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Cite as "Posted on AILA InfoNet at Doc. No. 02101541 (Oct. 15, 2002) ." (67 FR 63246, 10/11/02) [Federal Register: October 11, 2002 (Volume 67, Number
198)] ============================================== DEPARTMENT OF JUSTICE Immigration and Naturalization Service 8 CFR 217 [USCIS No. 2219-02] 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 USCIS 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 USCIS 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 passenger 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; 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. 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.). List of Subjects in 8 CFR Part 217 Air Carriers, Aliens, Maritime carriers, Passports and
Visas. 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. 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.
[[Page 63250]] (1) Last name. Dated: October 7, 2002. (10/15/2002) For more immigration news, please click here
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