 11, 2002 (Volume 67, Number 198)]
[Rules and Regulations]
[Page 63246-63250]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11oc02-3]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR 217
[INS No. 2219-02]
RIN 1115-AG73
Passenger Data Elements for the Visa Waiver Program
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule serves to further implement the automated entry and
exit control system mandated by section 217(h) and other provisions of
the Immigration and Nationality Act (Act) by specifying those passenger
data elements that must be electronically transmitted to the
Immigration and Naturalization Service (Service) by carries seeking to
transport Visa Waiver Program (VWP) passengers into and out of the
United States on or after publication of this rule. This rule will also
ensure that legitimate VWP travel is not disrupted. This rule is
necessary for the proper identification and monitoring of VWP aliens.
DATES: Effective date: October 11, 2002. Comment date: Written comments
must be submitted on or before November 12, 2002.
ADDRESSES: Please submit written comments to the Director, Regulations
and Forms Services Division, Immigration and Naturalization Service,
425 I Street NW, Room 4034, Washington, DC 20536. To ensure proper
handling, please reference INS No. 2219-02 on your correspondence.
Comments may also be submitted electronically to the Service at
insregs@usdoj.gov. Comments submitted electronically must include the
INS No. 2219-02 in the subject heading to ensure that the comments can
be transmitted electronically to the appropriate program office.
Comments are available for public inspection at the above address by
calling (202) 514-3291 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Michael J. Flemmi, Assistance Chief
Inspector, Inspections Division, Immigration and Naturalization
Service, 425 I Street NW., Room 5237, Washington, DC 20536, telephone
number: (202) 305-9247.
SUPPLEMENTARY INFORMATION:
Background
Congress mandated that, by 2005, the U.S. Department of Justice
must complete deployment at all ports-of-entry (POE) of an entry-exit
system that integrates the available alien arrival and departure data
that exists in the systems of the Department and the U.S. Department of
State (DOS). The Immigration and Naturalization Service Data Management
Improvement Act of 2000, Public Law 106-215, 114 Stat. 337 (2000),
codified, as amended, at 8 U.S.C. 1365a. This system also must include
the arrival and departure for any visitor who transits through the air
and seaports and is admitted under the Visa Waiver Program.
What Is the Visa Waiver Program (VWP)?
The Visa Waiver Program (VWP) permits nationals from participating
countries to apply for admission to the United States for a duration of
90 days or fewer, as nonimmigrant visitors for business or pleasure,
without first obtaining a nonimmigrant visa, provided that all other
statutory and regulatory requirements are met. If arriving by air or
sea, a VWP traveler must arrive on a carrier that signed an agreement
(signatory carrier) with the Service guaranteeing that it will
transport its VWP passengers deemed inadmissible or deportable out of
the United States at no expense to the United States government. See 8
CFR part 217. The VWP has been expanded and made permanent. This rule
implements one of the steps to making the VWP system permanent.
How Does the Permanent VWP Change the Pilot Program?
The Visa Waiver Permanent Program Act (VWPPA), Public Law 106-396,
114 Stat. 1637 (Oct. 30, 2000), converted the Vias Waiver Pilot Program
which was first launched in 1988 into a permanent program with several
modifications. Congress modified the pilot program in order to
safeguard the United States' law enforcement and security interests and
to reduce the ability of inadmissible aliens to enter the United States
under the program. See H.R. Rep. No. 106-564, at 7 (2000); see also
H.R. Rep. No. 106-1048, p. unavail. (2001). Among other modifications,
the VWPPA required the Attorney General to develop and implement, on or
before October 1, 2001, at automated entry and exit control system to
collect the arrival and departure record for each VWP passenger
admitted at a U.S. air or sea port-of-entry (POE). The automated
control system was to be based, to the maximum extent practicable, on
passenger data collected and electronically transmitted by each carrier
that has an agreement with the Service to transport aliens to the
United States. The Service has worked with and informed the Air
Transport Association (ATA), International Air Transport Association
(IATA), International Council of Cruise Lines (ICCL), and other
interested stakeholders of the development of the electronic arrival
passenger data transmittal system. Currently, over 140 carriers submit
electronic arrival passenger information. Of those carriers who do not
currently have this system in place, most are fully
[[Page 63247]]
aware of both the arrival and departure requirements of the system and
the statutory deadline being implemented in this rule. The departure
requirements are the same as the current APIS arrival information.
Upon publication of this rule, travelers will not be admitted to
the United States under the VWP unless they arrive on carriers that are
electronically transmitting to the automated entry and exit control
system, VWP passenger data that is sufficient to carry out the purpose
of section 217(h) of the Act including the calculation of the
percentage of nationals from each program country who received a waiver
after arriving at a U.S. air or sea POE and for whom no record of
departure exists.
Why Is the Development and Implementatin of an Automated Entry and Exit
Control System Important for Protecting the Integrity of the VWP?
Controlling our borders requires collecting information regarding
the movement of aliens in, through, and out of the United States. Such
information allows the U.S. Government to make informed policy and
management decisions, to identify and take action against those who
violate the law, to locate individual aliens of interest to law
enforcement entities, to track the immigration status of individual
aliens so that only those eligible receive immigration benefits, and to
keep out terrorists and other malafides. To meet these objectives
Congress has mandated that the Service create an electronic Entry-Exit
System. Developing an effective entry and exit control system to
monitor VWP admissions and departures is a significant step in building
this system. Additionally, advance manifests provide the Service with
an opportunity to more thoroughly analyze information regarding persons
from countries participating in the Visa Waiver program, who are
seeking to enter into or depart from the United States upon arrival
under the VWP and to identify individuals who may be inadmissible to
the United States or otherwise of interest to the Service or another
law enforcement agency. Submission of early advance passenger
information also facilitates the ability of the Service to notify other
law enforcement authorities that an arriving passenger on board may
present a potential safety or security risk. Furthermore, the
development of an automated entry and exit control system will allow
the Service to fulfill the reporting requirements mandated by sectin
217(h)(1)(C) of the Act.
For Which Passengers Must the Requested Information Be Transmitted
Electronically on or After the Date of Publication of This Rule?
Carriers must electronically transmit passenger arrival data in
accordance with this regulation for every applicant for admission under
the VWP that the carrier transports by air or sea to a U.S. port-of-
entry on or after the date of publication of this rule. Carriers must
electronically transmit passenger departure data in accordance with
this regulation for every passenger who was admitted to the United
States under the VWP that the carrier transports by air or sea from the
United States to a foreign port or place on or after the date of
publication of this rule. Carriers are only required to transmit
departure passenger information for those departing VWP passengers who
were admitted under the VWP after arriving at a port-of-entry via sea
or air.
What Are the Timeframes for the Electronic Transmission of the Required
VWP Passenger Information?
This rule provides final implementation for commercial carriers to
submit the required VWP passenger arrival data to the Service
electronically no later than 15 minutes after the flight or vessel has
departed from the last foreign port or place. This is the current
transmission requirement for air carriers submitting electronic arrival
information under the APIS program and this requirement will also
conform to the U.S. Customs Service's rule published at 66 FR 67482
(Dec. 31, 2001). This will allow the Service to check the requested
information against appropriate law enforcement and security databases
prior to the passenger's arrival. Carriers transporting passengers who
were admitted uner the VWP to points outside of the United States must
electronically submit the required pasenger departure information to
the Service no later than 15 minutes before the flight or vessel
departs from the United States. If additional passengers board after
the original manifest has been submitted, or if passengers exit after
boarding but prior to departure, carriers will also be required to
submit amended or updated passenger manifest information electronically
to the Service no later than 15 minutes after the flight or vessel has
departed from the United States.
What Passenger Information Must Carriers Submit for Arriving and
Departing VWP Passengers?
This regulation specifically provides that the following
information must be electronically transmitted for each passenger
seeking admission under the VWP or seeking to depart after having been
admitted under the VWP:
Passenger information;
Last Name;
First Name;
Middle name or middle initial;
Date of birth;
Gender or sex (F--Female; M--Male);
Nationality;
Document number;
Country of document issuance;
Document type (e.g., P=Passport, V=Visa, A=Alien registration
card);
Flight or vessel information (Advance Passenger Information (API)
header message)
Airline International Air Transport Association (IATA) carried code
or vessel name;
Airline flight number, or tail number for private or Corporate
aircraft;
Date and time of scheduled flight or vessel arrival into the United
States;
Date and time of scheduled flight or vessel departure from the
United States;
Port of arrival;
Port of departure;
Contact name and number; and
Traveler status (e.g., P=Passenger, C=Crewmember).
For each arriving and departing VWP passenger, carriers will submit
electronically only data elements that most carriers are already
transmitting electronically under the Advanced Passenger Information
System (APIS) Program administered jointly by the Service and the
United States Customs Service and/or pursuant to section 115 of the
Aviation and Transportation Security Act, Public Law 107-71.
Accordingly carriers that electronically transmit complete and accurate
passenger information in accordance with either the memorandum of
understanding that governs the APIS program or section 115 of the
Aviation Security Act will be in compliance with the passenger arrival
information requirements of this regulation. In this light, it must be
noted that effectively the only new requirement being implemented on
current VWP carriers by promulgating this rule is that of submitting
the prescribed data elements electronically prior to department as well
as arrival.
How Is the Required Information To Be Transmitted?
The required data for each VWP passenger must be transmitted to the
Service via the U.S. Customs Data Center, U.S. Customs Service
Headquarters, by means of an electronic data interchange system that is
approved by the U.S. Customs Service
[[Page 63248]]
in conjunction with the Service. Carriers that are not currently
transmitting data via the U.S. Customs Data Center must contact the
U.S. Customs Data Center, U.S. Customs Service Headquarters for
technical guidance. All of the APIS data is currently transmitted to a
centralized data base known as the Interagency Border Inspection System
(IBIS), which is jointly operated and accessible by the Service and the
U.S. Customs Service. IBIS allows all of the carriers to submit the
electronic arrival and passenger information to one centralized
location that meets both the service and the USCS's requirements.
What Are the Penalties for Failure to Electronically Transmit the
Required VWP Passenger Data Information?
There are no fines provided for by section 217 of the Act; however,
in cases where the carrier inexcusably fails to transmit an electronic
record in accordance with this rule and an alien arrives without the
necessary documentation needed for admission in the absence of the VWP,
the Service may impose fines under section 273 of the Act. Prior to the
Service issuing any fines, the Service will evaluate carriers on a Good
Faith Effort, which will be based upon the following criteria: (1) The
carrier notifies the Service of any technical or other issues in
submitting the departure information; (2) the carrier has a backorder
of the purchase of additional equipment, such as document readers; (3)
the carrier is using an alternative temporary method such as, the U.S.
Customs Service e-main account, in lieu of the carrier's reservation
system; (4) the carrier is utilizing a third party vendor as a
temporary solution in lieu of the carrier's reservation system to
transmit departure manifests; or (5) the totality of circumstances of
each carrier to comply with this regulation. Additionally, the Service
may seek to cancel the carrier's VWP contract for continued infractions
that could include untimely as well as incomplete data. Finally, it
should be noted that the Service may refuse admission under the VWP to
aliens for whom the carrier has not electronically transmitted the
required data elements.
Will Carriers Who Submit VWP Passenger Data Elements in the Required
Electronic Format Remain Responsible for the Submission of Passenger
Manifests as Well?
Yes. The obligation of carriers to submit information on VWP
passengers in support of the automated entry exit control system
mandated by section 217(h) of the Act is separate from a carrier's
obligation to submit arrival and departure manifests for all persons
transported on commercial aircraft or vessels pursuant to section 231
of the Act. However, section 402 of the Enhanced Border Security Act of
2002 recently amended section 231 of the Act by mandating, among other
things, that the manifest information required under section 231 must
be transmitted electronically not later than January 1, 2003. The
Service plans to publish a regulation implementing the manifest
provisions of Public Law 107-173, including the electronic transmission
requirement, shortly. It is the goal of the Service to develop a single
procedure for the electronic transmission of passenger and crew arrival
and departure information that will satisfy the requirements of both
sections 217 and 231 of the Act.
Good Cause Exception
Implementation of this rule as an interim rule with provision for
post-promulgation public comments is based upon the ``good cause''
exception found at 5 U.S.C. 553(b)(B). In accordance with section
217(h)(1)(B)(1) of the act, effective on the date of publication of
this rule, no waiver may be provided under section 217 of the Act to an
alien arriving by air or sea on a carrier unless the carrier is
electronically transmitting passenger data determined by the Attorney
General to be sufficient to permit the Attorney General to carry out
his obligations under 217(h) of the Act. In addition, this regulation
will provide the Service with valuable advanced information regarding
persons who are arriving and departing the United States from air and
sea ports-of-entry. Additionally, this information will allow the
Service to better able to identify and monitor individuals who violate
their immigration status. The electronic arrival and departure manifest
will also enable the Service to determine overstay rates by Visa Waiver
Countries. For these reasons, promulgation of this rule as a proposed
rule would be contrary to the public interest.
Regulatory Flexibility Act
Because this regulation is not subject to the requirements of the
notice and comment provisions of the Administrative Procedure Act for
good cause noted above it is likewise not subject to the provisions of
the Regulatory Flexibility Act. Should it become necessary, a
regulatory flexibility analysis will be provided in connection with the
promulgation of a final rule.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this rule has been submitted to the Office of
Management and Budget for review.
All of the air carriers currently transmnit arrival information
electronically, however, it is unknown what the cost is to the airlines
to reprogram their systems for departure manifests. However, a majority
of carriers already collect passenger information during the
passenger's arrival check-in process and this information is maintained
in the reservation system. In addition, the ATA and IATA have not been
able to provide cost estimates to the Service but expect most of the
costs to be associated with reprogramming the carrier's existing
reservation system to meet the departure requirement. Other costs may
also include the purchase of additional document readers to scan travel
documents. The price range of a document reader is approximately
$900.00 to $2,000.00.
There will be additional staff hours if the departure manifest
requirements are entered manually, however, most airlines already have
automated systems, especially for the arrival APIS process. The U.S.
Customs system also provides an e-mail account for carriers with no
systems and is developing a Web account.
For carriers without reservation systems or APIS access, the USCS
has developed an e-m,ail account to transmit and is also in the process
of developing web APIS to allow carriers to transmit the electronic
arrival and departure manifests. This option provides minimum costs to
carriers who wish to utilize the e-mail or Web access. Third party
vendors are also available to submit an electronic arrival or
department on the carrier's behalf.
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
[[Page 63249]]
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions are deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act (PRA)
This interim rule requires that carriers collect and electronically
transmit certain arrival and departure information concerning Visa
Waiver Program passengers to the Service. This requirement is
considered an information collection under the Paperwork Reduction Act.
Accordingly, the Service has submitted an information collection
request to the Office of Management and Budget (OMB) for emergency
review and clearance in accordance with the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.).
All comments and suggestions, or questions regarding additional
information, should be directed to the Immigration and Naturalization
Service, Regulations and Forms Services Division, 425 I Street NW.,
Room 4034, Washington, DC 20536; Attention: Richard A Sloan, Direction,
(202) 514-3291.
We request written comments and suggestions from the public and
affected agencies concerning the proposed collection of information.
Any comments on the information collection must be submitted on or
before December 10, 2002. Your comments should address one or more of
the following four points:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of the information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
Overview of this information collection:
(1) Type of information collection: New.
(2) Title of Form/Collection: Visa Waiver Program Passenger Arrival
and Departure Data.
(3) Agency form number, if any, and the applicable component of the
Department of Justice sponsoring the collection: No form number (File
number OMB-32), Immigration and Naturalization Service.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Business or Individuals. Section 217(h) of
the Immigration and Nationality Act (Pub. L. 106-396), requires that
certain passenger data elements must be collected and electronically
transmitted to the Immigration and Naturalization Service by carriers
seeking to transport VWP passengers into and out of the United States
on or after October 1, 2002. The information collection is necessary to
ensure that the Service receives accurate passenger arrival and
departure information in a timely manner.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: 600 respondents
at 10 minutes multiplied by 365 days.
(6) An estimate of the total of public burden (in hours) associated
with the collection: Approximately 36,500 burden hours. This collection
is OMB No. 1115-0255.
If additional information is required contact Richard A. Sloan,
Director, (202) 514-3291.
List of Subjects in 8 CFR Part 217
Air Carriers, Aliens, Maritime carriers, Passports and Visas.
Accordingly, part 217 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 217--VISA WAIVER PROGRAM
1. The authority citation for part 217 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.
2. Section 217.7 is added as follows:
Sec. 217.7 Electronic data transmission requirement.
(a) No waivers granted. An alien who applies for admission under
the provisions of the Visa Waiver Program pursuant to section 217 of
the Act after arriving via sea or air at a port of entry will not be
granted a waiver of the visa requirement of section 212(a)(7)(B)(i)(II)
of the Act unless the carrier transporting such an alien is
electronically transmitting the data required in paragraphs (b) and (c)
of this section.
(b)(1) Passenger arrival data. Each carrier shall transmit the data
elements set forth in paragraph (c) of this section for each passenger
transported by the carrier under section 217 of the Act. The
information must be transmitted to the Service via the U.S. Customs
Data Center, U.S. Customs Service Headquarters, by means of an
electronic data interchange system that is approved by the U.S. Customs
Service in conjunction with the Service. The Service must receive the
information for each passenger no later than 15 minutes after the
flight or the vessel has departed from the last foreign port or place.
(2) Passenger departure data. Each carrier shall transmit the data
elements set forth in paragraph (c) of this section for each passenger
departing the United States aboard the carrier after having been
admitted under section 217 of the act. The information must be
transmitted to the Service via the U.S. Customs Data Center, U.S.
Customs Service Headquarters by means of an electronic data interchange
system that is approved by the U.S. Customs Service in conjunction with
the Service. The Service must receive the information for each
passenger no later than 15 minutes before the flight or vessel has
departed from the United States. If additional passengers board after
the original manifest has been submitted, or if passengers exit after
boarding but prior to departure, carriers will also be required to
submit amended or updated passenger manifest information electronically
to the Service no later than 15 minutes after the flight or vessel has
departed from the United States.
(c) Required passenger and flight or vessel data elements.
[[Page 63250]]
(1) Last name.
(2) First name.
(3) Middle name or middle initial.
(4) Date of birth.
(5) Gender or sex (F=Female; M=Male).
(6) Nationality.
(7) Document number.
(8) Country of document issuance.
(9) Document type (e.g., P=Passport, V=Visa, A=Alien registration
card).
(10) Airline International Air Transport Association (IATA) carrier
code or vessel name.
(11) Airline flight number, or tail number for private or corporate
aircraft;
(12) Date and time of scheduled flight or vessel arrival into the
United States.
(13) Date and time of scheduled flight or vessel departure from the
United States.
(14) Port of arrival.
(15) Port of departure.
(16) Contact name and number.
(17) Traveler status (e.g., P=Passenger, C=Crewmember).
Dated: October 7, 2002.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-26027 Filed 10-10-02; 8:45 am]
BILLING CODE 4410-10-M
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