\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (CIS, ICE, CBP) - 2005 \ FEDERAL REGISTER FINAL REGULATIONS - 2005 \ Electronic Transmission of Passenger and Crew Manifests for Vessels and Aircraft [70 FR 17820] [FR 13-05] \ Comments on the Customs Interim Rule
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Comments on the Customs Interim Rule
Twelve commenters responded to the solicitation of comments on the Customs Interim Rule setting forth new § 122.49a to require the electronic transmission of passenger and crew manifests for flights in foreign air transportation to the United States.
One commenter contended that the § 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).
Initially, CBP notes that, due to a reorganization of the regulation based on the incorporation of TSA requirements into this final rule, § 122.49a of this final rule covers only passengers while crew members are covered in § 122.49b (whereas § 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 (§§ 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 (§4.7b(b)(2)(D)).
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 § 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.
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 sys
tem 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
(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
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).
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 § 122.49a. These commenters requested that Customs develop alternative procedures to deal with this situation.
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.
Two commenters requested that Customs use account managers for the purpose of administering § 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.
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
Six commenters were concerned about the degree to which carriers would need to comply with the provisions of § 122.49a. These commenters referred to a Customs press release of March 1, 2002 (
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 dates in transmitting to Customs error-free manifest data under § 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 § 122.49a was too harsh.
Full compliance with the provisions of § 122.49a (§§ 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 § 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 § 122.49a (or § 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).
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.’’
(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 che
cks 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 o
verflying 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 §§ 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 cr
ew 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.
Two commenters stated that, while § 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.
Section 122.49a(b) regarding arriving passengers and § 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
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, 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.
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 g
ive 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.
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
357 U.S. 116 (1958).
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 gover
nment interest is more compelling than the security of the nation.
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
302 F. 3d 971, 974 (9th Cir. 2002);
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 c
an be severely restricted by terrorist threats to our means of transportation.
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 permane
nt 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.
Several commenters requested additional clarification as to the meaning of the terms ‘‘full name’’ and ‘‘country of issuance of the passport’’ as used in § 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.
The regulatory texts contained in this final rule (§ 122.49a(b)(3) for arriving passengers and § 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 (
, 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 EDIF
ACT 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 appropr
iate 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).
Concerning § 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 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 § 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 § 122.49a(c)(3) could not be electronically transmitted to Customs through the use of a machine reader.
CBP disagrees that the electronic transmission of manifest data (in §§ 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 elem
ents 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.
With reference to § 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.
The submission of information on the travel itinerary of each passenger and crew member, as provided in § 122.49a(c)(1) and (c)(4) (in §§ 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 statuto
ry 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).
A number of commenters sought further clarification of the following words or phrases used in § 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.’’
CBP believes that these words in § 122.49a(c)(4) (§§ 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 cre
w 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 o
f 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,
, 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.