Continuing its “lame-duck” promulgation of rulings that will tie the hands of the new Presidential administration — or at least delay any efforts to reform DHS rules by requiring a new rulemaking process, or legislation, before they can be withdrawn — the DHS has published two new rules that will extend requirements for individualized pre-departure DHS permisison to international visitors seeking to enter the USA under the Visa Waiver Program (VWP) and to passengers and crew on international general aviation, private, non-scheduled, and non-airline flights to and from the USA:

(1) Advance Information on Private Aircraft Arriving and Departing the United States (Final Rule, Customs and Border Protection, DHS, 73 FR 69295, November 18, 2008, Docket No. USCBP-2007-0064):

In essence, this rule extends the Advance Passnger Information System (APIS) surveillance and control rule, in effect since February 18, 2008 for international airline flights, to all international flights to and from the USA.  Although it is described (as was the APIS rule) as an “information” requirement, it also includes (also like the APIS rule), an explicit new requirement for prior per-flight CBP permission either to leave or enter the USA:

The pilots of private aircraft are required to secure permission to land from CBP following transmission of the advance notice of arrival via an electronic data interchange system approved by CBP…. Prior to departure … from a foreign port or place, the pilot of a private aircraft must receive a message from CBP that landing rights have been granted for that aircraft at a particular airport. … Prior to departure for a foreign port or place, the pilot of a private aircraft must receive a message from DHS approving departure from the United States and follow any instructions contained therein. [emphasis added]

DHS/CBP doesn’t say on what basis they assert jurisdiction over the departure of foreign-flag aircraft from foreign airports.

As part of the request for permission to depart for the USA or from the USA, the aircraft operator will be required to provide a variety of information on each passenger and crew member, including a “DHS-Approved travel document type” and “DHS-Approved travel document number”, at least an hour before departure. There’s no apparent provision for people lawfully entitled to travel without documents, including anyone seeking to leave the US and US citizens seeking to return to the US, exercising their right under Article 12 of the International Covenant on Civil and Political Rights (ICCPR), or refugees and asyslum-seekers who frequently lack any travel documents. Presumably, the information provided to DHS will be entered into the APIS, Border Crossing Information System (BCIS), Automated Targeting System (ATS), Arrival-Departure Information System (ADIS), and/or TECS databases.

This rule suffers from all the same defects as we detailed in our comments on the APIS rule.  The DHS acknowledged in their analysis of the public comments on the new general aviation rule that, “Several hundred commenters expressed concern that, as U.S. citizens, they should not be required to “request permission” to enter or leave their own country. Two commenters noted the proposed rule is an effort to increase surveillance and information gathering on U.S. citizens under the guise of security.”

Meanwhile, the deadline for public comments on the proposed LASP rule, which would extend similar ID, information, and permission requirements to certain domestic general aviation flights, has been extended to February 27, 2009.

(2) Electronic System for Travel Authorization: Mandatory Compliance Required for Travel Under the Visa Waiver Program (Notice, Customs and Border Protection, DHS, 73 FR 67354, November 13, 2008, Docket No. USCBP-2008-003):

While it is decribed as merely a “Notice” rather than a rulemaking (and complies with none of the procedural requirements of a rulemaking), this rule purports to make fundamental changes in the nature of the ESTA program:

This notice announces that all nonimmigrant aliens traveling to the United States under the VWP on or after January 12, 2009 must obtain travel authorization under ESTA prior to embarking on an air or sea carrier for travel to the United States.

As we pointed out in our previous comments to CBP, any proposal to enforce or impose sanctions for non-possession of an ESTA would require a further rulemaking, and would likely be illegal.  Even while making the ESTA mandatory, DHS has yet to respond to any of the objections to its initial rule: “The comment period for the interim final rule expired on August 8, 2008. CBP is in the process of analyzing the comments received.”

The Interim Final Rule applied only to those “intending” to travel to the US under the VWP.  As we pointed out in our comments, only a small minority of entrants to the US possess such specific intent as of the time of their embarkation. (“Embarking” is an impermissably vague term, as we pointed out in our comments, but remains undefined in the new Notice.)  By eliminating any reference to “intent”, the new Notice would make the ESTA rule applicable to a vastly larger number of individuals — without any explanation or claimed justification.

The new Notice still doesn’t contain any overt enforcement mechanism or sanctions for noncompliance, so it remains unclear what consequences CBP expects to be imposed, or by whom, against those without an ESTA.  The Visa Waiver Program (VWP) is an immigration or entry rule, not a travel rule, and an application for entry to the US under the the VWP can only be made at a point of entry, not prior to departure. The Interim Final Rule was explicit that an ESTA was not a determination of eligibility to enter the US.  So there doesn’t appear to be any basis in either law or regulation for denial of entry under the VWP on the grounds of non-possession of an ESTA. Nevertheless, both the Rule and Notice refer to “travel to the US under the VWP”, not “entrance to the US under the VWP”.

The only way we can attribute any meaning to the Notice is this context is as a bold assertion that seeking to leave another country consitutues ipso facto an attempt to enter the US, and that the CBP has jurisdiction over, and the right to control, foreign citizens seeking to embark (even on foreign-flag aircraft or vessels) and depart from foreign ports.  Truly this is an extroardinary assertion of new extra-territorial US jurisdiction to make without the signing or ratification of any new treaty, passage of any new legislation, or any rulemaking process, but by DHS diktat through a mere “Notice” in the Federal Register.  And how could such a rule be enforced? Will the DHS send its agents to attempt to block boarding at foreign air and sea ports? If so, what police powers would they have over foreigners on foriegn soil?

More likely, DHS will give (secret, presumably) orders to airlines and cruise lines not to board passengers from VWP countries without ESTAs or visas.  But carriers obeying such orders from CBP would be liable to passengers for refusal of passage, in violation of their obligations as common carriers.  And jurisdiction for such claims would lie with courts in the countries from which would-be passengers had purchased passage, where (unlike in the USA), rights under the ICCPR and other international human rights treaties would likely be admissable as a cause of action.