[Federal Register Volume 73, Number 223 (Tuesday, November 18, 2008)]
[Rules and Regulations]
[Pages 68295-68313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26621]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 231
Bureau of Customs and Border Protection
19 CFR Part 122
[CBP Dec. 08-43; Docket No. USCBP-2007-0064]
RIN 1651-AA41
Advance Information on Private Aircraft Arriving and Departing
the United States
AGENCY: Customs and Border Protection, DHS.
ACTION: Final rule.
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SUMMARY: This rule finalizes, with modifications, amendments to U.S.
Customs and Border Protection (CBP) regulations pertaining to private
aircraft arriving and departing the United States. This final rule
requires private aircraft pilots or their designees arriving in the
United States from a foreign port or location destined for a U.S. port
or location, or departing the United States to a foreign port or
location, to transmit electronically to CBP passenger manifest
information for each individual traveling onboard the aircraft. This
final rule requires private aircraft pilots or their designees to
provide additional data elements when submitting a notice of arrival
and requires private aircraft pilots or their designees to submit a
notice of departure. Private aircraft pilots (or their designees) will
be required to submit the notice of arrival and notice of departure
information to CBP through an approved electronic data interchange
system in the same transmission as the corresponding arrival or
departure passenger manifest information. Under this rule, this data
must be received by CBP no later than 60 minutes before an arriving
private aircraft departs from a foreign location destined for the
United States and no later than 60 minutes before a private aircraft
departs a U.S. airport or location for a foreign port or place.
This rule also expressly acknowledges CBP's authority to restrict
aircraft from landing in the United States based on security and/or
risk assessments, or, based on such assessments, to specifically
designate and limit the airports where aircraft may land or depart.
DATES: This final rule is effective on December 18, 2008. Compliance
Date: Private aircraft pilots (or their designees) must comply with the
requirements of this final rule on May 18, 2009.
FOR FURTHER INFORMATION CONTACT: For Operational aspects: Eric
Rodriguez, Office of Field Operations, (281) 230-4642; or for Legal
aspects: Glen Vereb, Office of International Trade, (202) 352-0030.
SUPPLEMENTARY INFORMATION:
I. Background
A. Background and Authorities
B. Current Requirements and Vulnerabilities for All Aircraft
1. Advance Notice of Arrival
a. Private Aircraft Arriving in the United States
b. Private Aircraft Arriving From Areas South of the United
States
c. Aircraft Arriving From Cuba
2. Permission To Land (Landing Rights)
3. Vulnerabilities
II. Summary of Requirements in the Proposed Rule
A. General Requirements for Private Aircraft Arriving in the
United States
1. Notice of Arrival
2. CBP's Authority To Restrict and/or Deny Landing Rights
B. Certain Aircraft Arriving From Areas South of the United
States
C. Notice of Arrival for Private Aircraft Arriving From Cuba
III. Discussion of Comments
IV. Summary of Changes Made to NPRM
V. Conclusion
VI. Regulatory Analyses
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. Privacy Statement
VII. Signing Authority
VIII. Amendments to the Regulations
I. Background
A. Background and Authorities
A private aircraft,\1\ in contrast to a commercial aircraft,\2\ is
generally any aircraft engaged in a personal or business flight to or
from the United States which is not carrying passengers and/or cargo
for commercial purposes. See 19 CFR 122.1(h). Pursuant to 19 U.S.C.
1433, 1644 and 1644a, the Secretary of Homeland Security (Secretary)
has broad authority respecting all aircraft, including private
aircraft, arriving in and departing from the United States. The term
``general aviation'' is commonly used in regard to private aircraft.
Specifically, 19 U.S.C. 1433(c) provides that the pilot of any aircraft
arriving in the United States or the U.S. Virgin Islands from any
foreign location is required to comply with such advance notification,
arrival reporting, and landing requirements as regulations may require.
Under this authority, CBP can deny aircraft landing rights within the
United States based on, among other considerations, security and/or
risk assessments. Alternatively, based on such assessments, CBP may
specifically designate and limit the airports where aircraft may land.
In addition, under 19 U.S.C. 1433(d), an aircraft pilot is required to
present or transmit to CBP through an electronic data interchange
system such information, data, documents, papers or manifests as the
regulations may require. Section 1433(e) provides, among other things,
that aircraft after arriving in the United States or U.S. Virgin
Islands may depart from the airport of arrival, but only in accordance
with regulations prescribed by the Secretary. And, under 19 U.S.C. 1644
and 1644a, the Secretary can designate ports of entry for aircraft and
apply vessel entry and clearance laws and regulations to civil
aircraft.
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\1\ 19 CFR 122.1(h) defines a ``private aircraft'' as any
aircraft engaged in a personal or business flight to or from the
U.S. which is not: (1) Carrying passengers and/or cargo for
commercial purposes; or (2) leaving the United States carrying
neither passengers nor cargo in order to lade passengers and/or
cargo in a foreign area for commercial purposes; or (3) returning to
the United States carrying neither passengers nor cargo in ballast
after leaving with passengers and/or cargo for commercial purposes.
\2\ 19 CFR 122.1(d) defines ``commercial aircraft'' as any
aircraft transporting passengers and/or cargo for some payment or
other consideration, including money or services rendered. If either
the arrival or departure leg of an aircraft's journey is commercial,
then CBP considers both legs of the journey to be commercial.
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Further, 46 U.S.C. 60105 provides that any vessel shall obtain
clearance from the Secretary pursuant to regulation, in a manner
prescribed by the Secretary, before departing the United States for a
[[Page 68296]]
foreign port or place. Because 19 U.S.C. 1644 and 1644a provide for the
extension of the vessel entry and clearance laws and regulations to
civil aircraft, the Secretary is authorized to issue regulations for
civil aircraft that correspond with the vessel clearance requirements
under 46 U.S.C. 60105. The previous ``exception'' from clearance
requirements for private aircraft under 19 CFR 122.61 did not reflect a
lack of statutory authority to regulate private aircraft. It reflected
instead the Secretary's (then the Secretary of the Treasury's)
discretion not to impose clearance requirements on that segment of
civil aviation pursuant to the implementing regulations.
B. Current Requirements and Vulnerabilities for All Aircraft
1. Advance Notice of Arrival
CBP currently requires aircraft pilots of all aircraft entering the
United States from a foreign area, except aircraft of a scheduled
airline arriving under a regular schedule, to give advance notice of
arrival. See 19 CFR 122.31(a). Advance notice of arrival must be
furnished by the pilot of the aircraft and is generally given when the
aircraft is in the air. As described below, the regulations set forth
the general rule for advance notice of arrival for private aircraft and
specific requirements for certain aircraft arriving from areas south of
the United States, including aircraft from Cuba.
a. Private Aircraft Arriving in the United States
Pursuant to 19 CFR 122.22, private aircraft, except those arriving
from areas south of the United States (discussed below), are required
to give advance notice of arrival as set forth in 19 CFR 122.31. This
notice must be provided to the port director at the place of first
landing by radio, telephone, or other method, or through the Federal
Aviation Administration (FAA)'s flight notification procedure. See 19
CFR 122.31(c). The advance notice must include information about the
number of alien passengers and number of U.S. citizen passengers, but
the regulation does not require any identifying information for
individual passengers onboard to be submitted.\3\ Nor does the current
regulation provide a specific timeframe for when the notice of arrival
shall be given, except that the pilot shall furnish such information
far enough in advance to allow inspecting officers to reach the place
of first landing of the aircraft. See 19 CFR 122.31(e).
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\3\ 19 CFR 122.31 provides that the contents of advance notice
of arrival shall include the following information: (1) Type of
aircraft and registration number; (2) Name of aircraft commander;
(3) Place of last foreign departure; (4) International airport of
intended landing or other place at which landing has been authorized
by CBP; (5) Number of alien passengers; (6) Number of citizen
passengers; and (7) Estimated time of arrival.
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b. Private Aircraft Arriving From Areas South of the United States
Private aircraft entering the continental United States from a
foreign area in the Western Hemisphere south of the United States are
subject to special advance notice of arrival and landing requirements.
See 19 CFR 122.23-24. These aircraft include all private aircraft and
commercial unscheduled aircraft with a seating capacity of 30
passengers or less, or maximum payload capacity of 7,500 pounds or
less. Pursuant to 19 CFR 122.23(b), such aircraft are required to give
advance notice of arrival to CBP at the nearest designated airport to
the border or coastline crossing point listed in 19 CFR 122.24(b).
These aircraft must also provide advance notice of arrival at least one
hour before crossing the U.S. coastline or border. See 19 CFR
122.23(b). The pilot may provide advance notice of arrival for these
aircraft by radio, telephone, or other method, or through the FAA
flight notification procedure. The advance notice of arrival for such
aircraft arriving from areas south of the United States must include
the information listed in 19 CFR 122.23(c).\4\ Aircraft arriving from
areas south of the United States that are subject to the requirements
of 19 CFR 122.23 are required to land at designated airports listed in
19 CFR 122.24(b), unless DHS grants an exemption from the special
landing requirement.\5\
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\4\ Section 122.23(c) provides that the contents of the advance
notice of arrival shall include the following: (1) Aircraft
registration number; (2) Name of aircraft commander; (3) Number of
U.S. citizen passengers; (4) Number of alien passengers; (5) Place
of last departure; (6) Estimated time and location of crossing U.S.
border/coastline; (7) Estimated time of arrival; and (8) Name of
intended U.S. airport of first landing, as listed in Sec. 122.24,
unless an exemption has been granted under Sec. 122.25, or the
aircraft has not landed in foreign territory or is arriving directly
from Puerto Rico, or the aircraft was inspected by CBP officers in
the U.S. Virgin Islands.
\5\ 19 CFR 122.25 sets forth the procedures concerning exemption
from special landing requirements--known as an overflight
privileges.
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c. Aircraft Arriving From Cuba
The current regulations require all aircraft entering the United
States from Cuba, except for public aircraft,\6\ to give advance notice
of arrival at least one hour before crossing the U.S. border or
coastline. See 19 CFR 122.152 and 122.154. This notice must be
furnished either directly to the CBP Officer in charge at the relevant
airport listed in 19 CFR 122.154(b)(2) or through the FAA flight
notification procedure. The advance notice of arrival for aircraft from
Cuba must include the information listed in 19 CFR 122.154(c).\7\
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\6\ 19 CFR 122.1(i) defines ``public aircraft'' as any aircraft
owned by, or under the complete control and management of the U.S.
government or any of its agencies, or any aircraft owned by or under
the complete control and management of any foreign government which
exempts public aircraft of the United States from arrival, entry and
clearance requirements similar to those provided in subpart C of
this part, but not including any government-owned aircraft engaged
in carrying persons or property for commercial purposes.
\7\ 19 CFR 122.154(c) provides that the contents of advance
notice of arrival shall state: (1) Type of aircraft and registration
number; (2) Name of aircraft commander; (3) Number of U.S. citizen
passengers; (4) Number of alien passengers; (5) Place of last
foreign departure; (6) Estimated time and location of crossing the
U.S. coast or border; and (7) Estimated time of arrival.
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2. Permission To Land (Landing Rights)
The current regulations require the owner or operator of any
aircraft, including a private aircraft, arriving at a landing rights
airport or user fee airport to request permission to land, known as
landing rights, from CBP. See 19 CFR 122.14(a) and 122.15(a). A
``landing rights airport'' is defined as any airport, other than an
international airport or user fee airport, at which flights from a
foreign area are given permission by CBP to land. See 19 CFR 122.1(f).
A ``user fee airport'' is defined as an airport so designated by CBP
and flights from a foreign area may be granted permission to land at a
user fee airport rather than at an international airport or a landing
rights airport. See 19 CFR 122.1(m). An informational listing of user
fee airports is contained in section 122.15. Permission to land must be
secured from the director of the port, or his representative, at the
port nearest the first place of landing for both landing rights
airports and user fee airports. However, the current regulations do not
set forth a precise application procedure or time frame for securing
permission to land.
3. Vulnerabilities
DHS is working to strengthen general aviation security to further
minimize the vulnerability of private aircraft flights being used to
deliver illicit materials, transport dangerous individuals or employ
the aircraft as a weapon. Today, compared to regularly scheduled
commercial airline operations, little or no screening or vetting of the
crew, passengers or the aircraft itself is required of private aircraft
before entering or departing the United States
[[Page 68297]]
at air ports of entry (APOE). Some of these APOEs are located well
within U.S. territory and near highly populated areas. DHS has
developed this final rule to address these vulnerabilities and to
enhance international and domestic general aviation security. This
final rule includes the identification and vetting of passengers and
crew on private aircraft prior to entering and departing U.S. airspace.
II. Summary of Requirements in the Proposed Rule
On September 18, 2007, CBP published in the Federal Register a
notice of proposed rulemaking (NPRM) entitled ``Advance Information on
Private Aircraft Arriving and Departing the United States,'' proposing
new requirements for private aircraft arriving to and departing from
the United States, as described below. See 72 FR 53394.
A. General Requirements for Private Aircraft Arriving in the United
States
The NPRM proposed to require the pilot of any private aircraft
arriving in the United States from a foreign port or location or
departing the United States for a foreign port or location to transmit
to CBP an advance electronic manifest comprised of specific information
regarding each individual traveling onboard the aircraft pursuant to 19
U.S.C. 1433, 1644 and 1644a.
1. Notice of Arrival
The NPRM proposed adding data elements to the existing notice of
arrival requirements and proposed a new notice of departure
requirement. In addition, CBP would require pilots to provide the
notice of arrival and notice of departure information through the
electronic Advance Passenger Information System (eAPIS) \8\ Web portal
or through another CBP-approved electronic data interchange system in
the same transmission as the corresponding arrival or departure
manifest information. Under the NPRM, these data are to be received by
CBP no later than 60 minutes before an arriving private aircraft
departs from a foreign location to a U.S. port or location, and no
later than 60 minutes before a private aircraft departs a United States
airport or location for a foreign port or place.
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\8\ eAPIS is an online transmission system that meets all
current APIS data element requirements for all mandated APIS
transmission types.
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The NPRM also proposed a new timeframe for reporting notice of
arrival no later than 60 minutes prior to the aircraft's departure to
the United States from a foreign port or location, as opposed to 60
minutes before crossing the U.S border, as is the current requirement.
Under the proposed rule, notice of arrival and manifest data would be
required to be furnished as set forth in 19 CFR 122.22 for private
aircraft, which requires submission of such information to CBP via an
electronic data interchange system approved by CBP. All other aircraft
subject to 19 CFR 122.23 would be required to report notice of arrival
as required under that provision.
2. CBP's Authority To Restrict or Deny Aircraft Landing Rights
The NPRM proposed to clarify landing rights procedures and
departure clearance procedures, and acknowledge CBP's authority to
restrict aircraft from landing in the United States based on security
and/or risk assessments, or to specifically designate and limit the
United States airports where aircraft may land or depart.
B. Certain Aircraft Arriving From Areas South of the United States
The NPRM proposed to correct a discrepancy between the definition
of ``private aircraft'' in 19 CFR 122.23, which encompasses both
private aircraft and, in some instances, small, unscheduled commercial
aircraft and the general definition provided for ``private aircraft''
in 19 CFR 122.1(h). This correction will properly indicate that section
122.23 encompasses small, commercial aircraft that seat less than 30
passengers, or have a maximum payload capacity of less than 7,500
pounds, carrying people or cargo for hire, which are not currently
covered by section 122.23(a)(1)(iii), but which, under section
122.1(d), are considered commercial aircraft.
C. Notice of Arrival for Private Aircraft Arriving From Cuba
The NPRM proposed that private aircraft arriving from Cuba, as
provided for in 19 CFR 122.154, be required to provide notice of
arrival and manifest data in the same manner as private aircraft that
are subject to proposed 19 CFR 122.22. Private aircraft arriving from
Cuba would continue to be required to provide notice of arrival
information to the specifically designated airports where the aircraft
will land: Miami International Airport, Miami, Florida; John F. Kennedy
International Airport, Jamaica, New York; or Los Angeles International
Airport, Los Angeles, California.
III. Discussion of Comments
The NPRM requested comments to be submitted on or before November
18, 2007, regarding the proposed amendments. CBP extended the comment
period to December 4, 2007, by notice published in the Federal Register
on November 14, 2007. See 72 FR 64012. A total of 2,907 comments were
received from the general public, including individual pilots and
members of various pilot associations. CBP's responses to the comments
are provided below.
General Comments
Comment: Several commenters requested that the comment period for
the NPRM be extended an additional 60 days to January 18, 2008.
Response: Although CBP did not extend the comment period for an
additional 60 days, CBP did extend the comment period by an additional
15 days, until December 4, 2007. See 72 FR 64012. CBP believed that the
original 60-day comment period in addition to the 15-day extension
provided the public with an adequate amount of time to submit comments.
Moreover, based on the ample number of comments received by the end of
the original comment period, CBP believed that public sentiment was
accurately captured. Further extension of the comment period would
delay implementing the final rule, which would allow the continued
existence of vulnerabilities that threaten the security of the United
States.
Comment: Several hundred commenters objected to what was described
as proposed user fees and contact fees, but did not specify the nature
or source of such fees.
Response: This final rule does not change existing user fees or
create new user fees. User fees are not part of this rulemaking.
Comment: Several commenters asked how DHS was going to control the
flow of traffic at airports upon implementation of the rule.
Response: This rule requires pilots to provide advance information
on aircraft and individuals onboard that aircraft, prior to departure
to or from the United States. CBP believes the collection and
submission of this information will have a limited impact on the flow
of traffic at airports. However, responsibility over the flow of air
traffic at airports falls within the purview of the FAA.
Comment: Commenters expressed concerns as to whether they would be
required to electronically transmit manifest and notice of arrival
information when a flight begins and ends in the same country but the
aircraft utilized international airspace for routing purposes.
Response: This rule does not regulate domestic flights as in the
case of an
[[Page 68298]]
aircraft that takes off and lands within the United States, but
utilizes foreign airspace. In addition, this rule does not regulate
foreign flights in which a flight originates and terminates in that
foreign country, but utilizes U.S. airspace. Therefore, those types of
flights are unaffected by this rule.
Comment: One commenter recommended that CBP use FAA future
surveillance and make changes involving FAA and Automated Flight
Service Stations (AFSS). In their comment, Aircraft Owners and Pilots
Association (AOPA) recommended an evaluation of how the FAA's (Flight
Service Stations) FSS system could be incorporated in the arrival
notification procedures. The commenter asserted that FSS is similar
with interfacing between FAA air traffic control facilities and CBP.
AOPA also asserted in its comment that in September 2007, the FAA
issued a proposed rule that would require all aircraft to be equipped
with Automatic Dependent Surveillance--Broadcast (ADS-B) by 2020 in
order to fly within Class B and C airspace and above 10,000 feet. ADS-B
is a datalink technology that uses satellite-based navigation equipment
located on board aircraft and positioning information from Global
Positioning System (GPS) satellites to automatically transmit aircraft
location and altitude to air traffic controllers and other nearby
aircraft.
Response: The technology referenced by the commenters is helpful to
the FAA in monitoring airborne aircraft. However, the goal of this
final rule is to obtain information on passengers and aircraft prior to
take-off, not after an aircraft is airborne. CBP deems it more
effective to identify potential risks to aviation and border security
before an aircraft gains access to United States airspace.
Comment: Several commenters expressed concern about names that are
very common and continuously appearing on the ``Watch List'' which
would either restrict or delay their arrival or departure.
Response: CBP appreciates the concerns that members of the public
have expressed regarding shared and/or similar names to those that
appear on the consolidated U.S. government watchlist and the potential
for misidentification. Maintenance of the watchlist is beyond the scope
of this rule. For more information on the watchlist and how to seek
redress, please refer to the U.S. Department of Homeland Security's
Travel Redress Inquiry Program (DHSTRIP) by going to the Department of
Homeland Security Web site, http://www.dhs.gov or by cutting and
pasting the following web address into a web browser for information on
how to address such issues: http://www.dhs.gov/xtrvlsec/programs/gc_1169676919316.shtm.
Comment: Several hundred commenters requested that CBP meet with
their association to discuss the proposed rule.
Response: CBP did not hold public meetings on this proposed rule
and did not meet with any individuals or associations to discuss the
proposed rule. The 75-day comment period and the large number of
comments received during the NPRM's comment period were sufficient for
CBP to accurately determine public sentiment.
Comment: One commenter alleged that the public had been
disenfranchised of their right to comment on this NPRM because no
comments were posted on 22 separate days during the comment period.
Response: CBP works diligently to keep the public apprised of its
current public policies, and takes steps in the form of published
notices, notices of proposed rulemakings, final rules and other actions
allowing for public comment. The commenter is correct that no comments
were posted on http://www.regulations.gov on the days referenced during
the comment period. However, there is a difference between comments
being posted and comments being submitted and received. Depending on
the method of submission (e.g., U.S. mail or online), the process of
posting comments varies slightly, but it is never immediate. On the
days referenced by the commenter, comments actually were submitted (and
received) for each day. However, comments are not posted immediately
when submitted because prior to being posted, all comments must be
initially reviewed for various reasons, such as verifying the comments
received in the mail are not duplicated in the electronic docket, use
of inappropriate language or locating missing attachments. After this
initial review, comments are then posted. All of the days referenced by
the commenter were weekend days or holidays, with one exception (the
Friday following Thanksgiving). Comments were not posted on those days
because personnel were not available to perform the tasks referenced
above.
Comment: Some commenters expressed concern regarding how they could
expect the transition from current methods of operation for
international arrivals and departures by private aircraft at the
various ports around the country to the newly required use of eAPIS to
occur.
Response: When these regulations become effective, there will be a
transitional period during which the current manual process of
requesting landing rights will gradually be replaced by this automated
procedure (i.e., eAPIS). During this transitional period, pilots flying
into locations that currently require advance arrangements with the CBP
port to ensure the availability of CBP officers to process the aircraft
should continue to follow those local procedures for requesting landing
rights until instructed otherwise.
Implementation--Privacy Issues
Comment: Several hundred commenters expressed concern that, as U.S.
citizens, they should not be required to ``request permission'' to
enter or leave their own country. Two commenters noted the proposed
rule is an effort to increase surveillance and information gathering on
U.S. citizens under the guise of security.
Response: DHS is working to strengthen aviation security to further
minimize the vulnerability of private aircraft flights being used to
deliver illicit materials, transport dangerous individuals or employ
the aircraft as a weapon. Today, compared to regularly scheduled
commercial airline operations, little or no screening or vetting of the
crew, passengers or the aircraft itself is required of private aircraft
before entering or departing the United States at air ports of entry
(APOE). Some of these APOEs are located well within U.S. territory and
near highly populated areas. To address this vulnerability and further
strengthen U.S. borders, DHS has developed this rule.
The requirements under the final rule include the identification
and vetting of individuals on private aircraft, prior to entering and
departing U.S. airspace. Submission of information for all travelers,
including U.S. citizens, on board a private aircraft arriving in the
United States, is already authorized under 19 U.S.C. 1433(d), as
implemented in 19 CFR 122.31 and 19 CFR 122.23. This final rule changes
the timing of the arrival submission (60 minutes prior to departure)
and the method of submission (through eAPIS or another CBP-approved
data transmission method). It also requires transmission of departure
manifest information for private aircraft--something CBP does not
collect currently. CBP expects that early receipt of departure manifest
data for private aircraft exiting the United States will allow CBP to
assess the threat presented by the aircraft and persons onboard prior
to takeoff, and thus aid CBP in
[[Page 68299]]
preventing terrorists or terrorist weapons from gaining access to an
airborne aircraft.
Furthermore, pursuant to 19 U.S.C. 1433(d) and (e), 1644 and 1644a,
the Secretary has the authority to regulate the departure of aircraft,
both commercial and private, including requiring passenger manifest
information. Further authority may be found in 46 U.S.C. 60105,
providing that any vessel shall obtain clearance from the Secretary, in
a manner prescribed by the Secretary, before departing the United
States for a foreign port or place; this authority is extended to the
departure of aircraft pursuant to the provisions of 19 U.S.C. 1644 and
1644a.
Comment: Several commenters stated that the information required
for the arrival and departure manifests goes beyond what is required
for international commercial air passengers.
Response: Under the current Advance Passenger Information System
(APIS) requirements for commercial aviation, information is collected
regarding passengers, crew and non-crew. See 19 CFR 4.64, 122.49a,
122.49b, 122.49c, 122.75a and 122.75b. CBP is working to process
arriving passengers on private aircraft in a similar manner. For
private aircraft, CBP has determined that information regarding all
individuals onboard the aircraft, as well as the aircraft, is relevant
for purposes of law enforcement and threat assessment. Much of the
information that CBP has determined necessary for collection regarding
the individuals onboard departing and arriving private aircraft is
comparable to the information that commercial air carriers are
currently required to submit in electronic arrival and departure
manifests for passengers and crew-members. Collecting this information
prior to a private aircraft's arrival or departure will allow CBP to
perform advance screening to identify any individuals who may pose a
risk to aviation security prior to take off and access to U.S.
airspace.
With this final rule, electronic manifest information will be
required for all aircraft, except public aircraft as defined in part
122, arriving in or departing from the United States. Private aircraft
will be covered by the provisions outlined in this rule and commercial
aircraft will be covered by the provisions outlined in the other APIS
regulations. See 19 CFR 122.49a, 122.49b, 122.49c, 122.75a, and
122.75b.
Comment: Several commenters expressed concern that submitting data
through the eAPIS system will lead to increased identity theft. One
commenter stated that hackers could steal a pilot's clearance.
Response: CBP has a multi-layer approach to security of its
databases, including software firewalls to prevent hackers from
compromising its database and a secured log-in when one signs into
eAPIS. CBP is very sensitive to the privacy issues associated with the
use of eAPIS. For further information, CBP has published a Privacy
Impact Statement (PIA) that outlines in detail what records are kept,
how they are kept, and for how long they are kept. See http://dhs.gov/xinfoshare/publications/editorial_0511.shtm.
Implementation--Modes of Transportation
Comment: A few commenters wanted to know if hot air balloons
constituted aircraft subject to the proposed rulemaking.
Response: Pursuant to 19 CFR 122.1(a), ``aircraft'' is defined as
``any device now known, or hereafter invented, used or designed for
navigation or flight in the air. It does not include ``hovercraft,''
which is a vehicle that hydroplanes on a thin layer of air just above
the surface of water or land. Because hot air balloons are designed and
used for flight in the air, they meet the definition of an ``aircraft''
set forth in 19 CFR 122.1(a). Thus, hot air balloons are considered
aircraft under CBP regulations and are subject to this final rule.
Comment: Many comments stated that if other modes of
transportation, such as passenger vehicles, buses, trucks, and boats
are not subject to the presentation requirement for arrival and
departure manifests, private aircraft should not be either.
Response: CBP disagrees. Submission of notice of arrival
information indicating the number of citizen passengers and alien
passengers arriving by air in the United States is already required
under 19 CFR 122.31 and 19 CFR 122.23. Additionally, pursuant to 19
U.S.C. 1433(d), (e), 1644 and 1644a, the Secretary has the authority to
prescribe regulations regarding the departure of aircraft, both
commercial and private. Further authority exists in 46 U.S.C. 60105,
which provides that any vessel shall obtain clearance from the
Secretary, in a manner prescribed by the Secretary, before departing
the United States for a foreign port or place. This authority is
extended to aircraft pursuant to the provisions of 19 U.S.C. 1644 and
1644a.
Although the timing of the submission, the method of submission,
and the data elements required are being modified, CBP does not
anticipate this final rule to negatively affect private aircraft
outside the United States because notice of arrival requirements are
already in place and do not cause severe economic hardship.
Additionally, other modes of transportation besides aircraft and
vessels, specifically trucks and trains, are subject to manifest
requirements. The statutory basis for requiring a manifest from a
``vehicle'' (which includes trucks and trains) is found in 19 U.S.C.
1431(b). The regulatory provisions implementing this statute are spread
throughout 19 CFR Part 123 (see, e.g., sections 123.3, 123.4, 123.5,
123.91, 123.92, etc.). Vehicles required to submit a manifest would do
so through presentation of CBP Form 7533 Inward Cargo Manifest for
Vessel Under Five Tons, Ferry, Train, Car, Vehicle, etc., which
requires the following information be submitted: name or number and
description of importing conveyance, name of master or person in
charge, name and address of owner, foreign port of lading, U.S. port of
destination, port of arrival, date of arrival, bill of lading or marks
& numbers of consignee on package, car number and initials, number and
gross weight (in kilos or pounds) of packages and description of goods,
and name of consignee. As indicated by the aforementioned data elements
for vehicles, many elements are similar to those that will be required
for private aircraft under this final rule.
CBP does not require manifests from passenger vehicles unless they
are carrying commercial goods. Non-commercial pleasure boats are exempt
from the entry/manifest requirements under 19 CFR 4.94. Private
aircraft, unlike other modes of transportation, present a unique threat
because they are not inspected at the physical border and will travel
over U.S. territory before CBP has the opportunity to inspect them.
Implementation--General
Comment: One commenter expressed concern that a terrorist could use
the eAPIS system to verify whether certain names are on the ``No-Fly''
list.
Response: CBP has taken into consideration potential threats and
intentional misuse of the eAPIS system in the development of system
access and security. If an individual on the ``No-Fly'' list is
identified on the manifest, DHS will conduct a risk-based analysis to
determine whether to grant, restrict or deny landing rights. If landing
rights are restricted or denied, the pilot will be provided with
appropriate instructions and contact information.
Comment: Several hundred commenters stated that the requirement for
clearance to leave the United States should be deleted because the U.S.
[[Page 68300]]
government should not care if ``terrorists'' are leaving the country.
Three commenters questioned how CBP would be able to apprehend
terrorist suspects if we did not allow them to enter the United States.
Response: CBP disagrees. CBP believes that the outbound passenger
manifest information allows CBP and other law enforcement officials to
better identify individuals who may be on the ``No-Fly'' watch list
when either arriving in or leaving from the United States.
Additionally, outbound information is necessary because any airborne
aircraft can be used to transport a dangerous device and gain access to
U.S. airspace. CBP's main concern is to keep individuals who are on the
``No-Fly'' list from traveling by air, whether outgoing or incoming to
prevent threats to our homeland security. As a result, CBP is able to
conduct better risk assessments which can lead to higher rates of
detection of individuals who are on the ``No-Fly'' list. In addition,
CBP has authority under 8 U.S.C. 1185 to regulate the entry and exit of
individuals from the United States.
Comment: Several hundred commenters stated that the rule does
nothing to increase security for private aircraft operators because
passengers aboard private aircraft generally have an established
relationship with the pilot.
Response: CBP disagrees. The purpose of this rule is to increase
U.S. national security as well as that of private aircraft operators.
As such, it is entirely possible that the family members, friends,
acquaintances and employers who may travel as passengers on private
aircraft are in fact on the ``No-Fly'' list unbeknownst to the pilot,
which will affect whether CBP grants, denies, or restricts landing
rights to the aircraft. Because the advance screening will allow for
the identification of individuals on the ``No-Fly'' list and as such
will prevent these individuals from gaining access to U.S. airspace,
the rule will in fact increase security for private aircraft operators.
As previously stated, CBP believes that the passenger manifest
information allows CBP and other law enforcement officials to better
identify the travel plans of individuals on the ``No-Fly'' list. The
final rule addresses the threat to national security presented by
private aircraft or any of its occupants, whether or not the operator
of the aircraft has a personal relationship with any or all passengers.
Comment: Several commenters suggested that DHS should allow private
aircraft pilots to submit passenger manifest data for both departure
from the United States and return to the United States prior to leaving
the United States to accommodate situations where communications
equipment may not be available or reliable outside the United States.
Response: CBP agrees. Under the final rule, as well as proposed in
the NPRM, pilots may submit passenger manifest data via the eAPIS
portal for both departure and arrival manifests (that is, the outbound
and the return flight inbound manifests) prior to departure from the
United States. As proposed in the NPRM, such advance submission of
arrival and departure manifests is permitted under this final rule,
inasmuch as only a minimum time frame for submission of the arrival
and/or departure manifest was indicated. This final rule in no way
restricts pilots from submitting manifests in advance of their
departure from the United States to a foreign port or location. In
fact, such early submissions are encouraged and, in cases where pre-
clearance services are made available abroad, the early submission
(from the United States or the originating foreign country) could help
expedite the processing of the flight at the pre-clearance site.
Comment: Several hundred commenters stated that this rule will
negatively affect humanitarian and tourist visits from U.S. citizens to
other countries. One commenter stated that this rule would adversely
affect business travel.
Response: CBP disagrees. Submission of notice of arrival
information for U.S. citizens entering the United States is already
required for commercial flights in 19 CFR 122.31 and 19 CFR 122.23.
Although the timing of the submission, the method of submission, and
the data elements required are being modified, this final rule is not
anticipated to negatively affect trips outside the United States
because notice of arrival requirements are already in place and do not
cause severe economic hardship.
Comment: Several hundred commenters stated that current systems and
procedures are adequate and new requirements are not necessary.
Response: CBP disagrees. The purpose of this rule is to provide CBP
and other law enforcement officials with advance electronic information
regarding pilots and passengers traveling via private aircraft to allow
DHS to conduct timely risk and threat assessments. The pre-screening of
passenger names against the ``No-Fly'' list prior to departure from or
to the United States will allow DHS to conduct threat assessments
allowing the advance identification of individuals on the ``No-Fly''
list prior to take off and access to U.S. airspace.
Comment: Several commenters stated that approval should be given
annually and not on a per-flight basis. Two commenters recommended
approval every five years. One commenter recommended a NEXUS type
program for private aircraft.
Response: CBP disagrees. Every flight that takes off for departure
and/or arrival in the United States poses a possible threat by allowing
access to United States airspace by every individual onboard the
aircraft. For risk assessment purposes, this arrival and departure
manifest information is necessary for each flight arriving in and
departing from the United States. This is so because it will allow CBP
to use the most up-to-date intelligence to properly react to any
persons or aircraft that pose a threat to aviation and national
security. CBP notes, however, that arrival and departure manifest
information for a particular flight may be submitted even months in
advance of arrival or departure, but no later than 60 minutes prior to
departure of the private aircraft to or from the United States.
Comment: Several hundred commenters indicated that the rule is
unnecessary because small private aircraft cannot cause significant
damage or threat.
Response: CBP disagrees. Any size aircraft (large or small) may
meet the definition of a private aircraft under CBP regulations.
Furthermore, even though large aircraft may inflict more damage if
flown into infrastructure, both large and small aircraft present a
threat because they may be used to transport terrorists or terrorist
weapons. Creating an exemption for private aircraft would provide a
loophole that could compromise our national security. Furthermore, the
purpose of the rule is not only to provide CBP with advance aircraft
information, but to also provide CBP with advance information regarding
pilots and passengers traveling via private aircraft. This will allow
DHS to conduct threat assessments and reduce the probability of a
terrorist attack by allowing for the advance identification of
individuals on the ``No-Fly'' list prior to their gaining access to
U.S. airspace via an airborne aircraft, and granting, denying or
restricting landing rights accordingly. This information is needed for
each flight by private aircraft arriving in and departing from the
United States, regardless of the size or weight.
Comment: Thirteen commenters suggested that if one of the
passengers is not approved to come into the United States, the flight
may be unexpectedly grounded abroad for an extended period of time
until the issue is resolved. One commenter stated that pilots should
not be responsible for law enforcement
[[Page 68301]]
duties. Another commenter wanted to know his liability if one of his
passengers shows up on the ``No-Fly'' list.
Response: DHS will resolve any delays as quickly as possible and
estimates that the frequency of such occurrences should be very low.
CBP does not expect the pilot to be responsible for law enforcement
duties. The pilot is best situated to review passenger documents and to
verify that the passengers he will be flying appear to match the travel
documents presented. Yet, although the pilot bears responsibility for
the accuracy of the data submitted, DHS is responsible for any
necessary enforcement that flows from that data.
If an individual on the ``No-Fly'' watch list is identified on the
manifest, DHS will conduct a risk-based analysis and make a
determination whether to grant, restrict or deny landing rights. If
landing rights are restricted or denied, the pilot will be provided
with appropriate instructions and contact information. Provided the
pilot, in accordance with his/her legal obligations under this rule,
correctly transmits the manifest information and follows the
instructions provided by CBP and/or TSA regarding the boarding or non-
boarding of particular passengers, he should have no liability.
Comment: Several commenters stated that there was no basis in
existing law for the Secretary to exercise departure clearance
authority over private aircraft.
Response: CBP disagrees. As previously stated, pursuant to 19
U.S.C. 1433(e), 1644 and 1644a, the Secretary has the authority to
prescribe regulations regarding the departure of aircraft to and from
the United States, both commercial and private. Further authority may
be found in 46 U.S.C. 60105, providing that any vessel shall obtain
clearance from the Secretary, in a manner prescribed by the Secretary,
before departing the U.S. for a foreign port or place; and that
authority is extended to civil aircraft under 19 U.S.C. 1644 and 1644a.
The ``exception'' previously provided for private aircraft under 19 CFR
122.61 was not the result of a lack of statutory authority to regulate
private aircraft. Instead, the Secretary (then, the Secretary of the
Treasury), exercised his discretion at the time not to impose clearance
requirements on that segment of civil aviation. With this new rule, the
Secretary has determined that, after September 11, 2001, the clearance
requirements in this rule are necessary and appropriate.
Comment: One commenter stated that the passenger manifest
requirement for departure is extremely cumbersome as private flights
require flexibility in terms of passengers actually onboard at
departure.
Response: The rule provides that, if a departure manifest is
submitted to CBP before all individuals arrive for transport, the pilot
is required to submit any changes to traveler information, and receive
a new clearance from CBP. If the changes are submitted less than 60
minutes prior to departure, the pilot is only required to receive a new
clearance from CBP prior to departing, he does not necessarily need to
wait an additional 60 minutes. By not requiring that the pilot wait a
full 60 minutes, CBP believes that the rule provides sufficient
flexibility and promotes efficiency.
Comment: One commenter stated that CBP should no longer require CBP
Form 178 (Private Aircraft Enforcement System Arrival Report) as the
included information will be electronically transmitted to CBP one hour
prior to departure.
Response: CBP agrees. CBP Form 178 was created as an internal
Customs form for the use by Customs inspectors. Because the information
on the CBP Form 178 is now electronically available to CBP officers
through eAPIS, CBP will no longer require the form.
Implementation--Enforcement
Comment: Two commenters raised concerns whether the proposed rule
was in compliance with unspecified international transportation and
customs treaty agreements. One of the two commenters was concerned that
CBP had not communicated with the international branch of the U.S.
Department of Transportation regarding the proposed rule's impact upon
international obligations.
Response: CBP believes that the rule is in compliance with all
applicable international agreements. International law recognizes a
State's right to regulate aircraft entering into, within or departing
from its territory. International treaties, such as the Chicago
Convention, contain provisions requiring aircraft in U.S. territory to
comply with a broad array of U.S. laws and regulations. For example,
Article 11 of the Chicago Convention requires compliance with ``the
laws and regulations of a contracting State relating to the admission
to or departure from its territory of aircraft engaged in international
air navigation, or to the operation and navigation of such aircraft
while within its territory.'' Similarly, Article 13 requires compliance
with a State's laws and regulations ``as to the admission to or
departure from its territory of passengers, crew or cargo of aircraft *
* * upon entrance into or departure from, or while within the territory
of that State.'' The tenets of the Chicago Convention obligations are
followed in this final rule.
Comment: Several hundred commenters questioned CBP's ability to
receive and process private aircraft APIS transmissions in a timely
manner. One commenter stated that if CBP cannot provide a response
within five minutes, approval should be assumed to be granted. One
commenter indicated that this rule has very little chance of being
implemented with the limited staff that CBP has available. One
commenter asked what assurance the pilot will have that the eAPIS
transmission was received.
Response: CBP anticipates handling the volume of private aircraft
submissions through the enhanced capabilities of the eAPIS portal and
other CBP-approved submission methods. CBP is capable of receiving and
processing tens of thousands of private aircraft manifest submissions
daily. Additionally, small commercial carriers currently use eAPIS
successfully to make timely submissions of passenger manifest data. A
pilot may not depart without receiving a ``cleared'' message from CBP
and following all other instructions provided by DHS in the response to
the eAPIS submission. Pilots will know that the eAPIS transmission has
been received, based upon CBP's response to the transmission. Clearance
for a flight to or from the United States should never be assumed
regardless of the amount of time that has elapsed; only the pilot's
receipt of a cleared response from CBP ensures that the agency has
received the arrival and/or departure manifest submission.
Comment: Many commenters questioned the necessity of the proposed
rule since the manifest information submitted via eAPIS cannot and/or
will not be physically verified by CBP.
Response: CBP appreciates this concern. Because CBP officers do
meet private aircraft upon arrival, it is imperative that the
electronic manifest be available for CBP verification prior to the
aircraft's arrival in the United States. Additionally, electronic
departure manifests will be available for verification by CBP officers
prior to the aircraft's departure from the United States.
Comment: Many commenters stated that Puerto Rico should not be
considered a foreign location, and flights from Puerto Rico to the
continental United States should not be subject to the requirements of
the rule.
[[Page 68302]]
Response: CBP agrees. CBP would like to clarify that as proposed in
the NPRM and as finalized in this rule, under 19 CFR 122.22(a) ''United
States'' means the continental United States, Alaska, Hawaii, Puerto
Rico, the Virgin Islands of the United States, Guam and the
Commonwealth of Northern Mariana Islands. Accordingly, flights between
Puerto Rico and other locations in the United States would not be
subject to the requirements of this rule.
Comment: Several commenters inquired as to what penalties would be
imposed if a pilot fails to file an arrival or departure manifest and
obtain the required clearance for landing before taking off for the
United States from a foreign port or place or departing the United
States for a foreign destination.
Response: Pilots of aircraft departing the United States, or
departing a foreign place for the United States, who fail to comply
with the terms of this rule are subject to a civil penalty of $5,000
for the first violation and $10,000 for each subsequent violation as
prescribed in 19 U.S.C. 1436(b) and 19 CFR 122.166(a)(c)(1). The pilot
may also be subject to criminal penalties for violations under 19
U.S.C. 1436(c). In addition, the U.S. government has established
protocols and procedures to defend and protect its airspace against
potential threats if it is unable to identify the intention of any
aircraft.
Comment: One commenter pointed out that 8 CFR 231.3 which provides
exemptions for private vessels and aircraft from manifest requirements,
exempts private aircraft and, therefore, contradicts the requirements
proposed by the NPRM. The commenter suggested that it be amended to
conform to the requirements proposed by the NPRM.
Response: Although CBP does not believe any real conflict exists to
the extent this final rule is under Title 19, rather than Title 8, CBP
agrees that clarification regarding exemptions for private aircraft
noted in title 8 of the Code of Federal Regulations is appropriate to
avoid any confusion. Section 231.3 of title 8 of the Code of Federal
Regulations will be amended to reference the requirements for arrival
and departure manifest presentation of 19 CFR 122.22.
Implementation--60 Minute Requirement
Comment: Several hundred commenters asked if CBP could guarantee
that aircraft operators will receive a response within 45 minutes of
transmitting the arrival information and manifest data so that they can
proceed to the aircraft, taxi and takeoff 60 minutes after they submit
the information. Two commenters stated that waiting for permission from
DHS to depart is a terrible burden that will lead to delays.
Response: In most cases, an automated analysis will create a rapid
response well within the 60 minute time period. In other cases,
additional review may be necessary, requiring additional time. DHS will
strive to process each request within 60 minutes of receipt or as
quickly as possible to avoid delays.
Comment: Many commenters expressed concerns that a pilot would have
to resubmit new arrival times to FAA and wait additional time if CBP's
response to arrival and/or departure manifests occurred 10 minutes
after the pilot's stated departure time submitted in FAA flight plans.
Response: CBP wishes to clarify that once pilots have submitted
their completed passenger manifest data and have received electronic
clearance to depart regarding the transmission from CBP, they are free
to depart. Absent changes to the information previously transmitted, an
additional submission is not necessary unless otherwise indicated by
CBP. Pilots may contact the intended port of arrival telephonically or
by radio with expected time of arrival updates. The 60-minute
requirement is designed to give CBP an adequate amount of time to
respond to the eAPIS transmission so that pilots will be able to make
their scheduled departure time, as reported to FAA. Pilots also have
the option of submitting an arrival/departure manifest to CBP earlier
than 60 minutes prior to take off if that is their preference.
Communications--Equipment Concerns
Comment: Several hundred commenters stated that the equipment
required to submit APIS information is not available in all general
aviation airports.
Response: CBP recognizes that not all private aircraft departure
locations are equipped to submit APIS data in the timeframe required.
Under this final rule, CBP is allowing private aircraft pilots a great
deal of flexibility in how and when they submit passenger manifest data
to CBP. A pilot may submit complete, correct, and accurate passenger
manifest data any time in advance, but no later than 60 minutes prior
to departure to or from the United States, allowing the flexibility to
provide data prior to travel to or from a remote location. As one
alternative, a pilot may also have a third-party agent submit the data.
Additionally, in response to the comments received from the NPRM,
certain elements of a previously submitted arrival and/or departure
manifest (i.e., flight cancellation, expected time of arrival and
changes in arrival location) may now be amended via telephone, radio or
by existing processes and procedures if access to the Internet is
unavailable.
Original arrival and departure manifests generally must be
submitted via eAPIS or another CBP-approved data interchange system.
However, on a limited case-by-case basis, CBP may permit a pilot to
submit or update notice of arrival and arrival/departure manifest
information telephonically when unforeseen circumstances preclude
submission of the information via eAPIS. Under such circumstances, CBP
will manually enter the notice of arrival and arrival/departure
manifest information provided by the pilot and the pilot is required to
wait for CBP screening and approval to depart. CBP will strive to
process such manual submissions as quickly as possible; however, the
processing of these non-electronic manifests may significantly delay
clearance.
Finally, when there is a change in the expected time of arrival due
to unforeseen conditions such as weather changes, the pilot is
permitted to contact the intended port of arrival with the new expected
time of arrival telephonically, by radio, or via the FAA automated
flight service stations (AFSS) and/or flight services.
Comment: Several hundred commenters noted that few private aircraft
have the necessary equipment on board to transmit an arrival manifest
should they need to divert to a U.S. airport in the case of emergency.
Two commenters stated that the requirement to provide a 30-minute
arrival notice places an undue burden on the pilot. One commenter
stated weather can play a part in causing a diversion while already in
flight.
Response: With respect to an aircraft arriving at a U.S. port,
``emergency'' means an urgent situation due to a mechanical, medical,
or security problem affecting the flight, or an urgent situation
affecting the non-U.S. port of destination that necessitates a detour
to a U.S. port. CBP's policy on emergency landings remains unchanged
and permission continues to be granted on a case-by-case basis. CBP
will take into consideration the nature of the emergency prior to
issuing any penalties and as a mitigating factor when any penalties
issued by the agency are considered in the administrative petition
process.
Comment: Several hundred commenters asked if facsimile, telephone,
use of Flight Service Station and/or email transmissions would be
[[Page 68303]]
acceptable alternatives in addition to transmissions through eAPIS.
Five commenters inquired as to whether the additional passenger
information required by CBP could be added to the flight plan
notification that they already file with the FAA.
Response: Although CBP will allow the submission of arrival
manifests well in advance of the actual arrival of the aircraft and
approve the passengers and aircraft depending upon the outcome of the
screening process, the pilot may still be required, per any
instructions received from CBP, to contact CBP at the arrival airport
to confirm CBP officer availability at that port for the expected time
and date of arrival indicated in the manifest. Under this final rule,
facsimile, email transmissions, or submission via another agency such
as the (FAA) of arrival and departure manifest data are not acceptable
methods of original submission. Methods such as facsimile, email and
telephone can lead to inaccuracies, tend to be inefficient and do not
promote the uniformity that submission via one standard method allows.
That said, on a limited case-by-case basis, CBP may permit a pilot to
submit or update notice of arrival and arrival/departure manifest
information telephonically when unforeseen circumstances preclude
submission of the information via eAPIS. CBP also may review and
approve alternative methods for electronically transmitting the
required data to CBP. For example, a pilot may authorize a third-party
to submit the original arrival and/or departure manifest data on the
pilot's behalf.
Certain elements of a previously submitted arrival and/or departure
manifest may be amended or supplemented via telephone or radio if
access to the Internet is unavailable. Also, when there is a change in
the expected time of arrival due to unforeseen conditions such as
weather changes, the pilot is permitted to contact the intended port of
arrival with the new expected time of arrival telephonically, by radio,
or via the FAA automated flight service station (AFSS) and/or flight
services.
Comment: One commenter had concerns about backup procedures should
eAPIS not be available due to CBP/DHS system outages.
Response: In the event that eAPIS is unavailable, authorized users
will need to contact CBP at the intended U.S. airport of arrival/
departure for instructions on how to proceed in submitting required
information. Each outage presents unique circumstances that will be
dealt with on a case-by-case basis per the port's instructions.
Communications--General
Comment: Several commenters stated that the requirement to provide
a 24-hour point of contact is difficult because private aircraft
operators do not normally have 24-hour operation centers.
Response: The data element ``24-hour point of contact'' in Sec.
122.22, paragraphs (b)(4)(xx) and (c)(4)(xviii) will be changed to
``24-hour Emergency Point of Contact'' to clarify that the named entity
or individual provided for in this element is available for contact by
CBP should an emergency arise (as opposed to day to day operations) and
CBP needs information about the flight as a result of communication
equipment failure or pilot unavailability.
Comment: Several commenters stated that submitting the transponder/
beacon code and/or decal number in eAPIS was not possible because it
was not available 60 minutes prior to takeoff. One commenter was
concerned about supplying the CBP decal number as the decal may be
purchased upon arrival in the United States.
Response: CBP agrees and is amending 19 CFR 122.22 (b)(4)(xviii)
and (c)(4)(xix) so that the transponder code will no longer be listed
as a required data element and the decal number will be required to be
submitted if available.
Comment: Several commenters stated eAPIS does not accept aircraft
registration numbers and airports that are not identified with an ICAO
airport code.
Response: CBP developed a new module within eAPIS for private
aircraft use to capture the data elements required by this regulation.
Regulatory Analyses--E.O. 12866
Comment: Several commenters stated that the Regulatory Analysis is
deficient because it does not address the costs that pilots would incur
to fly to another airport with adequate facilities. Three commenters
stated that the costs for Internet access were not considered. One
commenter stated that the costs for eAPIS on-line training and
registration were not considered. One commenter stated the time for
programming changes to eAPIS by DHS were not considered. One commenter
stated that the Regulatory Assessment did not consider the ``ripple
effects'' beyond those to private pilots and their passengers.
Response: The commenters are correct that the analysis for the NPRM
did not account for all of these costs. The Regulatory Analysis for
this final rule takes into account the costs for flying to facilities
with Internet capabilities (see below). Costs for online training for
eAPIS are not considered because eAPIS is designed to be a user-
friendly system and will require users to spend little time
familiarizing themselves with the web interface. Finally, as noted in
the analysis for the NPRM, ``ripple effects'' beyond those entities not
directly regulated are not considered because they do not represent
losses in consumer surplus but are rather transfers within the economy.
Comment: A few commenters stated that the Regulatory Analysis
incorrectly estimated that pilots and passengers would have to arrive
15 minutes prior to takeoff.
Response: The commenters are incorrect. CBP assumed that all pilots
would have to arrive at the airport in time to submit their APIS data
in a timely fashion. CBP assumed that for a portion of the pilots
affected, arriving at least 60 minutes prior to takeoff would represent
a departure from their normal flying practices. For this portion of the
population, CBP assumed that they would arrive 15 minutes earlier than
customary. CBP acknowledges that pilots could avoid arriving at the
airport early by using a third party to submit required information.
However, CBP believes that it is unlikely that pilots of private
aircraft would hire a third party to submit required data. Also, hiring
third parties to submit required data would not obviate the time costs
of arriving to the airport early, as hiring third parties would create
other costs.
Comment: A few commenters stated that CBP's estimate that it would
take 8 hours to resolve a security incident is too low. One commenter
stated that the CBP estimate of one hour to resolve a ``No-Fly''
designation has no support.
Response: This estimate was intended to represent an average time
to resolve a security incident. Some incidents could take less time and
others could take more time.
Comment: One commenter stated that CBP's estimate for a Value of a
Statistical Life (VSL) is too high because pilots would not be willing
to pay anything to reduce the risk of dying in a terrorist attack
because they know the passengers they are carrying.
Response: CBP interprets this commenter's point to be that because
the pilot knows the passengers he is carrying, there is no risk and the
pilot would not be willing to pay to reduce a risk that does not exist.
CBP disagrees that a risk does not exist for private aircraft. A
terrorist incident can be caused by persons in a private aircraft. CBP
presents two VSLs that are intended to capture an individual's
[[Page 68304]]
willingness to pay to avoid an incident. These values are used in
multiple economic evaluations across the U.S. government. These values
were reviewed by the Office of Management and Budget (OMB) during the
proposed and final rule stages.
Comment: A few commenters stated that the risk scenarios presented
in the Regulatory Analysis were not realistic for the vast majority of
general aviation aircraft. One commenter stated that potential
terrorist risks on small aircraft are miniscule.
Response: CBP agrees that some of the risk scenarios are more
likely than others and noted this in the NPRM and in this document.
These scenarios were intended to capture a range of possible outcomes
given the lack of specific data on terrorist attacks involving private
aircraft.
Comment: One commenter stated that the macroeconomic costs of a
terrorist incident were not addressed in the Regulatory Analysis.
Response: CBP agrees that the larger economic impacts stemming from
a terrorist incident are potentially significant. However, CBP does not
present secondary impacts of the rule because CBP does not know the
extent to which these losses are transfers versus real economic losses.
In the analysis of costs, benefits, and risk reduction that would be
required in order for this rule to be cost-effective [see section
``Executive Order 12866 (Regulatory Planning and Review)'' below] CBP
has compared direct costs to direct benefits. The ``ripple'' effects,
while important to recognize as potentially large, are not direct costs
or benefits.
IV. Summary of Changes Made to NPRM
After further review of the NPRM, the analysis of the comments
received from the public, and in light of CBP's desire to provide clear
policy and procedural guidance to the public, CBP has made certain
changes to the proposed regulatory text in this final rule. The changes
are summarized below.
(1) The NPRM proposed that the redress number be a required data
element for arrival and departure manifests if available. A redress
number is a number assigned to a passenger who has requested redress
respecting a screening concern. CBP is now encouraging, but not
requiring, that pilots include in their eAPIS manifest transmissions,
any redress numbers issued by TSA (or any other unique passenger number
approved by DHS for the same purpose) to facilitate screening and
clearance of passengers. CBP will not require a redress number as a
data element for the arrival and departure manifests because a
passenger may not have this number readily available for the pilot's
use on the arrival or departure manifest. As such, the data element
``redress number'' in proposed Sec. 122.22, paragraphs (b)(4)(xiii)
and (c)(4)(xiii) has been removed and will not be required as an
element of an arrival or departure manifest submission to CBP. Pilots
are encouraged but not required to submit the redress number in their
eAPIS transmissions, if available.
(2) While the NPRM did not include in the proposed regulatory text
the requirement that the pilot must compare the manifest information
with the information on the DHS-approved travel document presented by
each individual attempting to travel onboard the aircraft to ensure
that the manifest information is correct, that the travel document
appears to be valid for travel to the United States, and that the
traveler is the person to whom the travel document was issued, this
concept was included in the background section of the NPRM (see 72 FR
53397). As such, language has been added to Sec. 122.22, paragraphs
(b)(8) and (c)(7), which will reflect this obligation. CBP is adding
this requirement to the regulatory text for Sec. 122.22 to avoid any
confusion regarding this specific responsibility of pilots to examine
the travel documents as well as the traveler to mitigate the security
vulnerabilities of private air travel.
(3) The NPRM did not contain a proposed amendment to 8 CFR 231.3,
which currently makes clear that private aircraft are exempt from
having to file an arrival or departure manifest which is otherwise
required for commercial aircraft under title 8. In this final rule,
appropriate conforming changes have been made to 8 CFR 231.3 to clarify
that that electronic arrival and departure manifest requirements for
individuals traveling onboard private aircraft are now found in 19 CFR
122.22.
(4) Proposed Sec. Sec. 122.26 and 122.61 are now clarified to
reflect that ``United States'' as used in those sections, is as defined
in Sec. 122.22.
(5) The data element ``transponder code'' (also known as beacon
code) in proposed Sec. 122.22, paragraphs (b)(4)(xviii) and
(c)(4)(xix) has been removed and will not be required as an element of
an arrival or departure manifest submission to CBP, since this
information is not available until after the aircraft is airborne and,
thus, is unavailable for submission on an arrival and/or departure
manifest 60 minutes prior to departure.
(6) The data element ``decal number'' in proposed Sec. 122.22,
paragraphs (b)(4)(iv) and (c)(4)(iv) will be optional and have ``(if
available)'' added to indicate that this data element will not be
required as an element of an arrival or departure manifest submission
to CBP, since not all aircraft possess a decal number.
(7) The data element ``24-hour point of contact'' in proposed Sec.
122.22, paragraphs (b)(4)(xx) and (c)(4)(xviii) will be changed to
``24-hour Emergency point of contact'' in order to clarify that the
named entity or individual provided for this element is available for
contact by CBP in an emergency, in case CBP needs immediate information
about the flight as a result of communication equipment or pilot
unavailability, rather than for contact regarding day to day
operational issues.
(8) Language has been added to Sec. 122.22 paragraphs (b)(2)(i)
and (c)(2) clarifying that arrival and departure manifests may be
submitted anytime prior to the departure of the aircraft, but no later
than 60 minutes prior to departure of the aircraft.
(9) Language has been added to Sec. 122.22 paragraphs (b)(6) and
(c)(5) clarifying that once DHS has approved departure from the United
States and/or landing within the United States, and the pilot has
complied with all instructions issued by DHS, the aircraft is free to
depart or land.
(10) Language has been added to Sec. 122.22, paragraphs (b)(7) and
(c)(6) indicating that changes to an already transmitted manifest
regarding flight cancellation, expected time of arrival and arrival
location, can be submitted telephonically, by radio or through existing
processes and procedures. Additionally, language has been added to
these paragraphs clarifying that changes to passenger or aircraft
information must be resubmitted to CBP via eAPIS or other CBP-approved
data interchange system, invalidating any CBP approval given regarding
the originally submitted manifest, and requiring the pilot to await CBP
approval to depart based on the amended manifest containing the added
passenger information and/or changes to information regarding the
aircraft.
(11) The definition of the United States in Sec. 122.22 has been
changed to include the territory of the Commonwealth of the Northern
Mariana Islands (CNMI) due to subsequent legislation (section 702 of
the Consolidated Natural Resources Act of 2008; Public Law 110-229 (May
8, 2008) which extends the United States immigration laws to the CNMI.
[[Page 68305]]
(12) Section 122.0 (scope) has been amended by deleting the last
two sentences of paragraph (a) which specifically identified geographic
areas where the regulations under part 122 did and did not apply. Since
each section within part 122 specifies the geographic areas where they
apply, these sentences have been deleted for clarification.
V. Conclusion
After careful consideration of the comments received in response to
the NPRM and further review of the proposed rule, CBP is adopting as
final, with the modifications discussed above, the proposed amendments
published in the Federal Register on September 18, 2007. This final
rule will help safeguard the traveling public, and aid CBP in
accurately assessing the threat risk of private aircraft and those
individuals traveling via private aircraft.
VI. Regulatory Analyses
A. Executive Order 12866 (Regulatory Planning and Review)
This rule is not an ``economically significant'' rulemaking action
under Executive Order 12866 because it will not result in the
expenditure of more than $100 million in any one year. This rule,
however, is a significant regulatory action under Executive Order 12866
and, therefore, has been reviewed by the Office of Management and
Budget (OMB).
Currently, pilots of private aircraft must submit information
regarding themselves, their aircraft, and any passengers prior to
arrival into the United States from a foreign airport. Depending on the
location of the foreign airport, the pilot provides the arrival
information one hour prior to crossing the U.S. coastline or border
(areas south of the United States) or during the flight (other areas).
The information that would be required by this rule is already
collected pursuant to sections 122.31 and 122.23 for notice of arrival.
The newly required data elements that must be electronically submitted
pursuant to the requirements of this final rule include the information
that pilots must currently provide for notice of arrival; the required
information would need to be submitted earlier (60 minutes prior to
departure). No notice of departure information is currently required
for private aircraft departing the United States for a foreign airport.
CBP estimates that 138,559 private aircraft landed in the United
States in 2006 based on current notice of arrival data. These aircraft
collectively carried 455,324 passengers; including the 138,559 pilots
of the aircraft, this totals 593,883 individuals arriving in the United
States aboard private aircraft. CBP notes that this statistic reflects
the unique and actual instances of landings by private aircraft. CBP
estimates that approximately two-thirds are U.S. citizens and the
remaining one-third is comprised of non-U.S. citizens.
Table 1 summarizes the 2006 arrival information for the top
airports in the United States that receive private aircraft from
foreign airports. Fort Lauderdale received the most arrivals, with
nearly 10 percent of the U.S. private aircraft arrivals. The top 18
airports received approximately 60 percent of the total. As shown, the
average number of passengers per arrival varies by port; JFK has the
highest passengers per arrival (4.7) while Bellingham, Washington, has
the lowest (1.4). Nationwide, the average number of passengers carried
per arrival is 3.3.
Table 1--Summary of Arrivals and Passengers Aboard Private Aircraft (2006)
----------------------------------------------------------------------------------------------------------------
Percent of Average
Airport Aircraft/pilot Percent of Passenger total passengers
arrivals total aircraft arrivals passengers per arrival
----------------------------------------------------------------------------------------------------------------
Ft. Lauderdale Intl. Airport, FL 12,831 9 37,848 8 2.9
West Palm Beach, FL............. 9,031 7 25,109 6 2.8
New York-Newark, Newark, NJ..... 6,464 5 29,779 7 4.6
Miami Airport, FL............... 5,676 4 17,596 4 3.1
Fort Pierce, FL................. 5,216 4 11,376 2 2.2
Otay Mesa, CA................... 4,944 4 18,216 4 3.7
San Juan, PR.................... 4,090 3 10,821 2 2.6
Hidalgo, TX..................... 3,827 3 8,647 2 2.3
Calexico, CA.................... 3,597 3 7,963 2 2.2
JFK Airport, NY................. 3,497 3 16,492 4 4.7
Laredo, TX...................... 3,280 2 10,974 2 3.3
Tucson, AZ...................... 3,013 2 9,059 2 3.0
El Paso, TX..................... 2,548 2 9,544 2 3.7
Houston/Galveston, TX........... 2,534 2 10,850 2 4.3
Seattle, WA..................... 2,529 2 6,238 1 2.5
Brownsville, TX................. 2,303 2 7,027 2 3.1
San Antonio, TX................. 2,185 2 8,520 2 3.9
Bellingham, WA.................. 2,160 2 3,106 1 1.4
Remaining 223 airports.......... 58,834 42 206,159 45 3.5
-------------------------------------------------------------------------------
Total....................... 138,559 100 455,324 100 3.3
----------------------------------------------------------------------------------------------------------------
CBP does not currently compile data for departures, as there are
currently no requirements for private aircraft departing the United
States. For this analysis, we assume that the number of departures is
the same as the number of arrivals.
Thus, we estimate that 140,000 private aircraft arrivals and
140,000 departures will be affected annually as a result of the rule.
Although the current data elements for pilots are very similar to the
requirements in this rule, the data elements for passengers are more
extensive. Based on the current information collected and accounting
for proposed changes in the data elements, CBP estimates that one
submission, which includes the arrival information and the passenger
manifest data, will require 15 minutes of time (0.25 hours) for the
pilot to complete. Additionally, CBP estimates that it will require
each of the 460,000 passengers 1 minute (0.017 hours) to provide the
required data to the pilot. These data are all contained on a
passenger's passport
[[Page 68306]]
or alien registration card and are thus simple to provide to the pilot.
Currently, arrival information is submitted by radio, telephone, or
other method, or through the FAA's flight notification procedure. Under
this rule, pilots must submit the arrival and passenger data through
the eAPIS web portal, electronic EDIFACT transmissions, or an approved
alternative transmission medium. For this analysis, we assume that
pilots will use the eAPIS system, as it is a user-friendly and costless
method to submit the required data elements to CBP and the pilot need
only have access to a computer with web capabilities to access the
system. We also assume that pilots will have access to a computer and
the Internet to make the electronic submission. This analysis in no way
precludes a private aircraft operator from implementing another
approved method of transmission; however, we believe that most pilots,
particularly those not traveling for business, will choose to submit
the required data through the least-cost option: eAPIS.
Currently, private aircraft arriving from areas south of the United
States must provide advance notice of arrival at least one hour before
crossing the U.S. coastline or border. There are no such timing
requirements for other areas. Thus, some pilots and their passengers
may decide that to comply with the new requirements, including
submitting information through eAPIS and waiting for a response from
CBP, they must convene at the airport earlier than they customarily
would. We do not have any information on how many, if any, pilots or
passengers would need to change their practices. For this analysis, we
assume that 50 percent of the pilots and passengers would need to
arrive 15 minutes (0.25 hours) earlier than customary. This would
result in 70,000 affected pilots (140,000 arrivals * 0.5) and 231,000
affected passengers (70,000 arrivals * 3.3 passengers per arrival) for
a total of 301,000 individuals affected.
To estimate the costs associated with the time required to input
data into eAPIS, we use the value of an hour of time as reported in the
FAA's document on critical values, $37.20.\9\ This represents a
weighted cost for business and leisure private aircraft travelers. CBP
believes this is a reasonable approximation of the average value of a
pilot's and traveler's time.
---------------------------------------------------------------------------
\9\ Federal Aviation Administration. 2005. Economic Values for
FAA Investment and Regulatory Decisions, A Guide. Prepared by GRA,
Inc. July 3, 2007. Table ES-1. Per the instructions of this guidance
document (see pages 1-1 and 1-3), this estimate has not been
adjusted for inflation.
---------------------------------------------------------------------------
The cost to submit advance notice of arrival data through eAPIS
would be approximately $1.3 million (140,000 arrivals * 0.25 hours *
$37.20 per hour). Similarly, costs to submit advance notice of
departure data would be $1.3 million, for a total cost for pilots to
submit the required data elements of $2.6 million annually. The cost
for passengers to provide the data to the pilot to be entered into
eAPIS would be approximately $570,000 (920,000 arrivals and departures
* 0.017 hours * $37.20 per hour). Total costs for the eAPIS submissions
would be $3.2 million annually.
To estimate the costs of arriving earlier than customary, we again
use the value of time of $37.20 per hour. As noted previously, we
assume that 301,000 pilots and passengers may choose to arrive 0.25
hours earlier than customary. This would result in a cost of
approximately $2.8 million for arrivals and $2.8 million for
departures, a total of $5.6 million annually (301,000 individuals *
0.25 hours * $37.20 per hour * 2).
Additionally, CBP estimates the potential costs to resolve issues
with passengers that have been designated as ``No-Fly'' based on the
screening process. Although a law enforcement response is not required
under this rule, CBP estimates the costs for such a response to avoid
underestimating the costs of this rule. For the purposes of this
analysis, CBP estimates that on two occasions annually, a private
aircraft flight will have a passenger that is designated ``No-Fly'' but
through the resolution process is downgraded from ``No-Fly'' and the
entire traveling party continues on their flight. CBP assumes that four
individuals (the pilot plus three passengers) would be affected by a
one-hour delay to resolve the ``No-Fly'' designation. CBP also assumes
the resolution process will require 1 hour of law enforcement time at a
TSA-estimated cost of $62.43 per hour. The total annual costs for these
incidents would be approximately $422 [(four individuals * $37.20 * 1
hour + 1 individual * $62.43 * 1 hour) * two incidents].
CBP also estimates the potential costs for pilots and passengers
who may be denied landing rights as a result of their eAPIS manifest
submission. For the purposes of this analysis, CBP estimates that once
per year, a private aircraft flight is denied landing rights. CBP again
assumes that four individuals (the pilot plus three passengers) will be
affected, and the delay will be eight hours to coordinate a law
enforcement response. CBP assumes that four law enforcement personnel
will be involved in the investigation. The total annual costs for this
incident would be approximately $3,188 [(four individuals * $37.20 * 8
hours + 4 individuals * $62.43 * 8 hours) * one incident].
In response to comments received during the public comment period,
CBP also addressed costs pilots may incur to fly to another airport
with adequate facilities to access eAPIS. CBP believes that this will
be an uncommon occurrence, as considerable flexibility has been
provided in this final rule to allow pilots to submit APIS data while
they are in the United States (or other locations where facilities are
available) or to have a third party submit information through eAPIS on
the pilots' behalf. To not underestimate costs, CBP estimates that 1
percent of the affected pilots will have to travel to another location
with Internet access to submit their APIS data. Assuming that 140,000
private aircraft are affected by this rule, CBP estimates the following
costs.
As noted previously, the time cost per hour for a traveler onboard
a private aircraft is $37.20, and we assume 4.29 travelers aboard an
aircraft (1 pilot plus the 3.29 passengers). Per the FAA critical
values document, total operation costs for a general aviation aircraft
are $1,090 per hour. The sum of time costs and capital costs per
aircraft each hour are therefore $1,127.20. CBP assumes that the extra
travel time for each affected aircraft is 4 hours, and the total
undiscounted costs to fly to another airport with adequate facilities
are approximately $6,997,693 [($1,090 operation costs * 1,400 flights +
$37.20 * 1,400 pilots + $37.20 * 4,606 passengers) * 4 hours].
The total annual cost of the rule is expected to be $22.1 million.
Over 10 years, this would total a present value cost of $155.1 million
at a 7 percent discount rate ($188.1 million at a 3 percent discount
rate).
The primary impetus of this rule is the security benefit afforded
by a more timely submission of APIS information. Ideally, the
quantification and monetization of the beneficial security effects of
this regulation would involve two steps. First, we would estimate the
reduction in the probability of a terrorist attack resulting from
implementation of the regulation and the consequences of the avoided
event (collectively, the risk associated with a potential terrorist
attack). Then we would identify individuals' willingness to pay for
this incremental risk reduction and multiply it by the population
experiencing the benefit. Both of these steps, however, rely on key
data that are not available for this rule.
[[Page 68307]]
In light of these limitations, we conduct a ``breakeven'' analysis
to determine what change in the reduction of risk would be necessary
for the benefits of the rule to exceed the costs. Because the types of
attack that could be prevented vary widely in their intensity and
effects, we present a range of potential losses that are driven by
casualty estimates and asset destruction. For example, the average
private aircraft is 3,384 pounds and carries an average of a little
over four people (1 pilot and 3 passengers).\10\ Some private aircraft,
however, are much larger and carry many more people and thus could have
potentially higher casualty losses and property damages in the event of
an incident. We use two estimates of a Value of a Statistical Life
(VSL) to represent an individual's willingness to pay to avoid a
fatality onboard an aircraft, based on economic studies of the value
individuals place on small changes in risk: $3 million per VSL and $6
million per VSL.
---------------------------------------------------------------------------
\10\ Federal Aviation Administration. 2005. Economic Values for
FAA Investment and Regulatory Decisions, A Guide. Prepared by GRA,
Inc. July 3, 2007. Table ES-1.
---------------------------------------------------------------------------
Additionally, we present four attack scenarios. Scenario 1 explores
a situation where solely individuals are lost (no destruction of
physical property). In this scenario, we estimate the losses if an
attack resulted in 4 (average number of people on a private aircraft-
one pilot, three passengers) to 1,000 casualties but no loss of
physical capital. We acknowledge that this scenario is unlikely because
an attack that would result in 1,000 casualties would almost certainly
also result in loss of physical assets; however, this scenario provides
a useful high end for the risk reduction probabilities required for the
rule to break even.
Scenario 2 explores a situation where individuals are lost and a
lower-value aircraft is destroyed. The value of the aircraft lost,
$94,661, is based on the value from the FAA critical values study cited
previously.\11\ This value is for an aircraft built prior to 1982,
which is a substantial proportion (75 percent) of the general aviation
fleet of aircraft.\12\
---------------------------------------------------------------------------
\11\ Federal Aviation Administration. 2005. Economic Values for
FAA Investment and Regulatory Decisions, A Guide. Prepared by GRA,
Inc. July 3, 2007. Table ES-1. This estimate has not been adjusted
for inflation.
\12\ Federal Aviation Administration. 2005. Economic Values for
FAA Investment and Regulatory Decisions, A Guide. Prepared by GRA,
Inc. July 3, 2007. Table 3-14.
---------------------------------------------------------------------------
Scenario 3 explores a situation where individuals are lost and a
higher-value aircraft is destroyed. The value of the aircraft lost is
$1,817,062 (aircraft built in 1982 and later).
Scenario 4 explores a situation where individuals are lost and
substantial destruction of physical capital is incurred. In this
scenario we again estimate individual lives lost but now consider a
massive loss of physical capital (the 9/11 attack is an example of such
an event).
Casualties are again estimated as before using the two VSL
estimates. To value the loss of capital assets, we use a report from
the Comptroller of the City of New York that estimated $21.8 billion in
physical capital destruction as a result of the 9/11 attacks on the
World Trade Center.\13\ This report also estimates the ``ripple
effects'' of the attack--the air traffic shutdown, lost tourism in New
York City, and long-term economic impacts; however, we do not compare
these secondary impacts to the direct costs of the rule estimated
previously because we do not know the extent to which these losses are
transfers versus real economic losses. In this analysis we compare
direct costs to direct benefits to estimate the risk reduction required
for the rule to break even.
---------------------------------------------------------------------------
\13\ Thompson, Jr., William C. Comptroller, City of New York.
``One Year Later: The Fiscal Impact of 9/11 on New York City.''
September 4, 2002.
---------------------------------------------------------------------------
Again, the impacts in these scenarios would be driven largely by
the number of people aboard the aircraft and the size of the aircraft.
The annual risk reductions required for the rule to break even are
presented in Table 2 for the four attack scenarios, the two estimates
of VSL, and a range of casualties. As shown, depending on the attack
scenario, the VSL, and the casualty level, risk would have to be
reduced less than 1 percent (Scenario 4, 1,000 casualties avoided) to
184.1 percent (Scenario 1, 4 casualties avoided) in order for the
benefits of the rule to exceed the costs to break even. However, CBP
notes that risk reductions of over 100% are not possible to achieve.
Table 2--Annual Risk Reduction Required (%) for Net Costs to Equal Benefits
[Annualized at 7 percent over 10 years]
----------------------------------------------------------------------------------------------------------------
Scenario 4:
Scenario 2: Scenario 3: Loss of life
Scenario 1: Loss of life Loss of Life and
Casualties avoided Loss of life and aircraft and aircraft catastrophic
(low value) (high value) loss of
property
----------------------------------------------------------------------------------------------------------------
$3M VSL:
4........................................... 184.1 182.6 159.9 <1
10.......................................... 73.6 73.4 69.4 <1
100......................................... 7.4 7.4 7.3 <1
1,000....................................... 0.7 0.7 0.7 <1
$6M VSL:
4........................................... 92.0 91.7 85.6 <1
10.......................................... 36.8 36.8 35.7 <1
100......................................... 3.7 3.7 3.7 <1
1,000....................................... 0.4 0.4 0.4 <1
----------------------------------------------------------------------------------------------------------------
B. Regulatory Flexibility Act
CBP has prepared this section to examine the impacts of the rule on
small entities as required by the Regulatory Flexibility Act (RFA, See
5 U.S.C. 601-612). 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).
When considering the impacts on small entities for the purpose of
complying with the RFA, CBP consulted the Small Business
Administration's guidance document for conducting
[[Page 68308]]
regulatory flexibility analysis. Per this guidance, a regulatory
flexibility analysis is required when an agency determines that the
rule will have a significant economic impact on a substantial number of
small entities that are subject to the requirements of the rule. We do
not have information on the number of pilots and passengers traveling
for business versus leisure or how many businesses, regardless of size,
would be affected by the requirements. Those private individuals who
are flying for leisure, rather than business, would not be considered
small entities because individuals are not considered small entities.
Some of the affected pilots and passengers are flying for business
purposes; however, we do not know if these businesses are small
entities or not. This rule may thus affect a substantial number of
small entities.
In any case, the cost to submit data to CBP through eAPIS would be,
at most, approximately $50 per submission ($9.30 for the APIS
submission; $9.30 * 3.3 passengers + $9.30 * 1 pilot for potential
early arrival). CBP believes such an expense would not rise to the
level of being a ``significant economic impact.'' As we did not receive
comments that demonstrate that the rule results in significant economic
impacts, we are certifying that this action does not have a significant
economic impact on a substantial number of small entities.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA),
enacted as Public Law 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. This rule would not result in such an expenditure.
D. Executive Order 13132 (Federalism)
Executive Order 13132 requires CBP to develop a process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
Policies that have federalism implications are defined in the Executive
Order to include rules that 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.'' CBP has analyzed the rule in accordance
with the principles and criteria in the Executive Order and has
determined that it does not have federalism implications or a
substantial direct effect on the States. The rule requires private
aircraft arriving in the United States from a foreign location or
departing the United States to a foreign port or location to comply
with notice of arrival requirements, passenger manifest requirements,
and permission to land at landing rights airports. States do not
conduct activities with which this rule would interfere. For these
reasons, this rule would not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement.
E. Executive Order 12988 (Civil Justice Reform)
This 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 agencies make reasonable efforts to ensure that a regulation
clearly identifies preemptive effects, effects on existing Federal laws
and regulations, any retroactive effects of the proposal, and other
matters. CBP 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 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
There are two collections of information in this document in 19 CFR
122.22. This information will be used by CBP to further improve the
ability of CBP to identify high-risk individuals onboard private
aircraft so as to prevent terrorist acts and ensure aircraft and
airport safety and security. The likely respondents are individuals and
businesses. Under Sec. 122.22 a private aircraft pilot would be
required to file an advance arrival manifest on all individuals via an
electronic data interchange system approved by CBP no later than 60
minutes prior to the aircraft departing to the United States from a
foreign port or location. Additionally, a private aircraft pilot would
be required to file an advance departure manifest on all individuals
onboard a private aircraft through an electronic data interchange
system approved by CBP no later than 60 minutes prior to that aircraft
departing from the United States to a foreign port or location. eAPIS
is one CBP-approved electronic data interchange systems that private
aircraft pilots will use to transmit information about all of the
individuals aboard an aircraft.
The collection of information encompassed within this rule has been
reviewed and approved by the Office of Budget and Management in
accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507)
under OMB control number 1651-0088. An agency may not conduct, and a
person is not required to respond to, a collection of information
unless the collection of information displays a valid control number
assigned by OMB. The total estimated average annual burden associated
with the collection of information in this final rule is 77,820 hours,
with an estimated submission occurring twice annually taking .25 hours
each for pilot respondents, and 1 minute annually for passenger
respondents. Comments concerning the accuracy of this burden estimate
and suggestions for reducing this burden should be directed to the
Office of Management and Budget, Attention: Desk Officer for the
Department of Homeland Security, Office of Information and Regulatory
Affairs, Washington, DC 20503. A copy should also be sent to the Border
Security Regulations Branch, U.S. Customs and Border Protection, 799
9th Street, NW., 5th Floor, Washington, DC 20001-4501.
[[Page 68309]]
H. Privacy Statement
A Privacy Impact Assessment (PIA) for APIS was updated on August 8,
2007 and posted on the DHS Web site. In conjunction with the APIS Pre-
departure Final Rule published in the Federal Register on August 23,
2007 (72 FR 48320), a System of Records Notice (SORN) was published in
the Federal Register on that same date (72 FR 48349). On September 11,
2007, CBP and the DHS Privacy Office published and posted to the DHS
Web site a PIA Update for APIS to address the General Aviation NPRM,
which can be found at the following Web link: http://dhs.gov/xinfoshare/publications/editorial_0511.shtm. This document addressed
CBP's expansion of its collection of information in APIS to include
persons traveling by private aircraft. The PIA Update for APIS, also,
sought comments, in conjunction with the General Aviation NPRM, with
regard to CBP's and DHS's contemplation of imposing certain
responsibilities upon the private pilot. In consideration of the
several comments directed to this inquiry, CBP and DHS have determined
that no official law enforcement functions of the Government will be
delegated to the private pilot in connection with her or his obligation
to submit flight manifest information to CBP.
Lastly, CBP and the DHS Privacy Office are amending the current
SORN for APIS to provide further privacy compliance for APIS and the
expansion of its collection of data elements pertaining to the pilot,
owner, and/or operator of a private aircraft. In conjunction with the
issuance of the amended SORN, CBP and the DHS Privacy Office will
publish an update to the PIA for APIS.
VII. 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/her delegate) to prescribe regulations not
related to customs revenue functions.
List of Subjects
8 CFR Part 231
Air carriers, Aliens, Maritime carriers, Reporting and
recordkeeping requirements.
19 CFR Part 122
Air carriers, Aircraft, Airports, Air transportation, Commercial
aircraft, Customs duties and inspection, Entry procedure, Reporting and
recordkeeping requirements, Security measures.
VII. Amendments to the Regulations
8 CFR CHAPTER I--AMENDMENTS TO THE REGULATIONS
0
For the reasons set out in the preamble, chapter 1 of title 8 of the
Code of Federal Regulations is amended to read as follows:
PART 231--ARRIVAL AND DEPARTURE MANIFESTS
0
1. The authority citation for part 231 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1221, 1228, 1229; 8 CFR
part 2.
0
2. Section 231.3 is revised to read as follows:
Sec. 231.3 Exemptions for private vessels and aircraft.
The provision of this part relating to the presentation of arrival
and departure manifests shall not apply to a private vessel or private
aircraft. Private aircraft as defined in 19 CFR 122.1(h) are subject to
the arrival and departure manifest presentation requirements set forth
in 19 CFR 122.22.
0
For the reasons set out in the preamble, chapter I of title 19 of the
Code of Federal Regulations is amended as follows:
19 CFR CHAPTER I--AMENDMENTS TO THE REGULATIONS
PART 122--AIR COMMERCE REGULATIONS
0
1. The general authority citation for part 122 continues to read and
the specific authority citation for 122.22 is added to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 1431, 1433, 1436,
1448, 1459, 1590, 1594, 1623, 1624, 1644, 1644a, 2071 note.
Section 122.22 is also issued under 46 U.S.C. 60105.
* * * * *
0
2. Section 122.0 is revised to read as follows:
Sec. 122.0 Scope.
(a) Applicability. The regulations in this part relate to the entry
and clearance of aircraft and the transportation of persons and cargo
by aircraft, and are applicable to all air commerce.
(b) Authority of Other Agencies. Nothing in this part is intended
to divest or diminish authority and operational control that are vested
in the FAA or any other agency, particularly with respect to airspace
and aircraft safety.
0
3. Section 122.12(c) is revised to read as follows:
Sec. 122.12 Operation of international airports.
* * * * *
(c) FAA rules; denial of permission to land.
(1) Federal Aviation Administration. International airports must
follow and enforce any requirements for airport operations, including
airport rules that are set out by the Federal Aviation Administration
in 14 CFR part 91.
(2) Customs and Border Protection. CBP, based on security or other
risk assessments, may limit the locations where aircraft entering the
United States from a foreign port or place may land. Consistent with
Sec. 122.32(a) of this Title, CBP has the authority to deny aircraft
permission to land in the United States, based upon security or other
risk assessments.
(3) Commercial aircraft. Permission to land at an international
airport may be denied to a commercial aircraft if advance electronic
information for incoming foreign cargo aboard the aircraft has not been
received as provided in Sec. 122.48a except in the case of emergency
or forced landings.
(4) Private Aircraft. Permission to land at an international
airport will be denied if the pilot of a private aircraft arriving from
a foreign port or place fails to submit an electronic manifest and
notice of arrival pursuant to Sec. 122.22, except in the case of
emergency or forced landings.
* * * * *
0
4. Section 122.14 paragraphs (a) and (b) are revised to read as
follows:
Sec. 122.14 Landing rights airports.
(a) Permission to land. Permission to land at a landing rights
airport may be given as follows:
(1) Scheduled flight. The scheduled aircraft of a scheduled airline
may be allowed to land at a landing rights airport. Permission is given
by the director of the port, or his representative, at the port nearest
to which first landing is made.
(i) Additional flights, charters or changes in schedule--Scheduled
aircraft. If a new carrier plans to set up a new flight schedule, or an
established carrier makes changes in its approved schedule, landing
rights may be granted by the port director.
(ii) Additional or charter flight. If a carrier or charter operator
wants to begin operating or to add flights, application must be made to
the port director for landing rights. All requests must be made not
less than 48 hours before the intended time of arrival, except in
emergencies. If the request is oral, it must be put in writing before
or at the time of arrival.
[[Page 68310]]
(2) Private aircraft. The pilots of private aircraft are required
to secure permission to land from CBP following transmission of the
advance notice of arrival via an electronic data interchange system
approved by CBP, pursuant to Sec. 122.22. Prior to departure as
defined in Sec. 122.22(a), from a foreign port or place, the pilot of
a private aircraft must receive a message from CBP that landing rights
have been granted for that aircraft at a particular airport.
(3) Other aircraft. Following advance notice of arrival pursuant to
Sec. 122.31, all other aircraft may be allowed to land at a landing
rights airport by the director of the port of entry or station nearest
the first place of landing.
(4) Denial or withdrawal of landing rights. Permission to land at a
landing rights airport may be denied or permanently or temporarily
withdrawn for any of the following reasons:
(i) Appropriate and/or sufficient Federal Government personnel are
not available;
(ii) Proper inspectional facilities or equipment are not available
at, or maintained by, the requested airport;
(iii) The entity requesting the landing rights has a history of
failing to abide by appropriate instructions given by a CBP officer;
(iv) Reasonable grounds exist to believe that applicable Federal
rules and regulations pertaining to safety, including cargo safety and
security, CBP, or other inspectional activities may not be adhered to;
or
(v) CBP has deemed it necessary to deny landing rights to an
aircraft.
(5) Appeal of denial or withdrawal of landing rights for commercial
scheduled aircraft as defined in section 122.1(d). In the event landing
rights are denied or subsequently permanently withdrawn by CBP, within
30 days of such decision, the affected party may file a written appeal
with the Assistant Commissioner, Office of Field Operations,
Headquarters.
(6) Emergency or forced landing. Permission to land is not required
for an emergency or forced landing (covered under Sec. 122.35).
(b) Payment of expenses. In the case of an arrival at a location
outside the limits of a port of entry, the owner, operator or person in
charge of the aircraft must pay any added charges for inspecting the
aircraft, passengers, employees and merchandise when landing rights are
given (see Sec. Sec. 24.17 and 24.22(e) of this chapter).
* * * * *
0
5. Section 122.22 is revised to read as follows:
Sec. 122.22 Electronic manifest requirement for all individuals
onboard private aircraft arriving in and departing from the United
States; notice of arrival and departure information.
(a) Definitions. For purposes of this section:
Departure. ``Departure'' means the point at which the aircraft is
airborne and the aircraft is en route directly to its destination.
Departure Information. ``Departure Information'' refers to the data
elements that are required to be electronically submitted to CBP
pursuant to paragraph (c)(4) of this section.
Pilot. ``Pilot'' means the individual(s) responsible for operation
of an aircraft while in flight.
Travel Document. ``Travel Document'' means U.S. Department of
Homeland Security approved travel documents.
United States. ``United States'' means the continental United
States, Alaska, Hawaii, Puerto Rico, the Virgin Islands of the United
States, Guam and the Commonwealth of the Northern Mariana Islands.
(b) Electronic manifest requirement for all individuals onboard
private aircraft arriving in the U.S.; notice of arrival.
(1) General requirement. The private aircraft pilot is responsible
for ensuring the notice of arrival and manifest information regarding
each individual onboard the aircraft are transmitted to CBP. The pilot
is responsible for the submission, accuracy, correctness, timeliness,
and completeness of the submitted information, but may authorize
another party to submit the information on their behalf. Except as
provided in paragraph (b)(7) of this section, all data must be
transmitted to CBP by means of an electronic data interchange system
approved by CBP and must set forth the information specified in this
section. All data pertaining to the notice of arrival for the aircraft
and the manifest data regarding each individual onboard the aircraft
must be transmitted at the same time via an electronic data interchange
system approved by CBP.
(2) Time for submission. The private aircraft pilot is responsible
for ensuring that the information specified in paragraphs (b)(3) and
(b)(4) of this section is transmitted to CBP:
(i) For flights originally destined for the United States, any time
prior to departure of the aircraft, but no later than 60 minutes prior
to departure of the aircraft from the foreign port or place; or
(ii) For flights not originally destined to the United States, but
diverted to a U.S. port due to an emergency, no later than 30 minutes
prior to arrival; in cases of non-compliance, CBP will take into
consideration that the carrier was not equipped to make the
transmission and the circumstances of the emergency situation.
(3) Manifest data required. For private aircraft arriving in the
United States the following identifying information for each individual
onboard the aircraft must be submitted:
(i) Full name (last, first, and, if available, middle);
(ii) Date of birth;
(iii) Gender (F=female; M=male);
(iv) Citizenship;
(v) Country of residence;
(vi) Status on board the aircraft;
(vii) DHS-Approved travel document type (e.g. passport; alien
registration card, etc.);
(viii) DHS-Approved travel document number, if a DHS-approved
travel document is required;
(ix) DHS-Approved travel document country of issuance; if a DHS-
approved travel document is required;
(x) DHS-Approved travel document expiration date, where applicable;
(xi) Alien registration number, where applicable;
(xii) Address while in the United States (number and street, city,
state, and zip code). This information is required for all travelers
including crew onboard the aircraft.
(4) Notice of arrival. The advance notice of arrival must include
the following information about the aircraft and where applicable, the
pilot:
(i) Aircraft tail number;
(ii) Type of Aircraft;
(iii) Call sign (if available);
(iv) CBP issued decal number (if available);
(v) Place of last departure (ICAO airport code, when available);
(vi) Date of aircraft arrival;
(vii) Estimated time of arrival;
(viii) Estimated time and location of crossing U.S. border/
coastline;
(ix) Name of intended U.S. airport of first landing (as listed in
Sec. 122.24 if applicable, unless an exemption has been granted under
Sec. 122.25, or the aircraft was inspected by CBP Officers in the U.S.
Virgin Islands);
(x) Owner/Lessees name (if individual: Last, first, and, if
available, middle; or business entity name, if applicable);
(xi) Owner/Lessees address (number and street, city, state, zip/
postal code, country, telephone number, fax number, and email address);
(xii) Pilot/Private aircraft pilot name (last, first, middle, if
available);
(xiii) Pilot license number;
(xiv) Pilot street address (number and street, city, state, zip/
postal code,
[[Page 68311]]
country, telephone number, fax number, and email address);
(xv) Country of issuance of pilot's license;
(xvi) Operator name (for individuals: last, first, and if
available, middle; or business entity name, if applicable);
(xvii) Operator street address (number and street, city, state, zip
code, country, telephone number, fax number, and e-mail address);
(xviii) Aircraft color(s);
(xix) Complete Itinerary (foreign airports landed at within past 24
hours prior to landing in United States); and
(xx) 24-hour Emergency point of contact (e.g., broker, dispatcher,
repair shop, or other third party contact or individual who is
knowledgeable about this particular flight) name (first, last, middle,
if available) and phone number.
(5) Reliable facilities. When reliable means for giving notice are
not available (for example, when departure is from a remote place) a
landing must be made at a foreign place where notice can be sent prior
to coming into the United States.
(6) Permission to land. Prior to departure from the foreign port or
place, the pilot of a private aircraft must receive a message from DHS
approving landing within the United States, and follow any instructions
contained therein prior to departure. Once DHS has approved departure,
and the pilot has executed all instructions issued by DHS, the aircraft
is free to depart with the intent of landing at the designated U.S.
port of entry.
(7) Changes to manifest. The private aircraft pilot is obligated to
make necessary changes to the arrival manifest after transmission of
the manifest to CBP. If changes to an already transmitted manifest are
necessary, an updated and amended manifest must be resubmitted to CBP.
Only amendments regarding flight cancellation, expected time of arrival
(ETA) or changes in arrival location, to an already transmitted
manifest may be submitted telephonically, by radio, or through existing
processes and procedures. On a limited case-by-case basis, CBP may
permit a pilot to submit or update notice of arrival and arrival/
departure manifest information telephonically when unforeseen
circumstances preclude submission of the information via eAPIS. Under
such circumstances, CBP will manually enter the notice of arrival and
arrival/departure manifest information provided by the pilot and the
pilot is required to wait for CBP screening and approval to depart.
Changes in ETA and arrival location must be coordinated with CBP at the
new arrival location to ensure that resources are available to inspect
the arriving aircraft. If a subsequent manifest is submitted less than
60 minutes prior to departure to the United States, the private
aircraft pilot must receive approval from CBP for the amended manifest
containing added passenger information and/or changes to information
that were submitted regarding the aircraft and all individuals onboard
the aircraft, before the aircraft is allowed to depart the foreign
location, or the aircraft may be, as appropriate, diverted from
arriving in the United States, or denied permission to land in the
United States. If a subsequent, amended manifest is submitted by the
pilot, any approval to depart the foreign port or location previously
granted by CBP as a result of the original manifest's submission is
invalid.
(8) Pilot responsibility for comparing information collected with
travel document. The pilot collecting the information described in
paragraphs (b)(3) and (b)(4) of this section is responsible for
comparing the travel document presented by each individual to be
transported onboard the aircraft with the travel document information
he or she is transmitting to CBP in accordance with this section in
order to ensure that the information is correct, the document appears
to be valid for travel purposes, and the individual is the person to
whom the travel document was issued.
(c) Electronic manifest requirement for all individuals onboard
private aircraft departing from the United States; departure
information.
(1) General requirement. The private aircraft pilot is responsible
for ensuring that information regarding private aircraft departing the
United States, and manifest data for all individuals onboard the
aircraft is timely transmitted to CBP. The pilot is responsible for the
accuracy, correctness, timeliness, and completeness of the submitted
information, but may authorize another party to submit the information
on their behalf. Data must be transmitted to CBP by means of an
electronic data interchange system approved by CBP, and must set forth
the information specified in paragraph (c)(3) and (c)(4) of this
section. All data pertaining to the aircraft, and all individuals
onboard the aircraft must be transmitted at the same time. On a limited
case-by-case basis, CBP may permit a pilot to submit or update notice
of arrival and arrival/departure manifest information telephonically to
CBP when unforeseen circumstances preclude submission of the
information via eAPIS. Under such circumstances, CBP will manually
enter the notice of arrival and arrival/departure manifest information
provided by the pilot and the pilot is required to wait for CBP
screening and approval to depart.
(2) Time for submission. The private aircraft pilot must transmit
the electronic data required under paragraphs (c)(3) and (c)(4) of this
section to CBP any time prior to departing the United States, but no
later than 60 minutes prior to departing the United States.
(3) Manifest data required. For private aircraft departing the
United States the following identifying information for each individual
onboard the aircraft must be submitted:
(i) Full name (last, first, and, if available, middle);
(ii) Date of birth;
(iii) Gender (F=female; M=male);
(iv) Citizenship;
(v) Country of residence;
(vi) Status on board the aircraft;
(vii) DHS-Approved travel document type (e.g. passport; alien
registration card, etc.);
(viii) DHS-Approved travel document number;
(ix) DHS-Approved travel document country of issuance, if a DHS-
Approved travel document is required;
(x) DHS-approved travel document expiration date, where applicable;
(xi) Alien registration number, where applicable;
(xii) Address while in the United States (number and street, city,
state, and zip/postal code). This information is required for all
travelers including crew onboard the aircraft.
(4) Notice of Departure information. For private aircraft and
pilots departing the United States, the following departure information
must be submitted by the pilot:
(i) Aircraft tail number;
(ii) Type of Aircraft;
(iii) Call sign (if available);
(iv) CBP issued decal number (if available);
(v) Place of last departure (ICAO airport code, when available);
(vi) Date of aircraft departure;
(vii) Estimated time of departure;
(viii) Estimated time and location of crossing U.S. border/
coastline;
(ix) Name of intended foreign airport of first landing (ICAO
airport code, when available);
(x) Owner/Lessees name (if individual: last, first, and, if
available, middle; or business entity name if applicable);
(xi) Owner/Lessees street address (number and street, city, state,
zip/postal code, country, telephone number, fax number, and email
address);
[[Page 68312]]
(xii) Pilot/Private aircraft pilot name (last, first and, if
available, middle);
(xiii) Pilot license number;
(xiv) Pilot street address (number and street, city, state, zip/
postal code, country, telephone number, fax number, and email address);
(xv) Country of issuance of pilot's license;
(xvi) Operator name (if individual: last, first, and if available,
middle; or business entity name, if applicable);
(xvii) Operator street address (number and street, city, state,
zip/postal code, country, telephone number, fax number, and email
address);
(xviii) 24-hour Emergency point of contact (e.g., broker,
dispatcher, repair shop, or other third party contact, or individual
who is knowledgeable about this particular flight) name (last, first,
middle, if available) and phone number;
(xix) Aircraft color(s); and
(xx) Complete itinerary (intended foreign airport destinations for
24 hours following departure).
(5) Permission to depart. Prior to departure for a foreign port or
place, the pilot of a private aircraft must receive a message from DHS
approving departure from the United States and follow any instructions
contained therein. Once DHS has approved departure, and the pilot has
executed all instructions issued by DHS, the aircraft is free to
depart.
(6) Changes to manifest. If any of the data elements change after
the manifest is transmitted, the private aircraft pilot must update the
manifest and resubmit the amended manifest to CBP. Only amendments
regarding flight cancellation, expected time of departure or changes in
departure location, to an already transmitted manifest may be submitted
telephonically, by radio, or through existing processes and procedures.
If an amended manifest is submitted less than 60 minutes prior to
departure, the private aircraft pilot must receive approval from CBP
for the amended manifest containing added passenger information and/or
changes to information that were submitted regarding the aircraft
before the aircraft is allowed to depart the U.S. location, or the
aircraft may be denied clearance to depart from the United States. If a
subsequent amended manifest is submitted by the pilot, any clearance
previously granted by CBP as a result of the original manifest's
submission is invalid.
(7) Pilot responsibility for comparing information collected with
travel document. The pilot collecting the information described in
paragraphs (c)(3) and (c)(4) of this section is responsible for
comparing the travel document presented by each individual to be
transported onboard the aircraft with the travel document information
he or she is transmitting to CBP in accordance with this section in
order to ensure that the information is correct, the document appears
to be valid for travel purposes, and the individual is the person to
whom the travel document was issued.
0
6. Section 122.23 is amended by revising the heading, the introductory
text to paragraph (a)(1) and paragraph (b) to read as follows:
Sec. 122.23 Certain aircraft arriving from areas south of the U.S.
(a) Application. (1) This section sets forth particular
requirements for certain aircraft arriving from south of the United
States. This section is applicable to all aircraft except:
* * * * *
(b) Notice of arrival. All aircraft to which this section applies
arriving in the Continental United States via the U.S./Mexican border
or the Pacific Coast from a foreign place in the Western Hemisphere
south of 33 degrees north latitude, or from the Gulf of Mexico and
Atlantic Coasts from a place in the Western Hemisphere south of 30
degrees north latitude, from any place in Mexico, from the U.S. Virgin
Islands, or [notwithstanding the definition of ``United States'' in
Sec. 122.1(l)] from Puerto Rico, must furnish a notice of intended
arrival. Private aircraft must transmit an advance notice of arrival as
set forth in Sec. 122.22 of this part. Other than private aircraft,
all aircraft to which this section applies must communicate to CBP
notice of arrival at least one hour before crossing the U.S. coastline.
Such notice must be communicated to CBP by telephone, radio, other
method or the Federal Aviation Administration in accordance with
paragraph (c) of this section.
* * * * *
0
7. Section 122.24 is amended by revising the heading, paragraph (a),
the heading for paragraph (b) and by removing all of the text of
paragraph (b) except for the table to read as follows:
Sec. 122.24 Landing requirements for certain aircraft arriving from
areas south of U.S.
(a) In general. Certain aircraft arriving from areas south of the
United States that are subject to Sec. 122.23 are required to furnish
a notice of intended arrival in compliance with Sec. 122.23. Subject
aircraft must land for CBP processing at the nearest designated airport
to the border or coastline crossing point as listed under paragraph (b)
unless exempted from this requirement in accordance with Sec. 122.25.
In addition to the requirements of this section, pilots of aircraft to
which Sec. 122.23 is applicable must comply with all other landing and
notice of arrival requirements. This requirement shall not apply to
those aircraft which have not landed in foreign territory or are
arriving directly from Puerto Rico, if the aircraft was inspected by
CBP officers in the U.S. Virgin Islands, or otherwise precleared by CBP
officers at designated preclearance locations.
(b) List of designated airports.
* * * * *
0
8. In Sec. 122.25, paragraphs (d)(1) introductory text and (d)(4)
introductory text by removing the term ``private aircraft'' wherever it
appears, and by adding the term ``an aircraft subject to Sec. 122.23''
in its place.
0
9. Section 122.26 is revised to read as follows:
Sec. 122.26 Entry and clearance.
Private aircraft, as defined in Sec. 122.1(h), arriving in the
United States as defined in Sec. 122.22, are not required to formally
enter. No later than 60 minutes prior to departure from the United
States as defined in Sec. 122.22, to a foreign location, manifest data
for each individual onboard a private aircraft and departure
information must be submitted as set forth in Sec. 122.22(c). Private
aircraft must not depart the United States to travel to a foreign
location until CBP confirms receipt of the appropriate manifest and
departure information as set forth in Sec. 122.22(c), and grants
electronic clearance via electronic mail or telephone.
0
10. Section 122.31 is revised to read as follows:
Sec. 122.31 Notice of arrival.
(a) Application. Except as provided in paragraph (b) of this
section, all aircraft entering the United States from a foreign area
must give advance notice of arrival.
(b) Exceptions for scheduled aircraft of a scheduled airline.
Advance notice is not required for aircraft of a scheduled airline
arriving under a regular schedule. The regular schedule must have been
filed with the port director for the airport where the first landing is
made.
(c) Giving notice of arrival--(1) Procedure.
(i) Private aircraft. The pilot of a private aircraft must give
advance notice of arrival in accordance with Sec. 122.22 of this part.
(ii) Aircraft arriving from Cuba. Aircraft arriving from Cuba must
follow the advance notice of arrival procedures set forth in Sec.
122.154 in subpart O of this part.
[[Page 68313]]
(iii) Certain aircraft arriving from areas south of the United
States. Certain aircraft arriving from areas south of the United States
(other than Cuba) must follow the advance notice of arrival procedures
set forth in Sec. 122.23 of this part.
(iv) Other aircraft. The commander of an aircraft not otherwise
covered by paragraphs (c)(1)(i), (c)(1)(ii) and (c)(1)(iii) of this
section must give advance notice of arrival as set forth in paragraph
(d) of this section. Notice must be given to the port director at the
place of first landing, either:
(A) Directly by radio, telephone, or other method; or
(B) Through Federal Aviation Administration flight notification
procedure (see International Flight Information Manual, Federal
Aviation Administration).
(2) Reliable facilities. When reliable means for giving notice are
not available (for example, when departure is from a remote place) a
departure must be made at a place where notice can be sent prior to
coming into the U.S.
(d) Contents of notice. The advance notice of arrival required by
aircraft covered in paragraph (c)(1)(iv) of this section must include
the following information:
(1) Type of aircraft and registration number;
(2) Name (last, first, middle, if available) of aircraft commander;
(3) Place of last foreign departure;
(4) International airport of intended landing or other place at
which landing has been authorized by CBP;
(5) Number of alien passengers;
(6) Number of citizen passengers; and
(7) Estimated time of arrival.
(e) Time of notice. Notice of arrival as required pursuant to
paragraph (c)(1)(iv) of this section must be furnished far enough in
advance to allow inspecting CBP officers to reach the place of first
landing of the aircraft prior to the aircraft's arrival.
(f) Notice of other Federal agencies. When advance notice is
received, the port director will inform any other concerned Federal
agency.
0
11. Section 122.32 is revised to read as follows:
Sec. 122.32 Aircraft required to land.
(a) Any aircraft coming into the U.S., from an area outside of the
U.S., is required to land, unless it is denied permission to land in
the U.S. by CBP pursuant to Sec. 122.12(c), or is exempted from
landing by the Federal Aviation Administration.
(b) Conditional permission to land. CBP has the authority to limit
the locations where aircraft entering the U.S. from a foreign area may
land. As such, aircraft must land at the airport designated in their
APIS transmission unless instructed otherwise by CBP or changes to the
airport designation are required for aircraft and/or airspace safety as
directed by the Federal Aviation Administration (FAA) flight services.
0
12. Section 122.61 is amended by revising the introductory text of
paragraph (a) to read as follows:
Sec. 122.61 Aircraft required to clear.
(a) Private aircraft leaving the United States as defined in Sec.
122.22, for a foreign area are required to clear as set forth in Sec.
122.26. All other aircraft, except for public aircraft leaving the
United States for a foreign area, are required to clear if:
* * * * *
0
13. Section 122.154 is amended by revising paragraph (a) and adding a
new paragraph (d) to read as follows:
Sec. 122.154 Notice of arrival.
(a) Application. All aircraft entering the U.S. from Cuba must give
advance notice of arrival, unless it is an Office of Foreign Assets
Control (OFAC) approved scheduled commercial aircraft of a scheduled
airline.
* * * * *
(d) Private Aircraft. In addition to these requirements, private
aircraft must also give notice of arrival pursuant to Sec. 122.22 of
this part.
Michael Chertoff,
Secretary.
[FR Doc. E8-26621 Filed 11-17-08; 8:45 am]
BILLING CODE 9111-14-P