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Overall Description of Deadline: Public Law 107-173, the Visa Waiver Permanent Program Act (VWPPA), sets a mandatory deadline of October 1, 2002.

Statement of Need: The INS is pursuing rulemaking to aid in implementing a major component of the President's directive on Homeland Security: An improved entry/exit system that will track the arrival and departures of foreign visitors who come to the United States. The carrier electronic manifest regulations are necessary to implement the statutory requirements of the Border Security Act and VWPPA. In addition, collection of this electronic arrival/departure manifest information will be incorporated into the Entry/Exit system that is mandated in DMIA, the USA PATRIOT Act, and the Border Security Act. Failure to fully implement these regulations could result in adverse consequences to national security because INS would not have advance notification of the arrival and departure of foreign visitors and therefore would be unable to check their names against relevant law enforcement data bases. The historical record reveals that Congress has a strong interest in documenting the arrival and departure of aliens, and recent legislation demonstrates that relief from this requirement is unlikely. Therefore, the Immigration and Naturalization Service must immediately begin development of an entry/exit system, which includes the electronic manifest information and that meets the will of Congress.

Summary of the Legal Basis: See Statement of Need. These actions are required by the statute as explained in the Statement of Need.

Alternatives: Public Law 107-173 statutorily amends section 231 of the Immigration and Nationality Act and requires that commercial carriers submit electronic arrival and departure manifests to the INS. The only means of implementing this change is through rulemaking.

Anticipated Costs and Benefits: The enactment of section 402 of Public Law 107-173 reflects Congress' desire to ensure that commercial air and sea carriers submit to immigration officials passenger and crew information in such timeframes and in such a format so as to maximize the Government's efforts to (1) timely identify persons being transported to and from the United States, (2) enforce the immigration laws, and (3) protect public safety and national security. In addition to strengthening homeland security, the INS has focused on reengineering its regulations that govern nonimmigrant and admission requirements. The INS will continue to advance the President's objectives with regulatory initiatives that are focused on minimizing regulatory burdens on the public and increasing the efficiency of the Agency operations. The President's FY 2003 budget has allocated $362 million for the development of the entry/exit system. The INS is in the process of developing a project plan and estimated costs and benefits of different alternatives for utilizing this funding. The INS is in the process of reengineering its inspections process with automated inspections systems for low-risk travelers. Commercial air carriers operating passenger flights have been required to electronically submit many of the data elements to the U. S. Customs Service in advance of arrival since December 21, 2001, and therefore, the INS plans to build upon these existing concepts to benefit the business community and the public.

Risks: This regulatory action is critical for complete and clear implementation of the provisions of the recent legislation discussed above. The regulation will clarify the confusion that exists in the immigration and business community as to the scope and applicability of many of these provisions and will thus prevent the public from taking actions, which may unintentionally trigger adverse immigration consequences. Delay in this rulemaking or failure to promulgate will perpetuate confusion among the public and lead to members of the public unwittingly incurring adverse immigration consequences. Failure to implement these regulations in a timely manner may jeopardize national security and increase the costs to implement new alternative inspections methods. Finally, and not insignificantly, failure to publish the amended section 231 regulations will result in INS and DOJ not being in compliance with the laws as passed by Congress. As with any major program, implementation of the new electronic manifest requirements is not without some challenges.