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DHS-2008-0039 - Collection of Alien Biometric Data Upon Exit from the US at Air and Sea Ports - US Visitor and Immigrant Status Indicator Technology Program
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Department of Homeland Security - Collection of Alien Biometric Data Upon Exit from the United States at Air and Sea Ports of Departure - United States Visitor and Immigrant Status Indicator Technology Program
April 17, 2008 Air/Sea Biometric Exit Project - Regulatory Impact Analysis By: US-VISIT
Published in Federal Register April 24, 2008 The Department of Homeland Security proposes to establish an exit program at all air and sea ports of departure in the United States. This proposed rule would require aliens who are subject to United States Visitor and Immigrant Status Indicator Technology Program (US–VISIT) biometric requirements upon entering the United States to provide biometric information to commercial air and vessel carriers before departing from the United States at air and sea ports of entry. This rule proposes a performance standard for commercial air and vessel carriers to collect the biometric information and to submit this information to DHS no later than 24 hours after air carrier staff secure the aircraft doors on an international departure, or for sea travel, no later than 24 hours after the vessel’s departure from a U.S. port. DHS does not propose to apply these requirements to persons departing the United States on certain private carriers or small carriers. Comments are due no later than June 23, 2008. By: Michael Chertoff
Published in Federal Register May 29, 2008 Because the Department is operating under a statutory deadline for implementation of a US–VISIT air exit system, DHS will not be able to extend the comment period for this rulemaking action. In lieu of extending the comment period, DHS will hold a public hearing on this proposed rule at 9:30 a.m. on June 13, 2008, at the Hyatt Regency Crystal City at Ronald Reagan Washington National Airport. By: Shonnie Lyon
June 12, 2008 June 2008 Update to the Exit Pilot Evaluation Report - 129 Pages As part of the initial implementation of the US-VISIT program in 2004, US-VISIT conducted 14 pilot programs at air and sea ports of entry to test different methods and processes for the collection of biometric information from certain foreign nationals exiting the United States. US-VISIT began those exit pilots on January 4, 2004. All of the pilots were concluded May 8, 2007. US-VISIT prepared a report evaluating the results of the pilots. As discussed in this evaluation, by comparing various locations used in the pilot, DHS found that compliance with biometric exit procedures improved depending on the convenience of the process to the traveler. Accordingly, DHS used the lessons learned from this pilot evaluation as a means of developing the preferred solution in the NPRM. By integrating the biometric collection process into the already existing passenger departure process, DHS can ensure the highest levels of compliance with the exit requirement. As discussed in the NPRM, DHS identified operational difficulties during the pilot programs, which lead to a rate of participation that was extremely disappointing. The lessons learned from the pilots led DRS to develop a new kiosk option that was not tested in the pilot. As a result of the development of this new option, there are differences between data contained in the report of the pilot program and data used in the analysis of the kiosk option in the proposed rule. Following publication of the NPRM, air carriers have requested access to the pilot program report. DHS therefore is making it available for general public review as part of the docket for the rulemaking action. DHS, however, is providing a redacted copy of the report to protect any information from disclosure that remains sensitive for law enforcement purposes. By: Homeland Security
June 13, 2008 Transcript of US-VISIT Air-Sea Biometric Exit Notice Proposed Rulemaking Hearing
June 23, 2008 Aer Lingus wishes to support in full the comments submitted by the Association of European Airlines and IATA in relation to the Collection of Alien Biometric Data Upon Exit From the United States at Air and Sea Ports of Departure: United States Visitor and Immigrant Status Indicator Technology Program. By: Aer Lingus, Laurence Gourley
June 20, 2008 Although Air Canada supports the goal of enhancing air transport security, it strongly believes that this NPRM is flawed, unfair, unworkable, and will do little to enhance the security environment. Instead, the Proposed Rule will foist unprecedented technical, operational and financial burdens on air carriers. Although such a measure would be problematic even in the best of times, the fact that these burdens are being proposed at a time that the industry is struggling is quite disturbing. DHS should not be externalizing its own burden of collecting air passenger data on a community that is ill-prepared to sustain it, and the fact that the NPRM would impose such a burden upon foreign air carriers is simply beyond the pale. For these reasons, and the reasons stated in these comments, Air Canada calls for DHS to withdraw the NPRM. Counsel: Holland & Knight, Anita Mosner, 202-416-2604
June 23, 2008 We respectfully suggest that DHS makes full use of the information already available to it before requiring airlines to collect additional data that may prove unnecessary. DHS, from the various agencies, continues to impose unfounded mandates on the airlines that are often times conflicting. DHS also continues to require the private sector to perform governmental functions on top of other mandates without any vision or understanding of how much it costs to implement these mandates. More generally it is our strong view that DHS should urgently review the efficiency of the constant addition of burdensome requirements on airlines that would have, if no corrective action is taken, the same biographical information being transmitted to CBP up to five different times under five different regulations. By: Air France, Guy Tardieu
June 23, 2008 Comments of the Air Line Pilots Association, International ALPA fully supports the concept, implementation, and enforcement of a biometric‑based immigration system that is designed to protect our borders and the well‑being of our homeland. We submit that the criticality of the initiative, and the nature and roles of government and free enterprise, dictate that this responsibility is a primary function of government, and we oppose assignment of this responsibility to our nation's air carriers. By: ALPA, Michael Fredericks
May 15, 2008 Request of Air New Zealand for a 60-day Extension of Comment Period
June 18, 2008
June 23, 2008 Air New Zealand endorses the comments put forward by IATA in relation to the US Exit NPRM. By: Air New Zealand
June 23, 2008 The requirements of the NPRM that DHS seeks to place upon air carriers are inherently governmental functions that should be conducted and managed by a government agency, and not by private industry. Air Tahiti Nui supports the DHS's efforts in providing national security and enforcing entry restrictions. However, Air Tahiti Nui strongly believes that air carriers should not be made to bear the significant costs and administrative burdens of the collection and transmission of passengers' biometric information. Air Tahiti Nui respectfully requests that DHS withdraw the NPRM or significantly revise it to ensure that DHS or another government agency bears the burdens of collecting the desired passenger information. Counsel: Eckert Seamans, Evelyn Sahr
June 19, 2008 Air Transat objects to the above‑mentioned regulatory initiative for the following reasons: It effectively downloads or transfers a core state border control function to the private sector Border protection and immigration law/policy enforcement are responsibilities of the state. This is the case everywhere in the world. While there are certainly examples of state and private industry cooperating or engaging in partnerships in order to jointly and more effectively police borders, this is the first case of which we are aware that a government has proposed to completely abandon a core immigration function to non‑governmental entities. In the post 9/11 environment, we are perplexed, to say the least, by this approach. By: Air Transat, George Petsikas
May 13, 2008 Request of Air Transport Association of America for an Extension of the Comment Period
June 23, 2008 Comments of The Air Transport Association of America - Bookmarked The Department does not have the legal authority to do what it proposes. Congress has not instructed airlines to collect biometric exit information. DHS cannot erect a regulatory requirement on a nonexistent statutory foundation. The proposed rule should therefore be withdrawn. By: ATA, James Casey, 202-626-4211
June 23, 2008 Comments of the Air Transport Association of Canada While it is not the place for carriers to dictate how the sovereign states into which they operate should ensure their national security nor should it, however, be the place for governments to impose uneconomic market conditions on those carriers in carrying forth that agenda. Programs that – in the opinion of the proposing state – are vital to national security ought to be funded and delivered accordingly, through public resources so as to minimally interfere with the functions of a free market. ATAC also supports the detailed perspectives offered by IATA with respect to the unreasonable time constraints, the need for a thorough operational impact analysis, harmonization issues with other DHS programs, technical and secure transmission requirements, operability vis-à-vis the UN EDIFACT standard, check-in procedural constraints, data quality requirements, cost, data transmission procedures and constraints, as well challenges surrounding the requirement for new dedicated secure networks and specialized secure data warehouses. By: ATA Canada, Fred Gaspar
May 14, 2008 Request of Airports Council International - North America for 60-day Extension of Comment Period
June 23, 2008 Comments of the Airports Council International-North America We strongly maintain that US-VISIT Exit must be implemented with great care to avoid degrading the travel experience of visitors to the United States to the detriment of the US aviation industry, local and national economies, and the public image of the United States. ACI-NA opposes the NPRM’s proposed requirement that airlines collect the biometrics of most foreign visitors as they are departing the United States and assume the substantial financial burden of implementing and running the system. Rather, ACI-NA maintains that DHS should collect the biometrics, run the system, and fund all of the associated costs. By: ACI-NA, Greg Principato
June 23, 2008 Alaska believes that the Air Exit proposal, under which carriers are required to collect biometrics, is unjustifiable on both legal and operational grounds. However, we believe there is an opportunity for cooperation between the airlines and DHS in implementing a solution that accommodates the needs of interested parties – i.e. DHS, passengers, the airlines and airports. We believe Alternative “J” represents an effective means of performing the Air Exit function, while accommodating the needs of these interested parties. We would like to reiterate that before implementation of any collection scheme, we believe the scheme must be tested thoroughly by all key participants.
By: Alaska, Angela Kelly, 206-392-5183
June 16, 2008 Comments of All Nippon Airways
April 24, 2008
June 23, 2008 Comments of American Airlines - Bookmarked We are aware of no other nation that has ordered or is attempting to order airlines to take over governmental border control responsibilities. As stated by IATA Director General and CEO Giovanni Bisignani, “border protection and immigration are government responsibilities. Airline counter staff are not a substitute for trained border patrol officers. And outsourcing exit formalities to airlines is not a responsible approach.” It should be beyond dispute that border control is “intimately related to the public interest” and therefore inherently governmental The effort by DHS to shift this responsibility to airlines is inconsistent with law, policy, and global practice, and the rulemaking under consideration here should not proceed. Counsel: American, Carl Nelson, 202-496-5647
June 23, 2008 Comments of American Immigration Lawyers Association - Bookmarked While we continue to seek and employ methods to improve our ability to protect our country, we must first be sure that such measures will actually work and are not merely the illusion of safety through increased efforts and expenditure of resources. Moreover, we must maintain those principles of fairness and process upon which this country was founded while ensuring the orderly flow all travelers in and out of the United States. The US-VISIT program, in previously announced interim regulations, contains severe penalties for failure to comply with exit requirements. Alarmingly absent from those regulations are procedures to manage innocent human and technical error, on the parts of both the nonimmigrant and the government. AILA believes that the strategy suggested in the Proposed Rule is premature, and that these obligations should not be imposed on private carriers. Implementation of the strategy requires a far more detailed assessment of the costs of implementation and ongoing administration (including the potentially adverse environmental effects and the program’s impact on the free flow of international travel and trade) in light of the mutually agreed benefits to be derived from more careful monitoring of admissions to and departures from the United States. By: AILA, James Butterfield
June 23, 2008 Comments of the American-Arab Anti-Discrimination Committee While ADC supports the implementation of the proposed program, ADC urges that the current weaknesses in the USVISIT program be addressed prior to incorporating the exit component of the program. A July 2007 report issued by the General Accountability Office cited several weaknesses. The program did not a) adequately identify and authenticate users in systems supporting US-VISIT, b) sufficiently limit access to US-VISIT information systems, c) ensure controls were adequately protected external and internal network boundaries, d) consistently encrypt sensitive data transmitted through the communication network or e) ensure that responsibilities and authorization for use of the information systems were adequately segregated to maintain secure configurations in the use of data. These weaknesses should be addressed in order for the program to be fully successful. Counsel: ADC, Trent Taylor
June 23, 2008 Comments of the American Society of Travel Agents Satisfying the demands of an unfunded mandate of this scope would be crushingly difficult under the best of circumstances. Compliance during this time of unprecedented industry challenges is simply impossible. ASTA strongly urges DHS to withdraw this proposed rule and to work with affected industry groups and their representatives in Congress to create a workable solution that does not require the mass deputizing of private-sector employees; that does not result in additional passenger delays; and that does not saddle an already financially-challenged industry with unaffordable demands. Counsel: ASTA, Paul Ruden, 703-739-6854
June 17, 2008
May 14, 2008 Comments of Arab Air Carriers Organization
May 16, 2008 Request of Association of Asia Pacific Airlines for a 60-day Extension of Comment Period
June 23, 2008 Comments of the Association of Asia Pacific Airlines The border control function is a government responsibility that cannot reasonably be delegated to private industry. DHS has failed to demonstrate the feasibility of the proposed scheme to be implemented by carriers. Nor has it demonstrated that the benefits of doing so would exceed the costs of implementation. DHS has failed to demonstrate that the proposed scheme would meet its stated objectives. The proposed implementation date of July 2009 is not feasible given the need for significant systems development and infrastructure investments envisaged by the rule. We strongly urge the DHS to withdraw this ill conceived proposal, to fully accept its border control responsibilities and to work with Congress and industry stakeholders on practical implementation of more appropriate measures in relation to such border control processes, with a government-operated, and publicly funded, scheme being the preferred approach. By: AAPA, Andrew Herdman, 60-3-2145-5600
June 20, 2008 Comments of the Association of European Airlines AEA is surprised to see that the proposed systems would be enforced by the airline industry; this was not the stated intention of the Congress when the 9/11 bill was voted. AEA carriers are strongly opposed to the proposal that airlines should collect biometric data for alien passengers leaving the US. The NPRM itself specifically states that the main purpose of the measure is to control immigration. AEA insists that border protection and immigration are the core responsibility of governments and the competent national authorities. In addition to the basic issue of competence, air carriers are in no way equipped to ensure a high degree of compliance with the requirements and should therefore not be required to engage in such matters. By: AEA
May 15, 2008 Request of Associacion Latinamericana de Transporte Aerea for a 60-day Extension
June 20, 2008 Austrian Airlines fully supports the comments of AEA and IATA on this subject. By: Austrian Airlines
June 13, 2008 Public Hearing Response of the Aviation Assembly
June 23, 2008 It is sufficient and advisable to transport and store only fingerprint minutiae templates for verification purposes. By using standard-compliant fingerprint templates, it becomes unnecessary to transmit and store fingerprint images, particularly given that fingerprint images are already collected and stored in IDENT upon visa application and/or entry. Using standard-compliant templates and file structures enables disassociation of the Exit Application from the back-end matcher, and therefore enables far more flexibility in design, procurement, and deployment of the front-end Exit Application and back-end verification service. Aware advises that the existing APIS data interchange format be amended to contain ANSI/INCITS 378-compliant fingerprint template records in an ANSI/INCITS 385 wrapped data structure. These records are much smaller than image files and thus easier to transport and store, and are less cumbersome to the existing network. By: Aware, David Benini, 781-276-4000
June 17, 2008
May 12, 2008 Request of bmi for a 60-day Extension of Comment Period
June 23, 2008 bmi has spent a considerable amount of time researching how these proposals would affect our ability to operate commercial passenger services and our conclusion is that the US proposals are unworkable for us. Our operational integrity will be seriously affected by these proposals and the financial burden it will place on us will be extremely serious. By: bmi, Nigel Little
August 27, 2006 Comments of The Border Trade Alliance Several aspects of the infrastructure of the US-VISIT program must be analyzed to ensure the program’s integrity and efficiency. One must first focus on budgetary resources that the program must have to provide a finished product that will expedite trade and travel at international ports of entry. There should be some attention paid to oversight within the Department. We find it noteworthy that the Secretary himself has only made passing remarks about the program without formally stating his commitment to supporting it as an integral component of the department’s efforts to protect the homeland. The BTA has stated the need to establish benchmarks for this and any program prior to its deployment. In order to effectively assess any program, we must know first how it will be evaluated. The BTA maintains its position, dating back to September 2003, that we will not support exit controls if they are shown to cause undue disruptions to legitimate cross-border trade and travel. We are confident, however, that the US-VISIT program still holds the potential to improve the border crossing experience, including the expansion to include additional immigrants, with the proper application of sufficient resources. By: BTA, Pete Sepulveda
June 23, 2008 Border control is a government, not private industry, responsibility. Government officials reeord biometrics for passengers arriving into the United States and would be more qualified than private industry to collect and record biometrics for departing passengers. Requiring airlines to collect and record biometric data during the departure process confliets with the British Airways eheck-in modeL British Airways is investing heavily in on-line and self-service check-in facilities. Our customer driven model will avoid the need for most passengers to visit a check-in counter. Finalization of the NPRM would inhibit check-in automation and the resulting efficiencies and negate the considerable investment British Airways has already made in that regard. By: BA, James Forster
May 19, 2008 Request of British Embassy for a 60-day Extension of Comment Period
June 23, 2008 Comments of the British Embassy We hope that, in the light of the comments received to the docket, the Department of Homeland Security will consider approaching Congress to discuss other options for extending the US VISIT programme to cover exit from US air and sea ports. We believe this ought to include the provision of adequate funding to allow the Department itself to shoulder the burden of what we see as a function of government, even if that would affect the timetable originally set by Congress. It may be possible in such circumstances for airlines to assist in some capacity in the interim. By: Clive Wright, 202-588-6696
June 17, 2008
June 23, 2008 Comments of the Cargo Airline Association The Cargo Airline Association urges DRS to abandon its proposal to force the airline industry to collect biometric data from aliens exiting the United States. This function lies more properly with the government and should not be required of the airlines. To find otherwise forces the airline industry unfairly to pay for an immigration service that benefits the public at large. At the very least, the all-cargo segment of the airline industry should be exempt from the collection requirements since the number of aliens in the cargo environment is extremely small both in absolute terms and when compared with the costs of the program to the industry. By: CAA, Stephen Alterman, 202-293-1030
June 23, 2008 Comments of Cathay Pacific Airways Cathay Pacific Airways Limited, a foreign air carrier based in the Hong Kong Special Administrative Region of China, respectfully submits that DHS, and not airlines, should collect this biometric information. Many activities that contribute or relate to aviation security, even those once performed by private entities, now are performed by the Department of Homeland Security. It seems unusual for the Department to buck this trend and pass off to U.S. and foreign companies a sensitive function that directly affects national security and law enforcement. Counsel: Mietus Law, John Mietus, 202-747-5212
June 23, 2008 Comments of the Chamber of Shipping of America The Chamber of Shipping of America strongly urges the Department of Homeland Security to create an exemption from the proposed biometric collection requirements for both entry and exit of properly documented seafarers. We further urge continued dialog on this matter among DHS agencies and the industry with respect to integrating the provisions of the Seafarers Identity Document requirements into practical requirements for seafarers which avoid duplication of already existing programs which assure the legality of seafarers entering and exiting the United States without undue disruption of trade and movement of seafarers to and from their vessels. By: CSA, Kathy Metcalf, 202-775-4399
June 23, 2008 Comments of Continental Airlines Continental Airlines, Inc. supports the comments of the Air Transport Association of America, Inc., of which Continental is a member, which strongly oppose the Department's proposed US-VISIT exit system. The proposal would require airline collection of biometric data from aliens on exiting the United States, which, as explained in the ATA comments, would be unlawful and impose enormous and unjustified costs and burdens on airlines. Clearly, the Department should withdraw its proposal. Since the Department seeks comment on the rulemaking process itself and which regulatory option would be most effective and least costly and burdensome. Counsel: Hershel Kamen, 713-324-5000
May 27, 2008 Request of Copa Airlines for a 60-day Extension of Comment Period
June 17, 2008
June 23, 2008 Comments of Cruise Lines International Association If the Department determines that biometric identifiers must be captured for passengers finally departing the United States on a cruise, we submit that the government should be responsible for collecting this information through the use of law enforcement personnel who have the authority and mandate to do so. Ships and airplanes whose personnel have no law enforcement authority should not be given the duty to collect this information on behalf of the U.S. government as it is a law enforcement function. We believe this function should be performed by those who are trained security officials and have the appropriate law enforcement authority. By: CLIA
June 23, 2008 We have a hard time understanding why private businesses should have to shoulder the financial burden of collecting fingerprints of foreign visitors. By: Joseph Valenti
June 20, 2008 The Department of Homeland Security proposes to require that commercial air and vessel carriers collect the fingerprints of any passengers departing the US who are subject to the requirements of US-VISIT. For Delta specifically, this means DHS intends to require that we take the fingerprints of certain international passengers and transmit those prints to DHS. The NPRM appears to indicate that the purpose of this requirement is to provide DHS with a means to more readily identify non-immigrant aliens who overstay their visas. In other words, air carriers like Delta will be required to function as border control agents. As the ATA has clearly and correctly pointed out in its comments to this NPRM, Congress has repeatedly instructed DHS to perform this responsibility and has granted DHS no authority to delegate responsibility for this border control function. Delta therefore strongly objects to this proposed rulemaking on the basis that DHS lacks Congressional authority to mandate the collection by air carriers of biometric data for the purpose of immigration control. Counsel: Delta, Scott McClain, 404-773-6514
May 19, 2008 Request of EgyptAir for an Extension of 60-days
June 13, 2008
June 20, 2008 Egypt Air urges DHS to withdraw this proposed rule as it is unacceptable to throw this burden on the aviation industry, especially that it is a core government function. DHS should find realistic solutions to fund this program, which does not include the carriers' participation who are currently struggling against major industry issues such as fuel prices. By: Egypt Air
June 16, 2008
June 18, 2008 Policy Paper of Free Democratic Party parliamentary group of the German Bundestag
June 18, 2008 Comments of the German Embassy
June 13, 2008 Public Hearing Response of the Hawaii Tourism Authority
June 23, 2008 Horizon believes that the Air Exit proposal, under which carriers are required to collect biometrics, is unjustifiable on both legal and operational grounds. However, we believe there is an opportunity for cooperation between the airlines and DHS in implementing a solution that accommodates the needs of interested parties – i.e. DHS, passengers, the airlines and airports. We believe Alternative “J” represents an effective means of performing the Air Exit function, while accommodating the needs of these interested parties. We would like to reiterate that before implementation of any collection scheme, we believe the scheme must be tested thoroughly by all key participants.
By: Horizon, Rebecca King
May 8, 2008 Request of International Air Transport Association for a 60-day Extension of Comment Period
June 17, 2008 Public Hearing Response of International Air Transport Association
June 20, 2008 Comments of International Air Transport Association IATA cannot accept a proposal that suggests that the airline industry should take on this core government function, particularly at a time when airlines are facing a financial crisis deeper than has been seen since before 9/11. It is clear from the above that whatever decision DHS makes on this program, the airlines by definition cannot fund such a program, whether it costs $3.5 billion or $12 billion. We also have significant doubts that this program can be established in the next 45 days or be fully operational by July 1, 2009, whether DHS or the airlines are ultimately responsible for this collection. We strongly urge DHS to withdraw this proposal and to work with Congress and industry to find a more reasonable solution to meet this border control data requirement. By: IATA
June 13, 2008
June 20, 2008 Japan Airlines is not able to effectively and efficiently collect biometric information as part of the existing passenger departure process. Our corporate business model plans to eliminate check-in process in the airport by agents (Web format check-in). Cumulatively, the airports and passengers would struggle with long lines imposing unnecessary delays resulting in missed connections and inefficient airport operations. By: JAL
June 23, 2008 Comments of KLM Royal Dutch Airlines This proposal is the latest incarnation in a host of DHS passenger data collection requirements already implemented or proposed. Shifting the burden to industry removed DHS's incentive to carefully weigh the value of the information sought against the cost of collecting that data. Why should DHS find a constructive, internal solution? The airlines can be forced to do it without any cost to DHS. KLM urges DHS to withdraw the NPRM, coordinate with relevant government agencies and unify existing passenger data collection and tranmission systems into one efficient, cost-effective entry-exit program. Counsel: KLM, Paul Mifsud, 202-861-5867
June 23, 2008 LAN Airlines S.A. strongly supports the comments filed on June 23, 2008 by the International Air Transport Association in this docket related to the Department of Homeland Security US-VISIT Exit NPRM. Counsel: Juan Carlos Mencio, 786-265-6091
June 23, 2008 LAN Argentina S.A. strongly supports the comments filed on June 23, 2008 by the International Air Transport Association in this docket related to the Department of Homeland Security US-VISIT Exit NPRM. Counsel: Squire Sanders, Marshall Sinick, 202-626-6651
June 23, 2008 Aerolane, Lineas Aereas Nacionales del Ecuador S.A. d/b/a LAN Ecuador hereby expresses its support for the International Air Transport Association’s comments filed in this docket on June 23, 2008, related to the Department of Homeland Security’s notice of proposed rulemaking concerning US-VISIT exit notice requirements. Counsel: Zuckert Scoutt, Charles Simpson, 202-973-7926
June 17, 2008 Comments of Lee County Airport Authority - Fort Myers, Florida As you know, each airport has its own unique operational characteristics. Whatever process for collection of the biometric data is ultimately identified must be implemented at each airport on a ease-by-case basis in consultation with that airport. Requiring the airlines to be responsible for collection of the data at the ticket counter or gate area places additional cost burdens on an already ailing industry. As the airlines continue to look for ways to reduce their costs, workforce reduction will be a prominent component. As indicated in the NPRM, collection of the data at the ticket counter during cheek-in is the least secure of the alternatives evaluated. Collection of the data at the final departure airport within the sterile area would provide the greatest assurance that the person from whom you are securing the information has indeed departed. Ensuring that visitors to our country abide by the requirements of the visa program is inherently the responsibility of the Department of Homeland Security. We will continue to support the DHS in meeting its goals, while at the same time, providing a safe and efficient national transportation system. By: Lee County
May 21, 2008 Request of Malaysia Airlines for a 60-day Extension of Comment Period
June 22, 2008 Malaysia Airlines fundamentally opposes the NPRM for many reasons. The objective of this proposal is to create an exit system to protect the United States of America by preventing overstay of undesirable travelers in the country. This is an initiative to enhance border security for the US Government, thus, the responsibilities should be undertaken by the US Authorities instead of the operating carriers. This 'outsourcing' proposal for carriers, especially foreign carriers to act as border control agents is unprecedented and completely absurd. By: Malaysia, Germal Singh Khera
June 13, 2008 Comments of Mark Nielsen - Former US-VISIT Exit Site Manager
June 23, 2008 Mexicana Airlines as a member of the International Air Transport Association supports all the comments exposed in the attached file and also kindly requests such document is considered as our own answer to the NPRM. By: Mexicana
June 17, 2008 Public Hearing Response of National Air Carrier Assocation
June 23, 2008 Comments of The National Air Carrier Association NACA strongly opposes the US-EXIT NPRM in its current form and urges the Department to withdraw the proposal. The U.S. government must not abdicate its responsibilities mandated by Congress simply because it would be easier to hand the burden off to the airline industry. Our members recognize that US-EXIT is a program Congress has mandated. Given the staggering problems with this NPRM, and understanding that a solution needs to be found, NACA proposes DHS withdraw this NPRM and DHS develops a task force or working group with the airline industry to develop a realistic and workable solution for the goals of US-EXIT. By: NACA, Thomas Zoeller
June 23, 2008 Comments of the National Business Travel Association The U.S. travel community does not support the DHS plan to require air carriers and cruise lines to collect biometric identifiers (finger scans) from international travelers as they depart the U.S. through an air or sea port. Just as the original capture of this biometric information, and the use of biometrics in inspecting an international traveler upon arrival in the United States, are carried out by either the Department of State or DHS, we believe that recording the departure of this same traveler is an inherently governmental responsibility that should be carried out by some unit of DHS. Our preferred solution would designate TSA to carry out the biometric exit collection within the TSA operating environment as the most practical and consistent way for the federal government to carry out this responsibility. Depending on the physical layout of the particular airport, it may make more sense to collect these biometric identifiers at the TSA document checker location, the physical checkpoint or in secondary screening. As TSA already screens each traveler, controls the physical screening environment, and has appropriate connections to law enforcement information databases and response capabilities, layering biometric air exit collection into TSA’s responsibilities is a logical step for DHS. By: NBTA
June 20, 2008 Comments of the National Tour Association NTA is strongly opposed to the proposal that airlines and cruise lines fund and manage the collection of fingerprints from foreign nationals as they depart the United States. Immigration control and the collection of sensitive biometric data should be the purview of the federal government and should not be an unfunded mandate on the private sector. NTA is asking for members of Congress to press for hearings on DHS’ biometric exit procedure proposal in order to gauge the impact to the U.S. transportation industry and the national security implications of airline and cruise line involvement in this important security process. By: Matt Grayson
May 27, 2008 Request of Northwest Airlines for a 60-day Extension of Comment Period
June 23, 2008 Comments of Northwest Airlines NWA strongly opposes the Department of Homeland Security’s Notice of Proposed Rule Making regarding collection of Alien Biometric Data Upon Exit From the United States at Air and Sea Ports of Departure. Collecting fingerprints for alien travelers is an inherently governmental function, a responsibility Congress ordered DHS to perform. DHS does not have authority to force airlines to assume a function that Congress has consistently intended federal border control authorities to perform. The proposal forces the private sector to take over public sector responsibilities at an enormous cost to the industry. For these reasons the fatally flawed and invalid proposed rule must be withdrawn. By: Northwest
June 12, 2008 Comments of the Offshore Marine Service Association
June 13, 2008 Public Hearing Response of the Passenger Vessel Association
June 12, 2008 We have deep concerns that adoption of the rule as proposed would be unworkable and would impose an unreasonable additional burden on carriers and their passengers, in an already very difficult business environment for international airlines. In our experience, every country in the world which considers immigration and emigration controls to be of importance establishes and mans control points with their own border agency staff. If the US is genuinely concerned about people who cross their borders in either direction it should do likewise. Further, while it is not part of the DHS mandate, Qantas is surprised that DHS does not take this opportunity to further enhance border controls by expanding departure controls to all nationalities including US citizens By: Qantas, Trevor Long
June 19, 2008 The NPRM unnecessarily puts passenger privacy at risk and may be inconsistent with privacy protections provided by foreign law. DHS has asserted that, despite the fact that the NPRM calls (unlawfully) for the private sector to carry out the Government's immigration/border control and law enforcement functions, it will provide sufficient oversight to ensure that the exit system is highly secure and reliable. In the NPRM, however, DHS revealed that any IT system developed, operated, and maintained by airlines rather than the Government is more vulnerable to security compromises that could reduce the integrity of the system and data contained therein. In the NPRM, DHS also acknowledged that a system that requires airlines to collect personally identifiable information from passengers is less favorable from a privacy protection standpoint than a system where DHS maintains custody of the Pll. Among other things, these conclusions reinforce the fact that the NPRM would impose responsibilities that should be performed by government officials. Moreover, the NPRM unrealistically assumes that airlines will be able to prevent unintentional violations of privacy protection laws, which could include unauthorized use, disclosure and retention of Pll; collection of Pll from air travelers not covered by the Proposed Rule; misrepresentation by airline employees (or contract workers) of the reasons for the collection of biometric information; and identity theft. As a practical matter, however, no IT system is 100% secure. Moreover, as a matter of fundamental fairness, DHS should not force airlines to be responsible for securing Pll collected for the Government's use. No matter how diligently Qatar Airways acts to protect this information, data breaches could occur. In the event that the data is misused in some way, Qatar Airways may be liable for additional costs, including fines, which DHS has not taken into account in the NPRM. Counsel: Holland & Knight, Anita Mosner, 202-416-2604
May 14, 2008 Request of Regional Airline Association for a 60-day Extension of Comment Period
June 17, 2008 Public Hearing Response of Regional Airline Association
June 23, 2008 Comments of the Regional Airline Association Clearly this rule is simply DHS trying to pawn off its responsibilities and duties onto an industry that is already burdened with insane fuel prices – resulting in dropped flights to dozens of communities, thousands of layoffs, and all too common Chapter 11 announcements. Protecting and safeguarding of our borders has always, and should always be a function of the US Customs and Border Patrol. Congress never intended for DHS to put a national security program such as this into the hands of airline employees. In addition, DHS proposes to expand this program to provide for real time pre-screening of foreign travelers against criminal databases, and terrorist watch lists, which would place airline employees squarely in the arrest and apprehension process. Our nation’s airline employees are not, nor should they be, trained as law enforcement officers. By: RAA, Roger Cohen
June 23, 2008 On behalf of Royal Air Maroc, I wish to express our total support for IATA’s comment and strongly oppose the DHS proposal requiring airlines to fund and manage the collection of fingerprints from aliens, departing the United States on commercial airlines. At a time where Airlines are facing the deepest financial crisis, it should not be required from air carriers to fund this proposed US Exit program which would incur an estimated budget from $4 to 6 billions to develop and upgrade the existing system or conceive new application that would take not only time and effort but would add to the burden of airlines by delaying the check in process. Immigration and Control procedure are core governmental responsibility and collecting sensitive biometrics should be under responsibility of governmental functions, as it cannot be outsourced to the industry. Furthermore, this proposal raises acute privacy concerns, because of its contrary nature with the International and bilateral obligations. By: Royal Air Maroc, Souad Meziane
May 30, 2008 Comments of Royal Jordanian Airlines
June 23, 2008 Comments of Scandinavian Airlines System When reviewing this proposal SAS would like to highlight the comments also put forward by lATA that the US Exit program would be the seventh passenger data collection process that has either been implemented or proposed by DHS. SAS would like to reiterate that the only option available to avoid the needless duplication, increased costs, and inefficiencies associated with seven different passenger information programs is to work together across all the relevant agencies to develop a single harmonized program. We therefore support lATA's suggestion that a program should draw together components from Secure Flight, API and US Exit to utilize a combination of all data sources to verify the passenger's identity and that the passenger is genuinely allowed to travel. We suggest that biometric data should be collected by DHS using a dedicated, secure, isolated system, directly in the passenger flow (for example, at a kiosk during waiting time for the security check point). Counsel: Silverberg Goldman, Michael Goldman, 202-944-3305
June 19, 2008 SkyWest recommends Alternative 2 – The US Government pays for the systems, hardware, and software and maintenance and collect the data at the security checkpoint. This alternative allows TSA to further process passengers that require biometric data to be collected at a time when he/she is already undergoing security screening. By: SkyWest
June 19, 2008 Comments of South African Airways Passenger privacy could be at risk unnecessarily as a result of the NPRM, and the NPRM may be inconsistent with privacy protections provided by foreign law. As the NPRM makes clear, any IT system developed, operated, and maintained by airlines rather than the Government is more vulnerable to security compromises that could reduce the integrity of the system and data contained therein. The NPRM also acknowledges that a system that requires airlines to collect personally identifiable information from passengers is less favorable from a privacy protection standpoint than a system where DHS maintains custody of the Pll. Among other things, these conclusions reinforce the fact that the NPRM would impose responsibilities that should be performed by government officials. Moreover, the NPRM unrealistically assumes that airlines could take sufficient steps to prevent unintentional violations of privacy protection laws, which could include unauthorized use, disclosure and retention of Pll; collection of Pll from air travelers not covered by the Proposed Rule; misrepresentation by airline employees (or contract workers) of the reasons for the collection of biometric information; and identity theft. As a practical matter, however, no IT system is 100% secure. Moreover, as a matter of fundamental fairness, DHS should not force airlines to be responsible for securing Pll collected for the Government's use. No matter how diligently SAA acts to protect this information, data breaches could occur. In the event that the data is misused in some way, SAA may be liable for penalties and fines, a cost of which DHS has not taken into account in the NPRM. Counsel: Holland & Knight, Anita Mosner, 202-416-2604
May 19, 2008 Request of Swiss International Air Lines for a 60-day Extension of Comment Period
June 23, 2008 Comments of Swiss International Swiss International Air Lines Ltd. fully supports IATA's position regarding the Collection of Alien Biometric Data Upon Exit from the United States. By: Swiss, Annette Reantragoon
June 23, 2008 The proposal to shift from government to airlines the collection, handling and transmission of biometric information presents numerous serious problems. For one thing, biometric information is sensitive, personal and private information. The collection and handling of such information should be performed by government according to strict privacy standards - not by hundreds of diverse companies in private industry. Further, the proposal would cause long lines and massive delays at airports as busy, multitasking airline employees attempt to deal with the additional job of collecting and managing passenger fingerprints. Each airline would need to upgrade its reservation and departure control systems, an investment that the struggling industry can ill afford. Additional investments would need to be made in airport networks and in retrofitting ticket counters, gates and kiosks. It would be considerably more efficient for the government to develop and implement the technology it requires, which it will need in any event to receive and assess the biometric information, and to collect the biometric information at one or more central locations in the airport. Counsel: Steptoe & Johnson, William Karas, 202-429-6223
June 23, 2008 Comments of the Travel Industry Association TIA and the travel community support the creation of a biometric exit system at air and sea ports-of-entry, and we believe this is an inherently governmental responsibility, with the TSA screening environment as the preferred choice to carry out this mission. By: TIA
May 1, 2008 The entire funding of this program must rest with the feral Government NOT the commercial air carriers cruise lines operators, etc. As a citizen I laud the progressive planning of such an idea for Biometric Exit monitoring, but it's wrong to financially burden airlines (or cruise fines, etc..) with costs of maintaining such a program.
May 13, 2008 Request of United Air Lines for a 60-day Extension of Comment Period
June 23, 2008 Comments of United Air Lines - Bookmarked The proposed rule lacks the requisite legal authority and is ill-considered and unjustified as a matter of policy, practicality, and fundamental fairness. In addition, DHS's cost-benefit analysis substantially underestimates the true cost of the proposed rule for carriers and passengers, overstates quantifiable benefits and makes clear that the level of unquantifiable benefits needed to justify the proposal are impossibly high. In addition, the proposed rule ignores the evidence of its own Regulatory Impact Analysis that a government-led exit program would be the better approach for cost, privacy and IT security reasons. Accordingly, DHS should withdraw the NPRM and develop an alternative proposal whereby DHS would honor and implement its statutory responsibility to establish a government-led US-VISIT exit program, as Congress directed DHS to do. Counsel: United and Wilmer Cutler, Bruce Rabinovitz, 202-663-6960
June 6, 2008 Comments of The United States Conference of Mayors The recent proposal by DHS puts the full burden on air and sea carriers to collect biometric fingerprints and transmit them to DHS. This proposal has ignited a huge controversy as airlines and privacy groups object to the "outsourcing" of security, unreasonable costs estimated at $3.5 billion over 10 years, and major disruption and confusion for travelers. These concerns are fair and reasonable. Fundamentally, the collection of biometrics for immigration enforcement purposes is inherently a governmental responsibility that should remain within the purview of DHS. By: USCM
June 23, 2008 It may be the case that an exit control program will be a valuable tool for DHS in determining whether an alien has overstayed his or her visa. US Airways does not dispute that using biometrics is an effective way to match arrival and departure records. US Airways’ fundamental disagreement with the Proposed Rule stems from the notion that air carriers -- rather than DHS itself – are the proper parties to collect and transmit biometric information from foreign air travelers departing the U.S. DHS does not have the authority to shift that border-control function to air carriers. The costs of using this method (estimated by DHS to be $3.5 billion over ten years) outweigh the benefits (estimated to be $1.09 billion over ten years). DHS already collects biometric information from aliens seeking to enter the U.S. Indeed, the fact that DHS already collects this information upon entry is perhaps the most compelling and common-sense argument against having carriers do DHS’s work. Counsel: US Airways, Howard Kass, 202-326-5153
June 23, 2008 Comments of the United States Chamber of Commerce The Chamber has serious concerns with this NPRM. The US-VISIT exit rule as proposed is essentially an unfunded mandate on the private sector, and would be detrimental to the currently weakened American economy. In addition to the NPRM’s cost on the private sector, there are some particular issues dealing with sea vessels that should be taken into consideration before final implementation. Finally, the Chamber believes that DHS should engage in additional and expanded outreach to the traveling public regarding the new US-VISIT exit requirements. By: Randel Johnson
June 23, 2008 Comments of US House of Representatives - Committee on Homeland Security The decision by DHS to assign air carriers the responsibility of collecting, transmitting, and storing biometrics for departing passengers was not made with meaningful consultation with Congress and the air industry. In fact, the selected alternative appears to be another attempt by DHS to transfer inherently governmental responsibilities to the private sector. Homeland security, and more particularly, border security and immigration enforcement have always been Federal responsibilities. Alternatively, if US-VISIT is being transformed in some way into an "identity management" or "identity services" system, the decision to direct air carriers to collect biometrics is even more problematic as such activity is outside the purview of the air carrier's expertise. Any shift of responsibility would force the private sector to perform a new and extremely important Federal screening function. Moreover, by allowing air carriers to choose where the collection will be located in an airport, the selected alternative does not encourage uniformity, which is extremely important to passenger facilitation. By: Rep Bennie Thompson
May 5, 2008 Comments of Verified Identity Pass, Inc.
June 23, 2008 Comments of Verify Corporation Verify Corporation has developed a patent-pending visitor tracking device system that precisely meets the exit program requirements of capturing biometric information at points of entry for commercial air and sea carriers at low or no cost to either the federal government or commercial carriers while complying with ALL law enforcement requirements for data and visitor privacy. But Verify must emphasize that solving only the “exit biometric data capture” problem is an inefficient first step toward solving the overall challenge of implementing a comprehensive entry and exit biometric data collection system for DHS. Were Verify Corporation’s system (as described below) to be adopted in its entirety, capturing exit data would be a virtually cost-free and routine part of a new, highly flexible visa identity system that is ready now. Verify can save the air and cruise lines facing the August 3, 2008 exit data collection implementation deadline; but it would be better for industry and the country if our system were allowed to work on visitor entries as well as exits. By: Arthur Beisang
May 15, 2008 Request of Virgin Atlantic Airways for a 60-day Extension of Comment Period
June 20, 2008 Comments of Virgin Atlantic Airways To move forward with the proposal in its current form would significantly and negatively impact airline operations and passenger processing times to the point that it would increase the cost of airline travel and further damage an industry which is already suffering great financial pressures. The NPRM makes many references to the fact that comparison of APIS data against biometrics is an integral part of the US EXIT scheme. Carriers understand their responsibilities in the provision of APIS which can be seen by the huge amount of work currently being carried out by industry to move towards compliance with the US APIS Pre-Departure Rule. That is our part of the bargain and one which we will continue to uphold – the collection of biometric data, with all the inherent privacy issues surrounding it, lies firmly with the Border Security Agency. Working in tandem with DHS we can both play our part in US EXIT without one party bearing the majority of operational impact and financial burden. Counsel: VA, Ally Shearer, 44-1293-747-064
June 13, 2008 Draft Public Hearing Response of the Washington Airports Task Force
June 20, 2008 Comments of the World Shipping Council If this NPRM is actually intended to cover crew members of all vessels arriving and departing the United States, there needs to be a further study of the impact of these requirements on cargo vessels. Assuming that it is not the intent of the NPRM to cover cargo vessels, there remains a concern about the potential impact of the regulations on crew changes. Crew members arrive and depart vessels in the U.S. and most often do so via an airport. For example, the New York and Los Angeles airports, served by multiple international flights, are conveniently located near major seaports, allowing crew to use these cities to join or leave ships. A problem may arise when the crewman arrives by airplane, and is therefore subject to the biometric collection requirements, but then departs the country by vessel, or vice versa. A crewman arriving by air could have an “open” set of biometrics from a previous arrival in the U.S., while a crewman departing by air would have no arrival set of biometrics. Thus, even though this crewman would be fully accounted for through the process required under 8 U.S.C. § 1281, that crewman’s arrival or departure could still be complicated by the existence or absence of a previous biometrics record. The Council asks that the Department clarify how it will handle this situation. A more troubling issue is the scenario where a crewman arrives in the U.S. to join a ship and is subject to US-VISIT requirements on arrival at the airport. Under the proposed regulations, that individual crewman would then be subject to the US-VISIT exit requirements, even when he or she is departing on a cargo vessel from a non-US-VISIT port. Under current regulations at 8 CFR § 215.8(b), this crewman may be found in violation of the terms of his or her admission and may be ineligible to receive a future visa. How is this one expected to comply with the exit biometric requirements? By: WSC
June 23, 2008 Zoom Airlines Limited, which provides scheduled service between the United Kingdom and the United States, urges the Department of Homeland Security to withdraw its proposal requiring commercial airlines to collect biometric data from foreign citizens exiting the United States. Placing the enormous burden of collecting biometric data on private industry is unprecedented, illegal, contrary to international agreements, and unworkable. There is no authority for compelling private industry to fund and perform the inherently governmental functions of controlling U.S. borders and immigration by collecting biometric data. Attempting to shift the costs of these governmental responsibilities to the airlines when they are battling to survive skyrocketing fuel costs is particularly ill-advised. The U.S. Exit Proposal is a recipe for disaster that needs significant revision. Zoom urges DRS to withdraw its current proposal and return to the "drawing board" to develop a new approach to retrieving biometric data from persons exiting the U.S. when it does so, responsibility for collecting the data and funding the program should rest with the federal government. Counsel: Zoom Airlines, Rob Johnson, 0044-0-1293-602140
April 30, 2008 Comments of Zulmira Falante, Ministerio Publico do Estado de Sao Paolo
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