Electronic Transmission of Passenger and Crew Manifests for Vessels and Aircraft [70 FR 17820] [FR 13-05]

Thursday, April 7, 2005

Department of Homeland Security

Bureau of Customs and Border Protection

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

Final Rule Privacy Impact Assessment and Privacy Policy; Notice

8 CFR Parts 217, 231 and 251

19 CFR Parts 4, 122 and 178

[CBP Decision 05–12]

RIN 1651–AA37

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

ACTION: Final rule.

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 with in (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, immi gration, 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 Transporta tion 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 terror ist 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 vari es 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 im pacting 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 IN S 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 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 § 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. T he 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 flig hts 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 Unite d 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 t he 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 bio graphical 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 United Sta tes 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 § 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 reco rd.)

On June 25, 2002, Customs published in the Federal Register (67 FR 42710) as T.D. 02–33 an interim rule document (a new § 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 § 122.49b is not the subject of, nor affected by (beyond being redesignated § 122.49d), this final rule, this interim rule also included a technical amendment to § 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 docum ent 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 § 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 Un ited 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 Commi ssioner 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 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 § 217.7 (8 CFR 217.7), the revision of the heading for Part 231, the revision of § 231.1 (8 CFR 231.1), the revision of the heading for Part 251, the redesignation of § 251.5 as § 251.6 (8 CFR 251.6), the addition of a new § 251.5 (8 CFR 251.5), and the revision of newly redesignated § 251.6.

Proposed Revision of § 217.7

The proposed revision of § 217.7 involved changes to conform the text to the terms of revised § 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 § 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.