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Proposed Rule

Passenger Manifests for Commercial Aircraft Arriving in and Departing From the United States; Passenger and Crew Manifests for Commercial Vessels Departing From the United States

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Start Preamble

AGENCY:

Customs and Border Protection, Department of Homeland Security.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

This rule proposes to amend existing Bureau of Customs and Border Protection regulations concerning electronic manifest transmission requirements relative to passengers, crew members, and non-crew members traveling onboard international commercial flights and voyages. Under current regulations, air carriers must transmit to the Bureau of Customs and Border Protection (CBP), Department of Homeland Security (DHS), passenger manifest information for aircraft en route to the United States no later than 15 minutes after the departure of the aircraft. This proposed rule implements the Intelligence Reform and Terrorism Prevention Act of 2004 requirement that such information be provided to the government before departure of the aircraft. This proposed rule provides air carriers a choice between transmitting complete manifests no later than 60-minutes prior to departure of the aircraft or transmitting manifest information on passengers as each passenger checks in for the flight, up to but no later than 15 minutes prior to departure. The rule also proposes to amend the definition of “departure” for aircraft to mean the moment the aircraft is pushed back from the gate. For vessel departures from the United States, the rule proposes transmission of passenger and crew manifests no later than 60 minutes prior to departure of the vessel.

DATES:

Written comments must be received on or before August 14, 2006.

ADDRESSES:

You may submit comments, identified by docket number USCBP-2005-0003, by one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

(2) Mail: Comments by mail are to be addressed to the Bureau of Customs and Border Protection, Office of Regulations and Rulings, Regulations Branch, 1300 Pennsylvania Ave., NW. (Mint Annex), Washington, DC 20229.

(3) Hand delivery/courier: 799 9th Street, NW., Washington, DC 20220.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Charles Perez, Program Manager, Office of Field Operations, Bureau of Customs and Border Protection (202-344-2605).

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

The Supplementary Information section is organized as follows:

I. Public Participation

II. Background and Purpose

III. Proposed Rule

A. Change Regarding Definition of “Departure” for Aircraft

B. Proposed Options for Transmission of Manifest Data by Air Carriers

1. APIS 60 (Interactive Batch Transmission) Option

2. APIS Quick Query (Interactive Real-Time Transmission) Option

3. System Certification; Delayed Effective Date

4. Carriers Opting Out; Non-Interactive Batch Transmission Process

C. Proposed Change for Transmission of Manifests by Departing Vessels

IV. Rationale for Change

A. Terrorist Threat

B. IRTPA

V. Impact on Parties Affected by the Proposed Rule

VI. Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review)

B. Regulatory Flexibility Act

C. Unfunded Mandates Reform Act

D. Executive Order 13132 (Federalism)

E. Executive Order 12988 (Civil Justice Reform)

F. National Environmental Policy Act

G. Paperwork Reduction Act

H. Signing Authority

I. Privacy Statement

I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. CBP also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Comments that will provide the most assistance to CBP in developing these procedures will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

Instructions: All submissions received must include the agency name and docket number for this rulemaking (USCBP-2005-0003). All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Submitted comments may also be inspected at the Bureau of Customs and Border Protection, 799 9th Street, NW., Washington, DC 20220. To inspect comments, please call (202) 572-8768 to arrange for an appointment.

II. Background and Purpose

The Advance Passenger Information System (APIS) is a widely utilized electronic data interchange system approved by DHS for use by international commercial air and vessel carriers to transmit electronically to CBP certain data on passengers, crew members, and non-crew members, as required under CBP regulations. APIS was developed by the former U.S. Customs Service (Customs) in 1988, in cooperation with the former Immigration and Naturalization Service Start Printed Page 40036(INS) and the airline industry. Although initially voluntary, APIS participation grew, making it nearly an industry standard. Requirements governing the electronic transmission of passenger, crew member, and non-crew member (cargo flights only) manifests for commercial aircraft and/or vessels involved in international travel operations were established in accordance with several statutory mandates, including, but not limited to: section 115 of the Aviation and Transportation Security Act (ATSA; Public Law 107-71, 115 Stat. 623; 49 U.S.C. 44909), section 402 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (abbreviated here to Enhanced Border Security Act or EBSA; Public Law 107-173, 116 Stat. 557; 8 U.S.C. 1221), and certain Transportation Security Administration (TSA) laws and regulations (49 U.S.C. 114; 49 CFR 1544, 1546, 1550). A more detailed description of the histories of electronic manifest information requirements, and of these authorities, is set forth in a final rule published by CBP on April 7, 2005 at 70 FR 17820.

The information transmitted by carriers using APIS consists, in part, of information that appears on the biographical data page of travel documents, such as passports issued by governments worldwide. Many APIS data elements (such as name, date of birth, gender, country of citizenship, passport or other travel document information) have been collected routinely over the years by governments of countries into which a traveler seeks entry (by requiring the traveler to present a government-issued travel document). CBP uses this biographical data to perform enforcement and security queries against various multi-agency law enforcement and terrorist databases in connection with, as appropriate, international flights to, from, continuing within, and overflying the United States and international voyages to and from the United States.

Current CBP regulations require air carriers to electronically transmit passenger arrival manifests to CBP no later than 15 minutes after the departure of the aircraft from any place outside the United States (19 CFR 122.49a(b)(2)) and passenger departure manifests no later than 15 minutes prior to departure of the aircraft from the United States (19 CFR 122.75a(b)(2)). Manifests for crew members on passenger and all-cargo flights and non-crew members on all-cargo flights must be electronically transmitted to CBP no later than 60 minutes prior to the departure of any covered flight to, continuing within, or overflying the United States (19 CFR 122.49b(b)(2)) and no later than 60 minutes prior to the departure of any covered flight from the United States (19 CFR 122.75b(b)(2)) (a covered flight being one covered by these regulations).

Current CBP regulations require vessel carriers to electronically transmit arrival passenger and crew member manifests at least 24 hours and up to 96 hours prior to the vessel's entry at a U.S. port or place of destination, depending on the length of the voyage (for voyages of 24 but less than 96 hours, transmission must be prior to departure of the vessel from any place outside the United States) (19 CFR 4.7b(b)(2)). Also, a vessel carrier must electronically transmit passenger and crew member departure manifests to CBP no later than 15 minutes prior to the vessel's departure from the United States (19 CFR 4.64(b)(2)).

These CBP regulations, referred to as the “APIS regulations” (19 CFR 4.7b, 4.64, 122.49a-122.49c, 122.75a, and 122.75b), established a framework for requiring that manifest information for passengers, crew members, and non-crew members, as appropriate, be electronically transmitted for these arrivals and departures, and for requiring crew and non-crew member manifest information for flights continuing within and overflying the United States. These regulations serve to provide the nation, the carrier industries, and the international traveling public, additional security from the threat of terrorism and enhance CBP's ability to carry out its border enforcement mission.

The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA); Public Law 108-458, was enacted on December 17, 2004. Sections 4012 and 4071 of the IRTPA require DHS to issue regulations and procedures to allow for pre-departure vetting of passengers onboard aircraft arriving in and departing from the United States and of passengers and crew onboard vessels arriving in and departing from the United States. This proposed rule is designed to implement these important IRTPA requirements and to further enhance national security and the security of the air and vessel travel industries in accordance with the ATSA and EBSA (both of which formed the statutory basis for the APIS regulations).

This proposed rule would require transmission of, as appropriate, passenger and/or crew member information early enough in the process to prevent a high-risk passenger from boarding an aircraft and to prevent the departure of a vessel with such a passenger or crew member onboard. CBP's purpose in proposing this change is to place itself in a better position to: (1) Fully vet passenger and crew member information with sufficient time to effectively secure the aircraft or vessel, including time to coordinate with carrier personnel and domestic or foreign government authorities in order to take appropriate action warranted by the threat; (2) identify high-risk passengers and prevent them from boarding aircraft bound for or departing from the United States; and (3) identify high-risk passengers and crew members to prevent the departure of vessels from the United States with a high-risk passenger or crew member onboard. Achieving these goals would permit CBP to more effectively prevent an identified high-risk traveler from becoming a threat to passengers, crew, aircraft, vessels, or the public and would ensure that the electronic data transmission and screening process required under CBP regulations comports with the purposes of ATSA, EBSA, and IRTPA.

III. Proposed Rule

Under the manifest transmission time requirements of the existing APIS regulations, which mandate transmission of passenger manifests no later than 15 minutes after departure of an aircraft en route to the United States, CBP has the ability to fully vet commercial aircraft passenger information after the aircraft has departed. The identification of a high-risk passenger soon after the aircraft becomes airborne may result in the diversion of the aircraft to a U.S. port other than the original destination or the return of the aircraft to the port of departure (referred to as a “turnback”). This action could prevent the hijacking of the aircraft and the potential use of the plane as a weapon of mass destruction against U.S. or other targets, and would enable CBP to detain, or arrange for the detention of, the high-risk passenger. The same results could be obtained with respect to aircraft departing from the United States when identification of a high-risk passenger occurs after the aircraft is airborne. This post-departure identification could occur since the APIS regulations require the transmission of manifests only 15 minutes prior to departure.

However, high-risk passengers allowed to board before they have been fully vetted may pose a security risk for aircraft en route to or departing from the United States. A boarded high-risk passenger would have the opportunity to plant or retrieve a disassembled improvised explosive device or other weapon. The detonation of an explosive device could have devastating Start Printed Page 40037consequences, both in terms of human life and from an economic perspective (damage to aircraft and airport infrastructure and any ripple effects on the airport's and the carrier's business and across the U.S. economy). Thus, requiring the collection and vetting of passenger information before the boarding of passengers on flights en route to or departing from the United States would allow CBP to identify high risk passengers before such passengers could pose a threat to fellow passengers or to the aircraft and airport.

Therefore, CBP has concluded that the prevention of a high-risk passenger from boarding an aircraft is the appropriate level of security in the commercial air travel environment. Manifest data received and vetted prior to passenger boarding will enable CBP to attain this level of security. Further, this vetting of passengers on international flights should eliminate the need for passenger carriers to conduct watch list screening of these passengers, upon publication and implementation of a final rule. Accordingly, with this proposed rule, CBP is proposing two transmission options for air carriers to select from at their discretion: (i) the submission of complete manifests no later than 60 minutes prior to departure or (ii) transmitting passenger data as individual, real-time transactions, i.e., as each passenger checks in, up to but no later than 15 minutes prior to departure. Under both options, the carrier will not permit the boarding of a passenger unless the passenger has been cleared by CBP.

With respect to the commercial vessel travel environment, CBP has determined that the appropriate level of security for departing vessels is to prevent vessel departures with a high-risk passenger or crew member onboard. Thus, the proposed rule requires vessel carriers to transmit complete manifests no later than 60 minutes prior to departure. An alternative procedure based on individual passenger/crew transactions, as is provided in the air travel environment to address a need for flexibility, is not offered given the generally less time-critical nature of the commercial vessel travel environment.

Finally, with this rule, CBP also is proposing to change the definition of “departure,” as discussed immediately below.

A. Change Regarding Definition of “Departure” for Aircraft

Under the existing APIS regulations, the departure of an aircraft occurs at the moment an aircraft is “wheels-up,” meaning that the landing gear is retracted into the aircraft after liftoff and the aircraft is en route to its destination (19 CFR 122.49a(a)). In practice, wheels-up can occur as much as 15 to 25 or more minutes after an aircraft leaves the gate (which is referred to as “push-back”). This meaning of “departure,” applied under either the existing regulations or the proposed regulations, would result in CBP receiving manifest data later in the process than is sufficient to perform full vetting and prevent high-risk boardings. CBP believes that departure for aircraft, as applied to manifests for passengers, crew members, and non-crew members under the APIS regulations, should mean the moment when an aircraft pushes-back from the gate. This change would assist in providing CBP with sufficient time to complete the full vetting process. Therefore, this rule proposes to revise the definition of “departure” in 19 CFR 122.49a(a) accordingly (which will be applicable to other APIS aircraft provisions as well: 19 CFR 122.49b, 122.75a, 122.75b).

B. Proposed Options for Transmission of Manifest Data by Air Carriers

To provide maximum flexibility for the air travel industry and aircraft passengers while improving the ability of DHS to safeguard air travel, CBP is proposing two options for the electronic transmission of manifest information by air carriers. The two transmission options proposed in this rule differ to some degree in timing, programming, and procedures. Nevertheless, both are equally effective in obtaining the advance information needed to achieve the appropriate level of security necessary for aircraft (prevent a high-risk boarding) and thereby to ensure that the purposes of the governing statutes are met. An air carrier's election of either option would depend on the individual carrier's particular operations and its capability to electronically transmit the manifest data to CBP. CBP also notes that the current APIS regulations providing for electronic transmission of manifest data 60 minutes prior to departure for crew and non-crew on flights to, from, continuing within, and overflying the United States are unchanged (19 CFR 122.49b and 122.75b).

Under one option, air carriers would transmit all required passenger data to CBP in batch form (all passenger names and associated data at once) no later than 60 minutes prior to departure of the aircraft. This option, known as APIS 60, is similar to the current electronic transmission process to the extent that manifest data would be transmitted in batch form and CBP would perform security vetting against all data at once. Under the other option, known as APIS Quick Query (AQQ), air carriers would transmit required passenger data to CBP individually as each passenger checks in for the flight, from the beginning of the check-in process up to 15 minutes prior to departure. CBP would perform its security vetting as it receives the data.

The electronic transmission system employed under these options would be “interactive,” allowing the carrier to electronically receive return messages from CBP that can be sent within seconds or minutes, as opposed to the capability of the APIS manifest transmission process as implemented under the current regulation where any communication by CBP with the carrier is performed by telephone. Thus, the term “interactive” is used in this document to refer to or describe the electronic communication system employed under the APIS 60 option and the AQQ option described further below.

CBP believes that both APIS 60 and AQQ provide sufficient time to achieve the appropriate level of security sought in the commercial air travel environment, i.e., to prevent a high-risk boarding. These options are offered because the unique “just in time” nature of the commercial air travel environment, characterized by busy airports, tight arrival and departure schedules, the carriers' need to minimize time aircraft spend at the gate, and the immense focus on timeliness as a performance measure, justifies flexibility in this environment.

CBP anticipates that both options will be well-utilized, and the comment period is expected to provide an indication of which option the carriers are likely to select. However, CBP expects that the AQQ option would be selected by those carriers that have pre-existing reservations control systems, whereas smaller or charter carriers may be more likely to use the APIS 60 option. A subset of air carriers would not be able to adopt either option; this is discussed further below.

Throughout the period that these proposed amendments were in development, CBP consulted with various industry associations and considered their comments concerning the impact various manifest transmission alternatives would have on business processes, operating costs, and legitimate passengers who might experience travel delays and miss connecting flights. The dual-option approach for air carriers described above is responsive to those comments and is designed to balance the security Start Printed Page 40038and facilitation goals of government with the needs of the industry.

CBP submits that these options, if adopted in a final rule, will result in CBP and the air carriers achieving a far higher success rate in keeping high-risk passengers from boarding aircraft than is possible under the current regulations. With this change, instances of diversions and turnbacks will be greatly reduced, if not eliminated, due to the increased effectiveness of the process. Further, the impact on the industry will be substantially less than would be the case with other alternatives due to the greater flexibility provided by the dual-option approach.

CBP notes that there is a subcategory of air carriers that would be unable to adopt either the APIS 60 option or the AQQ option as described in this document. These carriers, typically unscheduled air carrier operators that employ eAPIS (Internet method) for manifest data transmission, such as seasonal charters, air taxis, and air ambulances, would not be able to adopt the interactive communication functionality that the APIS 60 and AQQ options employ. Consequently, CBP would manually (i.e., by e-mail or telephone) communicate vetting results to these carriers. These carriers, however, would be bound by the requirement proposed in this rule to transmit passenger manifest data no later than 60 minutes prior to departure. The proposed regulation treats these carriers as a subset of air carriers that will transmit complete manifests, as opposed to carriers that will transmit manifest data per individual passenger as passengers check in for the flight. This document discusses primarily the two major options that will be available to the air carriers that will employ an interactive communication system for manifest data transmission, as set forth in this section (Section B of Part III) (but see subsection (4) of this section further below).

1. APIS 60 (Interactive Batch Transmission) Option

APIS 60 would apply as one option to transmit passenger manifests prior to departure for aircraft arriving in and departing from the United States, and as the sole requirement for transmitting passenger and crew manifests for vessels departing from the United States (see Section C of this part for these vessels). The APIS 60 procedure is, with some exception relating to transmission time requirements and interactive communication between carriers and CBP, similar to the APIS procedure currently employed to implement the current APIS regulations. For arriving and departing aircraft, air carriers would be required to transmit passenger manifests in batch form (all names and associated data at once) to CBP no later than 60 minutes prior to departure of the aircraft (as defined under this proposed rule) at which time the vetting process would begin.

Under APIS 60, the vetting of aircraft passenger data would be performed in two stages. The first would be an initial automated vetting of passenger data against appropriate law enforcement (including terrorist) databases. The second would be the further vetting of names identified as a match or possible match during the initial automated vetting stage, as well as names associated with incomplete or inadequate transmitted data.

When the initial automated vetting process identifies a match between an individual passenger's data and data on a terrorist watch list, a close possible match, or an incomplete or inadequate passenger record, CBP would send by electronic return message a “not-cleared” instruction to the carrier within minutes of CBP's receipt of the manifest data (CBP return messages relative to not-cleared instructions based on an inadequate record would also instruct the carrier to retransmit complete/corrected data). Since boarding usually commences 30 to 45 minutes prior to departure (as defined in this proposed rule), a not-cleared instruction relative to a match or possible match, or an inadequate record, would ensure, in most cases, that the associated passenger will not be allowed to board the aircraft (subject to the occasional instance of unexpected results due to error, technical anomaly, etc., or a carrier beginning the boarding process outside the 60-minute vetting window.) The manifest transmission requirements under the current regulations—no later than 15 minutes after departure for flights en route to the United States and no later than 15 minutes prior to departure for flights departing from the United States—do not achieve this critical result (even if departure were defined as push-back). An aircraft en route to the United States is already airborne before CBP even receives the manifest. For flights departing from the United States, no manifest information is received by CBP until—at the earliest—15 minutes, and often 30 minutes or more, after boarding begins (CBP notes that under the current procedure, only a passenger who is a match or possible match would be subject to further vetting).

The further vetting of passengers who generate a not-cleared instruction during the initial vetting stage would be handled by an analyst with access to additional data resources. During this stage, CBP would be able to confirm or correct matches and resolve possible matches and incomplete or inadequate passenger records, enabling most passengers who are eventually cleared to make their flights. CBP would notify a carrier by return message where the results of further vetting clear a passenger for boarding.

When the initial automated vetting procedure results in CBP's returning not-cleared instructions to the air carrier, the carrier's personnel would have to ensure that the identified passenger is not permitted to board with other passengers and that the passenger's baggage is not loaded onto, or is removed from, the aircraft. In rare instances, the carrier may have to remove the passenger from the aircraft (which may occur in the case of an oversight or other error in the boarding process or should a carrier begin the boarding process outside the 60-minute vetting window). When further vetting confirms a not-cleared passenger as high-risk, the next step in the process would include CBP communicating to the appropriate authorities the results of the vetting and any action to be taken to secure the confirmed high-risk passenger. In some circumstances, during the further vetting process, either the carrier, CBP, or other appropriate domestic or foreign government official would have to interview the passenger to complete the confirmation (or further vetting) process, a step that would take additional time.

The further vetting process, the communication step that follows, and the taking of appropriate action are the steps that, together, would consume the most time under the APIS 60 procedure. With passenger data being transmitted in a batch, CBP could have several names that require further vetting. Each query pursued in further vetting is unique and some queries will take more time than others. Further, the communication and appropriate action steps of the process are subject to additional complexities, especially when foreign carriers or government personnel are involved or an interview is required. Thus, the full process and related steps described above require more time than the current regulation provides to meet the appropriate level of security sought.

While the not-cleared instruction after the initial automated vetting stage would prevent a high-risk or potential high-risk passenger from boarding the aircraft when the carrier begins the boarding process, thereby achieving CBP's security goal, completion of the Start Printed Page 40039further vetting process is necessary to make a final determination regarding the passenger subject to the not-cleared instruction. This final resolution is especially critical with respect to possible matches and incomplete or inadequate passenger records. A required transmission time frame of 60-minutes prior to departure would provide the time necessary to accommodate this process and thereby effectively achieve the appropriate level of security. CBP notes that further vetting, in most cases, would be completed in time for the passenger to make his intended flight; however, in some circumstances, further vetting could take longer than normally expected, resulting in the passenger having to be rebooked on a later flight (if ultimately cleared for flight by CBP).

As a final step in the process, the air carrier would have to transmit to CBP a list, referred to as a close-out message, consisting of a unique passenger identifier for each passenger who checked in for the flight but was not boarded for any reason. The close-out message must be transmitted as soon as possible after departure and in no instance later than 30 minutes after departure.

CBP is committed to having the APIS 60 option for pre-departure interactive electronic transmission fully available for industry use prior to publication of a final rule.

2. APIS Quick Query (Interactive Real-time Transmission) Option

Under the AQQ option, which is applicable only to aircraft arrival and departure passenger manifests, air carriers would transmit passenger data to CBP in real time, i.e., as individual passengers check in, up to but no later than 15 minutes prior to departure of the aircraft; data received by CBP less than 15 minutes prior to departure would not meet the requirement.

Under the AQQ procedure, the carrier would be able to transmit data relative to a passenger as soon as passengers begin checking in for the flight, as early as 2 hours or more prior to departure (as defined in this document). Since passengers on international flights are routinely advised to arrive as much as 2 hours before departure for check-in, manifest data for most passengers would be transmitted to CBP well before departure of the flight. Moreover, fewer names and associated data would be transmitted to CBP at one time than would be the case with the batch transmissions made under the APIS 60 procedure. Under APIS 60, over 200 passenger records may be included in one batch transmission, while under AQQ, a transmission would contain the name and data for one passenger (or up to 10 passengers traveling on one itinerary).

Also, under AQQ, the messaging for CBP vetting results could be returned directly to the carrier's reservation system, reducing the time needed for human intervention. Thus, CBP would be able to respond within seconds of the carrier's transmission of data. Carriers then would have to return a message to CBP confirming receipt of any not-cleared instructions and would not issue a boarding pass to any passenger unless cleared by CBP. As with the APIS 60 option, any passenger data generating a match, possible match, or inadequate record would be forwarded to an analyst for further vetting. CBP would electronically notify the carrier as soon as possible if, upon additional analysis, a change to the not-cleared instruction is warranted (such as would be the case if a match or possible match was determined during further vetting to be cleared for boarding).

At its discretion, a carrier would be able to use a dedicated telephone number provided by CBP to seek a resolution of a not-cleared instruction by providing additional information relative to the not-cleared passenger if available, such as a physical description. CBP would consider the additional information as it proceeds with the further vetting of the passenger already in progress. In some instances, CBP would instruct the carrier to retransmit data (as in the case of inadequate data). In any case, CBP would return a message to the carrier to clear a passenger for boarding if warranted by the results of additional analysis.

Where CBP is unable to complete its additional analysis prior to departure, the carrier would be bound by the not-cleared instruction and would not be permitted to issue a boarding pass for that passenger. This could result in a passenger not making his flight and having to be rebooked should the not-cleared instruction eventually be corrected and the passenger be cleared for flight. Alternatively, and at its sole discretion, the carrier could delay the flight until CBP could clear the passenger for boarding. Finally, as with the APIS 60 option, the carrier would have to transmit to CBP, no later than 30 minutes after departure, a close-out message consisting of a unique passenger identifier for each passenger who checked in for the flight but was not boarded for any reason.

Under the AQQ procedure, carrier real-time manifest data transmission would provide sufficient time for CBP to perform an effective vetting of the passengers. Most passengers check in well before departure of international flights, so very late arrivals are likely to be comparatively few. These facts enable CBP to propose a transmission time frame that some carriers will find more compatible with their business operations.

For passengers checking in early, there generally would be ample time for completion of the vetting process. For the few passengers checking in late, CBP would be able to quickly vet the data in most instances. Thus, CBP expects that no identified high-risk passenger will receive a boarding pass and, for most flights, any passengers subject to further vetting and cleared for flight will make the flight. Also, more connecting passengers would be able to check in, be vetted, and make their flights than is anticipated under the APIS 60 procedure. This is a major advantage over the APIS 60 procedure for air carriers with connecting flight operations.

Accordingly, AQQ would achieve the appropriate level of security sought in a way that some airlines may prefer to the APIS 60 method. In addition, this procedure would prevent a high-risk passenger from gaining access to the security area, since access for domestic and most international airports is restricted to those with boarding passes. Also, a high-risk passenger's baggage would not be loaded onto the aircraft which avoids the necessity of having it removed, as may sometimes be necessary under the APIS 60 procedure.

There is, however, one exception to the foregoing: connecting passengers arriving by aircraft at the departure airport, for a flight en route to or departing from the United States, who were issued boarding passes (for the flight to or from the United States) prior to arrival at that departure airport and whose data was not previously transmitted to CBP for vetting. These passengers will already be within the security area as they transit the airport from the gate they arrived at to the gate of the connecting flight. For this unique group of passengers, CBP, in implementing AQQ, would consider the boarding passes they possess as provisional and would require that carriers obtain required data from these passengers in a manner compatible with their procedures and transmit such data to CBP as required. The carrier would be required to wait for CBP to clear any such passengers before validating the boarding passes or permitting the passengers to board the aircraft.

CBP currently is developing user requirements for the programming Start Printed Page 40040necessary to implement the AQQ transmission procedure. CBP will have to make adjustments to its automated systems to offer this data transmission option to the carriers, as will carriers who elect to use this option. CBP will consider these factors, as well as others identified during the comment period, in structuring an implementation plan and schedule that coincides with the readiness of CBP's IT infrastructure to support the AQQ option. CBP is committed to having the AQQ option for pre-departure interactive electronic transmission fully available for industry use prior to publication of a final rule.

3. System Certification and Delayed Effective Date

Prior to a carrier's commencement of manifest transmission using either of the above-described APIS 60 or AQQ options, the carrier would receive a “system certification” from CBP indicating that its electronic transmission system is capable of interactively communicating with CBP's APIS system as configured for these options. Carriers already operating under the APIS procedure (under the current APIS regulation which requires batch manifest transmission but under different time requirements and a less interactive process) who opt to employ the APIS 60 option for their manifest transmissions would obtain certification only for new functionalities (relating to system interactivity) and would not undergo a full system certification.

To accommodate carriers who choose the interactive system for manifest transmission under either the APIS 60 option or the AQQ option, CBP, in this rule, is proposing that the effective date of a final rule be delayed for 180 days from the date of its publication. This should provide all such carriers sufficient time to make any necessary program changes or system modifications and to obtain system certification and implementation. CBP strongly encourages carriers to begin efforts to obtain system interactivity and certification by contacting CBP as soon as possible.

4. Carriers Opting Out; Non-Interactive Batch Transmission Process

As stated previously, some carriers, notably those currently using the eAPIS Internet method of transmitting required manifest data (typically, small, unscheduled air carrier operators, such as seasonal charters, air taxis, and air ambulances), may not be able to adopt either the APIS 60 option or the AQQ option. These carriers do not seek an interactive electronic communication method to make transmissions, as such a system does not fit their operations, technical capabilities, or budgets. Nonetheless, these carriers would be bound by a requirement to transmit manifest data no later than 60 minutes prior to departure, as proposed in this rule. The proposed rule contains a subparagraph that accommodates these carriers as transmitters of batch manifest data without interactive electronic communication capability. These carriers would not have to seek system certification. CBP will employ a manual process using email or telephone communication (by which CBP would send not-cleared messages) to accommodate these carriers. This manual procedure may slow the vetting process to some extent, but CBP believes that the goal of preventing a high-risk boarding would be achieved, as carriers would not board passengers subject to a not-cleared instruction unless cleared by CBP.

C. Proposed Change for Transmission of Manifests by Departing Vessels

Typically, vessel carriers allow boarding several hours (typically 3 to 6 hours) prior to departure. Thus, a manifest transmission requirement designed to prevent the possibility of a high-risk vessel-boarding likely would require substantial adjustments to the carriers' operations. This would frustrate CBP's intent, and the purpose of various requirements governing Federal rulemaking, to achieve the agency's goal (enhanced security) without imposing an unreasonable burden on affected parties.

CBP believes that, under this circumstance, the appropriate level of security sought in this scenario is to prevent the departure of a vessel with a high-risk passenger or crew member onboard. The change proposed in this rule is designed to achieve this level of security for vessels departing from the United States and to thereby meet the purposes of the governing statutes. Thus, for vessels departing from the United States, the proposed amendment provides for transmission of passenger and crew manifests 60 minutes prior to departure. CBP notes that the electronic system for transmission of required vessel manifest data (arrival and departure) is the U.S. Coast Guard's (Internet based) eNOA/D system. This is not an interactive system, and, unlike air carriers operating under the APIS 60 or AQQ options described above, vessel carriers would not have to obtain system certification.

After transmission of the manifest data, the initial automated vetting would result in a not-cleared instruction for matches, possible matches, and incomplete/inadequate passenger records or crew data. Carriers would attempt to prevent the boarding of such persons if it had not already occurred due to the very early boarding allowed. CBP notes that a not-cleared message returned to the carrier by CBP for an inadequate record would instruct the carrier to retransmit complete/corrected data.

During further vetting, passengers and crew for whom not-cleared instructions were sent during the initial automated vetting procedure would be either confirmed as high-risks or resolved and cleared. CBP would communicate with the carrier where further vetting resulted in the clearing of a passenger. In some instances, CBP would communicate with the carrier and other CBP personnel to take necessary action to verify (by conducting an interview if necessary) the high-risk status of passengers or crew and, as needed, secure a confirmed high-risk passenger or crew member. In this process, a confirmed high-risk passenger or crew member likely would have to be located and removed from the vessel before departure, in which case his baggage would be removed as well. Whether a further search of the vessel is warranted would be determined by CBP on a case-by-case basis. (The carrier would be free to undertake a further search at its discretion.)

The current requirement for batch manifest transmission no later than 15 minutes prior to a vessel's departure does not provide enough time to fully vet passengers or crew members or allow, where necessary, for the removal of a confirmed high-risk passenger or crew member from a vessel prior to departure. In contrast, the proposed APIS 60 procedure is expected to provide CBP the time it needs to fully vet not-cleared passengers and crew members and to remove those confirmed as a high-risk from the vessel prior to departure. The APIS 60 procedure therefore would achieve the appropriate level of security sought by CBP.

In addition to preventing a high-risk departure, this procedure would enhance CBP's capability, in some circumstances (where carriers allow already checked-in passengers to board within 60 minutes of departure), to prevent high-risk vessel boardings, as compared to what is achievable under the current regulation. An alternative option (such as AQQ or something similar) is not as necessary, given the less time-critical nature of the commercial vessel travel environment.

For vessels departing from foreign ports destined to arrive at a U.S. port, Start Printed Page 40041CBP is retaining the requirement to transmit passenger and crew manifest data at least 24 hours and up to 96 hours prior to a vessel's entering the U.S. port of arrival. This requirement is consistent with the U.S. Coast Guard's “Notice of Arrival” (NOA) requirements. (Under 33 CFR 160.212, arriving vessel carriers transmit manifest data to the U.S. Coast Guard (USCG) to meet its NOA requirement. The data is then forwarded to CBP, permitting additional compliance with CBP's APIS requirement with the one carrier transmission.) Moreover, the threat posed by a high-risk passenger or crew member once onboard a vessel is different from that posed by a high-risk passenger onboard an aircraft. A hijacked vessel's movements over the water and its range of available targets could be more readily contained than those of an aircraft, thus reducing the opportunity for a terrorist to use the vessel as a weapon against a U.S. port or another vessel.

IV. Rationale for Change

A. Terrorist Threat

In proposing this rule, as discussed above, CBP points to the primary impetus for this entire rulemaking initiative (including the April 7, 2005 final rule and previous rulemaking efforts as explained in the final rule): to respond to the continuing terrorist threat facing the United States, the international trade and transportation industries, and the international traveling public since the terrorist attacks of September 11, 2001. Under the governing statutes and regulations, DHS and the air and vessel carrier industries must take steps to alleviate the risk to these vital industries and the public posed by the threat of terrorism, while also increasing national security. Ensuring security is an ongoing process, and CBP is endeavoring to put in place a regulatory scheme that includes electronic information transmission and pre-departure transmission time requirements. Together, these requirements are intended to serve as a layer of protection against high-risk travelers while facilitating lawful travel. While progress has been made, CBP continues its efforts to achieve the level of security mandated by Congress (under ATSA, EBSA, and IRTPA). CBP notes that this rulemaking initiative also would enhance CBP's ability to carry out its more traditional, but equally important, border enforcement mission.

With regard to commercial aviation, the terrorist threat has been a constant presence on the international stage since the hijackings of the 1970s. More recently, Al Qaeda and other terrorist groups have shown a consistent interest in exploiting civil aviation both as a potential target and as a means of attack. This interest has been highlighted in advanced planning, such as the thwarted plot of former Al Qaeda leader Khalid Shaikh Mohammed to explode 12 commercial airliners over a 48-hour period in 1996, as well as other attempted and successful attacks. Al Qaeda's interest in attacking civil aviation came to grim fruition in the attacks of September 11, 2001—the most costly terrorist attack in U.S. history. Even after September 11, 2001, terrorists continue to demonstrate an interest in attacking civil aviation. In August 2003, specific credible intelligence led DHS to suspend the Transit Without Visa (TWOV) program due to concerns that it might be exploited to conduct a terrorist attack. See 68 FR 46926 (Aug. 7, 2003); 68 FR 46948 (Aug. 7, 2003). About four months later, during the 2003 holiday period, international flights destined for the United States faced cancellations and delays based on threat information. The necessity of this rule is underscored further by repeated instances of higher threat levels over time, such as the higher alerts announced during the summer of 2004 for financial centers in New York City and Washington DC, and during the period prior to the 2004 U.S. Presidential election. It is noted also that terrorists seek targets of opportunity and, as such, the terrorist threat extends beyond civil aviation, as evidenced by past terrorist acts against passenger vessels. Therefore, efforts made to increase security for commercial vessels also would contribute to foreclosing an opportunity for terrorist exploitation.

It is important to note that the threat from terrorist activity is not just to human life, but also to the economic well-being of the commercial air and vessel carrier industries—two industries of great importance to the U.S. and world economies. Since the Fall of 2004, there have been several instances when the identification of a high-risk passenger by CBP or the Transportation Security Administration (TSA) after departure of an aircraft en route to the United States resulted in the diversion of the aircraft to a different U.S. port or a turnback (the return of the aircraft to the foreign port of departure). Those security measures, while necessary to safeguard the passengers on the aircraft as well as national security, are costly to the affected carriers. Accordingly, CBP proposes to collect and vet required APIS passenger data before passengers board aircraft bound for or departing from the United States, and to collect and vet earlier than is permitted under existing regulations required passenger and crew APIS data in order to achieve the maximum ability reasonably attainable for detecting high-risk persons before they can perpetrate a terrorist act.

B. IRTPA

With the passage of IRTPA, Congress expressly recognized the need to fully perform vetting of manifest information prior to the departure of commercial aircraft and vessels traveling to and from the United States. Section 4012(a)(2) of IRTPA directs DHS to issue a proposed rule providing for the collection of passenger information from international flights to or from the United States and comparison of such information with the consolidated terrorist watch list maintained by the Federal Government before departure of the aircraft. Section 4071(1) of IRTPA requires DHS to compare vessel passenger and crew information with information from the consolidated terrorist database before departure of a vessel bound for or departing from the United States. Section 4071(2) permits DHS to waive (based on impracticability) the requirement of section 4071(1) for vessels bound for the United States from foreign ports. CBP has determined that requiring the data comparison before departure of such vessels is impracticable because the requirement would conflict, in some instances, with the current APIS manifest data transmission requirements for vessel arrivals (which are to be retained in the regulations)(cited previously) and the current USCG NOA requirements (cited previously). Accordingly, DHS has elected to implement the waiver provided for in this section for arriving vessels.

The Terrorist Screening Center (TSC) and use of the consolidated terrorist watch list required by IRTPA provide the means to vet passenger and crew manifest data for known and suspected terrorists, including for flights to and from the United States and for cruise vessels subject to this regulation.

V. Impact on Parties Affected by the Proposed Rule

Should the proposed rule become final and effective, large air carriers (i.e., those with over 1,500 employees) will bear the greatest percentage of the regulatory burden of the proposed rule due to the number of international travelers these entities carry and their method of transmitting APIS data.

If carriers exercise the APIS 60 option, it is anticipated that any adverse impact on passengers would fall Start Printed Page 40042disproportionately on connecting passengers (those arriving from a foreign airport and continuing on to a foreign destination and those making a connecting foreign flight en route to the U.S.), rather than on originating passengers.

Passengers conducting foreign travel, either coming to or leaving the United States, are instructed to check in for international flights well in advance, usually at least 2 hours prior to departure. Thus, 60 minutes prior to departure, most originating passengers' APIS data will have been collected and verified by the carriers and could thus be transmitted. Connecting passengers, however, may not have a full 2 hours between flights. Partnering airlines will likely share APIS information for an entire trip, but non-partner airlines may not. We believe, therefore, that under the APIS 60 option, a small number of connecting passengers may not make their flights, will be delayed, and will have to be rerouted. Alternatively, if large carriers use the AQQ option, delays to travelers will be minimized, but carriers will need to develop and implement their systems to support AQQ.

Under the proposed rule, small carriers may still use “eAPIS,” a web-based application designed to electronically transmit manifests between small carriers and CBP. CBP does not believe that small carriers will develop and implement AQQ because they will not find it cost effective given their operations and their current utilization of eAPIS. Thus, small carriers will probably choose the APIS 60 option rather than the AQQ option.

While large carriers have connecting flights where affected passengers could face short layover times, small air carriers operate predominantly on charter schedules and make point-to-point trips without connecting flights. Accordingly, very few passengers traveling on small carriers will be delayed or rerouted as a result of this proposed rulemaking.

CBP does not know which carriers will choose which regulatory option. The Regulatory Assessment, summarized below in the “Executive Order 12866” section, presents two endpoints of the likely range of costs. For the “high cost estimate,” CBP assumes that all carriers will employ the APIS 60 regulatory option (the 60-minute transmission requirement). For the “low cost estimate,” CBP assumes that large carriers will employ the AQQ regulatory option.

The impacts on carriers, travelers, and others potentially affected by this rule are examined in detail in the “Regulatory Assessment” which is available in the docket for this rulemaking (http://www.eparegulations.gov;​ see also http://www.cbp.gov). CBP is soliciting comments on the assumptions and estimates made in the economic analysis.

VI. Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review)

This rule is considered to be an economically significant regulatory action under Executive Order 12866 because it may result in the expenditure of over $100 million in any one year. Accordingly, this proposed rule has been reviewed by the Office of Management and Budget (OMB). The following summary presents the costs and benefits of the proposed rule plus a range of alternatives considered. The complete “Regulatory Assessment” can be found in the docket for this rulemaking (http://www.regulations.gov;​ see also http://www.cbp.gov). Comments regarding the analysis may be submitted by any of the methods described under the ADDRESSES section of this document.

Summary

Should the proposed rule become final and effective, air carriers and air passengers will be the parties primarily affected by the proposed rule. For APIS 60, costs will be driven by the number of air travelers that will need to arrive at their originating airports earlier and the number of air travelers who miss connecting flights and require rerouting as a result. For AQQ, costs will be driven by implementation expenses, data transmission costs, and a small number of air travelers who miss connecting flights.

CBP estimates a range of costs in this analysis. For the high end of the range (i.e., under the APIS 60 procedure), CBP anticipates that passengers will provide APIS data upon check-in for their flights and that all carriers will transmit that data, as an entire passenger and crew manifest, to CBP at least 60 minutes prior to departure of the aircraft. CBP estimates that this will result in 2 percent of passengers on large carriers and 0.25 percent of passengers on small carriers missing connecting flights and needing to be rerouted, with an average delay of 4 hours. Additionally, we estimate that 15 percent of passengers will need to arrive at the airport an average of 15 minutes earlier in order to make their flights. For the low end of the range (under the AQQ procedure), we assume that all large air carriers will implement AQQ to transmit information on individual passengers as each checks in. CBP estimates that this will significantly drive down even further the percentage of passengers requiring rerouting on large carriers to 0.5 percent. Travelers will not need to modify their behavior to arrive at the airport earlier. The percentage on small carriers remains 0.25 percent because we assume that small carriers will not implement AQQ; rather, they will continue to submit manifests at least 60 minutes prior to departure through eAPIS, CBP's web-based application for small carriers. Thus, costs for small air carriers are the same regardless of the regulatory option considered.

The endpoints of this range are presented below. As shown, the present value (PV) costs of the proposed rule are estimated to range from $612 million to $1.9 billion over the next 10 years (2006-2015, 2005 dollars, 7 percent discount rate).

Costs of the Proposed Rule

[$Millions, 2006-2015, 2005 dollars]

High Estimate (60-minute option)Low esimate (AQQ option)
Large carriersSmall carriersTotalLarge carriersSmall carriersTotal
First-Year Costs$245$5$250$184$5$189
Average Recurring Costs268627466672
10-Year PV Costs (7%)1,865391,90457339612
10-Year PV Costs (3%)2,279482,32767748726
Start Printed Page 40043

We estimate four categories of benefits, or costs that could be avoided, under the APIS 60 procedure: (1) Costs for conducting interviews with identified high-risk individuals upon arrival in the United States; (2) costs for deporting a percentage of these individuals; (3) costs of delaying a high-risk aircraft at an airport; and (4) costs of rerouting aircraft if high-risk individuals are identified after takeoff. Monetizing the benefits of avoiding an actual terrorist incident has proven difficult because the damages caused by terrorism are a function of where the attack takes place, the nature of the attack, the number of people affected, the casualty rates, the psychological impacts of the attack, and, perhaps most importantly, the “ripple effects” as damages permeate throughout our society and economy far beyond the initial target. One limited scenario is presented below.

The average recurring benefits of the proposed rule are an estimated $15 million per year. This is in addition to the non-quantified security benefits, which are the primary impetus for this rule. Over the 10-year period of analysis, PV benefits are an estimated $105 million at a 7 percent discount rate ($128 million at a 3 percent discount rate).

Given the quantified costs and benefits of the proposed rule, we can determine how much non-quantified security benefits would have to be for this rule to be cost-beneficial. The 10-year costs range from $612 million to $1.9 billion, and the benefits are an estimated $103 million (all at the 7 percent discount rate). Thus, the non-quantified security benefits would have to be $509 million to $1.8 billion over the 10-year period in order for this proposed rule to be cost-beneficial. In one hypothetical security scenario involving only one aircraft and the people aboard, estimated costs of an incident could exceed $790 million. This rule may not prevent such an incident, but if it did, the value of preventing such a limited incident would outweigh the costs at the low end of the range. See the Regulatory Assessment at http://www.regulations.gov or http://www.cbp.gov for details of these calculations.

Regulatory Alternatives

CBP considered a number of regulatory alternatives to the proposed rule. Complete details regarding the costs and benefits of these alternatives can be found in the “Regulatory Assessment” available in the docket for this rulemaking (http://www.regulations.gov;​ see also http://www.cbp.gov). The following is a summary of these alternatives:

(1) Do not promulgate any further manifest transmission requirements (No Action)—the baseline case where carriers would continue to submit APIS manifests for arriving aircraft passengers 15 minutes after departure and, for departing aircraft passengers, 15 minutes prior to departure. There are no additional costs or benefits associated with this alternative. High-risk passengers would continue to board aircraft both destined to and departing from the United States, and instances of such aircraft departing with a high-risk passenger onboard would continue. As explained previously in this document, these results are inconsistent with the protective security objectives of ATSA, EBSA, and IRTPA. Because this is the status quo, and therefore has no additional costs or benefits, it is not analyzed further.

(2) A pre-departure transmission requirement—this would require carriers to submit manifests earlier than is required under the status quo requirements for flights to and from the United States. Transmission of manifest information would be made at least 30 minutes prior to departure. CBP concludes that 1 percent of passengers on large carriers would be delayed while no passengers on small carriers would be affected. We assume small carriers would not need to reroute any passengers under a pre-departure transmission requirement; accordingly, this alternative is a no-cost option for small carriers. We assume that 5 percent of travelers would need to arrive at the airport 15 minutes earlier than normal in order to make their flights.

For large carriers, transmission of manifest data at this time would not provide enough of a window for CBP to respond to a hit on the watch lists, regardless of the boarding time. Benefits of this alternative would be largely negated when compared to the proposed rule because the ability to intercept a high-risk individual before the boarding process begins would be severely limited. Because in many instances the high-risk passenger is likely to board under this alternative, the individual and his bags would have to be removed from the plane; in some circumstances, depending on the level of the threat, all remaining passengers and bags would have to be removed and re-screened and, in particularly urgent circumstances, the aircraft would have to be “re-sterilized” prior to re-boarding.

First-year costs are $111 million, average recurring costs are $122 million per year, and 10-year present value costs are $845 million (7 percent discount rate) and $1.0 billion (3 percent discount rate).

Benefits are slightly higher than the No Action alternative because while the boarding of a high-risk passenger would not be prevented, a high-risk individual would be identified prior to the departure of a flight to or from the United States in most instances. Benefits are lower than under the proposed rule because CBP would be unable to plan and coordinate a response before boarding begins, and thus the high-risk passenger could still board the aircraft. As explained previously in this document, these results would be inconsistent with the protective security objectives of ATSA, EBSA, and IRTPA.

(3) A 60-minute transmission requirement only during periods of heightened threat conditions—this rule would require carriers to submit manifest data 60 minutes prior to departure only during periods of heightened threat conditions. For this analysis, CBP assumes that the threat level could be elevated twice a year for 3 weeks per instance. Because foreign travelers coming to the United States may not be aware of the threat level prior to entering the country, CBP further assumes that the impacts of the alert would extend beyond the return to the lower threat level. Thus, the effects would last a total of 2 months a year. This alternative would probably cause a great deal of disruption due to the unanticipated need to provide information earlier at irregular intervals. Additionally, the threat of terrorism is continuous, and specific threat information on flights may not emerge. Thus, the risks would not likely be diminished sufficiently to justify the costs. Finally, an alternating system of manifest transmission timing would likely affect carrier performance, with performance ratings suffering during the infrequent, non-routine elevations in threat level, the more critical period.

In this scenario, the percentage of passengers delayed on large carriers is an estimated 10 percent and on small carriers is 2.5 percent. The average length of delay is 6 hours. We estimate that 15 percent of passengers would need to arrive at the airport 15 minutes early in order to make their flights. First-year costs are $225 million, average recurring costs are $246 million per year, and 10-year present value costs are $1.7 billion (7 percent discount rate) and $2.1 billion (3 percent discount rate).

Benefits are potentially the same as the “No Action” alternative most of the time because a high-risk individual Start Printed Page 40044could be identified prior to boarding only during those very limited periods when the threat level is elevated and the 60-minute requirement is in effect. Benefits are potentially lower than under the proposed rule most of the time because high-risk passengers would be able to board the aircraft, and aircraft would depart with a high-risk passenger onboard, under the status quo procedure in effect during most of the year. Again, these results would be inconsistent with the protective security objectives of ATSA, EBSA, and IRTPA.

(4) A 60-minute transmission requirement or implementation of AQQ—this is the proposed rule, which requires carriers to elect to transmit, via an interactive communication system, passenger data under one of the two proposed options: by submitting manifests no later than 60 minutes prior to departure or, alternatively, by implementing APIS Quick Query. As explained previously in this document, the proposed rule provides sufficient time for fully vetting travelers, and achieving the appropriate levels of security desired, to be consistent with the protective security objectives of ATSA, EBSA, and IRTPA.

(5) A 120-minute transmission requirement—this rule would require carriers to submit manifests 120 minutes prior to departure. The costs would be higher than under the proposed rule because originating passengers, not just connecting passengers, would now be affected. High-risk passengers would be prevented from boarding aircraft. CBP would be able to more easily coordinate and plan a response to a hit on the watch lists well before the boarding process began.

This alternative would be quite disruptive because even though passengers and carriers would have the predictability of a pre-determined transmission time, passenger check-in at the original departure airport would be greatly affected. Instead of passengers checking in 2 hours prior to departure, carriers would have to advise passengers to arrive even earlier to assure timely manifest transmission.

We assume that 20 percent of passengers on large carriers and 5 percent of passengers on small carriers will be delayed an average of 6 hours and will need to be rerouted. We assume that 30 percent of passengers would need to arrive at the airport 1 hour earlier than previously. First-year costs are $3.2 billion, average recurring costs are $3.5 billion per year, and 10-year present value costs are $24.2 billion (7 percent discount rate) and $29.5 billion (3 percent discount rate).

Benefits are higher than the No Action alternative because a high-risk individual would be prevented from boarding or departing on an aircraft destined to or departing from the United States. Benefits are slightly higher than under the proposed rule because in some instances, the high-risk passenger's baggage would not reach the aircraft. Otherwise, the results achieved do not change appreciably given the extra time. Nonetheless, this procedure would be consistent with the protective security purposes of ATSA, EBSA, and IRTPA.

The following table summarizes the costs and benefits of the regulatory alternatives:

Comparison of Costs and Benefits of the Proposed Rule and Regulatory Alternatives

Pre-departure requirement60-minute requirement only at elevated alertProposed rule
60-minute requirementAQQ120-minute requirement
First-Year Costs$111 million$225 million$250 million$189 million$3.2 billion.
Average Recurring Costs$122 million$246 million$274 million$72 million$3.5 billion.
10-Year PV Costs (7%)$845 million$1.7 billion$1.9 billion$612 million$24.2 billion.
10-Year PV Costs (3%)$1.0 billion$2.1 billion$2.3 billion$726 million$29.5 billion.
Average Cost per Passenger$0.36-$1.55$0.91-$3.11$1.37-$3.45$1.01-1.37$17.39-$43.81
Benefits Comparison to “No Action”Slightly higher (risk identified prior to take-off)Comparable (risk may be identified prior to boarding and take-off if under elevated alert)Higher (risk identified prior to boarding)Higher (risk identified prior to boarding)Higher (risk identified prior to boarding) .
Benefits Comparison to Pre-Boarding APIS RuleLower (high-risk passenger may still board aircraft); CBP cannot coordinate or plan responseLower (high-risk passenger may still board aircraft)Security benefits + $15 million in costs avoided annuallyRisk identified prior to check-in (higher benefits than 60-minute option)Comparable (security benefits + $15 million in costs avoided annually).

CBP requests comments on the above analysis of the regulatory alternatives.

Accounting Statement

As required by OMB Circular A-4 (available at http://www.whitehouse.gov/​omb/​circulars/​index.html, CBP has prepared an accounting statement showing the classification of the expenditures associated with this rule. The table provides our best estimate of the dollar amount of these costs and benefits, expressed in 2005 dollars, at three percent and seven percent discount rates. We estimate that the cost of this rule will be approximately million annualized (7 percent discount rate) and approximately $166.0 million annualized (3 percent discount rate). Quantified benefits are $15.0 million annualized. The non-quantified benefits are enhanced security. Start Printed Page 40045

Accounting Statement: Classification of Expenditures, 2006 through 2015 (2005 Dollars)

[Three Percent Annual Discount Rate]

BENEFITS:
Annualized monetized benefits$15.0 million.
(Un-quantified) benefitsEnhanced security.
COSTS:
Annualized monetized costs$179.1 million.
Annualized quantified, but un-monetized costs.
Qualitative (un-quantified) costs.
Seven Percent Annual Discount Rate.
BENEFITS:
Annualized monetized benefits$15.0 million.
(Un-quantified) benefitsEnhanced security.
COSTS:
Annualized monetized costs$178.9 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.

B. Regulatory Flexibility Act

We have examined the impacts of this proposed rulemaking 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).

CBP has identified 773 small U.S. air carriers that could be affected by the proposed rule. We do not expect these carriers to experience great economic impacts as a result of the proposed rule. Small carriers do not need to modify their reservation systems nor do they have many connecting passengers who may miss their flights and require rerouting. We estimate that 0.25 percent of passengers on small carriers will be affected by this rule annually. In the April 2005 final rule (70 FR at 17846), CBP estimated that small carriers each transport an average of 300 passengers annually. Thus, less than 1 passenger per carrier per year will be affected by the proposed APIS 60 option. We calculate that the total cost of delay per passenger is $61.77, and only $4.57 of this is incurred by the air carrier. The aggregate costs of this rule's APIS option would not exceed $3,500 annually for each of the 773 small US-based carriers.

We conclude, therefore, that this rule will not have a significant impact on a substantial number of small entities.

The complete analysis of impacts to small entities is available on the CBP Web site at: http://www.regulations.gov;​ see also http://www.cbp.gov. Comments regarding the analysis may be submitted by any of the methods described under the ADDRESSES section of this document.

C. Unfunded Mandates Reform Act

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 proposed rule, if adopted as a final rule, would not impose any cost on small governments or significantly or uniquely affect small governments. However, as stated in the “Executive Order 12866” section of this document, CBP has determined that the rule would result in the expenditure by the private sector of $100 million or more (adjusted annually for inflation) in any one year and thus would constitute a significant regulatory action. Consequently, the provisions of this proposed rule constitute a private sector mandate under the UMRA. CBP's analysis of the cost impact on affected businesses, summarized in the “Executive Order 12866” section of this document and available for review by accessing http://www.regulations.gov; see also http://www.cbp.gov, is incorporated here by reference as the assessment required under Title II of the UMRA. CBP is requesting information from the public and the carriers regarding the costs this rule would impose on the private sector.

D. Executive Order 13132 (Federalism)

This proposed rule, if adopted as a final rule, would 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 rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

E. Executive Order 12988 (Civil Justice Reform)

This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. That Executive Order requires agencies to conduct reviews, before proposing legislation or promulgating regulations, to determine the impact of those proposals on civil justice and potential issues for litigation. The Order requires that Start Printed Page 40046agencies make reasonable efforts to ensure the regulation clearly identifies preemptive effects, effects on existing federal laws and regulations, identifies any retroactive effects of the proposal, and other matters. DHS has determined that this regulation meets the requirements of Executive Order 12988 because it does not involve retroactive effects, preemptive effects, or other matters addressed in the Order.

F. National Environmental Policy Act

CBP has evaluated this proposed 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.

G. Paperwork Reduction Act

In connection with the final rule recently published by CBP in April 2005, and discussed in this proposed rule, a Paperwork Reduction Act (PRA) analysis was set forth concerning the information collection involved under that rule (see OMB No. 1651-0088). This proposed rule, which proposes to amend the regulation as amended by the April 2005 final rule, has no effect on that analysis, as it does not impose an additional information collection burden or affect the information collected under the regulation in any relevant manner. This proposed rule affects only the timing and manner of the submission of the information already required under the regulation.

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. The collection of information relative to the provisions of the regulation proposed to be amended in this proposed rule, under 19 CFR 4.64, 122.49a, and 122.75a, is recorded with the Office of Management and Budget (OMB) under OMB No. 1651-0088.

H. Signing Authority

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

I. Privacy Statement

A Privacy Impact Assessment (PIA) was published in the Federal Register (70 FR 17857) in conjunction with the April 7, 2005, APIS final rule (70 FR 17820). As the changes proposed in this rule do not impact the data collected or the use and storage of the data, and only affect the timing of data transmission, the existing System of Records Notice (SORN) (the Treasury Enforcement Communications System (TECS) published at 66 FR 53029) and the PIA continue to cover the collection, maintenance, and use of APIS data. CBP is preparing a separate SORN for APIS which will be published before a final rule is implemented following this proposed rule.

Start List of Subjects

List of Subjects

End List of Subjects

Proposed Amendments to the Regulations

For the reasons stated in the preamble, parts 4 and 122 of the CBP Regulations (19 CFR parts 4 and 122) are proposed to be amended as follows:

Start Part

PART 4—VESSELS IN FOREIGN AND DOMESTIC TRADES

1. The general authority citation for part 4 and the specific authority citation for § 4.64 continue to read as follows:

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Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624; 2071 note; 46 U.S.C. App. 3, 91.

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Section 4.64 also issued under 8 U.S.C. 1221;

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2. Section 4.64 is amended in paragraph (b)(2)(i) by removing the words “no later than 15 minutes” and replacing them with the words “no later than 60 minutes”.

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PART 122—AIR COMMERCE REGULATIONS

3. The general authority citation for part 122 and the specific authority citations for § 122.49a and 122.75a continue to read as follows:

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Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 1433, 1436, 1448, 1459, 1590, 1594, 1623, 1624, 1644, 1644a, 2071 note.

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Section 122.49a also issued under 8 U.S.C. 1221, 19 U.S.C. 1431, 49 U.S.C. 44909.

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Section 122.75a also issued under 8 U.S.C. 1221, 19 U.S.C. 1431.

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4. Section 122.49a is amended by:

a. Revising the definition of “departure” in paragraph (a), and

b. Revising paragraphs (b)(1) and (b)(2) to read as follows:

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

(a) * * *

Departure. “Departure” means the moment at which the aircraft is pushed back from the gate for the purpose of commencing its approach to the point of take off.

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(b) Electronic arrival manifest—(1) General—(i) Basic requirement. Except as provided in paragraph (c) of this section, an appropriate official of each commercial aircraft (carrier) arriving in the United States from any place outside the United States must transmit to Customs and Border Protection (CBP), by means of an electronic data interchange system approved by CBP, an electronic passenger arrival manifest covering all passengers checked in for the flight. A passenger manifest must be transmitted separately from a crew member manifest required under § 122.49b if transmission is in U.S. EDIFACT format. The passenger manifest must be transmitted to CBP at the place and time specified in paragraph (b)(2) of this section, in the manner set forth under either paragraph (b)(1)(ii)(A), (b)(1)(ii)(B), or (b)(1)(iii) of this section.

(ii) Complete manifest option—(A) Interactive process. A carrier operating under this paragraph (b)(1)(ii)(A) must transmit a complete manifest setting forth the information specified in paragraph (b)(3) of this section for all passengers checked in for the flight. After receipt of the manifest information, CBP will electronically send to the carrier a “not-cleared” instruction for passengers identified during security vetting as requiring additional security analysis. A carrier must not board any passenger subject to a “not-cleared” instruction, or any other passenger, or their baggage, unless cleared by CBP. Upon completion of the additional security analysis, CBP will electronically contact the carrier to clear a passenger for boarding should clearance be warranted by the results of that analysis. Where CBP is unable to complete the additional security analysis or respond to the carrier prior to departure of the aircraft, the carrier is bound by the “not-cleared” instruction. No later than 30 minutes after Start Printed Page 40047departure, the carrier must transmit to CBP a unique identifier for each passenger that checked in but did not board the flight. Before operating under this paragraph, a carrier must receive a system certification from CBP indicating that its electronic system is capable of interactively communicating with CBP's system for effective transmission of manifest data and receipt of appropriate messages.

(B) Manual (non-interactive) process. A carrier operating under this paragraph (b)(1)(ii)(B) must transmit a complete manifest setting forth the information specified in paragraph (b)(3) of this section for all passengers checked in for the flight. After receipt of the manifest information, CBP will send to the carrier by a non-interactive manual transmission method a “not-cleared” instruction for passengers identified during security vetting as requiring additional security analysis. A carrier must not board any passenger subject to a “not-cleared” instruction, or any other passenger, or their baggage, unless cleared by CBP. Upon completion of the additional security analysis, CBP will contact the carrier to clear a passenger for boarding should clearance be warranted by the results of that analysis. Where CBP is unable to complete the additional security analysis or respond to the carrier prior to departure of the aircraft, the carrier is bound by the “not-cleared” instruction. No later than 30 minutes after departure, the carrier must transmit to CBP a unique identifier for each passenger who checked in but did not board the flight.

(iii) Individual passenger information option. A carrier operating under this paragraph (b)(1)(iii) must transmit the manifest data specified in paragraph (b)(3) of this section for each individual passenger as passengers check in for the flight. With each transmission of manifest information by the carrier, CBP will electronically send a “cleared” or “not-cleared” instruction, as appropriate, depending on the results of security vetting. A “not-cleared” instruction will be issued for passengers identified during the initial security vetting as requiring additional security analysis. The carrier must acknowledge receipt of a “not-cleared” instruction by electronic return message and must not issue a boarding pass to—or load the baggage of—any passenger subject to a “not-cleared” instruction or to any passenger not cleared by CBP. The carrier, at its discretion, may seek resolution of a “not-cleared” instruction by providing additional information relative to the passenger if available. Upon completion of the additional security analysis, CBP will electronically contact the carrier to clear a passenger for boarding should clearance be warranted by the results of that analysis. Where CBP is unable to complete the additional analysis or respond to the carrier before departure of the aircraft, the carrier will be bound by the “not-cleared” instruction. No later than 30 minutes after departure, the carrier must transmit to CBP a unique identifier for each passenger who checked in but did not board the flight. Before operating under this paragraph, a carrier must receive a system certification from CBP indicating that its electronic system is capable of interactively communicating with CBP's system for effective transmission of manifest data and receipt of appropriate messages.

(2) Place and time for submission—(i) Complete manifests. The appropriate official specified in paragraph (b)(1)(i) of this section (carrier) must transmit the complete electronic passenger arrival manifest as required under paragraph (b)(1)(ii) of this section to the CBP Data Center, CBP Headquarters:

(A) 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 whether the carrier was equipped to make the transmission and the circumstances of the emergency situation;

(B) For an aircraft operating as an air ambulance in service of a medical emergency, no later than 30 minutes prior to arrival; and

(C) For all flights not covered under paragraphs (b)(2)(i)(A) or (B) of this section, no later than 60 minutes prior to departure of the aircraft.

(ii) Individual passenger information. A carrier must transmit electronic passenger arrival manifest information as required under paragraph (b)(1)(iii) of this section as each passenger checks in for the flight, up to but no later than 15 minutes prior to departure of the aircraft.

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5. Section 122.75a is amended by revising paragraphs (b)(1) and (b)(2), to read as follows:

Electronic manifest requirements for passengers onboard commercial aircraft departing from the United States.
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(b) Electronic departure manifest—(1) General—(i) Basic requirement. Except as provided in paragraph (c) of this section, an appropriate official of each commercial aircraft (carrier) departing from the United States en route to any port or place outside the United States must transmit to Customs and Border Protection (CBP), by means of an electronic data interchange system approved by CBP, an electronic passenger departure manifest covering all passengers checked-in for the flight. A passenger manifest must be transmitted separately from a crew member manifest required under § 122.75b if transmission is in U.S. EDIFACT format. The passenger manifest must be transmitted to CBP, at the place and time specified in paragraph (b)(2) of this section, in the manner set forth under either paragraph (b)(1)(ii)(A), (b)(1)(ii)(B), or (b)(1)(iii) of this section.

(ii) Complete manifest option—(A) Interactive process. A carrier operating under this paragraph (b)(1)(ii)(A) must transmit a complete manifest setting forth the information specified in paragraph (b)(3) of this section for all passengers checked-in for the flight. After receipt of the manifest information, CBP will electronically send to the carrier a “not-cleared” instruction for passengers identified during security vetting as requiring additional security analysis. A carrier must not board any passenger subject to a “not-cleared” instruction, or any other passenger, or their baggage, unless cleared by CBP. Upon completion of the additional security analysis, CBP will electronically contact the carrier to clear a passenger for boarding should clearance be warranted by the results of that analysis. Where CBP is unable to complete the additional security analysis or respond to the carrier prior to departure of the aircraft, the carrier is bound by the “not-cleared” instruction. No later than 30 minutes after departure, the carrier must transmit to CBP a unique identifier for each passenger who checked in but did not board the flight. Before operating under this paragraph, a carrier must receive a system certification from CBP indicating that its electronic system is capable of interactively communicating with CBP's system for effective transmission of manifest data and receipt of appropriate messages.

(B) Manual (non-interactive) process. A carrier operating under this paragraph (b)(1)(ii)(B) must transmit a complete manifest setting forth the information specified in paragraph (b)(3) of this section for all passengers checked in for the flight. After receipt of the manifest information, CBP will send to the carrier by a non-interactive manual transmission method a “not-cleared” instruction for passengers identified during security vetting as requiring additional security analysis. A carrier Start Printed Page 40048must not board any passenger subject to a “not-cleared” instruction, or any other passenger, or their baggage, unless cleared by CBP. Upon completion of the additional security analysis, CBP will contact the carrier to clear a passenger for boarding should clearance be warranted by the results of that analysis. Where CBP is unable to complete the additional security analysis or respond to the carrier prior to departure of the aircraft, the carrier is bound by the “not-cleared” instruction. No later than 30 minutes after departure, the carrier must transmit to CBP a unique identifier for each passenger who checked in but did not board the flight.

(iii) Individual passenger information option. A carrier operating under this paragraph (b)(1)(iii) must transmit the manifest data specified in paragraph (b)(3) of this section for each individual passenger as passengers check in for the flight. With each transmission of manifest information by the carrier, CBP will electronically send a “cleared” or “not-cleared” instruction, as appropriate, depending on the results of security vetting. A “not-cleared” instruction will be issued for passengers identified during the initial security vetting as requiring additional security analysis. The carrier must acknowledge receipt of a “not-cleared” instruction by electronic return message and must not issue a boarding pass to—or load the baggage of—any passenger subject to a “not-cleared” instruction or to any passenger not cleared by CBP. The carrier, at its discretion, may seek resolution of a “not-cleared” instruction by providing additional information about the passenger, if available. Upon completion of the additional security analysis, CBP will electronically contact the carrier to clear a passenger for boarding should clearance be warranted by the results of that analysis. Where CBP is unable to complete the additional analysis or respond to the carrier before departure of the aircraft, the carrier will be bound by the “not-cleared” instruction. No later than 30 minutes after departure, the carrier must transmit to CBP a unique identifier for each passenger who checked in but did not board the flight. Before operating under this paragraph, a carrier must receive a system certification from CBP indicating that its electronic system is capable of interactively communicating with CBP's system for effective transmission of manifest data and receipt of appropriate messages.

(2) Place and time for submission—(i) Complete manifests. The appropriate official specified in paragraph (b)(1)(i) of this section (carrier) must transmit the complete electronic passenger departure manifest as required under paragraph (b)(1)(ii) of this section to the CBP Data Center, CBP Headquarters, no later than 60 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.

(ii) Individual passenger information. The carrier must transmit electronic passenger departure manifest information as required under paragraph (b)(1)(iii) of this section as each passenger checks in for the flight, up to but no later than 15 minutes prior to departure of the aircraft.

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Start Signature

Deborah J. Spero,

Acting Commissioner, Customs and Border Protection.

Approved: July 11, 2006.

Michael Chertoff,

Secretary.

End Signature End Part End Supplemental Information

[FR Doc. 06-6237 Filed 7-11-06; 3:00 pm]

BILLING CODE 9111-14-P