[Federal Register: April 7, 2005 (Volume 70, Number 66)]
[Rules and Regulations]
[Page 17819-17856]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ap05-13]


[[Page 17819]]

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Part III





Department of Homeland Security





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Bureau of Customs and Border Protection



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8 CFR Parts 217, 231 and 251

19 CFR Parts 4, 122 and 178



Electronic Transmission of Passenger and Crew Manifests for Vessels and
Aircraft; Final Rule



Privacy Impact Assessment and Privacy Policy; Notice

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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

8 CFR Parts 217, 231 and 251

19 CFR Parts 4, 122 and 178

[CBP Decision 05-12]
RIN 1651-AA37


Electronic Transmission of Passenger and Crew Manifests for
Vessels and Aircraft

AGENCY: Bureau of Customs and Border Protection, Department of Homeland
Security.

ACTION: Final rule.

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SUMMARY: This document amends the Bureau of Customs and Border
Protection regulations pertaining to the filing of commercial vessel
and aircraft manifests for passengers and crew members. Collectively,
the provisions of this final rule require the electronic transmission
of manifest information for passengers and crew members onboard
commercial vessels and aircraft, in advance of arrival in and departure
from the United States, and for crew members and non-crew members
onboard commercial aircraft that continue within (foreign air carriers
only) and overfly the United States, in advance of the departure of
those flights. Submission of this manifest information to the Bureau of
Customs and Border Protection is a necessary component of the nation's
continuing program of ensuring aviation and vessel safety and
protecting national security. The required information also will assist
in the efficient inspection and control of passengers and crew members
and thus will facilitate the effective enforcement of the customs,
immigration, and transportation security laws.

DATES: Effective Date: This final rule is effective on June 6, 2005.

FOR FURTHER INFORMATION CONTACT: Tricia Kennedy (202) 344-1229 or
Charles G. Perez (202-344-2605), Office of Field Operations, Bureau of
Customs and Border Protection.

SUPPLEMENTARY INFORMATION:

Background

Statement of Purpose

    The Bureau of Customs and Border Protection (CBP) emphasizes that
the primary impetus for this rulemaking and the provisions set forth in
the regulatory text below is the increased terrorist threat facing the
United States and international trade and transportation industries,
particularly the commercial air and vessel carrier industries, since
the September 11, 2001 terrorist attacks. To prevent future terrorist
attacks, the Department of Homeland Security and its agencies,
including CBP and the Transportation Security Administration (TSA), as
well as the air and vessel carrier industries, must take the necessary
steps to alleviate, to the greatest extent possible, the risk to these
vital industries posed by the threat of terrorism, including
implementing regulations under the Aviation and Transportation Security
Act of 2001 and the Enhanced Border Security and Visa Reform Act of
2002.
    The urgency of these efforts is underscored by the recent
cancellation of flights to the United States, the terrorist attacks in
Spain, and the continued operations of Al Qaeda and its affiliates
throughout the world. The threat is serious and ongoing. It is
important to note that the threat is not just to the lives of the
innocent, but also to the economic well-being of the commercial
aircraft and vessel industries. Given the importance of these
industries to the United States and other economies, a terrorist attack
involving a commercial airliner or an ocean-going vessel could
substantially disrupt the global economy. Therefore, it is incumbent
upon the government and private sector to take steps to prevent such an
attack.
    The provisions of this final rule impose on commercial air and
vessel carriers electronic manifest transmission requirements relative
to passengers, crew members, and non-crew members in several
circumstances--those situations involving arrival in, departure from,
or overflying the United States, as well as those involving a foreign
air carrier arriving at a U.S. port and then continuing domestically
within the United States to a second U.S. port. The manifest
information required in these circumstances varies to some extent but
uniformly includes certain travel itinerary data, aircraft/flight or
vessel/voyage data, and personal identification information, including
name, gender, date of birth, citizenship, travel document data, and
status onboard the vessel or aircraft. These and other requirements are
imposed for the purpose of meeting the collective objectives of the
Aviation and Transportation Security Act (49 U.S.C. 44909), the
Enhanced Border Security and Enhanced Visa Entry Reform Act of 2002 (8
U.S.C. 1221), and applicable aviation security laws and regulations
enforced by the Transportation Security Administration (49 U.S.C. 114;
49 CFR parts 1544, 1546, and 1550): to secure the United States
citizenry and economy, international travelers, and the international
air and sea carrier industries from terrorist attack and from
violations of various other laws, including other customs and
immigration laws. The enforcement and administration of these
requirements will provide that protection without unduly impacting upon
international trade and travel.

Clarification of Agency Names

    CBP notes that in this document (hereinafter, the final rule),
references to U.S. Customs, the Customs Service, or Customs concern the
former Customs Service or actions undertaken by the former Customs
Service prior to its transfer to the Department of Homeland Security
(DHS) under the Homeland Security Act (HS Act) and the Reorganization
Plan Modification for DHS of January 30, 2003. References in this
document to the Immigration & Naturalization Service (INS), the INS, or
the Service concern the former INS or actions taken by the former INS
prior to certain of its component functions being transferred to CBP
under these authorities. (See section IV of this document, entitled
``Government Reorganization Pursuant to the Homeland Security Act of
2002'' for a more detailed presentation of this subject.)
    Also, any references to the Secretary of the Treasury, the
Commissioner of Customs, the Attorney General of the United States, or
the Commissioner of the INS are retained in this document only when
made in discussion of the governing statutes (which were amended in
pertinent part prior to the creation of the DHS); these authorities are
now vested in the Secretary of the Department of Homeland Security and
his delegees.

Organization

    This document is organized as follows:

I. The Customs Interim Rule--Summary of rule published in the Federal
Register on December 31, 2001, (hereinafter, the Customs Interim Rule);
II. The INS NPRM--Summary of INS NPRM published on January 3, 2003
(hereinafter, the INS NPRM);
III. TSA Requirements--Provisions incorporated into this final rule in
order to assist TSA in carrying out its aviation security
responsibilities with respect to crew members and non-crew members of
commercial aircraft;
IV. Governmental Reorganization Pursuant to the Homeland Security

[[Page 17821]]

Act--Discussion of the new Department of Homeland Security and its
effect in combining the border security and inspectional functions of
Customs and INS into one agency--``CBP;
V. Discussion of Comments--Discussion of comments received by CBP in
response to the Customs Interim Rule and the INS NPRM;
VI. Changes to the Interim and Proposed Regulatory Texts--Summary of
changes made to the Customs Interim Rule and the INS NPRM in this final
rule, including changes made to assist TSA;
VII. Conclusion.

I. The Customs Interim Rule

Statutory Changes

    On November 19, 2001, the President signed into law the Aviation
and Transportation Security Act (ATSA), Public Law 107-71, 115 Stat.
597. Section 115 of the ATSA, amending 49 U.S.C. 44909, provides that,
not later than 60 days after the date of enactment of the ATSA, each
domestic air carrier and foreign air carrier operating a passenger
flight in foreign air transportation to the United States must
electronically transmit to the Customs Service a passenger and crew
manifest containing specific identifying data elements and any other
information determined to be reasonably necessary to ensure aviation
safety.
    The specific passenger and crew identifying information required
consists of the following: (a) The full name of each passenger and crew
member; (b) the date of birth and citizenship of each passenger and
crew member; (c) the gender of each passenger and crew member; (d) the
passport number and country of issuance for each passenger and crew
member if a passport is required for travel; and (e) the United States
visa number or resident alien card number of each passenger and crew
member, as applicable.
    Section 115 of ATSA further provides that: (i) The carriers may use
the advanced passenger information system established under section 431
of the Tariff Act of 1930, as amended (19 U.S.C. 1431), to provide the
required information; (ii) the carriers must make passenger name record
(PNR) information available to the Customs Service upon request; (iii)
the required passenger and crew manifest must be transmitted in advance
of the aircraft landing in the United States in such manner, time, and
form as the Customs Service prescribes; and (iv) the required
information may, upon request, be shared with other Federal agencies
for the purpose of protecting national security.

Interim Regulatory Amendments

    On December 31, 2001, Customs published in the Federal Register (66
FR 67482), as T.D. 02-01, an interim rule (with request for comments)
entitled ``Passenger and Crew Manifests Required for Passenger Flights
in Foreign Air Transportation to the United States'' (the Customs
Interim Rule). The Customs Interim Rule amended the Customs regulations
(now CBP regulations) by adding a new Sec.  122.49a (19 CFR 122.49a) to
implement the new passenger and crew manifest reporting requirement
discussed above. The Customs Interim Rule addresses all of the
provisions of section 115 of ATSA except for the PNR provision which
has been addressed separately as indicated below.
    Section 122.49a of the Customs Interim Rule sets forth the general
requirement that each foreign and domestic air carrier operating a
passenger flight in foreign air transportation to the United States
must transmit electronically to Customs a passenger manifest and a crew
manifest containing the information set forth in section 115 of ATSA.
The transmission must be effected through an electronic data
interchange system approved by Customs and must go to the U.S. Customs
Data Center, Customs Headquarters. The system in operation at the time
ATSA was enacted is the Advance Passenger Information System (APIS),
which was a voluntary program. It remains in operation, and many
carriers have or will have this capability to comply with the
requirements set forth in this final rule. There are alternative means
available for those carriers without this capability, as discussed in
the ``Discussion of Comments'' section (section V). Section 122.49a
further provides that the manifest reporting requirement applies to
flights where the passengers and crew have already been pre-inspected
or pre-cleared at the foreign location for admission to the United
States.
    Section 122.49a of the Customs Interim Rule also provides that the
air carrier for each flight must transmit the passenger manifest and
the crew manifest separately. Furthermore, the crew manifest must be
received by Customs electronically anytime prior to departure from the
last foreign port or place, and the passenger manifest must be received
by Customs no later than 15 minutes after the flight has departed from
the last foreign port or place. Departure occurs after the wheels are
up on the aircraft and the aircraft is en route directly to the United
States.
    Section 122.49a of the Customs Interim Rule specifies the following
categories of information and related requirements that apply to each
passenger manifest and crew manifest:
    1. The following airline and flight information must be included in
the transmission: (a) the airline International Air Transport
Association (IATA) code; (b) the flight number, followed by the alpha
character ``C'' in the case of a crew manifest; (c) the departure
location IATA code; (d) the U.S. arrival location(s) IATA code(s); (e)
the date of flight arrival in the United States; and (f) whether each
passenger and crew member on the flight is destined for the United
States or in transit through the United States.
    2. The passenger and crew member identity data elements required in
section 115 of ATSA must be included in the transmission.
    3. Each air carrier must provide the passenger and crew member
identity data elements specified in section 115 of ATSA by transmitting
to Customs one, and only one, travel document per passenger or crew
member, selected from the following list: U.S. Alien Registration Card;
U.S. Border Crossing Card; U.S. non-immigrant visa; U.S. Refugee Travel
Document or Re-entry Permit; U.S. Passport; or non-U.S. passport. Until
notice is published in the Federal Register providing otherwise, timely
receipt by Customs of the electronically transmitted preferred travel
document will constitute full compliance with the informational
requirements of section 115 of ATSA. (Transmission of the travel
document means transmission of the information that is obtained from
the travel document via the electronic document reader that scans the
machine-readable zone of the travel document. In those instances where
a travel document does not have a machine-readable zone, the data
normally so obtained will be collected manually from the biographical
page of the travel document.)
    4. The Customs Interim Rule specifies that the following additional
information must be included on each passenger and crew manifest: (a)
The foreign airport where the passengers and crew members began their
air transportation to the United States; (b) for passengers and crew
members destined for the United States, the airport in the United
States where the passenger will be processed through customs and
immigration formalities; and (c) for passengers and crew members that
are transiting through the

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United States and not clearing customs and immigration formalities, the
foreign airport of ultimate destination.
    5. The Customs Interim Rule indicates that by a date that would be
announced in the Federal Register, air carriers would be required to
transmit additional elements which are not contained in the transmitted
travel documents (see section 4 above). Thus, as of the date announced
in the Federal Register, air carriers would no longer be excused from
satisfying all informational requirements set out in section 115 of
ATSA and the ``full compliance'' provision described above would no
longer apply as of that published date.
    Section 122.49a of the Customs Interim Rule also provides that the
carrier collecting the required information is responsible for
comparing this information with the related travel document to ensure
that the information is correct, that the document appears to be valid
for travel to the United States, and that the passenger or crew member
is the person to whom the travel document was issued.
    Section 122.49a of the Customs Interim Rule also provides that the
information contained in passenger and crew manifests that were the
subject of the Customs Interim Rule may, upon request, be shared with
other Federal agencies for the purpose of protecting national security.
    The Customs Interim Rule also included a conforming amendment to
Sec.  178.2 of the Customs regulations (19 CFR 178.2) which sets forth
a list of information collection control numbers assigned by the Office
of Management and Budget pursuant to the Paperwork Reduction Act.
    Finally, the Customs Interim Rule document provides that the
requirement in section 115 of ATSA that the carriers make PNR
information available to the Customs Service upon request would be the
subject of a separate document. (PNR information is data the carrier
has in its reservation system regarding passengers. PNR data or
information is not to be confused with the ``PNR locator number'' (also
referred to as the PNR locator or PNR number) which is only the number
that is associated with the passenger record.)
    On June 25, 2002, Customs published in the Federal Register (67 FR
42710) as T.D. 02-33 an interim rule document (a new Sec.  122.49b)
setting forth the regulatory standards by which Customs will have
electronic access to PNR information maintained by air carriers (that
is, information contained in a carrier's automated reservation or
departure control system). Although this Sec.  122.49b is not the
subject of, nor affected by (beyond being redesignated Sec.  122.49d),
this final rule, this interim rule also included a technical amendment
to Sec.  122.49a which reflects the passenger and crew information
elements contained in section 115 of ATSA. The amendment involved the
replacement of the words ``and the United States visa number'' with the
words ``and the United States visa travel document number (located in
the machine-readable zone of the visa document).'' This amendment was
made in order to ensure that the requirement in the regulatory text is
compatible with the existing reporting system that uses an electronic
document reader to scan the travel document and transmit the
information on it to Customs.
    The Customs Interim Rule invited the submission of written public
comments on new Sec.  122.49a, and the public comment period closed on
March 1, 2002. The submitted comments are summarized and responded to
in section V (``Discussion of Comments'') set forth later in this
document.

II. The INS NPRM

Statutory Changes

    On May 14, 2002, the President signed into law the Enhanced Border
Security and Visa Entry Reform Act of 2002 (EBSA), Public Law 107-173,
116 Stat. 543. Section 402 of the EBSA amended section 231 of the
Immigration and Nationality Act (8 U.S.C. 1221). Section 402 of the
EBSA provides that, for each commercial vessel or aircraft transporting
any person to any seaport or airport of the United States from any
place outside the United States, it shall be the duty of an appropriate
official to provide to any United States border officer at that port
manifest information concerning each passenger, crew member, and other
occupant transported on such vessel or aircraft prior to arrival at
that port.
    Section 402 of the EBSA provides that, for each commercial vessel
or aircraft taking passengers on board at any seaport or airport of the
United States, who are destined to any place outside the United States,
it shall be the duty of an appropriate official to provide to any
United States border officer before departure from such port manifest
information concerning each passenger, crew member, and other occupant
to be transported.
    Section 402 of the EBSA also provides that the information to be
provided with respect to each person listed on a manifest covered by
this section shall include the following information: (a) Complete
name; (b) date of birth; (c) citizenship; (d) gender; (e) passport
number and country of issuance; (f) travel document type and date of
expiration; (g) country of residence; (h) United States visa number,
date, and place of issuance; (i) alien registration number; (j) United
States address while in the United States; and (k) such other
information the Attorney General, in consultation with the Secretary of
State, and the Secretary of the Treasury determine as being necessary
for the identification of the persons transported, the enforcement of
the immigration laws, and the protection of safety and national
security. (This authority is now vested in the Secretary of DHS.)
    Section 402 of the EBSA also provides that an ``appropriate
official'' is the master or commanding officer, or authorized agent,
owner, or consignee, of the commercial vessel or aircraft concerned.
    Section 402 of the EBSA provides that, not later than January 1,
2003, manifest information required under this section shall be
transmitted electronically by the appropriate official to an
immigration officer.
    Section 402 of the EBSA provides that no operator of any private or
public carrier that is under a duty to provide manifest information
shall be granted clearance papers until the appropriate official has
complied with the requirements of this subsection, except that, in the
case of commercial vessels or aircraft that the Attorney General
determines are making regular trips to the United States, the Attorney
General may, when expedient, arrange for the provision of manifest
information of persons departing the United States at a later date.
    In addition to other penalties and sanctions available under
Federal law, section 402 of the EBSA further provides that, if it
appears to the satisfaction of the Attorney General that an appropriate
official, any public or private carrier, or the agent of any
transportation line has refused or failed to provide required manifest
information, or that the manifest information provided is not accurate
and full based on information provided to the carrier, such official,
carrier, or agent shall pay to the Commissioner of INS (now CBP) the
sum of $1,000 for each person for whom such accurate and full manifest
information is not provided, or for whom the manifest information is
not prepared as prescribed. No commercial vessel or aircraft shall be
granted clearance pending determination of the question of the
liability to the payment of such

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penalty, or while it remains unpaid, and no such penalty shall be
remitted or refunded, except that clearance may be granted prior to the
determination of such question upon the deposit with the Commissioner
of a bond or undertaking approved by the Attorney General or a sum
sufficient to cover such penalty.
    Section 402 of the EBSA further provides that the Attorney General
may waive the requirements for providing arrival or departure manifests
upon such circumstances and conditions as the Attorney General may by
regulation prescribe.
    Finally, section 402 of the EBSA provides that the term ``United
States border officer'' means, with respect to a particular port of
entry into the United States, any United States official who is
performing duties at that port of entry.

Proposed Regulatory Amendments

    On January 3, 2003, the INS published in the Federal Register (68
FR 292), as INS No. 2182-01, a document entitled ``Manifest
Requirements Under Section 231 of the Act'' (INS NPRM). This document
set forth proposed amendments to the Immigration regulations in Title 8
of the Code of Federal Regulations to implement the statutory changes
made by section 402 of the EBSA as described above. These proposed
regulatory amendments involved the revision of Sec.  217.7 (8 CFR
217.7), the revision of the heading for Part 231, the revision of Sec.
231.1 (8 CFR 231.1), the revision of the heading for Part 251, the
redesignation of Sec.  251.5 as Sec.  251.6 (8 CFR 251.6), the addition
of a new Sec.  251.5 (8 CFR 251.5), and the revision of newly
redesignated Sec.  251.6.

Proposed Revision of Sec.  217.7

    The proposed revision of Sec.  217.7 involved changes to conform
the text to the terms of revised Sec.  231.1 discussed below. These
conforming changes involved a non-substantive rewording of the text and
the insertion of a cross-reference to the requirements of Sec.  231.1,
and (2) replacement of text regarding procedures and specific data
elements for the electronic transmission of passenger arrival and
departure information, with text describing the potential consequences
for carriers that fail to submit electronic arrival and departure
manifests.

Proposed Revision of Sec.  231.1

    The changes made in the proposed revision of Sec.  231.1 involved
(1) a revision of the section heading, (2) the addition of provisions
to implement the terms of section 402 of the EBSA, (3) elimination of
the manifest submission exception for in-transit passengers, (4)
redesignation of paragraphs, and (5) elimination of the provision
regarding the completion and presentation of Form I-94. Thus, the
proposed revision of Sec.  231.1 was intended to implement all of the
principal operational requirements reflected in the statutory changes
made by section 402(a) of the EBSA. The proposed terms of revised Sec.
231.1 are discussed in detail below.
    Paragraph (a) of revised Sec.  231.1 is headed ``definitions'' and
defines the following terms: ``appropriate official''; ``commercial
aircraft''; ``commercial vessel''; ``crew member''; ``ferry'';
``passenger''; and ``United States.''
    Paragraph (b) of revised Sec.  231.1 is headed ``electronic arrival
manifest'' and provides that (i) an appropriate official of every
commercial vessel or aircraft arriving in the United States from any
place outside of the United States shall transmit electronically to the
Service a passenger arrival manifest and a crew member arrival
manifest, and (ii) the electronic arrival manifest must contain the
required data elements for each passenger and crew member.
    Paragraph (b) also sets forth rules regarding the timing for
transmission of aircraft arrival manifests. In the case of passenger
arrival manifests, the appropriate official must transmit the manifest
no later than 15 minutes after the flight has departed from the last
foreign port or place. For crew member arrival manifests, the manifest
must be transmitted in advance of departure from the last foreign port
or place. Further, paragraph (b) sets forth rules regarding the timing
for transmission of vessel arrival manifests. For passenger and crew
member manifests, one of the following three alternative rules will be
applied, depending on the length of the voyage: (i) At least 96 hours
before entering the port or place of destination, for voyages of 96
hours or more; (ii) at least 24 hours before entering the port or place
of destination, for voyages of less than 96 hours but not less than 24
hours; or (iii) prior to departing the port or place of departure, for
voyages of less than 24 hours.
    Paragraph (c) of revised Sec.  231.1 is headed ``electronic
departure manifest'' and provides that an appropriate official of every
commercial vessel or aircraft departing from the United States to any
place outside of the United States shall transmit electronically to the
Service a passenger departure manifest and a crew member departure
manifest. The electronic departure manifest must contain the required
data elements for each passenger and crew member.
    Paragraph (c) also provides that the appropriate official must
transmit both the passenger departure manifest and the crew member
departure manifest no later than 15 minutes before the flight or vessel
departs from the United States. Further, paragraph (c) sets forth a
special rule regarding the timing for transmission of vessel and
aircraft departure manifests when passengers or crew members board or
disembark after the original manifest has been submitted. In this case,
the appropriate official must submit amended or updated passenger and
crew member information electronically to the Service no later than 15
minutes after the flight or vessel has departed from the United States.
The appropriate official must also notify the Service electronically if
a flight or voyage has been cancelled after submission of a departure
manifest.
    Paragraph (d) of revised Sec.  231.1 is headed ``electronic
format'' and sets forth standards for the electronic transmission of
the arrival and departure manifests for passengers and crew members.
Manifests ``must be transmitted electronically to the Service via the
USCS [U.S. Customs Service], by means of an electronic data interchange
system that is approved by the Service.'' Passenger arrival and
departure manifests must be transmitted separately from the crew member
arrival and departure manifests and, to distinguish the two manifests
transmitted for a given flight or vessel, the crew member arrival and
departure manifests must have the alpha character ``C'' included in the
transmission to denote that the manifest information pertains to the
crew members for the flight or vessel.
    Paragraph (e) of revised Sec.  231.1 is headed ``contents of
arrival and departure manifests'' and provides that each electronic
arrival or departure manifest must contain certain information for all
passengers or crew members of air and vessel carriers. Air carriers
must provide the following information: (a) Complete name; (b) date of
birth; (c) citizenship (country of document issuance); (d) gender; (e)
passport number and country of issuance, if a passport is required; (f)
country of residence; (g) United States visa number, date, and place of
issuance (arrivals only); (h) alien registration number; (i) United
States address while in the United States; (j) International Air
Transport Association (IATA) arrival port code; (k) IATA departure port
code; (l) flight number, date of flight arrival, date of flight
departure; (m) airline carrier code; (n) document type (e.g., passport;
visa; alien registration); (o) date of document expiration; and (p) a
unique passenger identifier, or

[[Page 17824]]

reservation number or Passenger Name Record (PNR) locator number.
    Sea carriers must provide the following information: (a) Complete
name; (b) date of birth; (c) citizenship (country of document
issuance); (d) gender; (e) passport number and country of issuance, if
a passport is required; (f) country of residence; (g) United States
visa number, date, and place of issuance (arrivals only); (h) alien
registration number; (i) United States address while in the United
States; (j) arrival port code; (k) departure port code; (l) voyage
number; (m) date of vessel arrival; (n) date of vessel departure; (o)
country of registry/flag; (p) document type (e.g., passport; visa;
alien registration); (q) date of document expiration; (r) a unique
passenger identifier, or reservation number or Passenger Name Record
(PNR) locator; (s) vessel name; and (t) International Maritime
Organization (IMO) number or the official number of the vessel.
    Paragraph (f) of revised Sec.  231.1 is headed ``ferries'' and
provides that requirements relating to the transmission of electronic
arrival and departure manifests ``shall not apply to a ferry (if the
passengers are subject to a land-border inspection by the Service upon
arrival in the United States).''
    Finally, paragraph (g) of revised Sec.  231.1 is headed
``progressive clearance'' and provides that the inspection of arriving
passengers may be deferred at the request of the carrier to an onward
port of debarkation, that authorization for this progressive clearance
may be granted by the Regional Commissioner of the INS when both the
initial port of entry and the onward port are within the same regional
jurisdiction, and that, when the initial port of entry and onward port
are located within different regions, requests for progressive
clearance must be authorized by the Assistant Commissioner for
Inspections. Paragraph (g) further provides that, when progressive
clearance is requested, the carrier shall present Form I-92 in
duplicate at the initial port of entry and that the original Form I-92
will be processed at the initial port of entry and the duplicate noted
and returned to the carrier for presentation at the onward port of
debarkation.

Proposed Revision of Sec.  251.5

    Proposed new Sec.  251.5 is headed ``electronic arrival and
departure manifest for crew member'' and provides that, in addition to
submitting arrival and departure manifests in a paper format in
accordance with Sec. Sec.  251.1, 251.3, and 251.4, the master or
commanding officer, or authorized agent, owner, or consignee of any
aircraft or vessel transporting passengers to any airport or seaport of
the United States from any place outside of the United States or from
any airport or seaport of the United States to any place outside of the
United States must submit electronic arrival and departure manifests
for all crew members on board in accordance with 8 CFR 231.1.

Proposed Revision of Sec.  251.6

    The proposed revision of Sec.  251.6 involved minor wording
changes.
    The INS NPRM invited the submission of written public comments on
the 8 CFR changes, and the public comment period closed on February 3,
2003. The submitted comments are summarized and responded to in section
V (``Discussion of Comments'') set forth later in this document.

III. TSA Requirements

TSA Security Directives and Emergency Amendments

    This final rule contains several provisions that, in addition to
implementing the authority of CBP, will assist TSA in carrying out its
aviation security mission. TSA issues and administers Transportation
Security regulations (TSRs) which are codified in Title 49 of the Code
of Federal Regulations (49 CFR), Chapter XII, parts 1500 through 1699.
The TSRs establish security requirements for, among others, certain
U.S. aircraft operators (49 CFR part 1544) and foreign air carriers (49
CFR parts 1546 and 1550) that conduct passenger and all-cargo
operations to, from, within, and overflying the United States. In
addition to these public regulations published in the CFR, TSA issues
non-public regulations in the form of security programs, Security
Directives (SDs), and Emergency Amendments (EAs) that establish
additional detailed security requirements for these regulated parties.
(See 49 CFR 1544.305, 1546.105, 1550.5.)
    As part of its security mission, TSA is responsible for assessing
intelligence and other information in order to identify individuals who
pose, or are suspected of posing, a threat to transportation or
national security and to coordinate countermeasures with other Federal
agencies to address such threats. (See 49 U.S.C. 114(f)(1)-(4).) Under
this authority, which is held concurrently by the Under Secretary of
Border and Transportation Security (BTS) of DHS, TSA may require
aircraft operators and foreign air carriers conducting passenger or
all-cargo flight operations to and from the United States, as well as
certain air carriers conducting flights within (limited to foreign air
carrier flights from the U.S. port of their arrival to a second U.S.
port) and overflying the United States, to provide TSA, prior to
departure, manifest information for those persons (other than
passengers) onboard a flight. Under certain SDs and EAs now in effect,
TSA requires the advance submission of certain manifest information for
certain flights operating to, from, within, or overflying the United
States. TSA uses this information, in coordination with CBP, to conduct
security threat assessments for crew and non-crew members.
    Because these requirements, which are already effective under
security programs, EAs, and SDs issued to the air carriers by TSA, are
similar to the provisions of the Customs Interim Rule and the INS NPRM
in substance, effect, and purpose, the Under Secretary of BTS has
determined to incorporate them into this final rule. As a result, the
public now has access to all manifest requirements in a single source.
In addition, these requirements (except for those affecting
overflights) are also authorized under 49 U.S.C. 44909(c)(2)(F) and 8
U.S.C. 1221(c)(10), both of which provide that CBP may require that
crew manifests include such information that CBP and TSA determine is
reasonably necessary to ensure aviation safety.

IV. Governmental Reorganization Pursuant to the Homeland Security Act

    On November 25, 2002, the President signed into law the Homeland
Security Act of 2002, Public Law 107-296, 116 Stat. 2135 (HS Act),
which involved, among other things, the creation of a new cabinet-level
department, the Department of Homeland Security (DHS), the transfer to
DHS of a number of Executive Branch agencies and offices, and the
reorganization of a number of Executive Branch agencies and offices
within existing cabinet-level departments. This legislation had a
profound impact on the organization and operation of both the Customs
Service and INS, with consequential implications (discussed below) for
the Customs Interim Rule and the INS NPRM.
    Section 401 of the HS Act established in DHS a Directorate of
Border and Transportation Security (BTS) headed by an Under Secretary
for BTS. Section 402 of the HS Act provides that the Secretary of DHS,
acting through the Under Secretary for BTS, shall be responsible for,
among other things, the following: (1) Securing the borders,
territorial waters, ports, terminals,

[[Page 17825]]

waterways, and air, land, and sea transportation systems of the United
States, including managing and coordinating those functions transferred
to DHS at ports of entry; (2) carrying out the immigration enforcement
functions vested by statute in, or performed by, the Commissioner of
INS (or any officer, employee, or component of the INS) immediately
before the date on which the transfer of functions specified under
section 441 of the HS Act takes effect; (3) establishing and
administering rules, in accordance with section 428 of the HS Act,
governing the granting of visas or other forms of permission, including
parole, to enter the United States to individuals who are not a citizen
or an alien lawfully admitted for permanent residence in the United
States; (4) establishing national immigration enforcement policies and
priorities; and (5) with some exceptions, administering the customs
laws of the United States.
    With regard to the Customs Service, section 403(1) of the HS Act
transferred the functions, personnel, assets, and liabilities of the
Customs Service, including the functions of the Secretary of the
Treasury relating to the Customs Service, to the Secretary of DHS.
Section 411 of the HS Act established, in DHS, the United States
Customs Service, under the authority of the Under Secretary for BTS,
and provided for a Commissioner of Customs as its head.
    Pursuant to section 1502 of the HS Act, the President submitted to
Congress on November 25, 2002, a reorganization plan and, on January
30, 2003, a modification of that reorganization plan (collectively, The
Reorganization Plan). The Reorganization Plan, among other things,
renamed the ``Customs Service'' as the ``Bureau of Customs and Border
Protection'' (CBP). The Reorganization Plan also provided (1) that CBP
will inherit and have responsibility for, among other things, the
resources and missions of the Customs Service and the INS (including
the Border Patrol and the inspections program) relating to borders and
ports of entry and (2) that the Commissioner of CBP will, among other
things, establish and oversee the administration of the policies for
performing the Border Patrol and inspection program functions that are
transferred to the Under Secretary for BTS by section 441 of the HS Act
(discussed below) and delegated to the Commissioner by the Under
Secretary.
    With regard to the INS, section 471(a) of the HS Act provided for
the abolishment of the INS of the Department of Justice upon completion
of all transfers from the INS as provided for by the HS Act. The
transfers referred to in section 471(a) that affect DHS are as follows:
    1. Section 441 of the HS Act transferred, from the Commissioner of
INS to the Under Secretary for BTS, all functions performed under, and
all personnel, assets, and liabilities pertaining to, the following
programs: The Border Patrol; detention and removal; intelligence;
investigations; and inspections.
    2. Section 442 of the HS Act established in DHS a bureau to be
known as the ``Bureau of Border Security'' and headed by an Assistant
Secretary who reports directly to the Under Secretary for BTS. The
functions of the Assistant Secretary include, among other things, the
establishment of policies for performing functions transferred to the
Under Secretary by section 441 of the HS Act and delegated to the
Assistant Secretary by the Under Secretary. The Reorganization Plan
renamed the ``Bureau of Border Security'' as the ``Bureau of
Immigration and Customs Enforcement'' (ICE). It also provided that ICE
would have responsibility for, among other things, the INS interior
enforcement functions (including the detention and removal program, the
intelligence program, and the investigations program) and the interior
enforcement resources and mission of the Customs Service and thus would
be responsible for the enforcement of the full range of immigration and
customs laws within the interior of the United States. Subsequently, by
Delegation Order 7030, the border search authority vested in the Under
Secretary of BTS under section 402 was delegated to the Assistant
Secretary of ICE; thus, ICE's responsibilities include a border
enforcement component, as well.
    3. Section 451 of the HS Act established in DHS a bureau to be
known as the ``Bureau of Citizenship and Immigration Services'' (CIS)
and headed by a Director who reports directly to the Deputy Secretary
of Homeland Security. The Director's functions include, among other
things, establishing and overseeing the administration of policies for
performing functions transferred by section 451 from the Commissioner
of INS to the Director. The functions (including all supporting
personnel, infrastructure, and funding) transferred by section 451
consist of (1) adjudications of immigrant visa petitions,
naturalization petitions, and asylum and refugee applications, (2)
adjudications performed at service centers, and (3) all other
adjudications performed by the INS immediately before the date on which
the transfer of functions specified in section 441 of the HS Act takes
effect.
    Under section 1502 of the HS Act and the Reorganization Plan, the
statutory transfers and Presidential agency redesignations and
allocations of functions described above took effect on March 1, 2003.
Accordingly, as of that date, the INS ceased to exist as a separate
agency and the border inspection functions formerly performed by INS
under the immigration laws were merged with the border functions
historically performed by the Customs Service under the customs and
related laws in one agency, CBP.
    The statutory amendment made by the ATSA (which enabled publication
of the Customs Interim Rule) and the statutory amendments made by the
EBSA (which enabled publication of the INS NPRM) respectively involve
only customs border arrival functions and immigration border arrival
and departure inspection functions, all of which are now the exclusive
responsibility of CBP. It is further noted that the Customs Interim
Rule and the INS NPRM affect one or both of the same industry sectors
(that is, the air carrier industry and the sea carrier industry) and
that each of those statutory and regulatory regimes imposes separate
but in some cases identical or similar information reporting
requirements for the same carrier transaction. Finally, it is noted
that the Customs Interim Rule and INS NPRM changes in question were
published prior to the March 1, 2003, governmental reorganization under
the HS Act and therefore reflected the agency organization and
regulatory perspective that existed prior to that date, with the
Customs Interim Rule amendments set forth in Title 19 of the CFR and
the INS NPRM changes slated for inclusion in Title 8 of the CFR.
    Based on the considerations set forth above, and in light of the
similar provisions added to this final rule to assist TSA in its
aviation security mission, the Secretary has determined that it would
be preferable to consider the Customs Interim Rule and the INS NPRM as
one regulatory initiative and to address the TSA requirements at the
same time. Accordingly, the Secretary, after consultation with the
Commissioner of CBP and the Assistant Secretary for TSA, and pursuant
to the authority vested in him by law, including but not limited to 49
U.S.C. 44909, 8 U.S.C. 1221, 49 U.S.C. 114, and section 402 of the HS
Act, has determined to incorporate the three above initiatives into
this final rule amending 19 CFR in order to avoid a

[[Page 17826]]

duplication of reporting requirements, improve the organization and
transparency of the regulatory texts, and facilitate administration of
these important provisions that concern national security and the
safety of commercial vessel transportation to and from the United
States and commercial air transportation to, from, within, and over the
United States.

V. Discussion of Comments

    The comments submitted in response to the Customs Interim Rule and
the INS NPRM are summarized and responded to below. Where a comment
directed to a provision of the Customs Interim Rule or the INS NPRM
raises an issue that is also relevant to the other rule or to a
provision included in this final rule to assist TSA, all aspects of the
comment will be addressed at that time; the full response to the
comment will appear only once in the text of the final rule.

Comments on the Customs Interim Rule

    Twelve commenters responded to the solicitation of comments on the
Customs Interim Rule setting forth new Sec.  122.49a to require the
electronic transmission of passenger and crew manifests for flights in
foreign air transportation to the United States.
    Comment: One commenter contended that the Sec.  122.49a
requirements should not apply to a passenger flight in foreign air
transportation that is not initially destined for the United States but
rather is diverted in flight to a U.S. airport due to an emergency (for
example, a mechanical problem, bad weather, a sick passenger).
    Response: Initially, CBP notes that, due to a reorganization of the
regulation based on the incorporation of TSA requirements into this
final rule, Sec.  122.49a of this final rule covers only passengers
while crew members are covered in Sec.  122.49b (whereas Sec.  122.49a
of the Customs Interim Rule covered both passengers and crew members on
arriving commercial aircraft).
    CBP does not agree that flights diverted to a U.S. port due to an
emergency should be excepted from the passenger and crew manifest
transmission requirement; however, CBP recognizes that the regulation
should address emergency flight scenarios. Thus, an appropriate
provision has been added to the regulatory texts in this final rule for
emergency aircraft arrivals (Sec. Sec.  122.49a(b)(2)(ii) (passenger
manifests) and 122.49b(b)(2)(i)(B) (crew member manifests)).
    CBP recognizes that an aircraft diverted to a U.S. port due to an
emergency may not be able to transmit manifests in compliance with the
time requirement of the regulation. CBP also recognizes that not all
such aircraft will be equipped for making a transmission of manifest
information through the APIS, whether by electronic US or UN EDIFACT
transmission or by an approved alternative transmission medium. For
these reasons, the regulation now provides an alternative manifest
filing time requirement for these flights and an accommodation for non-
equipped air carriers who fail to meet the requirements.
    As the above discussion is also applicable to arriving vessels,
this final rule also contains an emergency provision for these vessels
(Sec.  4.7b(b)(2)(D)).
    Comment: This comment discussion (regarding alternative means of
electronic transmission) includes comments on both the Customs Interim
Rule and the INS NPRM.
    One commenter argued that Sec.  122.49a should expressly provide
for a separate electronic system by which small carriers could transmit
passenger and crew manifest data to Customs. It was explained that
Customs had allowed small carriers to transmit manifest data through an
electronic mail (e-mail) system, and it was recommended that this
system for transmitting the data be changed to a computer web-based
medium, coupled with a telephonic or facsimile back-up system. Another
commenter requested information on the alternative methods of
submission such as e-mail and the web-based application. The commenter
also requested that the effective date of the final rule be delayed
until the web-based application is piloted.
    Response: CBP does not believe that every electronic setup, along
with its technological details and operational features, that is
authorized for effecting the mandatory transmission of manifest data to
CBP needs to be prescribed in the regulations. Consistent with the
terms of 49 U.S.C. 44909(c)(1) and (c)(4), CBP believes that it is
sufficient to use a general statement in the regulatory texts that the
electronic transmission of manifest information to CBP must be effected
through an electronic data interchange system that is approved by CBP.
Also, as the statute requires electronic submission of data, and
telephonic and facsimile reporting are not considered electronic,
transmissions in this manner would not be in compliance with the
requirements.
    It is also noted that, in an effort to be more responsive to the
needs of the affected industries, CBP has developed a computer web-
based medium (eAPIS) to allow carriers to access the CBP Web site and
thus transmit manifests directly to the data center via the Internet.
This medium became operational at the end of January 2005. More
information on eAPIS is available at http://www.cbp.gov (related

links). All information on alternative methods for transmitting
electronic manifest data for air and sea carriers, including e-mail and
web-based applications, can be found at http://www.cbp.gov (related

links).
    Regarding a delayed effective date, CBP does not believe that the
availability of the web-based application should be related to the
implementation date of the manifesting requirements. As noted above,
eAPIS is now operational, so this concern is moot (and there are other
alternative methods of transmission currently available).
    Comment: Two commenters cited an inability to install automated
equipment that would enable them to transmit electronically the
necessary manifest data for passenger flights from Cuba in accordance
with Sec.  122.49a. These commenters requested that Customs develop
alternative procedures to deal with this situation.
    Response: Since the publication of the Customs Interim Rule,
carriers arriving from Cuba have demonstrated ability to comply with
electronic manifest requirements. As such, we believe this concern is
no longer an issue. It is clear under the express language of 49 U.S.C.
44909(c)(1) that CBP may require the transmission itself be by
electronic means. Additionally, as noted previously, the manifest may
be transmitted through the CBP Web site once operational.
    Comment: Two commenters requested that Customs use account managers
for the purpose of administering Sec.  122.49a, as was originally done
to administer the APIS system, which was then a voluntary program under
which air carriers electronically transmitted passenger and crew
manifest data to Customs.
    Response: CBP believes the practice of using account managers is
beneficial to the industry and therefore will continue to provide those
services. Further information on APIS account managers (not necessary
for this rule) is available at http://www.cbp.gov (related links).

    Comment: Six commenters were concerned about the degree to which
carriers would need to comply with the provisions of Sec.  122.49a.
These commenters referred to a Customs press release of March 1, 2002
(http://www.cbp.gov/xp/cgov/ click on links to newsroom/press releases)

indicating that penalties could be assessed if carriers failed to reach
stated minimum levels of compliance by certain target

[[Page 17827]]

dates in transmitting to Customs error-free manifest data under Sec.
122.49a. The commenters concluded that these target dates did not
afford enough time for many carriers not yet online to achieve the
stated levels of compliance. Also, it was asserted that a penalty of
$5,000 for noncompliance with the requirements of Sec.  122.49a was too
harsh.
    Response: Full compliance with the provisions of Sec.  122.49a
(Sec. Sec.  122.49a for passengers and 122.49b for crew members in this
final rule) was, of course, compulsory as of its effective date
(December 31, 2001). However, the use of CBP penalty guidelines for
determining the parameters under which CBP may assess a penalty for
noncompliance with Sec.  122.49a falls outside the scope of this
rulemaking. Penalty guidelines are set forth in Part 171 of CBP's
regulations and any changes will be published on the website and in the
Federal Register. Furthermore, it is noted that a civil penalty of
$5,000 is authorized by statute and regulation for each violation of
Sec.  122.49a (or Sec.  122.49b for arriving crew members in this final
rule) (see 19 U.S.C. 1644a(b)(1)(D) and (b)(2); 19 CFR 122.161; and 19
U.S.C. 1436).
    Comment: This comment discussion (regarding the timing of manifest
information submission) includes comments on both the Customs Interim
Rule and the INS NPRM. These comments have been broken down into four
subparts.
    (1) Eleven commenters were of the opinion that the requirement
regarding transmission of passenger manifest information to Customs no
later than 15 minutes after the departure of the aircraft was difficult
to meet and should be relaxed. It was instead suggested that the time
period for transmitting the passenger manifest to Customs should be a
flexible one and that it should be tied to the duration of the related
flight.
    (2) It was further suggested in this context that the crew manifest
should be sent to Customs at the same time as the passenger manifest,
rather than in advance of departure, in order to accommodate last
minute crew changes.
    (3) One commenter requested that any updates to the departure
manifest be limited to only those records that need to be updated, not
a complete transmission.
    (4) Finally, one commenter asked for clarification of ``departure
time.''
    Response: (1) After careful review of the matter, including
consideration of recent events involving the continuing threat of
terrorism, CBP has determined that changing the time requirements in
the manner recommended by the commenters for arriving and departing
aircraft is not in the best interest of the international traveling
public, the carrier industries, or national security. Such a change
would be inimical to the security enhancing intent of the requirements
as it would result in the completion of security checks later rather
than sooner and leave less time for the taking of appropriate action.
Thus, permitting variable submission times based on flight duration
would be unacceptable. CBP continues to evaluate whether the
transmission of APIS data for aircraft passengers and for passengers
and crew onboard departing vessels, in accordance with the provisions
of this final rule, allows CBP sufficient time to respond to identified
threats.
    However, as discussed previously, this final rule includes
provisions designed to assist TSA in its aviation security mission.
These provisions are set forth in security programs, EAs, and SDs
already issued by TSA to the air carriers and address electronic
manifest transmission requirements for crew members (on passenger and
all-cargo flights) and non-crew members (all-cargo flights only)
traveling onboard commercial aircraft arriving in, departing from,
continuing within (foreign air carriers only), and overflying the
United States. These provisions are authorized under TSA law and
regulations (49 U.S.C. 114 and 49 CFR part 1500), and, with the
exception of overflights, also fall within the authority of 49 U.S.C.
44909, as amended by the ATSA, and 8 U.S.C. 1221, as amended by the
EBSA. These provisions require the advance transmission of crew
manifest information no later than 60 minutes prior to departure of the
aircraft and have been adopted for incorporation into this final rule
in Sec. Sec.  122.49b and 122.75b, pertaining respectively to crew and
non-crew members on flights to, continuing within, and overflying the
United States and to the same persons on flights departing from the
United States. In this final rule, the 60-minute requirement is limited
to crew and non-crew in these scenarios.
    (2) With this final rule, as set forth in (1) above, crew member
and non-crew member manifests are now required no later than 60 minutes
prior to departure. Last minute crew changes (updating manifests within
60 minutes of departure) will be accommodated only upon approval by
TSA. Failure to obtain timely approval may result in possible denial of
flight clearance or diversion of the flight to another port, as
appropriate. CBP notes that the updating manifest requirement in this
final rule applies only to crew members and non-crew members. There is
no manifest updating provision for passengers.
    (3) CBP agrees with the commenter's preference regarding updating
(amending) manifests. As such, where submission of updated information
is provided for in this final rule, it is only the updated information
that is required, although a complete manifest may be transmitted
through APIS with updated information if the carrier desires. Further,
while the INS NPRM provided for amendment of the departure manifests to
reflect the disembarkation of passengers or crew members, the text of
this final rule reflects that the amendment provisions apply only to
additions to crew member and non-crew member manifests. The APIS system
is not capable of deleting manifest information already transmitted, so
reporting disembarkations is not required in the manifest amendment
provisions of this final rule.
    (4) Regarding the meaning of ``departure time,'' for aircraft,
departure time is the moment at which the aircraft's wheels are up and
off the runway and the aircraft is en route to its destination. The
``wheels up'' concept is the same for other scenarios covered in this
final rule, such as flights continuing within and overflying the United
States.
    Comment: Two commenters stated that, while Sec.  122.49a(b)
required that Customs timely receive the electronic transmission of the
passenger manifest and the crew manifest for a covered flight, air
carriers could not guarantee receipt of the information by Customs,
only its transmission by the carrier.
    Response: Section 122.49a(b) regarding arriving passengers and
Sec.  122.49b(b) in this final rule regarding arriving crew members
require both the transmission and the receipt of the requisite manifest
information because transmission without receipt defeats the purpose
behind the statutory requirement that the carrier ``provide'' the
manifest by electronic transmission. The APIS application will provide
an automatic confirmation procedure for notifying a registered sender
that the transmitted manifest data was received by CBP.
    Comment: This comment discussion (regarding the issue of privacy)
includes comments on both the Customs Interim Rule and the INS NPRM.
    Seven commenters remarked that requiring the disclosure to Customs
of passenger manifest data might conflict with the requirements of
foreign privacy laws. These commenters opined that the U.S. Government
should engage in a dialogue with applicable foreign governments to
resolve this issue. Also,

[[Page 17828]]

a large majority of the 328 commenters to the INS NPRM expressed
concern with respect to the right to privacy of travelers and the
protection of data by the agency.
    Response: CBP has fully complied with, and will continue to ensure
compliance with, all requirements of the Privacy Act of 1974, 5 U.S.C.
552a. APIS data is used primarily for law enforcement purposes and in
accordance with all applicable laws of the United States. Those U.S.
laws, and the measures taken by CBP to implement such laws, protect
against misuse of, or unauthorized access to, the information in the
system.
    APIS data largely consists of information that appears on the
biographical data page of travel documents, including passports issued
by governments worldwide. The collection of this information is
generally consistent with the recommended document standards and
practices of the International Civil Aviation Organization (ICAO) set
forth in ICAO Document 9303, ``A Passport with Machine Readable
Capability.'' APIS data elements have been collected routinely over the
years by governments of countries into which a traveler seeks entry
(that is, by requiring the traveler to present a government-issued
travel document). Moreover, CBP has the statutory authority to require
presentation of the information by travelers upon their arrival at the
U.S. border. Through APIS, CBP can efficiently and effectively conduct
its necessary risk assessment of travelers, while substantially
facilitating bona fide travel and avoiding substantial delays in the
processing of travelers. Accordingly, CBP does not believe that APIS
will give rise to any new or increased threats to personal privacy
interests.
    More detailed information regarding the collection and safeguarding
of APIS data is available in the APIS Privacy Impact Assessment (PIA)
published in conjunction with this final rule.
    Comment: This comment discussion (regarding the right to travel)
addresses comments made in response to both the Customs Interim Rule
and the INS NPRM. Several commenters remarked that collection of
information through APIS would infringe on the right to travel as
recognized by the Supreme Court in Kent v. Dulles, 357 U.S. 116 (1958).
    Response: CBP recognizes, as the Supreme Court has stated, that the
right to travel is an important and long-cherished liberty. Although a
passenger's refusal to supply the information required by the
regulatory text will result in denying that person access to
international travel on commercial vessels and aircraft, the new
provisions will not violate a constitutional right to travel. The
Supreme Court has recognized that the right to travel abroad is not an
absolute right, and the Court has recognized that no government
interest is more compelling than the security of the nation. Haig v.
Agee, 453 U.S. 280, 307 (1981). The government may place reasonable
restrictions on the right to travel in order to protect this compelling
interest. Id.; see also Eunique v. Powell, 302 F. 3d 971, 974 (9th Cir.
2002); Hutchins v. District of Columbia, 188 F. 3d 531, 537 (D.C. Cir.
1999).
    The restrictions this final rule places on certain modes of travel
(here, by effectively denying access to certain international travel if
a passenger or crew member refuses to provide the information required)
are reasonable and narrowly drawn to ensure accurate identification of
individuals. Moreover, the restrictions imposed through the required
submission of information are far more likely to promote the ability to
travel than to restrict it. In fact, as recent events have shown, the
ability to travel can be severely restricted by terrorist threats to
our means of transportation. See National Commission on Terrorist
Attacks Upon the United States, Final Report 29 (Norton 2004) (noting
FAA's September 11, 2001, instruction to all aircraft to land at the
nearest airport). Congress, through legislation discussed throughout
this document, has required certain safeguards involving the collection
of information to protect our national security. The new regulatory
text published today is designed to enhance the ability to travel, not
to restrict it for law-abiding U.S. citizens, lawful permanent
residents (LPRs), or foreign visitors. Some commenters argued that the
proposed rule should not apply to U.S. citizens and LPRs. While
requiring information from U.S. citizens and LPRs is a valid concern,
the applicable statutes, 49 U.S.C. 44909(c) and 8 U.S.C. 1221, do not
exempt these persons from their requirements. Nevertheless, CBP
recognizes that certain U.S. citizens and LPRs could pose a risk to the
transportation industry and the national security of the United States.
CBP must have the ability to properly assess the level of risk of all
persons and to respond accordingly.
    Comment: Several commenters requested additional clarification as
to the meaning of the terms ``full name'' and ``country of issuance of
the passport'' as used in Sec.  122.49a(c)(2). Also, it was asked why
both the citizenship and the country of issuance of the passport for
each passenger and crew member on a covered flight were required to be
electronically transmitted to Customs as this information would, in
almost all cases, be the same.
    Response: The regulatory texts contained in this final rule (Sec.
122.49a(b)(3) for arriving passengers and Sec.  122.49b(b)(3) for
arriving crew members) specify the data element ``full name'' as
meaning the first name, last name, and, if available, middle name.
However, CBP will accept as the full name the name that appears in the
machine-readable zone of the travel document. Carriers have the
responsibility to ensure that the information in the machine-readable
zone, including full name, is accurately transmitted to CBP.
    Regarding the data element ``country of issuance of the passport,''
CBP defines this as the country that issued the passport, as opposed to
the country where the document is issued (i.e., if a passport is issued
to a U.S. citizen by the U.S. embassy in Costa Rica, the country of
passport issuance is the United States). In most instances, country of
passport issuance will be the same as ``citizenship,'' and CBP, for the
time being, will accept for both data element fields the country of
passport issuance as obtained from the machine-readable zone of the
passport. However, as CBP is interested in those instances when these
data elements are not the same, in the longer term, under the UN
EDIFACT transmission format for aircraft (required for aircraft
manifest transmissions in place of US EDIFACT 180 days after
publication of this document) and under the U.S. Coast Guard's (USCG)
electronic Notice of Arrival/Departure (eNOA/D) transmission method or
Extensible Markup Language (XML) transmission method for vessels
(required 30 days after publication for cargo vessels; 180 days after
publication for passenger vessels; explained more fully below), CBP
will require the carrier to provide the appropriate data for each of
these fields in all cases. As explained further below in the comment
discussion, vessel carriers must use the eNOA/D or XML transmission
methods to transmit required manifest information.
    Finally, citizenship data is required even if a travel document is
not required (under both US and UN EDIFACT and under either eNOA/D or
XML).
    Comment: Concerning Sec.  122.49a(c)(3), which obliges carriers to
use a preferred travel document to obtain the information that
identifies the passengers and crew on a covered flight, eight
commenters argued that Customs should only require the submission of
information from the preferred travel

[[Page 17829]]

document, usually a passport, that is capable of being scanned through
the use of an electronic document reader (in other words, only the
electronic transmission of information that is contained in the
machine-readable zone of the travel document should be required). For
example, it was stated that the U.S. visa number that is required in
Sec.  122.49a(c)(2) for a U.S.-issued non-immigrant visa travel
document was not located in the machine-readable zone of that document,
and thus the visa number of this travel document as described in Sec.
122.49a(c)(3) could not be electronically transmitted to Customs
through the use of a machine reader.
    Response: CBP disagrees that the electronic transmission of
manifest data (in Sec. Sec.  122.49a(b)(3) and 122.49b(b)(3) in this
final rule) should be limited only to the information contained in the
machine-readable zone of a preferred travel document. Even though the
preamble of the Customs Interim Rule stated that the electronic
transmission of the preferred travel document information for the time
being would be considered as constituting full compliance with the
requirements of 49 U.S.C. 44909(c)(2)(A)-(E), in the longer term,
application of that more limited standard would result in the
collection of less information than CBP believes is necessary for law
enforcement and national security purposes. For example, neither the
traveler's U.S. destination address nor his/her travel itinerary is
obtainable from the machine-readable zone of the travel document. It
was for this reason that the Customs Interim Rule stated that air
carriers would be required to transmit any informational elements
required by the statute and regulation that are not contained in
transmitted travel documents by a date that would be announced in a
future Federal Register document. That date is 180 days after
publication of this document, as specified in the regulatory text of
this final rule.
    With regard specifically to submission of the U.S. visa number, CBP
has determined that it will be able to electronically obtain this data
from another source. Therefore, this data need not be transmitted by
the carrier. The regulatory text of this final rule has been modified
accordingly. This modification will reduce the manual data collection
burden on carriers while ensuring that CBP receives the required data.
    Comment: With reference to Sec.  122.49a(c)(1) and (c)(4), which
provide that certain travel itinerary information for each passenger
and crew member must be electronically transmitted to Customs, several
commenters observed that information on a passenger's travel itinerary
is not always available through the air carrier's PNR (reservation)
information system. These commenters suggested that Customs limit the
requirement for submitting details on a passenger's travel itinerary to
those cases where the carrier possesses this information in its PNR
reservation system.
    Response: The submission of information on the travel itinerary of
each passenger and crew member, as provided in Sec.  122.49a(c)(1) and
(c)(4) (in Sec. Sec.  122.49a(b)(3) and 122.49b(b)(3) in this final
rule), has been determined to be important to the effort to ensure
national safety and, therefore, such information should be submitted to
the maximum extent possible. However, carriers will be expected to
report a passenger's itinerary only to the extent that the carrier can
determine the itinerary electronically. The statutory authority for
requiring the submission of this information is 49 U.S.C.
44909(c)(2)(F) and 8 U.S.C. 1221(c)(10).
    Comment: A number of commenters sought further clarification of the
following words or phrases used in Sec.  122.49a(c)(4): ``transiting';
``destined for the United States'; and ``the foreign airport where they
[each passenger and crew member] began their air transportation to the
United States.''
    Response: CBP believes that these words in Sec.  122.49a(c)(4)
(Sec. Sec.  122.49a(b)(3) and 122.49b(b)(3) in this final rule) do not
require special definitions regarding their meaning. They are not
intended as terms of art and therefore should be accorded their
generally accepted, ordinary meanings. Yet, clarification of the words
pertaining to the airport where a passenger's or crew member's air
transportation to the United States began is warranted. These words
require identification of the airport where the passenger or crew
member first boarded an aircraft on his/her journey to the United
States; however, as mentioned above, the information required to be
transmitted will depend on the responsible, transmitting carrier's
knowledge of the traveler's itinerary. Thus, where, for example, the
traveler first boards at Athens for travel to New York via Rome and
London, and the responsible, transmitting carrier knows this itinerary,
Athens will be the port/place where the traveler's journey to the
United States began, regardless of any aircraft changes, air carrier
changes, or overnight layovers along the way. However, if the
responsible, transmitting carrier only knows of the traveler's
itinerary beginning in Rome, because, e.g., the traveler changed
airlines there and the carrier is unaware that the traveler's journey
began in Athens, then the carrier's identification of Rome as the port/
place where the journey began will be acceptable. Setting forth all
possible scenarios in this document is not feasible. The carrier is
responsible for transmitting the required information based on its
knowledge, obtained through reasonable effort, of the traveler's
itinerary.

Comments on the INS NPRM

    A total of 328 commenters responded to the solicitation of comments
on the INS NPRM setting forth amendments to the immigration regulations
in Title 8 of the CFR to require the electronic transmission of
passenger and crew manifests for air and sea carriers in foreign
transportation into and out of the United States. The submitted
comments are summarized and responded to below. Again, similar comments
received on both the Customs Interim Rule and the INS NPRM were
addressed in the comment-response section for the Customs interim rule
and will not be repeated in this section.
    Comment: Ten commenters expressed their support for the proposed
regulatory requirements. The commenters noted in particular that the
requirements would increase the security of air travelers and the
United States.
    Response: CBP agrees and appreciates the support for this
regulatory action.
    Comment: Eleven commenters expressed concern over the requirement
that the carriers submit the traveler's address while in the United
States. The various concerns involve the following:
    (1) The address requires manual input;
    (2) The requirement applies to in-transit passengers who, by
definition, are not entering the United States;
    (3) The requirement applies to departure manifests;
    (4) Whether a telephone number should be sufficient for passengers
who cannot supply a specific address;
    (5) Whether the carriers should be liable for the accuracy of the
data;
    (6) The requirement is not limited to visitors;
    (7) That carriers should be allowed to send crew addresses via fax;
and
    (8) The requirement should not be applied to crew members of sea
carriers.
    Response: After serious consideration of the various concerns of
the industry regarding the requirement to submit the U.S. destination
address (primarily, additional processing time for manual entry of this
data), CBP has significantly

[[Page 17830]]

modified this requirement to decrease the burden on the industry.
Although CBP has determined that the submission of the U.S. destination
address for certain persons is necessary for transportation and
national security, CBP has modified the scope to focus more accurately
the requirement on a subset of the traveling public. The following are
the responses to the eight concerns summarized above:
    (1) CBP recognizes that the manual entry of data will result in an
additional burden on the carriers that collect and provide the
information. As mentioned above, CBP has carefully weighed the
importance of any information that requires manual entry to ensure that
the burden is imposed only when the receipt of the information is
necessary for transportation and national security purposes.
    (2) CBP agrees that a U.S. address should not be required for in-
transit passengers since they are only transiting through and are not
destined to remain in the United States. Thus, CBP is waiving this
requirement. The relevant regulatory texts set forth in this final rule
document have been modified accordingly.
    (3) CBP agrees that the U.S. address should not be included as part
of the passenger departure manifest for either commercial vessels or
aircraft. This information relative to non-immigrant travelers can be
obtained from information collected upon arrival (as U.S. address is
required for arriving non-immigrant passengers). Thus, CBP is waiving
this data element requirement in the above scenarios. The regulatory
texts set forth in this final rule document have been modified
accordingly.
    (4) Some travelers (as to whom the information is required) may
indicate that they are not able to provide a specific U.S. address;
however, CBP cannot accept a telephone number in lieu of the address.
The U.S. destination address is required under the EBSA (8 U.S.C. 1221)
and must be provided unless waived under the statute. The statute does
not provide for transmission of a telephone number or anything else as
an alternative. If the information is not submitted with the manifest,
the carrier may be penalized for submitting an incomplete manifest, and
CBP will be forced to elicit this information from the traveler upon
arrival, which could impact CBP processing times.
    (5) CBP agrees that the carriers should not be held liable for the
accuracy of the U.S. address information provided by the traveler.
However, a carrier may be held liable for a failure to provide the
information or for providing information it knows or should have known
was incorrect. An example of the latter kind of failure is not catching
and correcting an address lacking credibility, such as one naming the
White House or using a post office box which carriers should be made
aware is unacceptable. CBP expects that carriers will make a reasonable
effort to ensure that the address provided appears to be a valid
address.
    (6) CBP agrees that the U.S. address requirement should apply to
arriving non-immigrant visitors and not to U.S. citizens or lawful
permanent residents (LPRs). As this information, with respect to U.S.
citizens and LPRs, can be obtained by other means, CBP is waiving this
data requirement for these groups. The regulatory texts set forth in
this final rule document have been appropriately modified to reflect
this view.
    (7) CBP does not agree that transmission of the U.S. address, where
required, can be made via fax. This means of transmission is not in
compliance with the ATSA and EBSA requirements for the electronic
submission of manifest data.
    (8) In preparing this final rule, CBP has decided to waive the
requirement for U.S. address for crew members arriving in or departing
from the United States onboard commercial vessels or aircraft. This
information can be obtained from the carrier if necessary. The
regulatory texts of this final rule have been modified accordingly.
However, the data element ``address of permanent residence'' (which may
be a U.S. address in some instances) has been added to the regulatory
texts of this final rule for crew members and non-crew members onboard
arriving and departing commercial aircraft. This data element (as well
as two additional scenarios to which it applies for crew members and
non-crew members: certain flights continuing within and overflying the
United States) has been added to incorporate current TSA provisions
into this rulemaking. Requiring this data element for arriving and
departing aircraft is also authorized under the EBSA amendments to 8
U.S.C. 1221 (8 U.S.C. 1221(c)(10)) and, additionally for aircraft
arrivals, under the ATSA amendments to 49 U.S.C. 44909 (49 U.S.C.
44909(c)(2)(F)). The regulatory texts of this final rule have been
modified accordingly. Thus, where the crew member's or non-crew
member's permanent residence is in the United States, that address will
be required (and, per item (7) above, cannot be transmitted to CBP by
fax) to meet this data element requirement.
    Under ATSA, CBP may require additional information that it
determines is reasonably necessary to ensure aviation safety, such as
the address requirement for certain crew and non-crew members discussed
above. Thus, for this reason, requiring the U.S. address as outlined
above is authorized under the statute for aircraft arrivals; not
requiring it in some circumstances is not contrary to the statute.
    Under 8 U.S.C. 1221, as amended by EBSA, pertaining to manifests
for aircraft and vessel arrivals and departures, the U.S. address is
required (in paragraph (c)(9)). However, paragraph (h) of 8 U.S.C.
1221, as amended, provides CBP the authority to waive the requirements
of paragraphs (a) and (b) of the statute relating to submission of
arrival and departure manifest information. As CBP has the authority to
waive submission of the manifest information altogether (such as for
active duty U.S. military personnel on certain Department of Defense
aircraft), its authority to waive submission of one or more data
elements is reasonably implied. Thus, a manifest data element provided
for under paragraph (c) of the statute may be excluded from the
regulation (visa number) or limited in the regulation (U.S. address)
under the waiver provision, provided that to do so does not present a
security risk to vessel and air travel or shipments and is grounded in
a reasonable need. Accordingly, the waiver of 8 U.S.C. 1221(h) provides
the basis for not requiring, under this final rule, the U.S.
destination address for U.S. citizens, LPRs, in-transit passengers,
crew members, and all departing travelers in both the commercial vessel
and air travel environments. CBP again notes, however, that it can
obtain the U.S address by other means with respect to these groups
(except in-transits). And CBP reiterates that, despite the foregoing
waiver, the data element ``address of permanent residence'' (which may
be a U.S. address in some instances) is required in this final rule for
crew members and non-crew members on flights to, from, continuing
within (foreign air carriers only), and overflying the United States.
    Comment: Eight commenters commented on the conversion to the United
Nations Electronic Data Interchange for Administration, Commerce, and
Trade (UN EDIFACT). The comments involved the following specific
issues:
    (1) Estimates of the time required to convert to UN EDIFACT;

[[Page 17831]]

    (2) Concern over the cost of conversion to UN EDIFACT;
    (3) Concern over the availability of other methods of transmission
for small carriers (e-mail and Web-based applications);
    (4) Confusion over the statement in the preamble of the INS NPRM
that conversion to UN EDIFACT is not required;
    (5) Concern over the timeliness of the final publication of the UN
EDIFACT Implementation Guide; and
    (6) Concern that the increased transmission of data in blocks will
increase the possibility of lost data.
    Response: Although the carriers have specific concerns regarding UN
EDIFACT, the use of this format for APIS transmissions serves several
useful purposes for the air carrier industry. UN EDIFACT was approved
as the global standard for APIS messaging by the World Customs
Organization in March 2003. Therefore, although the air carriers must
reprogram their systems to comply with this new format, they will not
have to continue to reprogram to meet other governments' individual
APIS requirements, other than possible minor programming changes. Also,
UN EDIFACT is much more flexible than US EDIFACT and will allow the
carriers to comply with the new data element requirements and make
minor adjustments to accommodate modifications without major
reprogramming.
    The following are the specific responses to the six issues raised
by the commenters:
    (1) CBP considered all submitted estimates of time required to
convert to UN EDIFACT. Industry estimates indicated that most air
carriers would be able to convert by the end of December 2003 if the
regulatory requirements were finalized by April 2003. CBP has modified
the regulatory texts contained in this final rule document to set the
requirement for transmission of all data in UN EDIFACT format at
approximately 180 days from the date of publication of this final rule.
In view of the ample period of time during which the industry has been
aware of these impending requirements and has had access to the draft
implementation guide to UN EDIFACT, CBP believes that this 180-day
delay affords sufficient time for the carriers to complete the
necessary programming. Prior to the publication of this final rule,
five major carriers and two communication providers have completed
programming for UN EDIFACT and 60 others are currently testing with
CBP.
    For the sea travel environment, CBP has decided to adopt the use of
the USCG's eNOA/D transmission format or the XML transmission format
for vessel carrier transmissions. The eNOA/D is a web-based application
that has been developed by the USCG in cooperation with CBP. It became
available to the vessel carrier industry at the end of January 2005.
The XML format allows transmission of required information by
attachment to an email message. CBP is adopting these methods in large
part due to the comments received by the industry calling for USCG and
CBP to consolidate duplicative manifesting requirements and provide the
industry a ``single-window'' for manifest transmissions. USCG and CBP
conducted an evaluation of their respective systems to determine the
optimum way to consolidate their transmission requirements and be more
responsive to the industry. It was determined that the eNOA/D and XML
methods (not UN EDIFACT) are the most compatible and easy to implement
methods for this purpose.
    For cargo vessel carriers, using eNOA/D or XML will constitute
transmission to CBP through an electronic data interchange system
approved by CBP, as required under 8 U.S.C. 1221, as amended by EBSA.
Cargo vessel carriers must make transmissions through one of these
media 30 days after the date of publication of this document. Passenger
vessel carriers must make transmissions through one of these media by a
date that is 180 days after the date of publication of this document.
Cargo vessel carriers are required to comply earlier than passenger
vessels since they do not currently submit data and have not previously
implemented the US EDIFACT transmission format. Passenger vessel
carriers have been required to submit manifest data on Visa Waiver
passengers in US EDIFACT since October 10, 2002, and therefore will
require a period of time to convert to XML. This change has been made
in cooperation with the USCG to facilitate transmission in the sea
environment for the vessel carriers and is expected to be easily
achieved.
    (2) CBP recognizes that the conversion to UN EDIFACT will impose
initial and subsequent operating expenses on the carriers. In fact, CBP
itself has incurred considerable expense in programming its automated
system to accept UN EDIFACT. See the economic impact analysis set forth
in the ``Regulatory Assessment Under Executive Order (E.O.) 12866''
section of this document which concludes that this final rule
constitutes a significant regulatory action because it requires the
expenditure of over $100 million in any one year. However, CBP notes
that UN EDIFACT was approved as the standard for transmission of
Advance Passenger Information (API) data by the World Customs
Organization in March 2003, and, thus, many air carriers would likely
need to convert to UN EDIFACT (as many already have) to comply with the
requirements of other countries, even if CBP APIS, and the requirements
of this final rule, did not exist. Also, this final rule provides
certain benefits to the carriers that are discussed in the E.O. 12866
analysis.
    (3) In the air travel environment, although CBP will continue to
accept e-mail transmissions for the foreseeable future, CBP may
eventually phase out this method of transmission since it is generally
considered to be less reliable. In the meantime, CBP will require the
transmissions sent via email to be in UN EDIFACT format once UN EDIFACT
becomes the operative format under the regulatory texts adopted in this
final rule. Again, CBP has developed ``eAPIS'' (the web-based
application located on the CBP web site) which became available to the
carrier industry at the end of January 2005. Additional information on
UN EDIFACT and points of contact for assistance can be accessed on the
Internet at http://www.cbp.gov (related links).

    Concerning the sea travel environment, the industry can access
eNOA/D through the USCG's National Movement Vessel Center Web site
(http://www.nvmc.uscg.gov). The eNOA/D contains all information

required to satisfy the USCG's Notice of Arrival (NOA) report
requirements and CBP's electronic manifest requirements. Finally, for
vessel carriers who do not have access to the Internet or do not wish
to incur the On-line costs, they can either download the XML form
provided on the USCG Web site or design their own XML form and e-mail
it to the address provided on the USCG Web site above.
    (4) Some of the commenters were confused with the statement in the
preamble of the INS NPRM regarding conversion to UN EDIFACT not being
required. To clarify, in order to comply with the statutory and
regulatory requirements, conversion to UN EDIFACT will be necessary for
air carriers. As already noted, UN EDIFACT is the API messaging format
endorsed by the World Customs Organization, and, therefore, most air
carriers would likely have to convert to UN EDIFACT to satisfy other
government requirements regardless of this final rule.
    (5) CBP published a draft UN EDIFACT Implementation Guide in March
2003 which was updated in March 2004. CBP will publish a final

[[Page 17832]]

UN EDIFACT Implementation Guide at http://www.cbp.gov (related links)

as soon as practicable following publication of this final rule
document.
    (6) CBP assures the industry that it will work to ensure that the
increased transmissions will not increase the risk of lost data. CBP
has implemented specific programming to address the initial loss of
data experienced after the publication of the Customs Interim Rule.
    Comment: Three commenters asked for clarification on whether the
electronic manifest requirement applies to carriers that transport crew
only.
    Response: For the national and aviation security reasons set forth
in the governing statutes, as amended, CBP will require carriers
(vessel and air) transporting only crew members to transmit arrival and
departure manifests in accordance with the regulatory texts of this
final rule. The provisions incorporated into this final rule to assist
the TSA aviation security mission, which serve the same purposes, also
require crew member and non-crew member manifest transmissions for
cargo-only flights arriving in or departing from the United States (as
well as for cargo-only flights continuing within (foreign air carriers
only) and overflying the United States).
    Comment: One commenter requested that the government match APIS
manifest data through the passport number at the time of arrival only
and thus not require the alien registration number, country of
residence, or the U.S. address on the outbound manifest. Five
commenters argued that the alien registration number requirement should
be omitted from the final rule altogether (for inbound and outbound)
since it can be retrieved by (legacy) INS systems. One commenter also
alleged that it is difficult for an airline to know if a traveler has
an alien registration card.
    Response: Regarding the alien registration number, which must be
submitted ``where applicable'' under 8 U.S.C. 1221(c)(9), as amended,
and ``as appropriate'' under 49 U.S.C. 44909(c)(2)(E), as amended, CBP
has determined that providing this information with respect to any LPR
to whom an alien registration card has been issued, whether or not the
card is required for travel, is an ``applicable'' and ``appropriate''
requirement. In other words, where a traveler is an LPR to whom an
alien registration card has been issued, it is appropriate in, and
applicable to, the situation at issue (international travel--arrival in
and departure from the United States) to require that information,
particularly given the national security, aviation security, and law
enforcement purposes upon which the amendments to the laws predicating
this regulatory action are based. Thus, under the circumstances,
waiving this data element is not warranted.
    Regarding the commenters' suggestion that the requirement to submit
the alien registration card number can be removed from the regulation
because this information can be obtained elsewhere, after looking into
the possibility of automated retrieval of the alien registration number
from other sources, CBP has concluded that the electronic manifest
transmission systems required to comply with the amendments of this
document currently lack this capability. Accordingly, the alien
registration number requirement must be retained.
    Comment: Five commenters expressed concern that the visa number,
issuance country, and date of issuance data elements require manual
input and thus will significantly delay processing times. The
commenters also asserted that, with the transmission of the passport
number, the visa information could be retrieved from the State
Department database.
    Response: CBP concurs. Regarding the U.S. visa number and date and
place of visa issuance, CBP has determined that submission of this
information under 8 U.S.C. 1221(c)(7) by the carrier is subject to the
waiver of paragraph (h) of the statute. Because CBP will be able to
obtain this information electronically from another source and does not
wish to delay processing times unnecessarily, these elements have not
been included in the regulatory texts set forth in this final rule
document. The waiver of this requirement reduces the burden on carriers
supplying information under these regulations, since these data
elements would have required manual entry by carrier representatives.
    Comment: Two commenters referred to the proposed requirement that
the crew manifest be transmitted separately with an indicator ``C''
after the flight number to distinguish it as a crew manifest. These
commenters noted that the new UN EDIFACT will require each traveler's
status to be indicated, thus making the ``C'' designation requirement
unnecessary.
    Response: The proposed use of the indicator ``C'' (in the INS NPRM)
was for manifest transmissions in US EDIFACT format only, to
distinguish passenger manifests from crew manifests. This final rule
does not require a ``C'' indicator under the UN EDIFACT format;
however, TSA may require certain air carriers to add specific suffixes
to the flight number to distinguish crew manifests. TSA will advise the
affected air carriers accordingly.
    Comment: One commenter sought clarification on the requirement for
the transmission of a passenger's citizenship vis-a-vis the country of
document issuance.
    Response: As stated in a previous response to a comment relative to
the regulatory text of the Customs Interim Rule that concerned the
country of issuance of the passport, CBP will accept the country of
travel document issuance data, contained in the machine-readable zone
of the travel document, as the citizenship data. However, after
commencement of transmission of aircraft manifest information in UN
EDIFACT format, both data elements will be required separately. It
should also be noted that citizenship data is required even if a travel
document is not.
    Comment: Four commenters requested omission of the country of
residence requirement from the final rule since it requires manual
entry and can only be determined through interview of the passenger.
    Response: Notwithstanding the fact that this requirement will add
to processing times, CBP believes that the requirement should be
retained for arrivals. CBP routinely collects this data upon entry into
the United States and all foreign nationals are required to provide
this data on the I-94 form. Electronic submission of the country of
residence, in advance, assists CBP in facilitating travelers' entry and
evaluating risk assessments. However, CBP has determined that this data
element need not be required for outbound passenger or crew manifests
since this information is captured on the inbound manifests (subject to
the caveat noted previously for crew and non-crew members who must
provide the address of permanent residence).
    Comment: One commenter asked that the Passenger Name Record (PNR)
locator number requirement not be effective until December 15, 2003, so
that the capability to satisfy this requirement can be developed. Eight
commenters stated that a PNR locator number may not always be available
and may, at times, be different for inbound and outbound manifests.
Three commenters requested that the final regulation not require the
creation of a unique identifier.
    Response: This final rule does not require carriers to provide CBP
access to a passenger's reservation data. The regulatory requirements
for access to PNR information was published under a separate interim
regulation, under 19

[[Page 17833]]

CFR 122.49b, which has been redesignated 19 CFR 122.49d in this final
rule. This rule only requires submission of the PNR locator number. The
locator number will be used by CBP to locate a passenger's passenger
name record (PNR; reservation data) when available. A carrier will be
responsible for transmission of the PNR locator only when UN EDIFACT
becomes the required transmission format--180 days after publication of
this final rule, well after the December 15, 2003 date mentioned by the
commenter. With regard to the second comment, CBP recognizes that a PNR
locator number may not always be available and may be different for
inbound and outbound manifests. Therefore, CBP has determined that, for
the time being, if the carrier's system does not contain PNR locator
numbers, the carrier may leave this data element blank. The regulatory
texts set forth in this final rule document have been modified to
require the PNR locator only ``if available.'' Also, CBP will not
require the transmission of a unique identifier number.
    Comment: One commenter requested that sea carriers be allowed to
transmit ``traveling manifests'' via APIS and be exempted from
submitting the paper I-418, thus permitting full replacement of the
paper I-418 by the APIS transmission. Two commenters similarly asked
for elimination of the Form I-94.
    Response: CBP's APIS system cannot currently accommodate the filing
of traveling manifests. CBP believes that this capacity is beyond the
scope and intent of the APIS system. With regard to the I-418 and I-94
forms, CBP intends to study whether, and if so to what extent, the
transmission of APIS data can replace the submission of these paper
forms. Preliminary analysis indicates that these documents can be
significantly reduced, if not eliminated. However, this evaluation will
not be completed by the effective date of this final rule and,
therefore, the I-418 and I-94 will continue to be required. If CBP
ultimately determines that these two paper forms can be eliminated
entirely or in some circumstances, an appropriate regulatory change
document will be published in the Federal Register for public comment
at a future date.
    Comment: One commenter requested that CBP work with the USCG to
consolidate requirements and thus allow the data submitted to CBP to
satisfy the passenger and crew manifesting requirements of the USCG.
    Response: CBP and USCG have consolidated requirements to every
extent possible. For instance, the INS NPRM's provision for submitting
a vessel arrival manifest, in certain circumstances, less than 24 hours
in advance of entry at a U.S. port (in proposed Sec.  231.1(b)(2)(iii))
was removed from the regulatory text in this final rule and replaced
with a submission time requirement acceptable to USCG. This
modification was done to maintain consistency with USCG requirements.
However, it is noted that the USCG has other manifesting requirements
that cannot be addressed in an APIS regulatory context.
    As mentioned in a previous comment response, CBP has adopted the
use of the eNOA/D and XML in order to eliminate the duplicate reporting
requirements and provide a ``single window'' for filing manifest
information. For this purpose, commercial vessel carriers will utilize
either of these methods to satisfy both USCG's and CBP's passenger and
crew manifest submission requirements.
    Comment: Five commenters expressed concern that the ``date of
document expiration'' requires manual input for some travel documents.
They suggested for this reason that this data requirement should be
omitted from the regulation.
    Response: CBP has determined that the ``date of document
expiration'' data element is necessary for advance risk assessment.
However, the date of expiration is also contained in the machine-
readable zone of the passport. Therefore, manual input of this data
element should be minimal.
    Comment: One commenter asked for clarification as to whether the
carrier will be liable if a traveler, due to dual citizenship, presents
different travel documents when traveling into or out of the United
States.
    Response: CBP will not hold the carrier liable if the traveler, due
to dual citizenship, presents different valid travel documents while
traveling into or out of the United States. The carrier's
responsibility, and liability for failure to meet it, relates to the
proper transmission of travel document information provided by the
traveler and a reasonable effort to obtain correct information.
    Comment: Three commenters requested that Visa Waiver Program
passengers not be refused entry due to inaccurate APIS transmissions.
    Response: Upon arrival of a VWP passenger, the passport will be
scanned and the inspector will be alerted to discrepant information.
When resolved by the inspector as an incorrect transmission, the VWP
passenger will be admitted. CBP does not intend to deny entry of a Visa
Waiver Program passenger based solely on an incorrect APIS
transmission.
    Comment: Four commenters expressed concern regarding the penalties
for non-compliance with the APIS regulatory requirements. The concerns
were as follows:
    (1) Whether the carriers will be penalized for the accuracy of
those data elements that rely solely on the verbal declaration of the
passengers (country of residence and U.S. destination address);
    (2) Whether compliance with data element requirements under the
regulations will affect a carrier's APIS compliance rate (previously
calculated by the Customs Service);
    (3) Whether notices of potential penalties should be e-mailed or
faxed rather than mailed;
    (4) Whether penalties should be waived if the carrier's compliance
rate exceeds a certain level over a 1-year period; and
    (5) Whether carriers will be penalized for discrepancies between
the I-94 and the APIS transmission.
    Response: (1) As addressed in a previous comment response, carriers
must make a reasonable effort to ensure the information on the manifest
appears valid.
    (2) An APIS compliance rate will still be calculated and may
encompass all elements of this regulation.
    (3) Notices of penalties will be emailed or faxed when practicable.
All carriers should ensure that local APIS port coordinators have
current email addresses and fax numbers.
    (4) Compliance with the provisions of this rule is necessary in
order for CBP to facilitate the processing of travelers and properly
conduct advance risk assessments. Therefore, CBP will not waive
enforcement of these provisions simply because a carrier has
demonstrated compliance for one year.
    (5) CBP does not intend to penalize carriers for discrepancies
between the I-94 and the APIS transmission. Passenger information is
submitted to the carrier at check in. If it is apparently valid,
carriers cannot be held accountable if a passenger later puts different
information on the I-94 that is submitted at the time of arrival.
    Comment: One commenter asked that air carriers be exempt from
transmitting APIS manifest information from flights departing pre-
inspection locations.
    Response: APIS manifest information must be transmitted for pre-
inspection location departures in order to perform law enforcement and
national security checks that are not completed during the pre-
inspection process. Also, the APIS transmissions are necessary to

[[Page 17834]]

satisfy United States Visitor and Immigrant Status Indicator Technology
(US VISIT) requirements that were the subject of a rulemaking document
published in the Federal Register (69 FR 468) on January 5, 2004.
    Comment: One commenter asked for clarification of the process by
which a carrier should cancel APIS manifests for a flight that was
canceled after transmission.
    Response: There is currently no method for a carrier to cancel a
manifest after transmission. Accordingly, all references to reports of
cancelled voyages or flights have been removed from the regulatory
texts set forth in this final rule. Carriers should continue to follow
current practices of notifying CBP of cancellations as soon as
practicable.

VI. Changes to the Interim and Proposed Regulatory Texts

    This final rule incorporates a few organizational changes and a
number of textual changes from what was set forth in the regulatory
texts of the Customs Interim Rule and the INS NPRM, including changes
to assist TSA in its aviation security mission. All substantive changes
are addressed below.

Organizational Changes

    The principal organizational change involves a transfer of the
operative manifest provisions contained in the INS NPRM (that is, the
substance of the proposed revision of 8 CFR 231.1, which set forth the
new passenger and crew manifest requirements for arriving and departing
vessels and aircraft) to 19 CFR parts 4 and 122. This change is based
on the following considerations: (1) As pointed out earlier in this
document, the new manifest requirements will now be administered by one
government agency, CBP; (2) the existing CBP regulations in Chapter I
of Title 19 of the CFR already contain detailed requirements regarding
the arrival and clearance for departure of commercial vessels and
aircraft, including manifest reporting requirements covering incoming
and outgoing cargo and electronic manifest requirements for passengers
and crew members on arriving aircraft; and (3) use of the regulations
by the affected industry sectors will be facilitated if the various
provisions that apply to the same arrival or departure transaction are
found in one place within the CFR.
    Thus, with this transfer of the manifest provisions from 8 CFR to
19 CFR, the requirements for submitting manifest information relative
to passengers and crew members arriving in and departing from the
United States on board commercial vessels and aircraft will not be
found in 8 CFR 231.1, as proposed in the NPRM. Instead, vessel manifest
requirements will be found in 19 CFR 4.7b (arrivals) and 4.64
(departures), and aircraft manifest requirements will be found in 19
CFR 122.49a (passenger arrivals), 122.49b (crew member and non-crew
member arrivals), 122.75a (passenger departures), and 122.75b (crew and
non-crew departures), as set forth in the regulatory texts below.
    Other organizational changes, made to accommodate the incorporation
into this final rule of certain provisions to assist TSA in carrying
out its aviation security responsibilities, include limiting the
manifest requirement of 19 CFR 122.49a to arriving passengers
(aircraft) and placing this requirement for arriving crew members in a
new 19 CFR 122.49b. Manifest requirements for crew members and non-crew
members on foreign flights continuing within and overflying the United
States also have been placed in the new 19 CFR 122.49b. This change
regarding new 19 CFR 122.49b necessitated redesignating former 19 CFR
122.49b pertaining to PNR information as 19 CFR 122.49d. New 19 CFR
122.49c pertaining to master crew member and non-crew member lists has
been added. Manifest transmission requirements for departing passengers
have been added in new 19 CFR 122.75a and, for departing crew members,
new 19 CFR 122.75b.

Textual Changes to the Provisions of the Customs Interim Rule and the
INS NPRM

    (1) Conforming Amendments:
    (a) Appropriate conforming changes have been made to proposed 8 CFR
217.7 regarding the Visa Waiver Program (VWP). In this final rule, this
section now references 19 CFR 4.7b and 122.49a for electronic manifest
requirements for aliens arriving in the United States as applicants
under the VWP and 19 CFR 4.64 and 122.75a for electronic manifest
requirements for aliens admitted under the VWP who are departing from
the United States.
    (b) The INS NPRM did not contain a proposed amendment to 8 CFR
231.2. In this final rule, appropriate conforming changes have been
made to 8 CFR 231.2 to reflect that the electronic departure manifest
requirements for passengers and crew are now found in 19 CFR 4.64,
122.75a, and 122.75b. Language regarding the I-94 has been retained in
8 CFR 231.2.
    (2) Definitions: The definitions of proposed 8 CFR 231.1(a) of the
INS NPRM have been removed from that section. These definitions, some
of which have been revised, have been placed, as appropriate, in 19 CFR
4.7b(a), 4.64(a), 122.49a(a), 122.49b(a), 122.75a(a), and 122.75b(a) of
this final rule. In addition, definitions for the following terms have
been added, as appropriate, to these 19 CFR sections: ``carrier'';
``departure'' relative to aircraft (this term is defined for vessels in
19 CFR 4.0(g)); ``emergency''; ``flight continuing within the United
States''; ``flight overflying the United States''; ``non-crew member'';
and ``territorial airspace of the United States.'' Some of these
definitions have been added due to the incorporation in this final rule
of provisions that assist TSA in meeting its aviation security
responsibilities. CBP notes that, for purposes of consistency (given
that the electronic manifest filing provisions subject of this
rulemaking are now contained in 19 CFR), the INS NPRM definition of
``ferry'' (now contained in 19 CFR 4.7b(a)) has been modified to be
consistent with the definition of ``ferry'' found in 19 CFR
24.22(a)(4). The definition of ``crew member'' has been revised to
encompass certain elements of 8 U.S.C. 1101(a)(10) and (a)(15)(D)
(under which sections the term ``crewman'' is used) to reflect more
accurately factors established by case law (alien crew members must
further meet all additional requirements for such persons set forth in
subparagraph (a)(15)(D)). In some instances, due to incorporation in
this final rule of provisions related to the TSA aviation security
mission, the definition includes ``relief crew'' (also known as
``deadheading crew'') and airline management personnel authorized to
travel in the cockpit. However, CBP notes that, for all other purposes
of immigration law and documentary evidence required under the
Immigration and Nationality Act (8 U.S.C. 1101, et seq.), the term
``crew member'' (or ``crewman'') does not include relief crew or
airline management personnel authorized to travel in the cockpit unless
such persons otherwise fall within the definition of ``crewman'' as set
forth in 8 U.S.C. 1101(a)(10) and (a)(15)(D), as applicable. CBP
further notes that the definitions of ``crew member'' found in the
amended texts of 19 CFR set forth in this document should not be
applied in the context of other customs laws, to the extent these
definitions differ from the meaning of ``crew member'' contemplated in
such other customs laws.
    (3) I-94 Form: Requirements concerning submission of the Form I-94
(Arrival/Departure Record), removal of

[[Page 17835]]

which from 8 CFR 231.1 was proposed in the INS NPRM, have been retained
in this final rule. CBP has determined that, until further study of the
matter is concluded, the I-94 requirement must be retained.
    (4) Air Ambulances: Based on concerns from the industry, CBP has
determined that an accommodation is warranted for flights by air
ambulances, i.e., aircraft operating for the purpose of servicing a
medical emergency. (An air ambulance, or aircraft in service of a
medical emergency, is not an aircraft experiencing a medical emergency
on board; it is one that has been put in service for the specific
purpose of attending to a medical emergency situation.) Therefore, the
regulatory texts of this final rule, for arrivals and departures,
reflect a relaxation of the passenger and crew manifest transmission
requirement for such aircraft by providing that these carriers have up
to 30 minutes prior to arrival to transmit arrival manifests and up to
30 minutes after departure to transmit departure manifests. In the
departure context, this ``30 minutes after departure'' requirement does
not comport with the ``before departure'' requirement of the statute, 8
U.S.C. 1221(b), as amended by the EBSA. However, in these narrow
circumstances, the statutory requirement can be relaxed under the
waiver of paragraph (h) of the statute.
    (5) Emergencies: Based on comments received, CBP has determined
that an accommodation is necessary for commercial aircraft and vessels
diverted to a U.S. port due to an emergency. In cases of non-
compliance, CBP will take into consideration that the carrier was not
equipped to make the transmission and the circumstances of the
emergency situation.
    Thus, for flights not originally destined to the U.S., but diverted
to a U.S. port due to an emergency, manifests are required to be
submitted no later than 30 minutes prior to arrival. In the case of a
vessel that was not destined to the United States but was diverted to a
U.S. port due to an emergency, manifests are required to be submitted
before the vessel enters the U.S. port or place to which diverted.
    (6) Vessel manifest filing times: Based on comments received, the
manifest filing (transmission) requirement for arriving vessels (found
in proposed 8 CFR 231.1(b)(2) of the INS NPRM but placed in 19 CFR
4.7b(b)(2) in this final rule) has been changed in this final rule to
provide that (i) for voyages of 96 hours or more, the manifest must be
transmitted to CBP at least 96 hours before the vessel's entry at the
first U.S. port or place of destination; (ii) for voyages of 24 hours
but less than 96 hours, the manifest must be transmitted to CBP prior
to the vessel's departure and (iii) for voyages of less than 24 hours,
the transmission must be made 24 hours prior to the vessel's entry at
the first U.S. port or place of destination. This requirement was
modified to be consistent with USCG requirements.
    (7) Departure port code: The departure port code data element
contained in the Customs Interim Rule for arriving aircraft and in the
INS NPRM for arriving vessels and aircraft has not been carried over
into this final rule, as the APIS system can accommodate the
transmission of only three location identifiers. The departure port
code would be the fourth location identifier for passengers on arriving
vessels and aircraft, and CBP has decided to remove it from the
regulation. This data element is still required for vessel and aircraft
departures.
    (8) Passenger updates: While the INS NPRM provided for updates to
departure passenger manifests, CBP has taken into consideration the
aviation, transportation, and national security purposes this rule
serves and has decided that passenger updates for departure manifests
will not be included in the regulation.
    (9) Timing of crew updates: Based on comments received, crew
manifest updates relative to vessel arrivals (not provided for in the
INS NPRM) must be transmitted at least 12 hours, and up to 24 hours,
before the vessel enters a U.S. port. For vessel departures, manifest
updates will be accepted up to 12 hours after departure from the U.S.
port. Crew manifest updates relative to aircraft arrivals and
departures require TSA approval if sought to be made within 60 minutes
of departure. (See item (17) below regarding the content of crew and
non-crew manifest updates which are required under the regulation.)
    (10) DOD Exception: Based on specific concerns expressed by the
Department of Defense (DOD), an exception to the electronic passenger
manifest filing requirement for arrivals and departures has been added
in this final rule document (in paragraph (c) of 19 CFR 4.7b, 4.64,
122.49a, and 122.75a) to apply to active duty U.S. military personnel
traveling as passengers on board DOD vessels and aircraft. Neither the
INS NPRM nor the Customs Interim Rule provided this exception. This
exception applies to DOD aircraft and vessels as well as DOD controlled
commercial chartered aircraft and vessels. Appropriate manifests will
be required for crew members, non-active duty U.S. military personnel,
and non-military personnel.
    (11) Pre-inspected flights: The language found in 19 CFR 122.49a(a)
of the Customs Interim Rule that refers to arriving flights with pre-
inspected or pre-cleared passengers and crew being subject to the
electronic manifest transmission requirement has not been carried over
to the regulatory text of this final rule. (CBP notes that arriving
crew members are covered in 19 CFR 122.49b of this final rule.)
Although the transmission requirement still applies to flights with
pre-inspected or pre-cleared passengers and crew, it is not necessary
to explicitly state so in the regulation, which is sufficiently clear
and unambiguous without it.
    (12) U.S. Visa: Based on comments received, CBP will no longer
require commercial air and vessel carriers to submit visa number, date,
and place of visa issuance. This information will be obtained through
other means.
    (13) U.S. destination address: Based on comments received, the
following exceptions have been made to the requirement to supply the
U.S. destination address for passengers and crew members on commercial
sea and air carriers:
    (a) For arriving carriers, U.S. citizens, LPRs, crew members, and
in-transit passengers are not required to provide a U.S. destination
address (but note address of permanent residence requirement for crew
and non-crew members in item (26) of this listing).
    (b) For departing carriers, no passengers or crew members are
required to provide a U.S. destination address (again, see item (26)).
    (14) Conversion date to UN EDIFACT: Based on comments received, CBP
has designated a conversion date of 180 days from publication of this
final rule.
    (15) eNOA/D and XML: Based on comments received, CBP adopted the
use of USCG's eNOA/D and XML in order to eliminate duplicative manifest
reporting requirements and provide the industry with a single window
for electronic transmission of manifests.
    (16) Country of residence: Based on comments received, CBP waived
the requirement for country of residence for departing passenger and
crew manifests (but note address of permanent residence requirement for
crew and non-crew members in item (26) of this listing).
    (17) Content of crew and non-crew manifest updates: Based on
comments received, CBP will allow crew and non-crew manifest updates to
contain only those records that require amendments in lieu of
submission of the entire

[[Page 17836]]

manifest. However, CBP will still accept resubmission of the full
manifest to comply with the updating requirements, should a carrier
choose to do so.
    (18) PNR locator number: Based on comments received, CBP will only
require the PNR locator number if PNR information is available in the
carrier's reservation or departure control system. CBP will not require
the submission of a unique identifier.
    (19) Accuracy of travel documents: Paragraph (d) of the Customs
Interim Rule's 19 CFR 122.49a--requiring the air carrier to ensure (i)
the accuracy of the travel document information transmitted to CBP,
(ii) that the travel document appears valid, and (iii) that the
passenger or crew member is the person to whom the travel document was
issued--has been included as paragraph (d) in 19 CFR 4.7b, 4.64,
122.49b, 122.75a, and 122.75b in this final rule. Travel document
information (consisting primarily of personal and document data) is the
information the carrier obtains from the travel document and transmits
to CBP (usually using machine-reading technology).
    (20) Sharing of information: Paragraph (e) of 19 CFR 122.49a--
providing for sharing of information with other Federal agencies upon
request--has been included as paragraph (e) in 19 CFR 4.7b, 4.64,
122.49b, 122.75a, and 122.75b. Sharing of information is further
permitted as otherwise authorized by law.
    (21) The chart of 19 CFR 178.2, which was amended under the Customs
Interim Rule to reflect an Office of Management and Budget (OMB)
information collection control number relative to passenger and crew
manifest information for arriving aircraft, is further amended in this
final rule to reflect a new OMB control number relative to the new CBP
(of the new DHS) for such manifest information and for manifest
information for vessels and aircraft. The listing can now be found (in
19 CFR 178.2) in the appropriate column under 19 CFR 4.7b rather than
under 19 CFR 122.49a where it was placed per the Customs Interim Rule
(see ``Paperwork Reduction Act'' section). The complete listing is for
19 CFR 4.7b, 4.64, 122.49a, 122.49b, 122.49c, 122.75a, and 122.75b.
    The following provisions will assist TSA in carrying out its
aviation security responsibilities. CBP notes that these additional
requirements (except those pertaining to overflights) are jointly
authorized under 49 U.S.C. 44909, as amended by the ATSA, and 8 U.S.C.
1221, as amended by the EBSA, in the proper exercise of authority under
these statutes by the Commissioner of CBP to ensure aviation safety,
enforce the immigration laws, and enhance national security and the
safety of the public. Some of these additions to this final rule are
found in 19 CFR 122.49b (aircraft arrivals and flights continuing
within and overflying the U.S.) and 19 CFR 122.75b (aircraft
departures) as follows:
    (22) Air carriers are subject to the electronic manifest
transmission requirement for crew members (passenger and all-cargo
flights), and non-crew members (all-cargo flights only) on flights to,
from, continuing within (foreign air carriers only), and overflying the
United States. These manifests must be transmitted through an
electronic data interchange system approved by CBP.
    (23) These crew and non-crew manifests must be transmitted to CBP
no later than 60 minutes prior to departure of the aircraft.
    (24) The carrier is obligated to report changes to the crew and
non-crew manifest after transmission of the manifest to CBP. To make an
effective change within 60 minutes of departure, TSA must approve the
change. Without TSA approval, the flight may be denied clearance,
diverted from arrival at a U.S. port, or denied clearance to enter the
territorial airspace of the United States, as appropriate.
    (25) With transmission of manifest data for each crew member and
non-crew member onboard the flight, the carrier certifies that each
crew member and non-crew member is listed on a master crew list and a
master non-crew list separately transmitted to CBP, with updates as
required. Where a crew member or non-crew member onboard is not on the
appropriate list, or has not been on that list for the requisite period
of time, the flight may be denied clearance, diverted from arrival in
the United States, or denied clearance to overfly the United States.
    (26) The following data elements, in addition to those already
required for arriving or departing crew members under the Customs
Interim Rule and the INS NPRM, as modified in this document, must be
included in a crew member manifest: place of birth; address of
permanent residence; and pilot certificate number and country of
issuance, if applicable. This data submission requirement applicable to
crew members onboard arriving and departing aircraft also applies to
crew members and, for all-cargo flights only, non-crew members, onboard
flights continuing within (foreign air carriers only) and overflying
the United States. As set forth below, there are two exceptions to the
crew and non-crew manifest requirements for FAA inspectors and DOD
personnel.
    (27) The crew member and non-crew member manifest requirement does
not apply to properly credentialed and authorized Air Safety Inspectors
of the Federal Aviation Administration (FAA); however, these FAA
inspectors are considered passengers on arriving and departing flights
subject to the passenger manifest requirements for arriving and
departing aircraft (19 CFR 122.49a and 122.75a).
    (28) The non-crew member manifest requirement, applicable only to
all-cargo flights, does not apply to flights chartered by the U.S. DOD.
(However, such persons are considered passengers under 19 CFR 122.75a
pertaining to departing flights and would be subject to that electronic
manifest requirement.)
    In 19 CFR 122.49c of this final rule, TSA requirements relative to
the master crew list and the master non-crew list are found. These
requirements include the following:
    (29) Each carrier operating flights to, from, continuing within
(foreign air carriers only), or overflying the United States is
obligated to transmit a master crew list and a master non-crew list to
CBP through an electronic data interchange system approved by CBP.
Initial transmission of these lists must occur at least 2 days in
advance of any covered flight that any person on the list will operate,
serve on, or be transported on. TSA will advise the carrier if any
person on the list must be removed from the list. Only those persons
approved by TSA will be permitted to operate, serve on, or be
transported on the carrier's flights. The carrier is obligated to keep
the list updated. Any updates to the list must be made at least 24
hours in advance of any flight the person who was added to the list, or
who was subject of the update, will operate, serve on, or be
transported on. Failure to comply with these requirements may result in
denial of flight clearance, diversion of the flight, or denial of
clearance to overfly the United States.
    (30) The data required on the master lists is as follows: Full
name; gender; address of permanent residence (street, city, state, if
applicable, country); date of birth; place of birth; passport number
and country of issuance; pilot certificate number, if applicable, and
country of issuance; and status onboard the aircraft.
    (31) Master crew lists are not required for aircraft chartered by
the U.S. DOD. Properly credentialed and authorized FAA Aviation Safety
Inspectors are not subject to the master list requirement.

[[Page 17837]]

VII. Conclusion

    After careful consideration of the comments received in response to
the Customs Interim Rule and the INS NPRM, and further review of the
matter subject of those rulemakings, CBP has concluded that the
proposed amendments of the INS NPRM to parts 217, 231, and 251,
Immigration and Naturalization Regulations (8 CFR parts 217, 231, and
251), that were published in the Federal Register (68 FR 292) on
January 3, 2003, and the interim amendments of the Customs Interim Rule
to parts 122 and 178, Customs Regulations (19 CFR parts 122 and 178)
that were published in the Federal Register (66 FR 67482) on December
31, 2001, should be incorporated into this final rule, with the
modifications discussed above in the ``Comments'' and ``Changes''
sections, as set forth in the regulatory texts below. Also, provisions
have been added to this rule to assist TSA in its aviation security
mission. These provisions relate to the electronic transmission of
manifest information covering crew members and non-crew members
traveling onboard commercial flights to, from, continuing within
(foreign air carriers only), and overflying the United States.
    The above amendments of this final rule are published today in the
interest of national security and to protect and safeguard the
international traveling public and the commercial vessel and aviation
industries during a time of considerable terrorist risk to those
important interests.

Signing Authority

    This amendment to the regulations is being issued in accordance
with Sec.  0.2(a) of the CBP regulations (19 CFR 0.2(a)) pertaining to
the authority of the Secretary of the Department of Homeland Security
(or his/her delegate) to prescribe regulations not related to customs
revenue functions.

Regulatory Assessment Under Executive Order 12866

    The final rule, which implements the amendments of section 115 of
the ATSA and section 402 of the EBSA and includes provisions authorized
under 49 U.S.C 114, is considered an economically significant
regulatory action under Executive Order 12866 because it requires the
expenditure of over $100 million in any one year. The Office of
Management and Budget (OMB) has reviewed it under that order.
    As discussed previously in the preamble of this rule, the primary
impetus for this rule is the increased threat facing the United States
and international trade and transportation industries, particularly the
commercial air and vessel carrier industries, since the terrorist
attacks of September 11, 2001. The Department of Homeland Security and
its agencies, including CBP, TSA, and the U.S. Coast Guard, along with
the air and vessel carrier industries, are called upon to take the
necessary steps to alleviate, to the greatest extent possible, the risk
to these vital industries posed by the threat of terrorism, including
implementing regulations under the ATSA and the EBSA.
    These regulations are being finalized to meet the objectives of the
new laws: To secure the United States, international travelers, and the
international air and sea industries from terrorist attacks. The
enforcement and administration of these requirements will provide
protection without unduly affecting international trade and travel.
Summary
    We estimate that the cost of this final rule will be approximately
$1 billion over a 10-year period (7 percent discount rate). In the
first year this rule is in effect, we estimate the cost will be $166
million (undiscounted) as companies reprogram existing systems and
purchase necessary equipment. Once reprogramming is complete and
equipment is in place, we estimate an average annual cost of $135
million (undiscounted) as users submit information electronically. The
annual cost is driven primarily by passenger counts and crew loads in
air and cruise ship travel. The average annual cost reflects an average
passenger count over the 10-year period of analysis based on a 2-
percent annual increase in passenger loads for air carriers and a 6.4-
percent annual increase in passenger loads for cruise ships.
Population Affected
    This rule will affect commercial passenger and cargo air carriers
and commercial passenger and cargo vessels. These entities will be
required to submit electronic passenger and crewmember manifests for
inbound and outbound flights and voyages. According to CBP databases,
there are an estimated 1,280 foreign and domestic air carriers that
will be affected by the final rule. Of these, 92 are large air carriers
(11 U.S. carriers and 81 foreign carriers) and 1,188 are small air
carriers (773 U.S. carriers and 415 foreign carriers). According to
U.S. Coast Guard and CBP databases, there are 16 cruise-ship companies
that own approximately 150 vessels. There are also 12,835 foreign and
domestic cargo vessel carriers. An estimated 585 are U.S.-flag vessels
certified to operate internationally, while approximately 12,250 are
foreign-flag vessels that make ports of call in the United States.
    Annual costs are driven by passenger and crew loads in the air and
cruise ship industries. Based on CBP data, we estimate that 2004
passenger/crew loads in the air and cruise industries will be
approximately 72 million and 16 million persons, respectively. We also
predict a 2-percent annual increase in passenger loads for air carriers
and a 6.4-percent annual increase in passenger loads for cruise ships
for the 10-year period of analysis (percentages based on trend analysis
of passenger and crew data starting with data from 1999). Thus, by
2013, predicted passenger/crew loads for the air and cruise industries
are approximately 86 million and 28 million, respectively.
Additionally, we assume that 95 percent of the total passenger/crew
loads travel on large air carriers and 47 percent of these travel on
U.S. carriers. Of the 5 percent of passenger/crew on small air
carriers, and estimated 65 percent travel on U.S.-owned carriers.
Complete detail is presented in Table 1.

                     Table 1.--Predicted Passenger/Crew Counts for Air Carriers and Cruise Ships Over the 10-Year Period of Analysis
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Large U.S. air   Large foreign air    Small U.S. air   Small foreign air    Total for air
                 Year                        carriers           carriers           carriers           carriers           carriers         Cruise ships
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.....................................         32,084,327         36,180,199          2,335,365          1,257,504         71,857,396         16,095,618
2.....................................         32,726,014         36,903,803          2,382,073          1,282,655         73,294,544         17,125,737
3.....................................         33,380,534         37,641,879          2,429,714          1,308,308         74,760,435         18,221,784
4.....................................         34,048,145         38,394,716          2,478,308          1,334,474         76,255,643         19,387,978
5.....................................         34,729,108         39,162,611          2,527,875          1,361,163         77,780,756         20,628,809
6.....................................         35,423,690         39,945,863          2,578,432          1,388,387         79,336,371         21,949,053

[[Page 17838]]


7.....................................         36,132,164         40,744,780          2,630,001          1,416,154         80,923,099         23,353,792
8.....................................         36,854,807         41,559,676          2,682,601          1,444,477         82,541,561         24,848,435
9.....................................         37,591,903         42,390,869          2,736,253          1,473,367         84,192,392         26,438,735
10....................................         38,343,741         43,238,687          2,790,978          1,502,834         85,876,240         28,130,814
--------------------------------------------------------------------------------------------------------------------------------------------------------

    There are an estimated 585 U.S.-flag vessels that are certified to
operate internationally. Based on a Coast Guard analysis for vessel
security requirements (USCG-2003-14792), most of these vessels are
freight ships, tank ships, and small passenger vessels. Complete detail
of the vessel population and the typical number of crewmembers onboard
are presented in Table 2.

                               Table 2.--U.S.-Flag Vessels and Average Crew Counts
----------------------------------------------------------------------------------------------------------------
                                                                Number of       Average crew          Total
                                                                 vessels            count          crewmembers
----------------------------------------------------------------------------------------------------------------
Freight ships.............................................               241                15             3,615
Tank ships................................................               114                15             1,710
Small passenger vessels...................................               109                10             1,090
Offshore Supply Vessels...................................                75                 4               300
Industrial vessels........................................                20                 5               100
Towboats..................................................                14                 4                56
Research vessels..........................................                 8                 5                40
Mobile Offshore Drilling Units............................                 2                10                20
Fishing...................................................                 1                 5                 5
Oil recovery..............................................                 1                 3                 3
                                                           -------------------
    Total.................................................               585  ................             6,939
----------------------------------------------------------------------------------------------------------------

    According to CBP and the Coast Guard, there are approximately
12,250 foreign-flag cargo vessels that make ports of call in the United
States annually, not including cruise ships, whose passengers and crew
have already been accounted for in Table 1. The vast majority of these
vessels are freight ships and tank ships. We assume that these foreign-
flag vessels will each have a crew of 15, for a total of 183,750
crewmembers. Also according to CBP and the Coast Guard, there are
approximately 55,000 annual arrivals into U.S. ports from foreign ports
of call. With approximately 12,800 vessels in the affected population,
this results in an average of 4 arrivals per vessel per year.
Regulatory Baseline
    Much of the information that must be submitted under this final
rule is already submitted electronically to CBP by large carriers, both
air and sea. Most of the large air carriers were voluntarily submitting
electronic passenger and crew member manifests to CBP as early as 1989,
when a voluntary program was implemented. These carriers submitted APIS
in the US EDIFACT format to the former Customs Service. Carriers
voluntarily submitted these manifests in electronic format in exchange
for expedited processing, with a maximum processing time per flight.
Also, existing immigration regulations (those effective until the
effective date of this final rule) have required that air and vessel
carriers submit arrival and departure manifests electronically for
passengers traveling pursuant to the Visa Waiver Program (VWP). In
connection with this rulemaking, carriers informed CBP that it is more
efficient for them to transmit electronic manifest information for all
passengers, not just VWP passengers. Overall, a substantial majority of
the carriers, over 80 percent, already submit arrival and departure
manifests electronically for all passengers, including much of the
information this rule requires. Moreover, many carriers would likely be
investing in the implementation of UN EDIFACT transmission capability
in the absence of this final rule because UN EDIFACT was selected as
the transmission standard by the World Customs Organization in March
2003. Also, some carriers have, in fact, already converted to UN
EDIFACT. While we calculate the costs of this rule as if the industry
has not acted to meet the provisions of the rule, much of the industry
is already compliant. We have estimated the full costs in order not to
understate costs or assume that voluntary programs were more inclusive
than they actually are.
    For the most part, small air carriers and vessel carriers were not
participating in the voluntary program. Thus, the compliance of small
air carriers began either in anticipation of a final rule following
publication of the interim rule in December 2001 or as the result of
TSA Emergency Amendments and Security Directives mandating manifests
via APIS. Cargo vessels will begin submitting electronic manifests upon
publication of this rule. However, it should be noted that all of the
above were required to submit these manifests in paper form prior to
finalization of this rule.
Cost Analysis
Unit Costs
    The source of the estimates provided in the following tables is the
U.S. Department of Homeland Security, the Bureau of Customs and Border
Protection, or the Transportation Security Administration, September
2004. All costs are presented in 2004 dollars.
    For this analysis, we estimate the one-time start-up costs that
will be incurred in the first year the final rule is in effect as
carriers modify their existing systems and purchase necessary
equipment.

[[Page 17839]]

Following the first year, carriers will experience annual operating
costs for submitting their information electronically and maintenance
for their computer systems. The following is a summary of estimated
unit costs for the various components of the affected population.
    Large air carriers--The 92 large air carriers will incur computer
programming costs associated with conversion from US EDIFACT to UN
EDIFACT. According to the International Air Transport Association
(IATA), the average cost for the conversion is $400,000 per carrier.
Large air carriers will also have to modify their existing systems to
submit master crew lists and update these lists as necessary. Since we
published this estimate in the NPRM, we have received new information
from seven carriers who have made the conversion to UN EDIFACT in
anticipation of this rule and compliance with transmission standards of
the World Customs Organization. The costs for conversion ranged from
$331,000 to $500,000. Thus, we assume the cost to convert to UN EDIFACT
plus the cost of system modifications to include the master crew list
will be $500,000 in the first year the rule is in effect and $25,000 (5
percent of initial costs) in subsequent years as carriers make small
programming changes.
    Following conversion to UN EDIFACT, carriers will assume a
transaction cost per passenger/crew member. These transaction costs
will be incurred each year over the period of analysis. We estimate
that the cost to submit the required passenger/crew information would
be $1 for inbound traveler and $0.25 for outbound traveler. Using wage
data from the Bureau of Labor Statistics, we estimate that, as a
national average, counter and rental clerks, travel agents, and flight
attendants earn $18.57 per hour without fringe benefits or about $25
per hour once the rate is ``loaded'' to include benefits. Assuming one
to two minutes of added time, the additional cost would be between
$0.42 and $0.84 per transaction. Because some additional training would
be required to become proficient with the new system, CBP assumes that
the added cost could be as high as $1 per transaction. Because only
machine-readable zone data are collected on outbound trips, we assume a
cost of $0.25 per transaction.
    Additionally, we estimate the cost of transmitting overflight data
and crew manifest data to comply with requirements from TSA Emergency
Amendments and Security Directives. There are an estimated 16,800
overflights in 2004, and they are estimated to increase at a 4.9
percent rate over the 10-year period of analysis. TSA estimates the
transmission cost for submitting overflight and crew information is
$2.50 per submission, assuming the submission will require 10 minutes
of time at a cost of $15.00 per hour. Because we cannot discern which
overflights are made by large carriers versus small carriers, we
include overflight costs in the ``large foreign air carrier''
component. We estimate that overflight information will cost carriers
$42,000 in year 1 and $64,599 in year 10, with the increase in
overflights over the period of analysis.
    Finally, TSA estimates that large air carriers will submit
modifications to their master crew lists an average of once per week,
or 52 times per year. Again, TSA estimates this will cost $2.50 per
submission, for a per-carrier cost of $130 annually.
    Based on CBP data, we estimate that 95 percent of the passenger/
crew loads are onboard large air carriers. Operational costs are
expected to increase over the period of analysis as passenger loads
increase from 68 million in year 1 to 82 million in year 10 (2 percent
increase in passenger loads annually). The calculation of first-year
and annual costs (undiscounted) for large air carriers, U.S. and
foreign, is shown in Tables 3 and 4.

                         Table 3.--Total Costs for Large U.S. Air Carriers (11 Carriers)
----------------------------------------------------------------------------------------------------------------
                                          UN EDIFACT       Passenger/crew    Master crew list
                Year                      conversion        information*     modifications* *     Total costs
----------------------------------------------------------------------------------------------------------------
1...................................         $5,500,000        $40,105,409             $1,430        $45,606,839
2...................................            275,000         40,907,517              1,430         41,183,947
3...................................            275,000         41,725,668              1,430         42,002,098
4...................................            275,000         42,560,181              1,430         42,836,611
5...................................            275,000         43,411,385              1,430         43,687,815
6...................................            275,000         44,279,612              1,430         44,556,042
7...................................            275,000         45,165,205              1,430         45,441,635
8...................................            275,000         46,068,509              1,430         46,344,939
9...................................            275,000         46,989,879              1,430         47,266,309
10..................................            275,000         47,929,676              1,430         48,206,106
                                     --------------------
    Total...........................  .................  .................  .................       447,132,341
----------------------------------------------------------------------------------------------------------------
* Passenger/crew loads from Table 1 x $1.25
* * 11 carriers x 52 modifications per year x $2.50 transaction cost


                                           Table 4.--Total Costs for Large Foreign Air Carriers (81 Carriers)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               UN EDIFACT       Passenger/crew    Master crew list      Overflight
                           Year                                conversion        information*     modifications* *   information* * *     Total costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
1........................................................        $40,500,000        $45,225,249            $10,530            $42,000        $85,777,779
2........................................................          2,025,000         46,129,754             10,530             44,058         48,209,342
3........................................................          2,025,000         47,052,349             10,530             46,217         49,134,095
4........................................................          2,025,000         47,993,396             10,530             48,481         50,077,407
5........................................................          2,025,000         48,953,264             10,530             50,857         51,039,651
6........................................................          2,025,000         49,932,329             10,530             53,349         52,021,208
7........................................................          2,025,000         50,930,975             10,530             55,963         53,022,469
8........................................................          2,025,000         51,949,595             10,530             58,705         54,043,830
9........................................................          2,025,000         52,988,587             10,530             61,582         55,085,699

[[Page 17840]]


10.......................................................          2,025,000         54,048,359             10,530             64,599         56,148,488
                                                          --------------------
    Total................................................  .................  .................  .................  .................       554,559,967
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Passenger/crew loads from Table 1 x $1.25
* * 81 carriers x 52 modifications per year x $2.50 transaction cost
* * * Annual overflights x $2.50 transaction cost per overflight (16,800 overflights in 2004, 25,840 overflights in 2013 assuming a 4.9 percent annual
  increase)

    Small air carriers--The 1,188 small air carriers, rather than
converting to UN EDIFACT, will be able to use eAPIS, an internet-based
submission system developed by CBP that complies with UN EDIFACT
standards. These carriers may also continue to email manifests. To
access eAPIS or transmit manifests via email, these carriers will need
to have access to a desktop computer with compatible software and
Internet access (for eAPIS only). Most, if not all, small air carriers
already have desktop computers with the software necessary to access
eAPIS or transmit email. In order not to underestimate the costs of
this final rule to small carriers, however, we attribute a $500 cost
for a computer system to each carrier. This cost will be incurred in
year 1, when the final rule becomes effective, and in year 5, assuming
that a computer will last for 5 years and will then need to be
replaced.
    We should note that large air carriers may also use eAPIS and other
alternative transmission methods, though their large inbound and
outbound passenger volumes make widespread use impractical.
Historically, some large carriers have employed the email alternative
to transmit manifests for primarily small crews. For this analysis, we
assume that the 92 large carriers will undergo conversion to UN
EDIFACT, as estimated above.
    We estimate annual maintenance for the computer to be 10 percent of
the initial cost of the computer, or $50 annually. This cost will be
incurred each year of the period of analysis. As noted previously, we
estimate that 5 percent of air passengers and crew are aboard small
carriers and will cost $1.25 per person to submit their information
through eAPIS. This cost may overstate per-person transmission costs
because the eAPIS system will allow small carriers to save manifest
data for reuse on subsequent flights and will allow users to select
previous crew or passenger records for automatic input into the
manifest. Small carrier personnel will also not require extensive
training to use eAPIS.
    Finally, TSA estimates that small air carriers will submit
modifications to their master crew lists an average of once per month,
or 12 times per year. Again, TSA estimates this will cost $2.50 per
submission, for a per-carrier cost of $30 annually. The costs for
submitting overflight information have already been captured above in
the ``large air carrier'' component. The calculation of first-year and
annual costs (undiscounted) for small air carriers, U.S. and foreign,
is shown in Tables 5 and 6.

                        Table 5.--Total Costs for Small U.S. Air Carriers (773 Carriers)
----------------------------------------------------------------------------------------------------------------
                                       Desktop computer    Passenger/crew    Master crew list
                Year                        costs           information*     modifications* *     Total costs
----------------------------------------------------------------------------------------------------------------
1...................................           $386,500         $2,919,207            $23,190         $3,328,897
2...................................             38,650          2,977,591             23,190          3,039,431
3...................................             38,650          3,037,143             23,190          3,098,983
4...................................             38,650          3,097,886             23,190          3,159,726
5...................................             38,650          3,159,843             23,190          3,221,683
6...................................            425,150          3,223,040             23,190          3,671,380
7...................................             38,650          3,287,501             23,190          3,349,341
8...................................             38,650          3,353,251             23,190          3,415,091
9...................................             38,650          3,420,316             23,190          3,482,156
10..................................             38,650          3,488,722             23,190          3,550,562
                                     --------------------
    Total...........................  .................  .................  .................        33,317,249
----------------------------------------------------------------------------------------------------------------
* Passenger/crew loads from Table 1 x $1.25
* * 773 carriers x 12 modifications per year x $2.50 transaction cost


                       Table 6.--Total Costs for Small Foreign Air Carriers (415 Carriers)
----------------------------------------------------------------------------------------------------------------
                                       Desktop computer    Passenger/crew    Master crew list
                Year                        costs           information*     modifications* *     Total costs
----------------------------------------------------------------------------------------------------------------
1...................................           $207,500         $1,571,881            $12,450         $1,791,831
2...................................             20,750          1,603,318             12,450          1,636,518
3...................................             20,750          1,635,385             12,450          1,668,585
4...................................             20,750          1,668,092             12,450          1,701,292
5...................................             20,750          1,701,454             12,450          1,734,654
6...................................            228,250          1,735,483             12,450          1,976,183
7...................................             20,750          1,770,193             12,450          1,803,393
8...................................             20,750          1,805,597             12,450          1,838,797

[[Page 17841]]


9...................................             20,750          1,841,709             12,450          1,874,909
10..................................             20,750          1,878,543             12,450          1,911,743
                                     --------------------
    Total...........................  .................  .................  .................        17,937,903
----------------------------------------------------------------------------------------------------------------
* Passenger/crew loads from Table 1 x $1.25
* * 415 carriers x 12 modifications per year x $2.50 transaction cost

    Cruise ship companies--There are 16 cruise ship companies that will
convert to an XML format to comply with the electronic submission
requirements of this final rule. These 16 carriers dominate the
industry. Few, if any, small cruise companies make voyages to the
United States, and we do not include any in this analysis. Based on
data received from the International Council of Cruise Lines (ICCL),
average conversion costs will be $125,000 per company. This figure is
the estimate for conversion to UN EDIFACT, and the conversion to XML
should be no higher than this figure. This cost will be incurred the
first year the rule is in effect. As with large air carriers, we
estimate a 5 percent annual programming cost once the initial major
conversion is complete in the first year.
    CBP estimates a 6.4 percent annual increase in passenger loads for
the cruise line industry, with an estimated 16 million passengers in
year 1 and 28 million passengers in year 10; thus annual operational
costs will increase with passenger loads. We assume a $1.25 transaction
cost per passenger and crew member on cruise ships. The calculation of
first-year and annual costs (undiscounted) for cruise ship companies is
shown in Table 7.

                         Table 7.--Total Costs for Cruise Ship Companies (16 Companies)
----------------------------------------------------------------------------------------------------------------
                                                             XML format       Passenger/crew
                          Year                               conversion       information\*\      Total costs
----------------------------------------------------------------------------------------------------------------
1......................................................         $2,000,000        $20,119,522        $22,119,522
2......................................................            100,000         21,407,171         21,507,171
3......................................................            100,000         22,777,230         22,877,230
4......................................................            100,000         24,234,973         24,334,973
5......................................................            100,000         25,786,011         25,886,011
6......................................................            100,000         27,436,316         27,536,316
7......................................................            100,000         29,192,240         29,292,240
8......................................................            100,000         31,060,544         31,160,544
9......................................................            100,000         33,048,419         33,148,419
10.....................................................            100,000         35,163,517         35,263,517
                                                        --------------------
    Total..............................................  .................  .................       273,125,944
----------------------------------------------------------------------------------------------------------------
\*\Passenger/crew loads from Table 1 x $1.25

    U.S.-flag cargo vessels--There are 585 U.S.-flag vessels that will
use ``eNOA/D,'' a low-cost web-based system, to comply with the
requirements of the final rule. While a Coast Guard system, eNOA/D will
automatically transmit the necessary data to CBP, thus eliminating
duplicate submissions to both agencies. As with small air carriers, the
cost to these vessels will be a desktop computer with minimal software
requirements and Internet access. Again, in order not to underestimate
the costs to U.S.-flag cargo vessels, we assign a $500 computer cost to
each vessel. This cost will be incurred in year 1, when the final rule
becomes effective, and in year 5, assuming that a computer will last
for 5 years and will then need to be replaced. We estimate that
maintenance will be $50 annually.
    Average crew size for different types of vessels was presented in
Table 2, and we estimate the crew population for U.S. vessels to be
6,939. Crew information will need to be submitted via eNOA/D each time
the vessel enters a U.S. port after departing a foreign port. As
calculated above, we estimate that vessels will have an average of
approximately 4 foreign arrivals annually (55,000 annual arrivals /
12,835 total cargo vessels). While this estimate is probably low for
some vessel services (such as offshore supply vessels), it is probably
high for other services (container ships or vessels in tramp service).
We assume that crew counts per vessel will remain constant over the
period of analysis, and we do not assume a growth rate for the U.S.
fleet. The calculation of first-year and annual costs (undiscounted)
for U.S.-flag cargo vessels is shown in Table 8.

                         Table 8.--Total Costs for U.S.-Flag Cargo Vessels (585 Vessels)
----------------------------------------------------------------------------------------------------------------
                                                         Desktop  computer         Crew
                          Year                                 costs          information\*\      Total costs
----------------------------------------------------------------------------------------------------------------
1......................................................           $292,500            $34,695           $327,195
2......................................................             29,250             34,695             63,945
3......................................................             29,250             34,695             63,945
4......................................................             29,250             34,695             63,945
5......................................................             29,250             34,695             63,945

[[Page 17842]]


6......................................................            321,750             34,695            356,445
7......................................................             29,250             34,695             63,945
8......................................................             29,250             34,695             63,945
9......................................................             29,250             34,695             63,945
10.....................................................             29,250             34,695             63,945
                                                        --------------------
    Total..............................................  .................  .................         1,195,200
----------------------------------------------------------------------------------------------------------------
\*\6,939 crewmembers x $1.25 x 4 arrivals.

    Foreign-flag cargo vessels--There are approximately 12,250 foreign-
flag cargo vessels (not including cruise ships described previously)
that will also use eNOA/D to comply with the requirements of the final
rule. We again assign a $500 computer cost to each vessel. This cost
will be incurred in year 1, when the final rule becomes effective, and
in year 5, assuming that a computer will last for 5 years and will then
need to be replaced.
    We estimate annual maintenance for the computer to be 10 percent of
the initial cost of the computer, or $50 annually, and the cost will be
incurred each year of the period of analysis. The overwhelming majority
of foreign-flag vessels arriving here from foreign ports are freighters
and tankers, with an average crew size of 15 people, for a total of
183,750 crewmembers. As calculated above for U.S.-flag vessels, we
estimate that vessels will have an average of 4 foreign arrivals
annually. We assume that crew counts per vessel will remain constant
over the period of analysis, and we do not assume a growth rate for the
foreign fleet trading with the United States. The calculation of first-
year and annual costs (undiscounted) for foreign-flag cargo vessels is
shown in Table 9.

                      Table 9.--Total Costs for Foreign-Flag Cargo Vessels (12,250 Vessels)
----------------------------------------------------------------------------------------------------------------
                                                         Desktop  computer         Crew
                          Year                                 costs           information*       Total costs
----------------------------------------------------------------------------------------------------------------
1......................................................         $6,125,000           $918,750         $7,043,750
2......................................................            612,500            918,750          1,531,250
3......................................................            612,500            918,750          1,531,250
4......................................................            612,500            918,750          1,531,250
5......................................................            612,500            918,750          1,531,250
6......................................................          6,737,500            918,750          7,656,250
7......................................................            612,500            918,750          1,531,250
8......................................................            612,500            918,750          1,531,250
9......................................................            612,500            918,750          1,531,250
10.....................................................            612,500            918,750          1,531,250
                                                        --------------------
    Total..............................................  .................  .................       $26,950,000
----------------------------------------------------------------------------------------------------------------
\*\$183,750 crewmembers x $1.25 x 4 arrivals.

Total Costs
    Total costs for the above components are presented in the following
tables. Costs to U.S. carriers are presented in Table 10 and foreign
carriers in Table 11. Total final cost estimates are discounted to
their present value at a 7-percent rate and shown in Table 12. As
shown, the present value cost of the final rule is approximately $1
billion. Because passenger/crew loads are the primary cost drivers,
large carriers comprise almost 75 percent of the costs of this rule. As
stated previously, CBP estimates that 80 percent of the large air
carriers already submit the information required under the final rule
under the voluntary APIS program. These carriers would have converted
to UN EDIFACT even in the absence of this final rule, and many carriers
have started their conversion in anticipation of the new requirements.
Thus, these costs likely overstate the impacts to industry but provide
a good estimate of the magnitude of costs that are associated with the
APIS program, TSA security directives, and other requirements that have
not been accounted for in previous regulatory assessments.

                     Table 10.--Total Costs of the Final Rule to U.S. Entities, Undiscounted
----------------------------------------------------------------------------------------------------------------
                                        Large U.S. air     Small U.S. air    U.S.-flag cargo
                Year                       carriers           carriers           vessels          Total costs
----------------------------------------------------------------------------------------------------------------
1...................................        $45,606,839         $3,328,897           $327,195        $49,262,931
2...................................         41,183,947          3,039,431             63,945         44,287,323
3...................................         42,002,098          3,098,983             63,945         45,165,025
4...................................         42,836,611          3,159,726             63,945         46,060,282
5...................................         43,687,815          3,221,683             63,945         46,973,443
6...................................         44,556,042          3,671,380            356,445         48,583,867
7...................................         45,441,635          3,349,341             63,945         48,854,920
8...................................         46,344,939          3,415,091             63,945         49,823,975

[[Page 17843]]


9...................................         47,266,309          3,482,156             63,945         50,812,410
10..................................         48,206,106          3,550,562             63,945         51,820,614
                                     --------------------
    Total...........................        447,132,341         33,317,249          1,195,200        481,644,790
----------------------------------------------------------------------------------------------------------------


                                       Table 11.--Total Costs of the Final Rule to Foreign Entities, Undiscounted
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Large foreign      Small foreign       Cruise ship        Foreign-flag
                           Year                               air carriers       air carriers        companies        cargo vessels       Total costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
1........................................................        $85,777,779         $1,791,831        $22,119,522         $7,043,750       $116,732,881
2........................................................         48,209,342          1,636,518         21,507,171          1,531,250         72,884,281
3........................................................         49,134,095          1,668,585         22,877,230          1,531,250         75,211,160
4........................................................         50,077,407          1,701,292         24,334,973          1,531,250         77,644,922
5........................................................         51,039,651          1,734,654         25,886,011          1,531,250         80,191,566
6........................................................         52,021,208          1,976,183         27,536,316          7,656,250         89,189,957
7........................................................         53,022,469          1,803,393         29,292,240          1,531,250         85,649,352
8........................................................         54,043,830          1,838,797         31,160,544          1,531,250         88,574,421
9........................................................         55,085,699          1,874,909         33,148,419          1,531,250         91,640,276
10.......................................................         56,148,488          1,911,743         35,263,517          1,531,250         94,854,998
                                                          --------------------
    Total................................................        554,559,967         17,937,903        273,125,944         26,950,000        872,573,814
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                        Table 12.--Total Costs of the Final Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Undiscounted                                 Discounted (7 percent discount rate)
                 Year                  -----------------------------------------------------------------------------------------------------------------
                                          U.S. entities     Foreign entities        Total          U.S. entities     Foreign entities        Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.....................................        $49,262,931       $116,732,881       $165,995,812        $49,262,931       $116,732,881       $165,995,812
2.....................................         44,287,323         72,884,281        117,171,604         41,390,022         68,116,151        109,506,172
3.....................................         45,165,025         75,211,160        120,376,186         39,448,882         65,692,340        105,141,223
4.....................................         46,060,282         77,644,922        123,705,204         37,598,910         63,381,385        100,980,295
5.....................................         46,973,443         80,191,566        127,165,009         35,835,815         61,177,762         97,013,576
6.....................................         48,583,867         89,189,957        137,773,825         34,639,626         63,591,207         98,230,833
7.....................................         48,854,920         85,649,352        134,504,272         32,554,096         57,071,779         89,625,876
8.....................................         49,823,975         88,574,421        138,398,395         31,027,867         55,159,698         86,187,565
9.....................................         50,812,410         91,640,276        142,452,686         29,573,285         53,335,475         82,908,760
10....................................         51,820,614         94,854,998        146,675,612         28,186,980         51,594,834         79,781,814
                                       --------------------
    Total.............................        481,644,790        872,573,814      1,354,218,604        359,518,415        655,853,512      1,015,371,927
--------------------------------------------------------------------------------------------------------------------------------------------------------

Regulatory Alternatives
    The requirements of this final rule are mandated by the ATSA and
the EBSA. Exploration of regulatory alternatives, therefore, was
limited during the rulemaking process, as these legislative acts were
explicit in the types of systems to be installed and the type of
information to be submitted. CBP has, however, developed alternative
submission methods for small air carriers, while the Coast Guard has
developed alternative methods for vessels. These alternative methods
should help small businesses comply with the final rule in the most
cost-effective manner. The three alternatives considered in this
assessment are presented below.
No Action Alternative
    The ``no action'' alternative is not a feasible alternative because
it does not meet legislative mandates.
The Final Rule
    As presented above, the final rule is expected to cost $166 million
in the first year, an average of $135 million annually, and $1.015
billion over the period of analysis (discounted at 7 percent).
The Final Rule Without Low-Cost Alternatives for Small Air Carriers
    In response to public comment and in order to provide better
service to our customers, CBP developed eAPIS to allow small air
carriers to submit their information electronically without a full
conversion to UN EDIFACT. These carriers may also submit their
information in email and XML formats. If CBP did not allow these
submission exceptions, the cost would be an estimated $7,000 to $9,000
per carrier to develop software. Additionally, the Coast Guard has
developed eNOA/D similarly to accept electronic submissions simply and
cheaply. If small air carriers and vessels had to spend an average of
$8,000 in the first year to develop the necessary systems (and assuming
large air carriers and cruise ships used the same submission methods as
described in the final rule), this alternative would result in a first-
year cost of $271 million, average annual costs of $150 million, and
10-year costs of $1.148 billion (discounted at 7 percent). Over 10
years, this alternative would cost small air carriers and vessels $133
million more than with low-cost alternative submission methods ($1.148
billion without the

[[Page 17844]]

low-cost alternative minus $1.015 billion for the final rule).
Benefit Analysis
    Under the provisions of this final rule, CBP will conduct advance
record checks of persons traveling on flights to and from the United
States for the purpose of detecting inadmissible or removable aliens,
dangerous criminals, known or potential terrorists, and others that
pose risks of committing violations of our nation's laws. CBP will
prescreen the names of passengers and crew against lists of these
persons and a list of ``no-fly'' designees. CBP will also conduct
advance record checks and prescreening of passengers and crewmembers
onboard arriving and departing vessels. CBP will also be able to
analyze the patterns and associations of alien smugglers.
    The advance prescreening of passengers arriving in the United
States prior to arrival enables CBP to process low-risk travelers
expeditiously while focusing on high-risk travelers who may pose a
threat to national security, international transportation, and other
travelers. However, CBP continues to evaluate whether the transmission
of manifest data for aircraft passengers and for passengers and crew
onboard departing vessels, in accordance with the provisions of this
final rule, allows CBP sufficient time to respond to identified
threats.
    Because CBP has been receiving similar data from the commercial air
carriers on a voluntary basis for over a decade, CBP can report
positive results from access to this data. For example, in the CBP
``Performance and Annual Report FY 2002 and FY 2003,'' it is reported
that CBP targeting efficiency was 29.1 (FY 02) and 29.7 (FY 03) times
better than random compliance exams.
    The information obtained through this final rule enhances safety
and security as the applicable flights may present a risk to the safety
of international travelers, the international transportation industry,
and to national security. Having pertinent and timely information
relative to crewmembers and non-crewmembers can mitigate this threat.
    Use of UN EDIFACT will improve transmission of required electronic
manifest data for aircraft, since under US EDIFACT, the carriers cannot
submit all the data elements required by law, and, therefore, CBP
cannot conduct risk assessments with the level of detail desired. If
the US EDIFACT format were retained, it would cause delays in passenger
processing due to CBP inspectors having to ask passengers additional
immigration-related questions that will be automatically collected
under UN EDIFACT and would result in passengers missing connecting
flights, at additional expense to the carrier and affected passengers.
    As discussed previously, UN EDIFACT was adopted as the global
technical standard for transmission of electronic passenger and
crewmember manifests. Other countries, including Canada, Mexico, United
Kingdom, and Costa Rica, are implementing or have indicated that they
intend to implement UN EDIFACT to transmit manifests. Several other
countries are awaiting legislation and conducting feasibility studies.
    APIS is recognized by the international community as a facilitative
tool for passenger processing. Airline industry organizations have also
traditionally supported APIS as a means of mitigating processing times
as passenger counts increase. Submission of APIS by air carriers
results in an average of 45 minutes per flight passenger processing
times. Also, according to the World Customs Organization UN EDIFACT
PAXLIST guidelines, additional passenger data captured at booking or
check-in could, in some instances, enhance airline security and ensure
that all passengers carry valid travel documents required for admission
to the destination country. Carriers complying with APIS may also
achieve the additional benefit of reduced penalties for inaccurate and/
or incomplete manifest submissions. According to the Cost Management
Information System, the average cost of processing an improperly
documented passenger is $1,507 per person.
    This rule requires each carrier to provide the advance passenger
manifest information in advance of the aircraft's arrival or departure.
When a carrier transmits less than 100 percent of the required
information, a CBP officer must manually enter the APIS information and
wait for query results. Passengers awaiting CBP clearance would be
subsequently delayed. This could result in costly inspections and
flight delay. Each hour of delay costs $3,372 per flight. (For this
cost figure, see: Massachusetts Institute of Technology, Lincoln
Laboratory, Delay Causality and Reduction at the New York City Airports
Using Terminal Weather Information Systems. Project Report ATC-291, by
S.S. Allan, S.G. Gaddy, and J.E. Evans, February 16,2001.)
Additionally, airlines could incur costs for rerouting individuals
unable to make original connections.
    As discussed previously, CBP developed eAPIS, a web based
application, for small air carriers to submit their manifests in UN
EDIFACT format. The Coast Guard developed eNOA/D for vessels.
Additionally, this rule adopts the use of XML for cruise ship
companies. This change eliminates duplicative reporting requirements
for CBP and the Coast Guard. If CBP had required that cruise companies
convert to UN EDIFACT, the carriers would have had to convert their
system to accommodate two different manifest submission systems.
Finally, vessels will now submit their requirements electronically,
which should save time, particularly as recurrent data is stored and
automatically retrieved.
    Taken in their entirety, the benefits include safer and more secure
air and vessel transits; reduced delay from incomplete information;
more user-friendly submission methods than paper submissions; and low-
cost alternatives to full conversion to UN EDIFACT.
Accounting Statement
    As required by OMB Circular A-4 (available at http://www.whitehouse.gov/omb/circ
), in Table 13, CBP has prepared an

accounting statement showing the classification of the expenditures
associated with Electronic Transmission of Passenger and Crew Manifests
for Vessels and Aircraft. The table provides our best estimate of the
dollar amount of these costs and benefits, expressed in 2004 dollars,
at three percent and seven percent discount rates. We estimate that the
cost of this final rule will be approximately $135 million annualized
(7 percent discount rate) and approximately $135 million annualized (3
percent discount rate). The non-quantified benefits are enhanced
security.

[[Page 17845]]



  Table 13.--Accounting Statement: Classification of Expenditures, 2005
                       through 2014 (2004 Dollars)
------------------------------------------------------------------------

------------------------------------------------------------------------
                   Three Percent Annual Discount Rate
------------------------------------------------------------------------
Benefits:
    Annualized monetized benefits.
    (Un-quantified) benefits..........  Enhanced security.
Costs:
    Annualized monetized costs........  $135 million.
    Annualized quantified, but un-
     monetized costs..
    Qualitative (un-quantified) costs.
---------------------------------------
                   Seven Percent Annual Discount Rate
------------------------------------------------------------------------
Benefits:
    Annualized monetized benefits.
    (Un-quantified) benefits..........  Enhanced security.
Costs:
    Annualized monetized costs........  $135 million.
    Annualized quantified, but un-
     monetized costs.
    Qualitative (un-quantified) costs.
------------------------------------------------------------------------

    In accordance with the provisions of E.O. 12866, this regulation
was reviewed by the Office of Management and Budget.

Regulatory Flexibility Act

    We have prepared this Final Regulatory Flexibility Act Analysis
(FRFA) to examine the impacts of the final rule on small entities as
required by the Regulatory Flexibility Act. A small entity may be a
small business (defined as any independently owned and operated
business not dominant in its field that qualifies as a small business
per the Small Business Act); a small not-for-profit organization; or a
small governmental jurisdiction (locality with fewer than 50,000
people).
    In preparing this final rule, CBP has taken into consideration the
importance of minimizing its impact on small businesses. CBP has
consulted with a number of the affected entities, including the
National Business Aviation Association (NBAA), National Air Carrier
Association (NACA), Air Transport Association (ATA), International Air
Transport Association (IATA), World Shipping Council, National
Association of Maritime Organizations and other appropriate
associations. Also, CBP has considered the views of interested persons
commenting on the amendments of the Customs Interim Rule and the INS
NPRM. In addition, CBP has been working with TSA to incorporate
provisions of interest to TSA relating to aviation security. These
provisions are consistent with the authority of CBP and, to a large
extent, the provisions of the Customs Interim Rule and the INS NPRM
regarding submission of manifest information for arriving and departing
aircraft. Also included in the TSA related provisions of this final
rule are provisions for flights continuing within (foreign air carriers
only) and overflying the United States and provisions relative to
submission of master lists for crew members and non-crew members.
    This FRFA addresses the following.
     The reason the agency is considering this action.
     The objectives of and legal basis for the rule.
     The number and types of small entities to which the rule
will apply.
     Projected reporting, recordkeeping, and other compliance
requirements of the rule, including the classes of small entities that
will be subject to the requirements and the type of professional skills
necessary for the preparation of the reports and records.
     Other relevant Federal rules that may duplicate, overlap,
or conflict with the rule.
     Significant alternatives to the component under
consideration that accomplish the stated objectives of applicable
statutes and may minimize any significant economic impact of the rule
on small entities.
     Significant issues that have been assessed.
Reason for Agency Action
    This rule finalizes the Customs Interim Rule issued on December 31,
2001, and the NPRM issued on January 3, 2003, which, together (one
rule's provisions being effective, the other's being proposed),
required the electronic submission of passenger and crewmember
manifests for inbound and outbound flights and voyages. This rule also
incorporates crew manifesting requirements published under the TSA EAs
and SDs.
Objective and Legal Basis for Rule
    This final rule implements the amendments of section 115 of the
Aviation and Transportation Security Act (ATSA) and section 402 of the
Enhanced Border Security and Visa Entry Reform Act of 2002 (EBSA) and
includes provisions authorized under 49 U.S.C. 114. As fully discussed
in the preamble and the Executive Order sections, this rule will serves
to assist CBP and DHS in securing the United States, international
travelers, and the international air and sea industries from terrorist
attack and from violations of various customs and other applicable
laws.
Number of Small Entities Affected
    A ``small entity'' is defined under the RFA to be the same as a
``small business concern'' as defined under the Small Business Act
(SBA; 15 U.S.C. 632). Thus, a small entity (also referred to as a small
business or small carrier) for RFA purposes is one that: (1) Is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) meets any additional criteria set forth under the
SBA. In accordance with provisions of the U.S. Small Business
Administration (the USSBA), air carriers that employ fewer than 1,500
employees and sea carriers that employ fewer than 500 employees are
small carriers.
    As discussed in the Regulatory Assessment section of this preamble,
a CBP database identifies, as of August 2004, 773 U.S.-based small air
passenger and cargo carriers. Also, Coast Guard data for international
cargo vessel entries revealed 88 additional U.S. companies owning 585
U.S.-flag vessels. For this analysis, we compared the estimated cost of
the rule in the first year (when equipment is purchased) and in
subsequent years to annual revenue data for the small businesses
affected. To determine annual company

[[Page 17846]]

revenue data, we used the Reference USA database available online.
Small Air Carriers
    Small air carriers will not incur substantial programming or
equipment costs because, unlike the large air carriers, small carriers
do not currently have reservation systems that need to be reprogrammed.
Instead, these carriers may use free programs available online. As we
showed in the Regulatory Assessment above, small air carriers will, in
the worst case, incur the costs of a new computer with Internet access.
They will also incur a per-passenger/crew cost of $1.25 and the costs
associated with a master crew list. Based on CBP databases, we assume
that each small carrier will carry 300 passengers and crew annually.
First-year costs per small carrier, assuming that a computer must be
purchased, are $905 [$500 computer cost + $30 for the master crew list
and modifications + ($1.25 x 300 passengers)]. Following the first
year, annual costs per small carrier are $455 [$50 computer maintenance
+ $30 for the master crew list and modifications + ($1.25 x 300
passengers)]. If the carrier already has a computer with internet
access, both first-year and annual costs will be $405 per year.
    Of the 755 small air carriers, we found revenue data for 258 of
them (34 percent). Most of these carriers have average annual revenues
of approximately $2.5 million. Only 30 of the 258 carriers have
revenues in excess of $10 million. For all of the small air carriers,
we found that the initial and annual costs of this final rule will not
exceed 0.5 percent of annual revenue, and this represents the worst
case where a computer will need to be purchased.
Small Sea Carriers
    Like small air carriers, vessels owned by small companies will not
incur substantial programming or equipment costs. Small vessel
companies will, in the worst case, incur the costs of a new computer
with Internet access. They will also incur a per-crew cost of $1.25.
Based on Coast Guard and CBP information, we assume that each vessel
will carry an average of 10 crew and make four arrivals from foreign
ports of call annually. First-year costs per vessel, assuming that a
computer must be purchased, are $550 [$500 computer cost + ($1.25 x 10
crew x 4 arrivals)]. Following the first year, annual costs per vessel
are $100 [$50 computer maintenance + ($1.25 x 10 crew x 4 arrivals)].
Most small vessel companies own one or two vessels. If the vessel
already has a computer with internet access, both first-year and annual
costs will be $50 per year.
    Of the 88 small vessel companies, we found revenue data for 33 of
them (40 percent). These 33 companies own 74 vessels. Most of these
carriers have average annual revenues of approximately $1.2 million.
Only 8 of the 33 carriers have revenues in excess of $10 million. For
all but three of the small vessel companies, we found that the initial
costs of this final rule will not exceed 0.5 percent of annual revenue.
Following the first year, no companies will incur costs exceeding 0.5
percent of annual revenue. Again, this represents the worst case where
a computer will need to be purchased.
Reporting and Recordkeeping
    All small carriers that transport passengers or crew members to or
from any seaport or airport of the United States, as well as those
small carriers that transport crew and non-crew on flights continuing
within (foreign air carriers only) and overflying the United States,
will be required to comply with the electronic manifest filing
requirements set forth in this final rule. This final rule implements
an ongoing reporting requirement for carriers.
    CBP estimates that this rule will require each of the 773 small air
carriers to submit a master crew list, update the list monthly, and
submit individual manifests estimated at one inbound and one outbound
manifest per week (104) per year. This estimate is an average of 117
APIS transmissions per year per carrier. CBP also estimates that this
rule will require vessels to submit an average of four manifests a
year.
    Both the eAPIS and eNOA/D applications will allow for auto-
population of many data elements and the auto-population of previously
submitted passenger and crewmembers names. The eNOA/D application will
allow the entire manifest to be saved and be resubmitted with minor
modifications, such as the addition or deletion of crewmembers. This
application will decrease the amount of data that must be entered in
subsequent manifest submissions.
    These submissions will be completed using online applications
accessed via the Internet. There are no unique professional skills
required other than typing and web navigation. CBP does not anticipate
the need for specialized training for small entities in order to comply
with the rule.
Other Federal Rules
    This final rule does not duplicate, overlap, or conflict with other
Federal regulations. The rule was prepared after consultation with the
TSA and Coast Guard and was designed to work in coordination with their
regulations. As discussed throughout this document, CBP and Coast Guard
coordinated their efforts to develop an electronic arrival and
departure manifest system that meets the requirements of both agencies.
Regulatory Alternatives
    The requirements of this final rule are mandated by the ATSA and
the EBSA. Exploration of regulatory alternatives, therefore, was
limited during the rulemaking process, as these legislative acts were
explicit in the types of systems to be installed and the types of
information that must be submitted. The three regulatory alternatives
considered were discussed in detail in the E.O. 12866 section of this
preamble.
    CBP has developed alternative submission methods for small air
carriers (primarily eAPIS), while the Coast Guard has developed
alternative methods for vessels (eNOA/D). These alternative methods
should help small businesses comply with the final rule in the most
cost-effective manner. Over 10 years, we estimate that without these
low-cost alternatives, this rule would impose additional costs on small
entities totaling $113 million.
Significant Issues That Have Been Assessed
    Several issues arose during the comment period for the Customs
Interim Rule published on December 31, 2001, and the INS NPRM published
on January 3, 2003. A complete summary of all the comments we received
and our responses can be found above. A summary of issues specific to
small entities follows.
    The industry expressed a desire for a separate electronic system by
which small carriers could transmit passenger and crewmember manifests.
A specific recommendation was made that a web-based medium be developed
coupled with a telephonic or facsimile backup. As discussed in this
section, CBP developed a web-based application for the air carriers and
has adopted the use of Coast Guard's web application for the sea
carriers. The telephonic and facsimile methods could not be implemented
since they would not meet the statutory requirement for electronic
submission.
    The industry expressed concern over the requirement that they
submit manifests in UN EDIFACT format. Since the small carriers do not
have sophisticated reservation systems, this requirement would require
most small carriers to purchase software from private sources and would
no longer

[[Page 17847]]

allow them to submit manifests through email. CBP developed eAPIS to be
compliant with the UN EDIFACT format. Therefore, all carriers that
submit manifest via eAPIS will comply with this requirement without
purchasing specific UN EDIFACT software. Also, CBP adopted the use of
the eNOA/D system and therefore does not require vessel manifests to be
submitted in UN EDIFACT. The vessel manifests must be submitted via
eNOA/D or an XML worksheet. The industry can use the XML worksheet
provided by the Coast Guard at no cost.
    The industry expressed concern about the cost of creating a unique
identifier in lieu of a PNR Locator. CBP has exempted this requirement.
There is no requirement for carriers that do not have PNR locator
numbers to create a unique identifier.

Civil Liberties Costs and Benefits

    This rule contains a number of non-quantified costs and benefits
related to civil liberties. The primary non-quantified costs imposed by
the rule result from putting certain travelers (those law-abiding
travelers who would prefer not to disclose information to the agency)
to the choice of providing personal information or foregoing
international travel. Many travelers who prefer not to provide personal
information will do so anyway because they value the ability to travel
more than the ability to resist providing information to the agency.
These travelers will incur the non-quantified costs of providing the
personal information. CBP expects that a smaller number of travelers
may feel more strongly about providing personal information to the
agency, and may therefore forego the travel in which they would
otherwise engage. The costs of foregoing travel can be significant.
These costs, which are the result of information being collected as
mandated by statute, are non-quantified, but CBP recognizes that in
particular cases they may be significant.
    The rule also provides non-quantified benefits, however, and CBP
considers those benefits to far outweigh the non-quantified costs. This
rule will aid in both deterring and detecting terrorist threats to
commercial vessels and aircraft. As our past has shown, these threats
unchecked can lead to loss of life and severe restrictions on travel
for scores of individuals. Considering the latter, the cost of shutting
down a transportation system for a large but unknown number of
individuals (and thereby restricting the ability to travel) is not
quantifiable, but the benefit of preventing such an event is
substantial. This rule will likely have another non-quantified benefit:
Some persons wary of traveling out of fear of terrorist attacks will
correctly perceive that the rule will make safer those transportation
systems affected by this rule. This perception will likely have the
effect of removing barriers to international travel that an unknown
number of persons previously experienced, thereby expanding the
opportunities for individuals to travel. This perception, therefore, is
a civil liberties benefit.

Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA),
enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal
agency, to the extent permitted by law, to prepare a written assessment
of the effects of any Federal mandate in a proposed or final agency
rule that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the UMRA, 2 U.S.C. 1534(a), requires the Federal
agency to develop an effective process to permit timely input by
elected officers (or their designees) of State, local, and tribal
governments on a ``significant intergovernmental mandate.'' A
``significant intergovernmental mandate'' under the UMRA is any
provision in a Federal agency regulation that will impose an
enforceable duty upon state, local, and tribal governments, in the
aggregate, of $100 million (adjusted annually for inflation) in any one
year. Section 203 of the UMRA, 2 U.S.C. 1533, which supplements section
204(a), provides that, before establishing any regulatory requirements
that might significantly or uniquely affect small governments, the
agency shall have developed a plan that, among other things, provides
for notice to potentially affected small governments, if any, and for
meaningful and timely opportunity to provide input in the development
of regulatory proposals.
    This final rule will not impose any cost on small governments or
significantly or uniquely affect small governments. However, as stated
in the ``E.O. 12866'' section of this document, which concluded that
the final rule constitutes a significant regulatory action, the rule
will result in the expenditure by the private sector of $166 million in
the first year and $135 million per year over a 10-year period.
Therefore, the provisions of this final rule constitute a private
sector mandate under the UMRA. CBP's analysis of the cost impact on
affected businesses in the ``E.O. 12866'' section of this document is
incorporated here by reference as the assessment required under Title
II of the UMRA.

Executive Order 13132

    This final 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 Executive
Order 13132, it is determined that this final rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

    This final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.

National Environmental Policy Act

    CBP has evaluated this final rule for purposes of the National
Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.). CBP
has determined that an environmental statement is not required, since
this action is non-invasive and there is no potential impact of any
kind. Record of this determination has been placed in the rulemaking
docket.

Paperwork Reduction Act

    This final rule requires that carriers electronically provide
manifest information to CBP relative to passengers and crew members on
board commercial vessels arriving in and departing from the United
States and crew members and non-crew members onboard commercial
aircraft operating, serving on, and traveling on flights to, from,
continuing within (foreign air carriers only), and overflying the
United States. This requirement is considered an information collection
requirement under the Paperwork Reduction Act (44 U.S.C. 3501, et
seq.).
    The collection of information in this final rule, with respect to
commercial vessels and aircraft arriving in and departing from the
United States, had in part already been reviewed by the Office of
Management and Budget (OMB) and assigned OMB Control Numbers 1651-0088
(Electronic manifest information required for passengers and crew on
board commercial aircraft arriving in the United States) and 1651-0104
(Electronic manifest information required for passengers and crew on
board commercial vessels and aircraft arriving in and departing from
the

[[Page 17848]]

United States). In connection with this final rule, the public burden
hours reported for OMB 1651-0088 have been increased to reflect
appropriate addition to the estimates made under OMB 1651-0104 and to
reflect a more accurate estimate of the number of respondents than were
reflected in the previous estimates. These changes were submitted to
OMB on March 17, 2004 (on an adjustment sheet) in connection with this
rulemaking; however, a new submission for OMB has been prepared for
submission to reflect further adjustments. The combined information
collection will be recorded under OMB No. 1651-0088.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless the collection of
information displays a valid control number. This final rule's
collection of information is contained in 19 CFR 4.7b, 4.64, 122.49a,
122.49b, 122.49c, 122.75a, and 122.75b (some of which are referenced in
8 CFR 217.7, 231.1 and 231.2). This information is necessary to ensure
national security and the security of commercial vessel travel to and
from the United States and commercial air travel to, from, continuing
within (foreign air carriers only), and overflying the United States.
It will also enhance enforcement of the immigration and customs laws
relative to passengers and crew members traveling to and from the
United States on board commercial vessels and aircraft. The likely
respondents and recordkeepers are commercial passenger and cargo sea
and air carriers. Part 178, Customs Regulations (19 CFR part 178),
containing the list of approved information collections, is
appropriately revised.

Administrative Procedure Act

    This final rule contains several provisions that, in addition to
implementing authority of CBP, will assist TSA in carrying out its
aviation security mission under TSA law and regulations. These
provisions pertain to the electronic transmission of manifest
information relative to crew and non-crew members onboard flights of
commercial aircraft to, from, continuing within (after a foreign air
carrier flight's arrival at a U.S. port), and overflying the United
States. TSA first established these requirements in response to
specific intelligence information received in December of 2003
regarding possible terrorist threats to international flights. TSA
determined that the new requirements are necessary to protect air
passengers and others who could be harmed by a terrorist using a
commercial aircraft to perpetrate a terrorist attack. These
requirements were designed to facilitate TSA's performance of security
threat assessments of individuals with access to the flight deck (crew
members) on these international flights. (In the case of all-cargo
flights, these individuals include non-crew members.) TSA thus has
issued non-public Emergency Amendments (EAs) and Security Directives
(SDs) to the air carriers to implement these requirements. Over the
course of the past eight months, TSA has worked with the affected air
carriers to address the technological and operational issues that have
arisen as the carriers have implemented the manifest reporting
requirements of the SDs and EAs. In response to comments from the
carriers, TSA has approved alternative procedures, as appropriate, to
address operational issues.
    Because the manifest reporting requirements for crew and non-crew
members now being issued publicly in this final rule already are in
place with respect to the carriers (under the privately issued SDs and
EAs) and initially were put in place by TSA to address a possible
terrorist threat to aviation safety, a threat that still exists, good
cause exists for dispensing with the notice and public comment
procedures of the Administrative Procedure Act (5 U.S.C. 553) as it
would be unnecessary and contrary to the public interest to delay
publication of these requirements in this final rule until after a
public comment period. (See 5 U.S.C. 553(b)(B).)

List of Subjects

8 CFR Part 217

    Air carriers, Aliens, Maritime carriers, Passports and visas.

8 CFR Part 231

    Air carriers, Aliens, Maritime carriers, Reporting and
recordkeeping requirements.

8 CFR Part 251

    Alien crew members, Maritime carriers, Reporting and recordkeeping
requirements, Vessels.

19 CFR Part 4

    Aliens, Customs duties and inspection, Immigration, Maritime
carriers, Passenger vessels, Reporting and recordkeeping requirements,
Vessels.

19 CFR Part 122

    Air carriers, Aircraft, Airports, Air transportation, Commercial
aircraft, Customs duties and inspection, Entry procedure, Reporting and
recordkeeping requirements, Security measures.

19 CFR Part 178

    Administrative practice and procedure, Collections of information,
Paperwork requirements, Reporting and recordkeeping requirements.

Department of Homeland Security

Bureau of Customs and Border Protection

8 CFR Chapter I--Amendments to the Regulations

0
For the reasons set out in the preamble, chapter I of title 8 of the
Code of Federal Regulations is amended as follows:

PART 217--VISA WAIVER PROGRAM

0
1. The heading for part 217 is revised to read as set forth above.

0
2. The authority citation for part 217 continues to read as follows:

    Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.


0
3. Section 217.7 is revised to read as follows:


Sec.  217.7  Electronic data transmission requirement.

    (a) An alien who applies for admission under the provisions of
section 217 of the Act after arriving via sea or air at a port of entry
will not be admitted under the Visa Waiver Program unless an
appropriate official of the carrier transporting the alien
electronically transmitted to Customs and Border Protection (CBP)
passenger arrival manifest data relative to that alien passenger in
accordance with 19 CFR 4.7b or 19 CFR 122.49a. Upon departure from the
United States by sea or air of an alien admitted under the Visa Waiver
Program, an appropriate official of the transporting carrier must
electronically transmit to CBP departure manifest data relative to that
alien passenger in accordance with 19 CFR 4.64 and 19 CFR 122.75a.
    (b) If a carrier fails to submit the required electronic arrival or
departure manifests specified in paragraph (a) of this section, CBP
will evaluate the carrier's compliance with immigration requirements as
a whole. CBP will inform the carrier of any noncompliance and then may
revoke any contract agreements between CBP and the carrier. The carrier
may also be subject to fines for failure to comply with manifest
requirements or other statutory provisions. CBP will also review each
Visa Waiver Program applicant who applies for admission and, on a case-
by-case basis, may authorize a waiver under current CBP policy and

[[Page 17849]]

guidelines or deny the applicant admission into the United States.

PART 231--ARRIVAL AND DEPARTURE MANIFESTS

0
4. The heading for part 231 is revised to read as set forth above.

0
5. The authority citation for part 231 is revised to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1221, 1228, 1229; 8 CFR
part 2.


0
6. Section 231.1 is revised to read as follows:


Sec.  231.1  Electronic manifest and I-94 requirement for passengers
and crew onboard arriving vessels and aircraft.

    (a) Electronic submission of manifests. Provisions setting forth
requirements applicable to commercial carriers regarding the electronic
transmission of arrival manifests covering passengers and crew members
under section 231 of the Act are set forth in 19 CFR 4.7b (passengers
and crew members onboard vessels) and in 19 CFR 122.49a (passengers
onboard aircraft) and 122.49b (crew members onboard aircraft).
    (b) Submission of Form I-94. (1) General requirement. In addition
to the electronic manifest transmission requirement specified in
paragraph (a) of this section, and subject to the exception of
paragraph (2) of this paragraph (b), the master or commanding officer,
or authorized agent, owner or consignee, of each commercial vessel or
aircraft arriving in the United States from any place outside the
United States must present to a Customs and Border Protection (CBP)
officer at the port of entry a properly completed Arrival/Departure
Record, Form I-94, for each arriving passenger.
    (2) Exceptions. The Form I-94 requirement of paragraph (1) of this
paragraph (b) does not apply to United States citizens, lawful
permanent residents of the United States, immigrants to the United
States, or passengers in transit through the United States; nor does it
apply to vessels or aircraft arriving directly from Canada on a trip
originating in that country or arriving in the Virgin Islands of the
United States directly from a trip originating in the British Virgin
Islands.
    (c) Progressive clearance. Inspection of arriving passengers may be
deferred at the request of the carrier to an onward port of
debarkation. However, verification of transmission of the electronic
manifest referred to in paragraph (a) of this section must occur at the
first port of arrival. Authorization for this progressive clearance may
be granted by the Director, Field Operations, at the first port of
arrival. When progressive clearance is requested, the carrier must
present the Form I-92 referred to in paragraph (d) of this section in
duplicate at the initial port of entry. The original Form I-92 will be
processed at the initial port of entry, and the duplicate will be noted
and returned to the carrier for presentation at the onward port of
debarkation.
    (d) Aircraft/Vessel Report. A properly completed Aircraft/Vessel
Report, Form I-92, must be completed for each arriving aircraft and
vessel that is transporting passengers. Submission of the Form I-92 to
the CBP officer must be accomplished on the day of arrival.

0
7. Section 231.2 is revised to read as follows.


Sec.  231.2  Electronic manifest and I-94 requirement for passengers
and crew onboard departing vessels and aircraft.

    (a) Electronic submission of manifests. Provisions setting forth
requirements applicable to commercial carriers regarding the electronic
transmission of departure manifests covering passengers and crew
members under section 231 of the Act are set forth in 19 CFR 4.64
(passengers and crew members onboard vessels) and in 19 CFR 122.75a
(passengers onboard aircraft) and 122.75b (crew members onboard
aircraft).
    (b) Submission of Form I-94. (1) General requirement. In addition
to the electronic manifest transmission requirement specified in
paragraph (a) of this section, and subject to the exception of
paragraph (2) of this paragraph (b), the master or commanding officer,
or authorized agent, owner, or consignee, of each commercial vessel or
aircraft departing from the United States to any place outside the
United States must present a properly completed departure portion of an
Arrival/Departure Record, Form I-94, to the Customs and Border
Protection (CBP) officer at the port of departure for each person on
board. Whenever possible, the departure Form I-94 presented must be the
same form given to the alien at the time of arrival in the United
States. The carrier must endorse the I-94 with the departure
information on the reverse of the form. Submission of the I-94 to the
CBP officer must be accomplished within 48 hours of the departure,
exclusive of Saturdays, Sundays, and legal holidays. Failure to submit
the departure I-94 within this period may be regarded as a failure to
comply with section 231(g) of the Act, unless prior authorization for
delayed delivery is obtained from CBP. A non-immigrant alien departing
on an aircraft proceeding directly to Canada on a flight terminating in
that country must surrender any Form I-94 in his/her possession to the
airline agent at the port of departure.
    (2) Exceptions. The form I-94 requirement of paragraph (1) of this
paragraph (b) does not apply to United States citizens, lawful
permanent residents of the United States, or passengers in transit
through the United States; nor does it apply to a vessel or aircraft
departing on a trip directly for and terminating in Canada or departing
from the United States Virgin Islands directly to the British Virgin
Islands on a trip terminating there.
    (c) Aircraft/Vessel Report. A properly completed Aircraft/Vessel
Report, Form I-92, must be completed for each departing aircraft and
vessel that is transporting passengers. Submission of the Form I-92 to
the CBP officer must be accomplished on the day of departure.

PART 251--ARRIVAL AND DEPARTURE MANIFESTS AND LISTS: SUPPORTING
DOCUMENTS

0
8. The heading for part 251 is revised to read as set forth above.

0
9. The authority citation for part 251 continues to read as follows:

    Authority: 8 U.S.C. 1103, 1182, 1221, 1281, 1282; 8 CFR part 2.


0
10. Section 251.5 is redesignated as Sec.  251.6 and revised to read as
follows:


Sec.  251.6  Exemptions for private vessels and aircraft.

    The provisions of this part relating to the presentation of arrival
and departure manifests do not apply to a private vessel or private
aircraft not engaged directly or indirectly in the carrying of persons
or cargo for hire.

0
11. New Sec.  251.5 is added to read as follows:


Sec.  251.5  Paper arrival and departure manifests for crew.

    In addition to the electronic manifest transmission requirement
applicable to crew members specified in Sec. Sec.  231.1 and 231.2 of
this chapter, the master or commanding officer, or authorized agent,
owner, or consignee, of a commercial vessel or commercial aircraft
arriving in or departing from the United States must submit arrival and
departure manifests in a paper format in accordance with Sec. Sec.
251.1, 251.3, and 251.4.

[[Page 17850]]

Department of Homeland Security

Bureau of Customs and Border Protection

19 CFR Chapter I--Amendments to the Regulations

0
For the reasons set out in the preamble, chapter I of title 19 of the
Code of Federal Regulations is amended as follows:

PART 4--VESSELS IN FOREIGN AND DOMESTIC TRADES

0
1. The general authority citation for part 4 continues to read and new
specific authority citations for Sec. Sec.  4.7b and 4.64 are added to
read, as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624;
2071 note; 46 U.S.C. App. 3, 91.
* * * * *
    Section 4.7b also issued under 8 U.S.C. 1221;
* * * * *
    Section 4.64 also issued under 8 U.S.C. 1221;
* * * * *


0
2. New Sec.  4.7b is added to read as follows:


Sec.  4.7b  Electronic passenger and crew arrival manifests.

    (a) Definitions. The following definitions apply for purposes of
this section:
    Appropriate official. ``Appropriate official'' means the master or
commanding officer, or authorized agent, owner, or consignee, of a
commercial vessel; this term and the term ``carrier'' are sometimes
used interchangeably.
    Carrier. See ``Appropriate official.''
    Commercial vessel. ``Commercial vessel'' means any civilian vessel
being used to transport persons or property for compensation or hire.
    Crew member. ``Crew member'' means a person serving on board a
vessel in good faith in any capacity required for normal operation and
service of the voyage. In addition, the definition of ``crew member''
applicable to this section should not be applied in the context of
other customs laws, to the extent this definition differs from the
meaning of ``crew member'' contemplated in such other customs laws.
    Emergency. ``Emergency'' means, with respect to a vessel arriving
at a U.S. port due to an emergency, an urgent situation due to a
mechanical, medical, or security problem affecting the voyage, or to an
urgent situation affecting the non-U.S. port of destination that
necessitates a detour to a U.S. port.
    Ferry. ``Ferry'' means any vessel which is being used to provide
transportation only between places that are no more than 300 miles
apart and which is being used to transport only passengers and/or
vehicles, or railroad cars, which are being used, or have been used, in
transporting passengers or goods.
    Passenger. ``Passenger'' means any person being transported on a
commercial vessel who is not a crew member.
    United States. ``United States'' means the continental United
States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of
the United States.
    (b) Electronic arrival manifest--(1) General requirement. Except as
provided in paragraph (c) of this section, an appropriate official of
each commercial vessel arriving in the United States from any place
outside the United States must transmit to Customs and Border
Protection (CBP) an electronic passenger arrival manifest and an
electronic crew member arrival manifest. Each electronic arrival
manifest:
    (i) Must be transmitted to CPB at the place and time specified in
paragraph (b)(2) of this section by means of an electronic data
interchange system approved by CBP. If the transmission is in US
EDIFACT format, the passenger manifest and the crew member manifest
must be transmitted separately; and
    (ii) Must set forth the information specified in paragraph (b)(3)
of this section.
    (2) Place and time for submission-- (i) General requirement. The
appropriate official must transmit each electronic arrival manifest
required under paragraph (b)(1) of this section to the CBP Data Center,
CBP Headquarters:
    (A) In the case of a voyage of 96 hours or more, at least 96 hours
before entering the first United States port or place of destination;
    (B) In the case of a voyage of less than 96 hours but at least 24
hours, prior to departure of the vessel;
    (C) In the case of a voyage of less than 24 hours, at least 24
hours before entering the first U.S. port or place of destination; and
    (D) In the case of a vessel that was not destined to the United
States but was diverted to a U.S. port due to an emergency, before the
vessel enters the U.S. port or place to which diverted; in cases of
non-compliance, CBP will take into consideration that the carrier was
not equipped to make the transmission and the circumstances of the
emergency situation.
    (ii) Amendment of crew member manifests. In any instance where a
crew member boards the vessel after initial submission of the manifest
under paragraph (b)(2)(i) of this section, the appropriate official
must transmit amended manifest information to CBP reflecting the data
required under paragraph (b)(3) of this section for the additional crew
member. The amended manifest information must be transmitted to the CBP
data Center, CBP Headquarters:
    (A) If the remaining voyage time after initial submission of the
manifest is 24 hours or more, at least 24 hours before entering the
first U.S. port or place of destination; or
    (B) In any other case, at least 12 hours before the vessel enters
the first U.S. port or place of destination.
    (3) Information required. Each electronic arrival manifest required
under paragraph (b)(1) of this section must contain the following
information for all passengers and crew members, except that for
commercial passenger vessels, the information specified in paragraphs
(b)(3)(iv), (v), (x), (xii), (xiii), (xiv), (xvi), (xviii), and (xix)
of this section must be included on the manifest only on or after
October 4, 2005:
    (i) Full name (last, first, and, if available, middle);
    (ii) Date of birth;
    (iii) Gender (F = female; M = male);
    (iv) Citizenship;
    (v) Country of residence;
    (vi) Status on board the vessel;
    (vii) Travel document type (e.g., P = passport, A = alien
registration);
    (viii) Passport number, if a passport is required;
    (ix) Passport country of issuance, if a passport is required;
    (x) Passport expiration date, if a passport is required;
    (xi) Alien registration number, where applicable;
    (xii) Address while in the United States (number and street, city,
state, and zip code), except that this information is not required for
U.S. citizens, lawful permanent residents, crew members, or persons who
are in transit to a location outside the United States;
    (xiii) Passenger Name Record locator, if available;
    (xiv) Foreign port/place where transportation to the United States
began (foreign port code);
    (xv) Port/place of first arrival (CBP port code);
    (xvi) Final foreign port/place of destination for in-transit
passenger and crew member (foreign port code);
    (xvii) Vessel name;
    (xviii) Vessel country of registry/flag;
    (xix) International Maritime Organization number or other official
number of the vessel;

[[Page 17851]]

    (xx) Voyage number (applicable only for multiple arrivals on the
same calendar day); and
    (xxi) Date of vessel arrival.
    (c) Exceptions. The electronic arrival manifest requirement
specified in paragraph (b) of this section is subject to the following
conditions:
    (1) No passenger or crew member manifest is required if the
arriving commercial vessel is operating as a ferry;
    (2) If the arriving commercial vessel is not transporting
passengers, only a crew member manifest is required; and
    (3) No passenger manifest is required for active duty U.S. military
personnel onboard an arriving Department of Defense commercial
chartered vessel.
    (d) Carrier responsibility for comparing information collected with
travel document. The carrier collecting the information described in
paragraph (b)(3) of this section is responsible for comparing the
travel document presented by the passenger or crew member with the
travel document information it is transmitting to CBP in accordance
with this section in order to ensure that the information transmitted
is correct, the document appears to be valid for travel to the United
States, and the passenger or crew member is the person to whom the
travel document was issued.
    (e) Sharing of manifest information. Information contained in
passenger and crew member manifests that is received by CBP
electronically may, upon request, be shared with other Federal agencies
for the purpose of protecting national security. CBP may also share
such information as otherwise authorized by law.

0
3. New Sec.  4.64 is added to read as follows:


Sec.  4.64  Electronic passenger and crew member departure manifests.

    (a) Definitions. The definitions contained in Sec.  4.7b(a) also
apply for purposes of this section.
    (b) Electronic departure manifest--(1) General requirement. Except
as provided in paragraph (c) of this section, an appropriate official
of each commercial vessel departing from the United States to any port
or place outside the United States must transmit to Customs and Border
Protection (CBP) an electronic passenger departure manifest and an
electronic crew member departure manifest. Each electronic departure
manifest:
    (i) Must be transmitted to CPB at the place and time specified in
paragraph (b)(2) of this section by means of an electronic data
interchange system approved by CBP. If the transmission is in US
EDIFACT format, the passenger manifest and the crew member manifest
must be transmitted separately; and
    (ii) Must set forth the information specified in paragraph (b)(3)
of this section.
    (2) Place and time for submission--(i) General requirement. The
appropriate official must transmit each electronic departure manifest
required under paragraph (b)(1) of this section to the CBP Data Center,
CBP Headquarters, no later than 15 minutes before the vessel departs
from the United States.
    (ii) Amended crew member manifests. If a crew member boards the
vessel after submission of the manifest under paragraph (b)(2)(i) of
this section, the appropriate official must transmit amended manifest
information to CBP reflecting the data required under paragraph (b)(3)
of this section for the additional crew member. The amended manifest
information must be transmitted to the CBP Data Center, CBP
Headquarters, no later than 12 hours after the vessel has departed from
the United States.
    (3) Information required. Each electronic departure manifest
required under paragraph (b)(1) of this section must contain the
following information for all passengers and crew members, except that
the information specified in paragraphs (b)(3)(iv), (ix), (xi), (xv),
and (xvi), of this section must be included on the manifest only on or
after October 4, 2005:
    (i) Full name (last, first, and, if available, middle);
    (ii) Date of birth;
    (iii) Gender (F = female; M = male);
    (iv) Citizenship;
    (v) Status on board the vessel;
    (vi) Travel document type (e.g., P = passport; A = alien
registration card);
    (vii) Passport number, if a passport is required; (viii) Passport
country of issuance, if a passport is required;
    (ix) Passport expiration date, if a passport is required;
    (x) Alien registration number, where applicable;
    (xi) Passenger Name Record locator, if available;
    (xii) Departure port code (CBP port code);
    (xiii) Port/place of final arrival (foreign port code);
    (xiv) Vessel name;
    (xv) Vessel country of registry/flag;
    (xvi) International Maritime Organization number or other official
number of the vessel;
    (xvii) Voyage number (applicable only for multiple departures on
the same calendar day); and
    (xviii) Date of vessel departure.
    (c) Exceptions. The electronic departure manifest requirement
specified in paragraph (b) of this section is subject to the following
conditions:
    (1) No passenger or crew member departure manifest is required if
the departing commercial vessel is operating as a ferry;
    (2) If the departing commercial vessel is not transporting
passengers, only a crew member departure manifest is required;
    (3) No passenger departure manifest is required for active duty
U.S. military personnel on board a departing Department of Defense
commercial chartered vessel.
    (d) Carrier responsibility for comparing information collected with
travel document. The carrier collecting the information described in
paragraph (b)(3) of this section is responsible for comparing the
travel document presented by the passenger or crew member with the
travel document information it is transmitting to CBP in accordance
with this section in order to ensure that the information is correct,
the document appears to be valid for travel purposes, and the passenger
or crew member is the person to whom the travel document was issued.
    (e) Sharing of manifest information. Information contained in
passenger and crew member manifests that is received by CBP
electronically may, upon request, be shared with other Federal agencies
for the purpose of protecting national security. CBP may also share
such information as otherwise authorized by law.

PART 122--AIR COMMERCE REGULATIONS

0
4. The general authority citation for part 122 continues to read, the
specific authority citations for Sec. Sec.  122.49a and 122.49b are
revised to read, and new specific authority citations for Sec. Sec.
122.49c, 122.49d, 122.75a, and 122.75b are added to read, as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 1433, 1436, 1448,
1459, 1590, 1594, 1623, 1624, 1644, 1644a.
    Section 122.49a also issued under 8 U.S.C. 1221, 19 U.S.C. 1431,
49 U.S.C. 44909.
    Section 122.49b also issued under 8 U.S.C. 1221, 19 U.S.C. 1431,
49 U.S.C. 114, 44909.
    Section 122.49c also issued under 8 U.S.C. 1221, 19 U.S.C. 1431,
49 U.S.C. 114, 44909.
    Section 122.49d also issued under 49 U.S.C. 44909(c)(3).
* * * * *
    Section 122.75a also issued under 8 U.S.C. 1221, 19 U.S.C. 1431.
    Section 122.75b also issued under 8 U.S.C. 1221, 19 U.S.C. 1431,
49 U.S.C. 114.


0
5. The heading for Subpart E of Part 122 is revised to read as follows:

[[Page 17852]]

Subpart E--Aircraft Entry and Entry Documents; Electronic Manifest
Requirements for Passengers, Crew Members, and Non-Crew Members
Onboard Commercial Aircraft Arriving In, Continuing Within, and
Overflying the United States

0
6. Section 122.49a is revised to read as follows:


Sec.  122.49a  Electronic manifest requirement for passengers onboard
commercial aircraft arriving in the United States.

    (a) Definitions. The following definitions apply for purposes of
this section:
    Appropriate official. ``Appropriate official'' means the master or
commanding officer, or authorized agent, owner, or consignee, of a
commercial aircraft; this term and the term ``carrier'' are sometimes
used interchangeably.
    Carrier. See ``Appropriate official.''
    Commercial aircraft. ``Commercial aircraft'' has the meaning
provided in Sec.  122.1(d) and includes aircraft engaged in passenger
flight operations, all-cargo flight operations, and dual flight
operations involving the transport of both cargo and passengers.
    Crew Member. ``Crew member'' means a person serving on board an
aircraft in good faith in any capacity required for normal operation
and service of the flight. In addition, the definition of ``crew
member'' applicable to this section should not be applied in the
context of other customs laws, to the extent this definition differs
from the meaning of ``crew member'' contemplated in such other customs
laws.
    Departure. ``Departure'' means the point at which the wheels are up
on the aircraft and the aircraft is en route directly to its
destination.
    Emergency. ``Emergency'' means, with respect to an aircraft
arriving at a U.S. port due to an emergency, an urgent situation due to
a mechanical, medical, or security problem affecting the flight, or to
an urgent situation affecting the non-U.S. port of destination that
necessitates a detour to a U.S. port.
    Passenger. ``Passenger'' means any person, including a Federal
Aviation Administration (FAA) Aviation Security Inspector with valid
credentials and authorization, being transported on a commercial
aircraft who is not a crew member.
    United States. ``United States'' means the continental United
States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of
the United States.
    (b) Electronic arrival manifest. (1) General requirement. Except as
provided in paragraph (c) of this section, an appropriate official of
each commercial aircraft arriving in the United States from any place
outside the United States must transmit to Customs and Border
Protection (CBP) an electronic passenger arrival manifest covering any
passengers on board the aircraft. Each manifest must be transmitted to
CPB at the place and time specified in paragraph (b)(2) of this section
by means of an electronic data interchange system approved by CBP and
must set forth the information specified in paragraph (b)(3) of this
section. A passenger manifest must be transmitted separately from a
crew member manifest required under Sec.  122.49b if transmission is in
US EDIFACT format.
    (2) Place and time for submission. The appropriate official
specified in paragraph (b)(1) of this section must transmit the
electronic passenger arrival manifest required under paragraph (b)(1)
of this section to the CBP Data Center, CBP Headquarters:
    (i) No later than 15 minutes after departure of the aircraft;
    (ii) For flights not originally destined to the United States but
diverted to a U.S. port due to an emergency, no later than 30 minutes
prior to arrival; in cases of non-compliance, CBP will take into
consideration that the carrier was not equipped to make the
transmission and the circumstances of the emergency situation; and
    (iii) For an aircraft operating as an air ambulance in service of a
medical emergency, no later than 30 minutes prior to arrival.
    (3) Information required. Except as provided in paragraph (c) of
this section, the electronic passenger arrival manifest required under
paragraph (b)(1) of this section must contain the following information
for all passengers, except that the information specified in paragraphs
(b)(iv), (v), (x), (xii), (xiii), and (xiv) of this section must be
included on the manifest only on or after October 4, 2005:
    (i) Full name (last, first, and, if available, middle);
    (ii) Date of birth;
    (iii) Gender (F = female; M = male);
    (iv) Citizenship;
    (v) Country of residence;
    (vi) Status on board the aircraft;
    (vii) Travel document type (e.g., P = passport; A = alien
registration card);
    (viii) Passport number, if a passport is required;
    (ix) Passport country of issuance, if a passport is required;
    (x) Passport expiration date, if a passport is required;
    (xi) Alien registration number, where applicable;
    (xii) Address while in the United States (number and street, city,
state, and zip code), except that this information is not required for
U.S. citizens, lawful permanent residents, or persons who are in
transit to a location outside the United States;
    (xiii) Passenger Name Record locator, if available;
    (xiv) International Air Transport Association (IATA) code of
foreign port/place where transportation to the United States began
(foreign port code);
    (xv) IATA code of port/place of first arrival (arrival port code);
    (xvi) IATA code of final foreign port/place of destination for in-
transit passengers (foreign port code);
    (xvii) Airline carrier code;
    (xviii) Flight number; and
    (xix) Date of aircraft arrival.
    (c) Exception. The electronic passenger arrival manifest specified
in paragraph (b)(1) of this section is not required for active duty
U.S. military personnel being transported as passengers on arriving
Department of Defense commercial chartered aircraft.
    (d) Carrier responsibility for comparing information collected with
travel document. The carrier collecting the information described in
paragraph (b)(3) of this section is responsible for comparing the
travel document presented by the passenger with the travel document
information it is transmitting to CBP in accordance with this section
in order to ensure that the information is correct, the document
appears to be valid for travel to the United States, and the passenger
is the person to whom the travel document was issued.
    (e) Sharing of manifest information. Information contained in the
passenger manifests required by this section that is received by CBP
electronically may, upon request, be shared with other Federal agencies
for the purpose of protecting national security. CBP may also share
such information as otherwise authorized by law.


Sec.  122.49b  [Redesignated]

0
7. Section 122.49b is redesignated as Sec.  122.49d.

0
8. New Sec.  122.49b is added to read as follows:


Sec.  122.49b  Electronic manifest requirement for crew members and
non-crew members onboard commercial aircraft arriving in, continuing
within, and overflying the United States.

    (a) Definitions. The definitions set forth below apply for purposes
of this section. The definitions set forth in Sec.  122.49a(a), other
than those for the terms set forth below, also apply for purposes of
this section:

[[Page 17853]]

    All-cargo flight. ``All-cargo flight'' means a flight in operation
for the purpose of transporting cargo which has onboard only ``crew
members'' and ``non-crew members'' as defined in this paragraph.
    Carrier. In addition to the meaning set forth in Sec.  122.49a(a),
``carrier'' includes each entity that is an ``aircraft operator'' or
``foreign air carrier'' with a security program under 49 CFR part 1544,
1546, or 1550 of the Transportation Security Administration
regulations.
    Crew member. ``Crew member'' means a pilot, copilot, flight
engineer, airline management personnel authorized to travel in the
cockpit, cabin crew, and relief crew (also known as ``deadheading
crew''). However, for all other purposes of immigration law and
documentary evidence required under the Immigration and Nationality Act
(8 U.S.C. 1101, et seq.), ``crew member'' (or ``crewman'') means a
person serving onboard an aircraft in good faith in any capacity
required for the normal operation and service of the flight (8 U.S.C.
1101(a)(10) and (a)(15)(D), as applicable). In addition, the definition
of ``crew member'' applicable to this section should not be applied in
the context of other customs laws, to the extent this definition
differs from the meaning of ``crew member'' contemplated in such other
customs laws.
    Flight continuing within the United States. ``Flight continuing
within the United States'' refers to the domestic leg of a flight
operated by a foreign air carrier that originates at a foreign port or
place, arrives at a U.S. port, and then continues to a second U.S.
port.
    Flight overflying the United States. ``Flight overflying the United
States'' refers to a flight departing from a foreign port or place that
enters the territorial airspace of the U.S. en route to another foreign
port or place.
    Non-crew member. ``Non-crew member'' means air carrier employees
and their family members and persons traveling onboard a commercial
aircraft for the safety of the flight (such as an animal handler when
animals are onboard). The definition of ``non-crew member'' is limited
to all-cargo flights. (On a passenger or dual flight (passengers and
cargo), air carrier employees, their family members, and persons
onboard for the safety of the flight are considered passengers.)
    Territorial airspace of the United States. ``Territorial airspace
of the United States'' means the airspace over the United States, its
territories, and possessions, and the airspace over the territorial
waters between the United States coast and 12 nautical miles from the
coast.
    (b) Electronic arrival manifest. (1) General requirement. Except as
provided in paragraph (c) of this section, an appropriate official of
each commercial aircraft operating a flight arriving in or overflying
the United States, from a foreign port or place, or continuing within
the United States after arriving at a U.S. port from a foreign port or
place, must transmit to Customs and Border Protection (CBP) an
electronic crew member manifest and, for all-cargo flights only, an
electronic non-crew member manifest covering any crew members and non-
crew members onboard. Each manifest must be transmitted to CBP at the
place and time specified in paragraph (b)(2) of this section by means
of an electronic data interchange system approved by CBP and must set
forth the information specified in paragraph (b)(3) of this section.
Where both a crew member manifest and a non-crew member manifest are
required with respect to an all-cargo flight, they must be combined in
one manifest covering both crew members and non-crew members. Where a
passenger arrival manifest under Sec.  122.49a and a crew member
arrival manifest under this section are required, they must be
transmitted separately if the transmission is in US EDIFACT format.
    (2) Place and time for submission; certification; changes to
manifest. (i) Place and time for submission. The appropriate official
specified in paragraph (b)(1) of this section must transmit the
electronic manifest required under paragraph (b)(1) of this section to
the CBP Data Center, CBP Headquarters:
    (A) With respect to aircraft arriving in and overflying the United
States, no later than 60 minutes prior to departure of the aircraft
from the foreign port or place of departure, and with respect to
aircraft continuing within the United States, no later than 60 minutes
prior to departure from the U.S. port of arrival;
    (B) For a flight not originally destined to arrive in the United
States but diverted to a U.S. port due to an emergency, no later than
30 minutes prior to arrival; in cases of noncompliance, CBP will take
into consideration that the carrier was not equipped to make the
transmission and the circumstances of the emergency situation; and
    (C) For an aircraft operating as an air ambulance in service of a
medical emergency, no later than 30 minutes prior to arrival;
    (ii) Certification. Except as provided in paragraph (c) of this
section, the appropriate official, by transmitting the manifest as
required under paragraph (b)(1) of this section, certifies that the
flight's crew members and non-crew members are included, respectively,
on the master crew member list or master non-crew member list
previously submitted to CBP in accordance with Sec.  122.49c. If a crew
member or non-crew member on the manifest is not also included on the
appropriate master list, the flight may be, as appropriate, denied
clearance to depart, diverted from arriving in the United States, or
denied clearance to enter the territorial airspace of the United
States.
    (iii) Changes to manifest. The appropriate official is obligated to
make necessary changes to the crew member or non-crew member manifest
after transmission of the manifest to CBP. Necessary changes include
adding a name, with other required information, to the manifest or
amending previously submitted information. If changes are submitted
less than 60 minutes before scheduled flight departure, the air carrier
must receive approval from TSA before allowing the flight to depart or
the flight may be, as appropriate, denied clearance to depart, diverted
from arriving in the United States, or denied clearance to enter the
territorial airspace of the United States.
    (3) Information required. The electronic crew member and non-crew
member manifests required under paragraph (b)(1) of this section must
contain the following information for all crew members and non-crew
members, except that the information specified in paragraphs (b)(iii),
(v), (vi), (vii), (xiii), (xv), and (xvi) of this section must be
included on the manifest only on or after October 4, 2005:
    (i) Full name (last, first, and, if available, middle);
    (ii) Date of birth;
    (iii) Place of birth (city, state--if applicable, country);
    (iv) Gender (F = female; M = male);
    (v) Citizenship;
    (vi) Country of residence;
    (vii) Address of permanent residence; (viii) Status on board the
aircraft;
    (ix) Pilot certificate number and country of issuance (if
applicable);
    (x) Travel document type (e.g., P = passport; A = alien
registration card);
    (xi) Passport number, if a passport is required;
    (xii) Passport country of issuance, if a passport is required;
    (xiii) Passport expiration date, if a passport is required;
    (xiv) Alien registration number, where applicable;
    (xv) Passenger Name Record locator, if available;

[[Page 17854]]

    (xvi) International Air Transport Association (IATA) code of
foreign port/place where transportation to the United States began or
where the transportation destined to the territorial airspace of the
United States began (foreign port code);
    (xvii) IATA code of port/place of first arrival (arrival port
code);
    (xviii) IATA code of final foreign port/place of destination for
(foreign port code);
    (xix) Airline carrier code;
    (xx) Flight number; and
    (xxi) Date of aircraft arrival.
    (c) Exceptions. The electronic crew member or non-crew member
manifest requirement specified in paragraph (b)(1) of this section is
subject to the following conditions:
    (1) Federal Aviation Administration (FAA) Aviation Safety
Inspectors with valid credentials and authorization are not subject to
the requirement, but the manifest requirement of Sec.  122.49a applies
to these inspectors on flights arriving in the United States, as they
are considered passengers on arriving flights;
    (2) For crew members traveling onboard an aircraft chartered by the
U.S. Department of Defense that is arriving in the United States, the
provisions of this section apply regarding electronic transmission of
the manifest, except that:
    (i) The manifest certification provision of paragraph (b)(2)(ii) of
this section is inapplicable; and
    (ii) The TSA manifest change approval requirement of paragraph
(b)(2)(iii) of this section is inapplicable;
    (3) For crew members traveling onboard an aircraft chartered by the
U.S. Department of Defense that is continuing a flight within the
United States or overflying the United States, the manifest is not
required;
    (4) For non-crew members traveling onboard an all-cargo flight
chartered by the U.S. Department of Defense that is arriving in the
United States, the manifest is not required, but the manifest
requirement of Sec.  122.49a applies to these persons, as, in this
instance, they are considered passengers on arriving flights; and
    (5) For non-crew members traveling onboard an all-cargo flight
chartered by the U.S. Department of Defense that is continuing a flight
within the United States or overflying the United States, the manifest
is not required.
    (d) Carrier responsibility for comparing information collected with
travel document. The carrier collecting the information described in
paragraph (b)(3) of this section is responsible for comparing the
travel document presented by the crew member or non-crew member with
the travel document information it is transmitting to CBP in accordance
with this section in order to ensure that the information is correct,
the document appears to be valid for travel to the United States, and
the crew member or non-crew member is the person to whom the travel
document was issued.
    (e) Sharing of manifest information. Information contained in the
crew member and non-crew member manifests required by this section that
is received by CBP electronically may, upon request, be shared with
other Federal agencies for the purpose of protecting national security.
CBP may also share such information as otherwise authorized by law.
    (f) Superseding amendments issued by TSA. One or more of the
requirements of this section may be superseded by specific provisions
of, amendments to, or alternative procedures authorized by TSA for
compliance with an aviation security program, emergency amendment, or
security directive issued by the TSA to an air carrier subject to 49
CFR part 1544, 1546, or 1550. The provisions or amendments will have
superseding effect only for the air carrier to which issued and only
for the period of time specified in the provision or amendment.

0
9. New Sec.  122.49c is added to read as follows:


Sec.  122.49c  Master crew member list and master non-crew member list
requirement for commercial aircraft arriving in, departing from,
continuing within, and overflying the United States.

    (a) General requirement. Air carriers subject to the provisions of
Sec.  122.49b and Sec.  122.75b, with respect to the flights covered in
those sections, must electronically transmit to Customs and Border
Protection (CBP), by means of an electronic data interchange system
approved by CBP, a master crew member list and a master non-crew member
list containing the information set forth in paragraph (c) of this
section covering, respectively, all crew members and non-crew members
operating and servicing its flights. The initial transmission of a list
must be made at least two days in advance of any flight a crew member
or non-crew member on the list will be operating, serving on, or
traveling on and must contain the information set forth in paragraph
(c) of this section. After review of the master crew list and the
master non-crew list by TSA, TSA will advise the carrier of any crew
members or non-crew members that must be removed from the list. Only
those persons on the TSA-approved master crew and master non-crew lists
will be permitted to operate, serve on, or travel on flights covered by
this section. Until a carrier becomes a participant in the CBP-approved
electronic interchange system, it must submit the required information
in a format provided by TSA.
    (b) Changes to master lists. After the initial transmission of the
master crew member and non-crew member lists to CBP, the carrier is
obligated to update the lists as necessary. To add a name to either
list, along with the required information set forth in paragraph (c) of
this section, or to add or change information relative to a name
already submitted, the carrier must transmit the information to CBP at
least 24 hours in advance of any flight the added or subject crew
member or non-crew member will be operating, serving on, or traveling
on. A carrier must submit deletions from the lists as expeditiously as
possible.
    (c) Master list information. The electronic master crew lists
required under paragraph (a) of this section must contain the following
information with respect to each crew member or non-crew member that
operates, serves on, or travels on a carrier's flights that are covered
by this section except that the information specified in paragraphs
(c)(4), (5), (6), (7), and (10) of this section must be included on the
manifest only on or after October 4, 2005:
    (1) Full name (last, first, and, if available, middle);
    (2) Gender;
    (3) Date of birth;
    (4) Place of birth (city, state--if applicable, and country);
    (5) Citizenship;
    (6) Country of residence;
    (7) Address of permanent residence;
    (8) Passport number, if passport required;
    (9) Passport country of issuance, if passport required;
    (10) Passport expiration date, if passport required;
    (11) Pilot certificate number and country of issuance, if
applicable;
    (12) Status onboard the aircraft.
    (d) Exception. The master crew member and non-crew member list
requirements of this section do not apply to aircraft chartered by the
U.S. Department of Defense.
    (e) Superseding amendments issued by TSA. One or more of the
requirements of this section may be superseded by specific provisions
of, amendments to, or alternative procedures authorized by TSA for
compliance with an aviation security

[[Page 17855]]

program, emergency amendment, or security directive issued by the TSA
to an air carrier subject to the provisions of 49 CFR part 1544, 1546,
or 1550. The amendments will have superseding effect only for the air
carrier to which issued and only for the period of time specified in
the amendment.

0
10. The heading for subpart H of part 122 is revised to read as
follows:

Subpart H--Documents Required for Clearance and Permission To
Depart; Electronic Manifest Requirements for Passengers, Crew
Members, and Non-Crew Members Onboard Commercial Aircraft Departing
From the United States

0
11. New Sec.  122.75a is added to read as follows:


Sec.  122.75a  Electronic manifest requirement for passengers onboard
commercial aircraft departing from the United States.

    (a) Definitions. The definitions set forth in Sec.  122.49a(a) also
apply for purposes of this section.
    (b) Electronic departure manifest. (1) General requirement. Except
as provided in paragraph (c) of this section, an appropriate official
of each commercial aircraft departing from the United States to any
port or place outside the United States must transmit to Customs and
Border Protection (CBP) an electronic passenger departure manifest
covering any passengers onboard. The manifest must be transmitted to
CPB at the place and time specified in paragraph (b)(2) of this section
by means of an electronic data interchange system approved by CBP and
must set forth the information specified in paragraph (b)(3) of this
section.
    (2) Place and time for submission. The appropriate official
specified in paragraph (b)(1) of this section must transmit the
electronic passenger departure manifest required under paragraph (b)(1)
of this section to the CBP Data Center, CBP Headquarters, no later than
15 minutes prior to departure of the aircraft from the United States,
except that for an air ambulance in service of a medical emergency, the
manifest must be transmitted to CBP no later than 30 minutes after
departure.
    (3) Information required. The electronic passenger departure
manifest required under paragraph (b)(1) of this section must contain
the following information for all passengers, except that the
information specified in paragraphs (b)(3)(iv), (ix), and (xi) of this
section must be included on the manifest only on or after October 4,
2005:
    (i) Full name (last, first, and, if available, middle);
    (ii) Date of birth;
    (iii) Gender (F = female; M = male);
    (iv) Citizenship;
    (v) Status on board the aircraft;
    (vi) Travel document type (e.g., P = passport; A = alien
registration card);
    (vii) Passport number, if a passport is required;
    (viii) Passport country of issuance, if a passport is required;
    (ix) Passport expiration date, if a passport is required;
    (x) Alien registration number, where applicable;
    (xi) Passenger Name Record locator, if available;
    (xii) International Air Transport Association (IATA) departure port
code;
    (xiii) IATA code of port/place of final arrival (foreign port
code);
    (xiv) Airline carrier code;
    (xv) Flight number; and
    (xvi) Date of aircraft departure.
    (c) Exception. The electronic passenger departure manifest
specified in paragraph (b)(1) of this section is not required for
active duty military personnel traveling as passengers on board a
departing Department of Defense commercial chartered aircraft.
    (d) Carrier responsibility for comparing information collected with
travel document. The carrier collecting the information described in
paragraph (b)(3) of this section is responsible for comparing the
travel document presented by the passenger with the travel document
information it is transmitting to CBP in accordance with this section
in order to ensure that the information is correct, the document
appears to be valid for travel purposes, and the passenger is the
person to whom the travel document was issued.
    (e) Sharing of manifest information. Information contained in the
passenger manifest required under this section that is received by CBP
electronically may, upon request, be shared with other Federal agencies
for the purpose of protecting national security. CBP may also share
such information as otherwise authorized by law.

0
12. New Sec.  122.75b is added to read as follows:


Sec.  122.75b  Electronic manifest requirement for crew members and
non-crew members onboard commercial aircraft departing from the United
States.

    (a) Definitions. The definitions set forth in Sec.  122.49a(a) also
apply for purposes of this section, except that the definitions of
``all-cargo flight,'' ``carrier,'' ``crew member,'' and ``non-crew
member'' applicable to this section are found in Sec.  122.49b(a).
    (b) Electronic departure manifest. (1) General requirement. Except
as provided in paragraph (c) of this section, an appropriate official
of each commercial aircraft departing from the United States to any
port or place outside the United States must transmit to Customs and
Border Protection (CBP) an electronic crew member departure manifest
and, for all-cargo flights only, an electronic non-crew member
departure manifest covering any crew members and non-crew members
onboard. Each manifest must be transmitted to CBP at the place and time
specified in paragraph (b)(2) of this section by means of an electronic
data interchange system approved by CBP and must set forth the
information specified in paragraph (b)(3) of this section. Where both a
crew member departure manifest and a non-crew member departure manifest
are required for an all-cargo flight, they must be combined in one
departure manifest covering both crew members and non-crew members.
Where a passenger departure manifest under Sec.  122.75a and a crew
member departure manifest under this section are required, they must be
transmitted separately if the transmission is in US EDIFACT format.
    (2) Place and time for submission; certification; change to
manifest. (i) Place and time for submission. The appropriate official
specified in paragraph (b)(1) of this section must transmit the
electronic departure manifest required under paragraph (b)(1) of this
section to the CBP Data Center, CBP Headquarters, no later than 60
minutes prior to departure of the aircraft, except that for an air
ambulance in service of a medical emergency, the manifest must be
transmitted to CBP no later than 30 minutes after departure.
    (ii) Certification. Except as provided in paragraph (c) of this
section, the appropriate official, by transmitting the manifest as
required under paragraph (b)(1) of this section, certifies that the
flight's crew members and non-crew members are included, respectively,
on the master crew member list or master non-crew member list
previously submitted to CBP in accordance with Sec.  122.49c. If a crew
member or non-crew member on the manifest is not also included on the
appropriate master list, the flight may be denied clearance to depart.
    (iii) Changes to manifest. The appropriate official is obligated to
make necessary changes to the crew member or non-crew member departure
manifest after transmission of the manifest to CBP. Necessary changes
include adding a name, with other required information, to the manifest
or

[[Page 17856]]

amending previously submitted information. If changes are submitted
less than 60 minutes before scheduled flight departure, the air carrier
must receive approval from TSA before allowing the flight to depart or
the flight may be denied clearance to depart.
    (3) Information required. The electronic crew member and non-crew
member departure manifests required under paragraph (b)(1) of this
section must contain the following information for all crew members and
non-crew members, except that the information specified in paragraphs
(b)(iii), (v), (vi), (xii), and (xiv) of this section must be included
on the manifest only on or after October 4, 2005:
    (i) Full name (last, first, and, if available, middle);
    (ii) Date of birth;
    (iii) Place of birth (city, state--if applicable, country);
    (iv) Gender (F = female; M = male);
    (v) Citizenship;
    (vi) Address of permanent residence;
    (vii) Status on board the aircraft;
    (viii) Pilot certificate number and country of issuance (if
applicable);
    (ix) Travel document type (e.g., P = passport; A = alien
registration card);
    (x) Passport number, if a passport is required;
    (xi) Passport country of issuance, if a passport is required;
    (xii) Passport expiration date, if a passport is required;
    (xiii) Alien registration number, where applicable;
    (xiv) Passenger Name Record locator, if available;
    (xv) International Air Transport Association (IATA) departure port
code;
    (xvi) IATA code of port/place of final arrival (foreign port code);
    (xvii) Airline carrier code;
    (xviii) Flight number; and
    (xix) Date of aircraft departure.
    (c) Exceptions. The electronic departure manifest requirement
specified in paragraph (b)(1) of this section is subject to the
following conditions:
    (1) Federal Aviation Administration (FAA) Aviation Safety
Inspectors with valid credentials and authorization are not subject to
the requirement, but the manifest requirement of Sec.  122.75a applies
to these inspectors, as they are considered passengers on departing
flights;
    (2) For crew members traveling onboard departing aircraft chartered
by the U.S. Department of Defense, the provisions of this section apply
regarding electronic transmission of the manifest, except that:
    (i) The manifest certification provision of paragraph (b)(2)(ii) of
this section is inapplicable; and
    (ii) The TSA manifest change approval requirement of paragraph
(b)(2)(iii) of this section is inapplicable; and
    (3) For non-crew members traveling onboard a departing all-cargo
flight chartered by the U.S. Department of Defense, the manifest is not
required, but the manifest requirement of Sec.  122.75a applies to
these persons, as, in this instance, they are considered passengers on
departing flights.
    (d) Carrier responsibility for comparing information collected with
travel document. The carrier collecting the information described in
paragraph (b)(3) of this section is responsible for comparing the
travel document presented by the crew member or non-crew member with
the travel document information it is transmitting to CBP in accordance
with this section in order to ensure that the information is correct,
the document appears to be valid for travel, and the crew member or
non-crew member is the person to whom the travel document was issued.
    (e) Sharing of manifest information. Information contained in the
crew member and non-crew member manifests required under this section
that is received by CBP electronically may, upon request, be shared
with other Federal agencies for the purpose of protecting national
security. CBP may also share such information as otherwise authorized
by law.
    (f) Master crew member and non-crew member lists. Air carriers
subject to the requirements of this section must also comply with the
requirements of Sec.  122.49c pertaining to the electronic transmission
of a master crew member list and a master non-crew member list as
applied to flights departing from the United States.
    (g) Superseding amendments issued by TSA. One or more of the
requirements of this section may be superseded by provisions of,
amendments to, or alternative procedures authorized by TSA for
compliance with an aviation security program, emergency amendment, or
security directive issued by the TSA to an air carrier subject to the
provisions of 49 CFR part 1544, 1546, or 1550. The amendments will have
superseding effect only for the airline to which issued and only for
the period of time they remain in effect.

PART 178--APPROVAL OF INFORMATION COLLECTION REQUIREMENTS

0
13. The authority citation for part 178 continues to read as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 1624, 44 U.S.C. 3501 et seq.


0
14. Section 178.2 is amended by removing from the chart the entry for
Sec.  122.49a and adding to the chart the following in appropriate
numerical sequence according to the section number under the columns
indicated:


Sec.  178.2  Listing of OMB control numbers.

------------------------------------------------------------------------
                                                            OMB control
         19 CFR section                Description              No.
------------------------------------------------------------------------
Sec.  Sec.   4.7b, 4.64,         Electronic manifest           1651-0088
 122.49a, 122.49b, 122.49c,       requirements for
 122.75a, 122.75b.                carriers transporting
                                  passengers and crew
                                  onboard vessels and
                                  aircraft.
------------------------------------------------------------------------

* * * * *

Robert C. Bonner,
Commissioner, Customs and Border Protection.
    Approved: March 25, 2005.
Michael Chertoff,
Secretary.
[FR Doc. 05-6523 Filed 4-6-05; 8:45 am]

BILLING CODE 4410-10-P