The changes made in the proposed revision of § 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 § 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 § 231.1 are discussed in detail below.

Paragraph (a) of revised § 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 § 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 ar rival 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 § 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 submi t 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 § 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 § 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 S tates 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 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) dat e 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 § 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 § 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 § 251.5

Proposed new § 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 §§ 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 pl ace 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 § 251.6

The proposed revision of § 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 dep arture, 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 a nd 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, waterways, and air, land, and sea transportation systems of the United States, including managing and coordinating those functions transferr ed 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. Subsequent ly, 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 Cus toms 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 l aw, 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 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 comm ercial 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.