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[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.

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

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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