Electronic Transmission of Passenger and Crew Manifests for Vessels and Aircraft, 17821-17856 [05-6523]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• Bureau of Customs and Border Protection
• Customs and Border Protection Bureau

[Federal Register Volume 70, Number 66 (Thursday, April 7, 2005)]
[Rules and Regulations]
[Pages 17821-17856]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-6523]



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Part III





Department of Homeland Security





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Bureau of Customs and Border Protection



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8 CFR Parts 217, 231 and 251

19 CFR Parts 4, 122 and 178



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



Privacy Impact Assessment and Privacy Policy; No

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tice

Federal Register / Vol. 70, No. 66 / Thursday, April 7, 2005 / Rules 
and Regulations
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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

8 CFR Parts 217, 231 and 251

19 CFR Parts 4, 122 and 178

[CBP Decision 05-12]
RIN 1651-AA37


Electronic Transmission of Passenger and Crew Manifests for 
Vessels and Aircraft

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

ACTION: Final rule.

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SUMMARY: This document amends the Bureau of Customs and Border 
Protection regulations pertaining to the filing of commercial vessel 
and aircraft manifests for passengers and crew members. Collectively, 
the provisions of this final rule require the electronic transmission 
of manifest information for passengers and crew members onboard 
commercial vessels and aircraft, in advance of arrival in and departure 
from the United States, and for crew members and non-crew members 
onboard commercial aircraft that continue within (foreign air carriers 
only) and overfly the United States, in advance of the departure of 
those flights. Submission of this manifest information to the Bureau of 
Customs and Border Protection is a necessary component of the nation's 
continuing program of ensuring aviation and vessel safety and 
protecting national security. The required information also will assist 
in the efficient inspection and control of passengers and crew members 
and thus will facilitate the effective enforcement of the customs, 
immigration, and transportation security laws.

DATES: Effective Date: This final rule is effective on June 6, 2005.

FOR FURTHER INFORMATION CONTACT: Tricia Kennedy (202) 344-1229 or 
Charles G. Perez (202-344-2605), Office of Field Operations, Bureau of 
Customs and Border Protection.

SUPPLEMENTARY INFORMATION:

Background

Statement of Purpose

    The Bureau of Customs and Border Protection (CBP) emphasizes that 
the primary impetus for this rulemaking and the provisions set forth in 
the regulatory text below is the increased terrorist threat facing the 
United States and international trade and transportation industries, 
particularly the commercial air and vessel carrier industries, since 
the September 11, 2001 terrorist attacks. To prevent future terrorist 
attacks, the Department of Homeland Security and its agencies, 
including CBP and the Transportation Security Administration (TSA), as 
well as the air and vessel carrier industries, must take the necessary 
steps to alleviate, to the greatest extent possible, the risk to these 
vital industries posed by the threat of terrorism, including 
implementing regulations under the Aviation and Transportation Security 
Act of 2001 and the Enhanced Border Security and Visa Reform Act of 
2002.
    The urgency of these efforts is underscored by the recent 
cancellation of flights to the United States, the terrorist attacks in 
Spain, and the continued operations of Al Qaeda and its affiliates 
throughout the world. The threat is serious and ongoing. It is 
important to note that the threat is not just to the lives of the 
innocent, but also to the economic well-being of the commercial 
aircraft and vessel industries. Given the importance of these 
industries to the United States and other economies, a terrorist attack 
involving a commercial airliner or an ocean-going vessel could 
substantially disrupt the global economy. Therefore, it is incumbent 
upon the government and private sector to take steps to prevent such an 
attack.
    The provisions of this final rule impose on commercial air and 
vessel carriers electronic manifest transmission requirements relative 
to passengers, crew members, and non-crew members in several 
circumstances--those situations involving arrival in, departure from, 
or overflying the United States, as well as those involving a foreign 
air carrier arriving at a U.S. port and then continuing domestically 
within the United States to a second U.S. port. The manifest 
information required in these circumstances varies to some extent but 
uniformly includes certain travel itinerary data, aircraft/flight or 
vessel/voyage data, and personal identification information, including 
name, gender, date of birth, citizenship, travel document data, and 
status onboard the vessel or aircraft. These and other requirements are 
imposed for the purpose of meeting the collective objectives of the 
Aviation and Transportation Security Act (49 U.S.C. 44909), the 
Enhanced Border Security and Enhanced Visa Entry Reform Act of 2002 (8 
U.S.C. 1221), and applicable aviation security laws and regulations 
enforced by the Transportation Security Administration (49 U.S.C. 114; 
49 CFR parts 1544, 1546, and 1550): to secure the United States 
citizenry and economy, international travelers, and the international 
air and sea carrier industries from terrorist attack and from 
violations of various other laws, including other customs and 
immigration laws. The enforcement and administration of these 
requirements will provide that protection without unduly impacting upon 
international trade and travel.

Clarification of Agency Names

    CBP notes that in this document (hereinafter, the final rule), 
references to U.S. Customs, the Customs Service, or Customs concern the 
former Customs Service or actions undertaken by the former Customs 
Service prior to its transfer to the Department of Homeland Security 
(DHS) under the Homeland Security Act (HS Act) and the Reorganization 
Plan Modification for DHS of January 30, 2003. References in this 
document to the Immigration & Naturalization Service (INS), the INS, or 
the Service concern the former INS or actions taken by the former INS 
prior to certain of its component functions being transferred to CBP 
under these authorities. (See section IV of this document, entitled 
``Government Reorganization Pursuant to the Homeland Security Act of 
2002'' for a more detailed presentation of this subject.)
    Also, any references to the Secretary of the Treasury, the 
Commissioner of Customs, the Attorney General of the United States, or 
the Commissioner of the INS are retained in this document only when 
made in discussion of the governing statutes (which were amended in 
pertinent part prior to the creation of the DHS); these authorities are 
now vested in the Secretary of the Department of Homeland Security and 
his delegees.

Organization

    This document is organized as follows:

I. The Customs Interim Rule--Summary of rule published in the Federal 
Register on December 31, 2001, (hereinafter, the Customs Interim Rule);
II. The INS NPRM--Summary of INS NPRM published on January 3, 2003 
(hereinafter, the INS NPRM);
III. TSA Requirements--Provisions incorporated into this final rule in 
order to assist TSA in carrying out its aviation security 
responsibilities with respect to crew members and non-crew members of 
commercial aircraft;
IV. Governmental Reorganization Pursuant to the Homeland Security

[[Page 17821]]

Act--Discussion of the new Department of Homeland Security and its 
effect in combining the border security and inspectional functions of 
Customs and INS into one agency--``CBP;
V. Discussion of Comments--Discussion of comments received by CBP in 
response to the Customs Interim Rule and the INS NPRM;
VI. Changes to the Interim and Proposed Regulatory Texts--Summary of 
changes made to the Customs Interim Rule and the INS NPRM in this final 
rule, including changes made to assist TSA;
VII. Conclusion.

I. The Customs Interim Rule

Statutory Changes

    On November 19, 2001, the President signed into law the Aviation 
and Transportation Security Act (ATSA), Public Law 107-71, 115 Stat. 
597. Section 115 of the ATSA, amending 49 U.S.C. 44909, provides that, 
not later than 60 days after the date of enactment of the ATSA, each 
domestic air carrier and foreign air carrier operating a passenger 
flight in foreign air transportation to the United States must 
electronically transmit to the Customs Service a passenger and crew 
manifest containing specific identifying data elements and any other 
information determined to be reasonably necessary to ensure aviation 
safety.
    The specific passenger and crew identifying information required 
consists of the following: (a) The full name of each passenger and crew 
member; (b) the date of birth and citizenship of each passenger and 
crew member; (c) the gender of each passenger and crew member; (d) the 
passport number and country of issuance for each passenger and crew 
member if a passport is required for travel; and (e) the United States 
visa number or resident alien card number of each passenger and crew 
member, as applicable.
    Section 115 of ATSA further provides that: (i) The carriers may use 
the advanced passenger information system established under section 431 
of the Tariff Act of 1930, as amended (19 U.S.C. 1431), to provide the 
required information; (ii) the carriers must make passenger name record 
(PNR) information available to the Customs Service upon request; (iii) 
the required passenger and crew manifest must be transmitted in advance 
of the aircraft landing in the United States in such manner, time, and 
form as the Customs Service prescribes; and (iv) the required 
information may, upon request, be shared with other Federal agencies 
for the purpose of protecting national security.

Interim Regulatory Amendments

    On December 31, 2001, Customs published in the Federal Register (66 
FR 67482), as T.D. 02-01, an interim rule (with request for comments) 
entitled ``Passenger and Crew Manifests Required for Passenger Flights 
in Foreign Air Transportation to the United States'' (the Customs 
Interim Rule). The Customs Interim Rule amended the Customs regulations 
(now CBP regulations) by adding a new Sec.  122.49a (19 CFR 122.49a) to 
implement the new passenger and crew manifest reporting requirement 
discussed above. The Customs Interim Rule addresses all of the 
provisions of section 115 of ATSA except for the PNR provision which 
has been addressed separately as indicated below.
    Section 122.49a of the Customs Interim Rule sets forth the general 
requirement that each foreign and domestic air carrier operating a 
passenger flight in foreign air transportation to the United States 
must transmit electronically to Customs a passenger manifest and a crew 
manifest containing the information set forth in section 115 of ATSA. 
The transmission must be effected through an electronic data 
interchange system approved by Customs and must go to the U.S. Customs 
Data Center, Customs Headquarters. The system in operation at the time 
ATSA was enacted is the Advance Passenger Information System (APIS), 
which was a voluntary program. It remains in operation, and many 
carriers have or will have this capability to comply with the 
requirements set forth in this final rule. There are alternative means 
available for those carriers without this capability, as discussed in 
the ``Discussion of Comments'' section (section V). Section 122.49a 
further provides that the manifest reporting requirement applies to 
flights where the passengers and crew have already been pre-inspected 
or pre-cleared at the foreign location for admission to the United 
States.
    Section 122.49a of the Customs Interim Rule also provides that the 
air carrier for each flight must transmit the passenger manifest and 
the crew manifest separately. Furthermore, the crew manifest must be 
received by Customs electronically anytime prior to departure from the 
last foreign port or place, and the passenger manifest must be received 
by Customs no later than 15 minutes after the flight has departed from 
the last foreign port or place. Departure occurs after the wheels are 
up on the aircraft and the aircraft is en route directly to the United 
States.
    Section 122.49a of the Customs Interim Rule specifies the following 
categories of information and related requirements that apply to each 
passenger manifest and crew manifest:
    1. The following airline and flight information must be included in 
the transmission: (a) the airline International Air Transport 
Association (IATA) code; (b) the flight number, followed by the alpha 
character ``C'' in the case of a crew manifest; (c) the departure 
location IATA code; (d) the U.S. arrival location(s) IATA code(s); (e) 
the date of flight arrival in the United States; and (f) whether each 
passenger and crew member on the flight is destined for the United 
States or in transit through the United States.
    2. The passenger and crew member identity data elements required in 
section 115 of ATSA must be included in the transmission.
    3. Each air carrier must provide the passenger and crew member 
identity data elements specified in section 115 of ATSA by transmitting 
to Customs one, and only one, travel document per passenger or crew 
member, selected from the following list: U.S. Alien Registration Card; 
U.S. Border Crossing Card; U.S. non-immigrant visa; U.S. Refugee Travel 
Document or Re-entry Permit; U.S. Passport; or non-U.S. passport. Until 
notice is published in the Federal Register providing otherwise, timely 
receipt by Customs of the electronically transmitted preferred travel 
document will constitute full compliance with the informational 
requirements of section 115 of ATSA. (Transmission of the travel 
document means transmission of the information that is obtained from 
the travel document via the electronic document reader that scans the 
machine-readable zone of the travel document. In those instances where 
a travel document does not have a machine-readable zone, the data 
normally so obtained will be collected manually from the biographical 
page of the travel document.)
    4. The Customs Interim Rule specifies that the following additional 
information must be included on each passenger and crew manifest: (a) 
The foreign airport where the passengers and crew members began their 
air transportation to the United States; (b) for passengers and crew 
members destined for the United States, the airport in the United 
States where the passenger will be processed through customs and 
immigration formalities; and (c) for passengers and crew members that 
are transiting through the

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United States and not clearing customs and immigration formalities, the 
foreign airport of ultimate destination.
    5. The Customs Interim Rule indicates that by a date that would be 
announced in the Federal Register, air carriers would be required to 
transmit additional elements which are not contained in the transmitted 
travel documents (see section 4 above). Thus, as of the date announced 
in the Federal Register, air carriers would no longer be excused from 
satisfying all informational requirements set out in section 115 of 
ATSA and the ``full compliance'' provision described above would no 
longer apply as of that published date.
    Section 122.49a of the Customs Interim Rule also provides that the 
carrier collecting the required information is responsible for 
comparing this information with the related travel document to ensure 
that the information is correct, that the document appears to be valid 
for travel to the United States, and that the passenger or crew member 
is the person to whom the travel document was issued.
    Section 122.49a of the Customs Interim Rule also provides that the 
information contained in passenger and crew manifests that were the 
subject of the Customs Interim Rule may, upon request, be shared with 
other Federal agencies for the purpose of protecting national security.
    The Customs Interim Rule also included a conforming amendment to 
Sec.  178.2 of the Customs regulations (19 CFR 178.2) which sets forth 
a list of information collection control numbers assigned by the Office 
of Management and Budget pursuant to the Paperwork Reduction Act.
    Finally, the Customs Interim Rule document provides that the 
requirement in section 115 of ATSA that the carriers make PNR 
information available to the Customs Service upon request would be the 
subject of a separate document. (PNR information is data the carrier 
has in its reservation system regarding passengers. PNR data or 
information is not to be confused with the ``PNR locator number'' (also 
referred to as the PNR locator or PNR number) which is only the number 
that is associated with the passenger record.)
    On June 25, 2002, Customs published in the Federal Register (67 FR 
42710) as T.D. 02-33 an interim rule document (a new Sec.  122.49b) 
setting forth the regulatory standards by which Customs will have 
electronic access to PNR information maintained by air carriers (that 
is, information contained in a carrier's automated reservation or 
departure control system). Although this Sec.  122.49b is not the 
subject of, nor affected by (beyond being redesignated Sec.  122.49d), 
this final rule, this interim rule also included a technical amendment 
to Sec.  122.49a which reflects the passenger and crew information 
elements contained in section 115 of ATSA. The amendment involved the 
replacement of the words ``and the United States visa number'' with the 
words ``and the United States visa travel document number (located in 
the machine-readable zone of the visa document).'' This amendment was 
made in order to ensure that the requirement in the regulatory text is 
compatible with the existing reporting system that uses an electronic 
document reader to scan the travel document and transmit the 
information on it to Customs.
    The Customs Interim Rule invited the submission of written public 
comments on new Sec.  122.49a, and the public comment period closed on 
March 1, 2002. The submitted comments are summarized and responded to 
in section V (``Discussion of Comments'') set forth later in this 
document.

II. The INS NPRM

Statutory Changes

    On May 14, 2002, the President signed into law the Enhanced Border 
Security and Visa Entry Reform Act of 2002 (EBSA), Public Law 107-173, 
116 Stat. 543. Section 402 of the EBSA amended section 231 of the 
Immigration and Nationality Act (8 U.S.C. 1221). Section 402 of the 
EBSA provides that, for each commercial vessel or aircraft transporting 
any person to any seaport or airport of the United States from any 
place outside the United States, it shall be the duty of an appropriate 
official to provide to any United States border officer at that port 
manifest information concerning each passenger, crew member, and other 
occupant transported on such vessel or aircraft prior to arrival at 
that port.
    Section 402 of the EBSA provides that, for each commercial vessel 
or aircraft taking passengers on board at any seaport or airport of the 
United States, who are destined to any place outside the United States, 
it shall be the duty of an appropriate official to provide to any 
United States border officer before departure from such port manifest 
information concerning each passenger, crew member, and other occupant 
to be transported.
    Section 402 of the EBSA also provides that the information to be 
provided with respect to each person listed on a manifest covered by 
this section shall include the following information: (a) Complete 
name; (b) date of birth; (c) citizenship; (d) gender; (e) passport 
number and country of issuance; (f) travel document type and date of 
expiration; (g) country of residence; (h) United States visa number, 
date, and place of issuance; (i) alien registration number; (j) United 
States address while in the United States; and (k) such other 
information the Attorney General, in consultation with the Secretary of 
State, and the Secretary of the Treasury determine as being necessary 
for the identification of the persons transported, the enforcement of 
the immigration laws, and the protection of safety and national 
security. (This authority is now vested in the Secretary of DHS.)
    Section 402 of the EBSA also provides that an ``appropriate 
official'' is the master or commanding officer, or authorized agent, 
owner, or consignee, of the commercial vessel or aircraft concerned.
    Section 402 of the EBSA provides that, not later than January 1, 
2003, manifest information required under this section shall be 
transmitted electronically by the appropriate official to an 
immigration officer.
    Section 402 of the EBSA provides that no operator of any private or 
public carrier that is under a duty to provide manifest information 
shall be granted clearance papers until the appropriate official has 
complied with the requirements of this subsection, except that, in the 
case of commercial vessels or aircraft that the Attorney General 
determines are making regular trips to the United States, the Attorney 
General may, when expedient, arrange for the provision of manifest 
information of persons departing the United States at a later date.
    In addition to other penalties and sanctions available under 
Federal law, section 402 of the EBSA further provides that, if it 
appears to the satisfaction of the Attorney General that an appropriate 
official, any public or private carrier, or the agent of any 
transportation line has refused or failed to provide required manifest 
information, or that the manifest information provided is not accurate 
and full based on information provided to the carrier, such official, 
carrier, or agent shall pay to the Commissioner of INS (now CBP) the 
sum of $1,000 for each person for whom such accurate and full manifest 
information is not provided, or for whom the manifest information is 
not prepared as prescribed. No commercial vessel or aircraft shall be 
granted clearance pending determination of the question of the 
liability to the payment of such

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penalty, or while it remains unpaid, and no such penalty shall be 
remitted or refunded, except that clearance may be granted prior to the 
determination of such question upon the deposit with the Commissioner 
of a bond or undertaking approved by the Attorney General or a sum 
sufficient to cover such penalty.
    Section 402 of the EBSA further provides that the Attorney General 
may waive the requirements for providing arrival or departure manifests 
upon such circumstances and conditions as the Attorney General may by 
regulation prescribe.
    Finally, section 402 of the EBSA provides that the term ``United 
States border officer'' means, with respect to a particular port of 
entry into the United States, any United States official who is 
performing duties at that port of entry.

Proposed Regulatory Amendments

    On January 3, 2003, the INS published in the Federal Register (68 
FR 292), as INS No. 2182-01, a document entitled ``Manifest 
Requirements Under Section 231 of the Act'' (INS NPRM). This document 
set forth proposed amendments to the Immigration regulations in Title 8 
of the Code of Federal Regulations to implement the statutory changes 
made by section 402 of the EBSA as described above. These proposed 
regulatory amendments involved the revision of Sec.  217.7 (8 CFR 
217.7), the revision of the heading for Part 231, the revision of Sec.  
231.1 (8 CFR 231.1), the revision of the heading for Part 251, the 
redesignation of Sec.  251.5 as Sec.  251.6 (8 CFR 251.6), the addition 
of a new Sec.  251.5 (8 CFR 251.5), and the revision of newly 
redesignated Sec.  251.6.

Proposed Revision of Sec.  217.7

    The proposed revision of Sec.  217.7 involved changes to conform 
the text to the terms of revised Sec.  231.1 discussed below. These 
conforming changes involved a non-substantive rewording of the text and 
the insertion of a cross-reference to the requirements of Sec.  231.1, 
and (2) replacement of text regarding procedures and specific data 
elements for the electronic transmission of passenger arrival and 
departure information, with text describing the potential consequences 
for carriers that fail to submit electronic arrival and departure 
manifests.

Proposed Revision of Sec.  231.1

    The changes made in the proposed revision of Sec.  231.1 involved 
(1) a revision of the section heading, (2) the addition of provisions 
to implement the terms of section 402 of the EBSA, (3) elimination of 
the manifest submission exception for in-transit passengers, (4) 
redesignation of paragraphs, and (5) elimination of the provision 
regarding the completion and presentation of Form I-94. Thus, the 
proposed revision of Sec.  231.1 was intended to implement all of the 
principal operational requirements reflected in the statutory changes 
made by section 402(a) of the EBSA. The proposed terms of revised Sec.  
231.1 are discussed in detail below.
    Paragraph (a) of revised Sec.  231.1 is headed ``definitions'' and 
defines the following terms: ``appropriate official''; ``commercial 
aircraft''; ``commercial vessel''; ``crew member''; ``ferry''; 
``passenger''; and ``United States.''
    Paragraph (b) of revised Sec.  231.1 is headed ``electronic arrival 
manifest'' and provides that (i) an appropriate official of every 
commercial vessel or aircraft arriving in the United States from any 
place outside of the United States shall transmit electronically to the 
Service a passenger arrival manifest and a crew member arrival 
manifest, and (ii) the electronic arrival manifest must contain the 
required data elements for each passenger and crew member.
    Paragraph (b) also sets forth rules regarding the timing for 
transmission of aircraft arrival manifests. In the case of passenger 
arrival manifests, the appropriate official must transmit the manifest 
no later than 15 minutes after the flight has departed from the last 
foreign port or place. For crew member arrival manifests, the manifest 
must be transmitted in advance of departure from the last foreign port 
or place. Further, paragraph (b) sets forth rules regarding the timing 
for transmission of vessel arrival manifests. For passenger and crew 
member manifests, one of the following three alternative rules will be 
applied, depending on the length of the voyage: (i) At least 96 hours 
before entering the port or place of destination, for voyages of 96 
hours or more; (ii) at least 24 hours before entering the port or place 
of destination, for voyages of less than 96 hours but not less than 24 
hours; or (iii) prior to departing the port or place of departure, for 
voyages of less than 24 hours.
    Paragraph (c) of revised Sec.  231.1 is headed ``electronic 
departure manifest'' and provides that an appropriate official of every 
commercial vessel or aircraft departing from the United States to any 
place outside of the United States shall transmit electronically to the 
Service a passenger departure manifest and a crew member departure 
manifest. The electronic departure manifest must contain the required 
data elements for each passenger and crew member.
    Paragraph (c) also provides that the appropriate official must 
transmit both the passenger departure manifest and the crew member 
departure manifest no later than 15 minutes before the flight or vessel 
departs from the United States. Further, paragraph (c) sets forth a 
special rule regarding the timing for transmission of vessel and 
aircraft departure manifests when passengers or crew members board or 
disembark after the original manifest has been submitted. In this case, 
the appropriate official must submit amended or updated passenger and 
crew member information electronically to the Service no later than 15 
minutes after the flight or vessel has departed from the United States. 
The appropriate official must also notify the Service electronically if 
a flight or voyage has been cancelled after submission of a departure 
manifest.
    Paragraph (d) of revised Sec.  231.1 is headed ``electronic 
format'' and sets forth standards for the electronic transmission of 
the arrival and departure manifests for passengers and crew members. 
Manifests ``must be transmitted electronically to the Service via the 
USCS [U.S. Customs Service], by means of an electronic data interchange 
system that is approved by the Service.'' Passenger arrival and 
departure manifests must be transmitted separately from the crew member 
arrival and departure manifests and, to distinguish the two manifests 
transmitted for a given flight or vessel, the crew member arrival and 
departure manifests must have the alpha character ``C'' included in the 
transmission to denote that the manifest information pertains to the 
crew members for the flight or vessel.
    Paragraph (e) of revised Sec.  231.1 is headed ``contents of 
arrival and departure manifests'' and provides that each electronic 
arrival or departure manifest must contain certain information for all 
passengers or crew members of air and vessel carriers. Air carriers 
must provide the following information: (a) Complete name; (b) date of 
birth; (c) citizenship (country of document issuance); (d) gender; (e) 
passport number and country of issuance, if a passport is required; (f) 
country of residence; (g) United States visa number, date, and place of 
issuance (arrivals only); (h) alien registration number; (i) United 
States address while in the United States; (j) International Air 
Transport Association (IATA) arrival port code; (k) IATA departure port 
code; (l) flight number, date of flight arrival, date of flight 
departure; (m) airline carrier code; (n) document type (e.g., passport; 
visa; alien registration); (o) date of document expiration; and (p) a 
unique passenger identifier, or

[[Page 17824]]

reservation number or Passenger Name Record (PNR) locator number.
    Sea carriers must provide the following information: (a) Complete 
name; (b) date of birth; (c) citizenship (country of document 
issuance); (d) gender; (e) passport number and country of issuance, if 
a passport is required; (f) country of residence; (g) United States 
visa number, date, and place of issuance (arrivals only); (h) alien 
registration number; (i) United States address while in the United 
States; (j) arrival port code; (k) departure port code; (l) voyage 
number; (m) date of vessel arrival; (n) date of vessel departure; (o) 
country of registry/flag; (p) document type (e.g., passport; visa; 
alien registration); (q) date of document expiration; (r) a unique 
passenger identifier, or reservation number or Passenger Name Record 
(PNR) locator; (s) vessel name; and (t) International Maritime 
Organization (IMO) number or the official number of the vessel.
    Paragraph (f) of revised Sec.  231.1 is headed ``ferries'' and 
provides that requirements relating to the transmission of electronic 
arrival and departure manifests ``shall not apply to a ferry (if the 
passengers are subject to a land-border inspection by the Service upon 
arrival in the United States).''
    Finally, paragraph (g) of revised Sec.  231.1 is headed 
``progressive clearance'' and provides that the inspection of arriving 
passengers may be deferred at the request of the carrier to an onward 
port of debarkation, that authorization for this progressive clearance 
may be granted by the Regional Commissioner of the INS when both the 
initial port of entry and the onward port are within the same regional 
jurisdiction, and that, when the initial port of entry and onward port 
are located within different regions, requests for progressive 
clearance must be authorized by the Assistant Commissioner for 
Inspections. Paragraph (g) further provides that, when progressive 
clearance is requested, the carrier shall present Form I-92 in 
duplicate at the initial port of entry and that the original Form I-92 
will be processed at the initial port of entry and the duplicate noted 
and returned to the carrier for presentation at the onward port of 
debarkation.

Proposed Revision of Sec.  251.5

    Proposed new Sec.  251.5 is headed ``electronic arrival and 
departure manifest for crew member'' and provides that, in addition to 
submitting arrival and departure manifests in a paper format in 
accordance with Sec. Sec.  251.1, 251.3, and 251.4, the master or 
commanding officer, or authorized agent, owner, or consignee of any 
aircraft or vessel transporting passengers to any airport or seaport of 
the United States from any place outside of the United States or from 
any airport or seaport of the United States to any place outside of the 
United States must submit electronic arrival and departure manifests 
for all crew members on board in accordance with 8 CFR 231.1.

Proposed Revision of Sec.  251.6

    The proposed revision of Sec.  251.6 involved minor wording 
changes.
    The INS NPRM invited the submission of written public comments on 
the 8 CFR changes, and the public comment period closed on February 3, 
2003. The submitted comments are summarized and responded to in section 
V (``Discussion of Comments'') set forth later in this document.

III. TSA Requirements

TSA Security Directives and Emergency Amendments

    This final rule contains several provisions that, in addition to 
implementing the authority of CBP, will assist TSA in carrying out its 
aviation security mission. TSA issues and administers Transportation 
Security regulations (TSRs) which are codified in Title 49 of the Code 
of Federal Regulations (49 CFR), Chapter XII, parts 1500 through 1699. 
The TSRs establish security requirements for, among others, certain 
U.S. aircraft operators (49 CFR part 1544) and foreign air carriers (49 
CFR parts 1546 and 1550) that conduct passenger and all-cargo 
operations to, from, within, and overflying the United States. In 
addition to these public regulations published in the CFR, TSA issues 
non-public regulations in the form of security programs, Security 
Directives (SDs), and Emergency Amendments (EAs) that establish 
additional detailed security requirements for these regulated parties. 
(See 49 CFR 1544.305, 1546.105, 1550.5.)
    As part of its security mission, TSA is responsible for assessing 
intelligence and other information in order to identify individuals who 
pose, or are suspected of posing, a threat to transportation or 
national security and to coordinate countermeasures with other Federal 
agencies to address such threats. (See 49 U.S.C. 114(f)(1)-(4).) Under 
this authority, which is held concurrently by the Under Secretary of 
Border and Transportation Security (BTS) of DHS, TSA may require 
aircraft operators and foreign air carriers conducting passenger or 
all-cargo flight operations to and from the United States, as well as 
certain air carriers conducting flights within (limited to foreign air 
carrier flights from the U.S. port of their arrival to a second U.S. 
port) and overflying the United States, to provide TSA, prior to 
departure, manifest information for those persons (other than 
passengers) onboard a flight. Under certain SDs and EAs now in effect, 
TSA requires the advance submission of certain manifest information for 
certain flights operating to, from, within, or overflying the United 
States. TSA uses this information, in coordination with CBP, to conduct 
security threat assessments for crew and non-crew members.
    Because these requirements, which are already effective under 
security programs, EAs, and SDs issued to the air carriers by TSA, are 
similar to the provisions of the Customs Interim Rule and the INS NPRM 
in substance, effect, and purpose, the Under Secretary of BTS has 
determined to incorporate them into this final rule. As a result, the 
public now has access to all manifest requirements in a single source. 
In addition, these requirements (except for those affecting 
overflights) are also authorized under 49 U.S.C. 44909(c)(2)(F) and 8 
U.S.C. 1221(c)(10), both of which provide that CBP may require that 
crew manifests include such information that CBP and TSA determine is 
reasonably necessary to ensure aviation safety.

IV. Governmental Reorganization Pursuant to the Homeland Security Act

    On November 25, 2002, the President signed into law the Homeland 
Security Act of 2002, Public Law 107-296, 116 Stat. 2135 (HS Act), 
which involved, among other things, the creation of a new cabinet-level 
department, the Department of Homeland Security (DHS), the transfer to 
DHS of a number of Executive Branch agencies and offices, and the 
reorganization of a number of Executive Branch agencies and offices 
within existing cabinet-level departments. This legislation had a 
profound impact on the organization and operation of both the Customs 
Service and INS, with consequential implications (discussed below) for 
the Customs Interim Rule and the INS NPRM.
    Section 401 of the HS Act established in DHS a Directorate of 
Border and Transportation Security (BTS) headed by an Under Secretary 
for BTS. Section 402 of the HS Act provides that the Secretary of DHS, 
acting through the Under Secretary for BTS, shall be responsible for, 
among other things, the following: (1) Securing the borders, 
territorial waters, ports, terminals,

[[Page 17825]]

waterways, and air, land, and sea transportation systems of the United 
States, including managing and coordinating those functions transferred 
to DHS at ports of entry; (2) carrying out the immigration enforcement 
functions vested by statute in, or performed by, the Commissioner of 
INS (or any officer, employee, or component of the INS) immediately 
before the date on which the transfer of functions specified under 
section 441 of the HS Act takes effect; (3) establishing and 
administering rules, in accordance with section 428 of the HS Act, 
governing the granting of visas or other forms of permission, including 
parole, to enter the United States to individuals who are not a citizen 
or an alien lawfully admitted for permanent residence in the United 
States; (4) establishing national immigration enforcement policies and 
priorities; and (5) with some exceptions, administering the customs 
laws of the United States.
    With regard to the Customs Service, section 403(1) of the HS Act 
transferred the functions, personnel, assets, and liabilities of the 
Customs Service, including the functions of the Secretary of the 
Treasury relating to the Customs Service, to the Secretary of DHS. 
Section 411 of the HS Act established, in DHS, the United States 
Customs Service, under the authority of the Under Secretary for BTS, 
and provided for a Commissioner of Customs as its head.
    Pursuant to section 1502 of the HS Act, the President submitted to 
Congress on November 25, 2002, a reorganization plan and, on January 
30, 2003, a modification of that reorganization plan (collectively, The 
Reorganization Plan). The Reorganization Plan, among other things, 
renamed the ``Customs Service'' as the ``Bureau of Customs and Border 
Protection'' (CBP). The Reorganization Plan also provided (1) that CBP 
will inherit and have responsibility for, among other things, the 
resources and missions of the Customs Service and the INS (including 
the Border Patrol and the inspections program) relating to borders and 
ports of entry and (2) that the Commissioner of CBP will, among other 
things, establish and oversee the administration of the policies for 
performing the Border Patrol and inspection program functions that are 
transferred to the Under Secretary for BTS by section 441 of the HS Act 
(discussed below) and delegated to the Commissioner by the Under 
Secretary.
    With regard to the INS, section 471(a) of the HS Act provided for 
the abolishment of the INS of the Department of Justice upon completion 
of all transfers from the INS as provided for by the HS Act. The 
transfers referred to in section 471(a) that affect DHS are as follows:
    1. Section 441 of the HS Act transferred, from the Commissioner of 
INS to the Under Secretary for BTS, all functions performed under, and 
all personnel, assets, and liabilities pertaining to, the following 
programs: The Border Patrol; detention and removal; intelligence; 
investigations; and inspections.
    2. Section 442 of the HS Act established in DHS a bureau to be 
known as the ``Bureau of Border Security'' and headed by an Assistant 
Secretary who reports directly to the Under Secretary for BTS. The 
functions of the Assistant Secretary include, among other things, the 
establishment of policies for performing functions transferred to the 
Under Secretary by section 441 of the HS Act and delegated to the 
Assistant Secretary by the Under Secretary. The Reorganization Plan 
renamed the ``Bureau of Border Security'' as the ``Bureau of 
Immigration and Customs Enforcement'' (ICE). It also provided that ICE 
would have responsibility for, among other things, the INS interior 
enforcement functions (including the detention and removal program, the 
intelligence program, and the investigations program) and the interior 
enforcement resources and mission of the Customs Service and thus would 
be responsible for the enforcement of the full range of immigration and 
customs laws within the interior of the United States. Subsequently, by 
Delegation Order 7030, the border search authority vested in the Under 
Secretary of BTS under section 402 was delegated to the Assistant 
Secretary of ICE; thus, ICE's responsibilities include a border 
enforcement component, as well.
    3. Section 451 of the HS Act established in DHS a bureau to be 
known as the ``Bureau of Citizenship and Immigration Services'' (CIS) 
and headed by a Director who reports directly to the Deputy Secretary 
of Homeland Security. The Director's functions include, among other 
things, establishing and overseeing the administration of policies for 
performing functions transferred by section 451 from the Commissioner 
of INS to the Director. The functions (including all supporting 
personnel, infrastructure, and funding) transferred by section 451 
consist of (1) adjudications of immigrant visa petitions, 
naturalization petitions, and asylum and refugee applications, (2) 
adjudications performed at service centers, and (3) all other 
adjudications performed by the INS immediately before the date on which 
the transfer of functions specified in section 441 of the HS Act takes 
effect.
    Under section 1502 of the HS Act and the Reorganization Plan, the 
statutory transfers and Presidential agency redesignations and 
allocations of functions described above took effect on March 1, 2003. 
Accordingly, as of that date, the INS ceased to exist as a separate 
agency and the border inspection functions formerly performed by INS 
under the immigration laws were merged with the border functions 
historically performed by the Customs Service under the customs and 
related laws in one agency, CBP.
    The statutory amendment made by the ATSA (which enabled publication 
of the Customs Interim Rule) and the statutory amendments made by the 
EBSA (which enabled publication of the INS NPRM) respectively involve 
only customs border arrival functions and immigration border arrival 
and departure inspection functions, all of which are now the exclusive 
responsibility of CBP. It is further noted that the Customs Interim 
Rule and the INS NPRM affect one or both of the same industry sectors 
(that is, the air carrier industry and the sea carrier industry) and 
that each of those statutory and regulatory regimes imposes separate 
but in some cases identical or similar information reporting 
requirements for the same carrier transaction. Finally, it is noted 
that the Customs Interim Rule and INS NPRM changes in question were 
published prior to the March 1, 2003, governmental reorganization under 
the HS Act and therefore reflected the agency organization and 
regulatory perspective that existed prior to that date, with the 
Customs Interim Rule amendments set forth in Title 19 of the CFR and 
the INS NPRM changes slated for inclusion in Title 8 of the CFR.
    Based on the considerations set forth above, and in light of the 
similar provisions added to this final rule to assist TSA in its 
aviation security mission, the Secretary has determined that it would 
be preferable to consider the Customs Interim Rule and the INS NPRM as 
one regulatory initiative and to address the TSA requirements at the 
same time. Accordingly, the Secretary, after consultation with the 
Commissioner of CBP and the Assistant Secretary for TSA, and pursuant 
to the authority vested in him by law, including but not limited to 49 
U.S.C. 44909, 8 U.S.C. 1221, 49 U.S.C. 114, and section 402 of the HS 
Act, has determined to incorporate the three above initiatives into 
this final rule amending 19 CFR in order to avoid a

[[Page 17826]]

duplication of reporting requirements, improve the organization and 
transparency of the regulatory texts, and facilitate administration of 
these important provisions that concern national security and the 
safety of commercial vessel transportation to and from the United 
States and commercial air transportation to, from, within, and over the 
United States.

V. Discussion of Comments

    The comments submitted in response to the Customs Interim Rule and 
the INS NPRM are summarized and responded to below. Where a comment 
directed to a provision of the Customs Interim Rule or the INS NPRM 
raises an issue that is also relevant to the other rule or to a 
provision included in this final rule to assist TSA, all aspects of the 
comment will be addressed at that time; the full response to the 
comment will appear only once in the text of the final rule.

Comments on the Customs Interim Rule

    Twelve commenters responded to the solicitation of comments on the 
Customs Interim Rule setting forth new Sec.  122.49a to require the 
electronic transmission of passenger and crew manifests for flights in 
foreign air transportation to the United States.
    Comment: One commenter contended that the Sec.  122.49a 
requirements should not apply to a passenger flight in foreign air 
transportation that is not initially destined for the United States but 
rather is diverted in flight to a U.S. airport due to an emergency (for 
example, a mechanical problem, bad weather, a sick passenger).
    Response: Initially, CBP notes that, due to a reorganization of the 
regulation based on the incorporation of TSA requirements into this 
final rule, Sec.  122.49a of this final rule covers only passengers 
while crew members are covered in Sec.  122.49b (whereas Sec.  122.49a 
of the Customs Interim Rule covered both passengers and crew members on 
arriving commercial aircraft).
    CBP does not agree that flights diverted to a U.S. port due to an 
emergency should be excepted from the passenger and crew manifest 
transmission requirement; however, CBP recognizes that the regulation 
should address emergency flight scenarios. Thus, an appropriate 
provision has been added to the regulatory texts in this final rule for 
emergency aircraft arrivals (Sec. Sec.  122.49a(b)(2)(ii) (passenger 
manifests) and 122.49b(b)(2)(i)(B) (crew member manifests)).
    CBP recognizes that an aircraft diverted to a U.S. port due to an 
emergency may not be able to transmit manifests in compliance with the 
time requirement of the regulation. CBP also recognizes that not all 
such aircraft will be equipped for making a transmission of manifest 
information through the APIS, whether by electronic US or UN EDIFACT 
transmission or by an approved alternative transmission medium. For 
these reasons, the regulation now provides an alternative manifest 
filing time requirement for these flights and an accommodation for non-
equipped air carriers who fail to meet the requirements.
    As the above discussion is also applicable to arriving vessels, 
this final rule also contains an emergency provision for these vessels 
(Sec.  4.7b(b)(2)(D)).
    Comment: This comment discussion (regarding alternative means of 
electronic transmission) includes comments on both the Customs Interim 
Rule and the INS NPRM.
    One commenter argued that Sec.  122.49a should expressly provide 
for a separate electronic system by which small carriers could transmit 
passenger and crew manifest data to Customs. It was explained that 
Customs had allowed small carriers to transmit manifest data through an 
electronic mail (e-mail) system, and it was recommended that this 
system for transmitting the data be changed to a computer web-based 
medium, coupled with a telephonic or facsimile back-up system. Another 
commenter requested information on the alternative methods of 
submission such as e-mail and the web-based application. The commenter 
also requested that the effective date of the final rule be delayed 
until the web-based application is piloted.
    Response: CBP does not believe that every electronic setup, along 
with its technological details and operational features, that is 
authorized for effecting the mandatory transmission of manifest data to 
CBP needs to be prescribed in the regulations. Consistent with the 
terms of 49 U.S.C. 44909(c)(1) and (c)(4), CBP believes that it is 
sufficient to use a general statement in the regulatory texts that the 
electronic transmission of manifest information to CBP must be effected 
through an electronic data interchange system that is approved by CBP. 
Also, as the statute requires electronic submission of data, and 
telephonic and facsimile reporting are not considered electronic, 
transmissions in this manner would not be in compliance with the 
requirements.
    It is also noted that, in an effort to be more responsive to the 
needs of the affected industries, CBP has developed a computer web-
based medium (eAPIS) to allow carriers to access the CBP Web site and 
thus transmit manifests directly to the data center via the Internet. 
This medium became operational at the end of January 2005. More 
information on eAPIS is available at https://www.cbp.gov (related 
links). All information on alternative methods for transmitting 
electronic manifest data for air and sea carriers, including e-mail and 
web-based applications, can be found at https://www.cbp.gov (related 
links).
    Regarding a delayed effective date, CBP does not believe that the 
availability of the web-based application should be related to the 
implementation date of the manifesting requirements. As noted above, 
eAPIS is now operational, so this concern is moot (and there are other 
alternative methods of transmission currently available).
    Comment: Two commenters cited an inability to install automated 
equipment that would enable them to transmit electronically the 
necessary manifest data for passenger flights from Cuba in accordance 
with Sec.  122.49a. These commenters requested that Customs develop 
alternative procedures to deal with this situation.
    Response: Since the publication of the Customs Interim Rule, 
carriers arriving from Cuba have demonstrated ability to comply with 
electronic manifest requirements. As such, we believe this concern is 
no longer an issue. It is clear under the express language of 49 U.S.C. 
44909(c)(1) that CBP may require the transmission itself be by 
electronic means. Additionally, as noted previously, the manifest may 
be transmitted through the CBP Web site once operational.
    Comment: Two commenters requested that Customs use account managers 
for the purpose of administering Sec.  122.49a, as was originally done 
to administer the APIS system, which was then a voluntary program under 
which air carriers electronically transmitted passenger and crew 
manifest data to Customs.
    Response: CBP believes the practice of using account managers is 
beneficial to the industry and therefore will continue to provide those 
services. Further information on APIS account managers (not necessary 
for this rule) is available at https://www.cbp.gov (related links).
    Comment: Six commenters were concerned about the degree to which 
carriers would need to comply with the provisions of Sec.  122.49a. 
These commenters referred to a Customs press release of March 1, 2002 
(https://www.cbp.gov/xp/cgov/ click on links to newsroom/press releases) 
indicating that penalties could be assessed if carriers failed to reach 
stated minimum levels of compliance by certain target

[[Page 17827]]

dates in transmitting to Customs error-free manifest data under Sec.  
122.49a. The commenters concluded that these target dates did not 
afford enough time for many carriers not yet online to achieve the 
stated levels of compliance. Also, it was asserted that a penalty of 
$5,000 for noncompliance with the requirements of Sec.  122.49a was too 
harsh.
    Response: Full compliance with the provisions of Sec.  122.49a 
(Sec. Sec.  122.49a for passengers and 122.49b for crew members in this 
final rule) was, of course, compulsory as of its effective date 
(December 31, 2001). However, the use of CBP penalty guidelines for 
determining the parameters under which CBP may assess a penalty for 
noncompliance with Sec.  122.49a falls outside the scope of this 
rulemaking. Penalty guidelines are set forth in Part 171 of CBP's 
regulations and any changes will be published on the website and in the 
Federal Register. Furthermore, it is noted that a civil penalty of 
$5,000 is authorized by statute and regulation for each violation of 
Sec.  122.49a (or Sec.  122.49b for arriving crew members in this final 
rule) (see 19 U.S.C. 1644a(b)(1)(D) and (b)(2); 19 CFR 122.161; and 19 
U.S.C. 1436).
    Comment: This comment discussion (regarding the timing of manifest 
information submission) includes comments on both the Customs Interim 
Rule and the INS NPRM. These comments have been broken down into four 
subparts.
    (1) Eleven commenters were of the opinion that the requirement 
regarding transmission of passenger manifest information to Customs no 
later than 15 minutes after the departure of the aircraft was difficult 
to meet and should be relaxed. It was instead suggested that the time 
period for transmitting the passenger manifest to Customs should be a 
flexible one and that it should be tied to the duration of the related 
flight.
    (2) It was further suggested in this context that the crew manifest 
should be sent to Customs at the same time as the passenger manifest, 
rather than in advance of departure, in order to accommodate last 
minute crew changes.
    (3) One commenter requested that any updates to the departure 
manifest be limited to only those records that need to be updated, not 
a complete transmission.
    (4) Finally, one commenter asked for clarification of ``departure 
time.''
    Response: (1) After careful review of the matter, including 
consideration of recent events involving the continuing threat of 
terrorism, CBP has determined that changing the time requirements in 
the manner recommended by the commenters for arriving and departing 
aircraft is not in the best interest of the international traveling 
public, the carrier industries, or national security. Such a change 
would be inimical to the security enhancing intent of the requirements 
as it would result in the completion of security checks later rather 
than sooner and leave less time for the taking of appropriate action. 
Thus, permitting variable submission times based on flight duration 
would be unacceptable. CBP continues to evaluate whether the 
transmission of APIS data for aircraft passengers and for passengers 
and crew onboard departing vessels, in accordance with the provisions 
of this final rule, allows CBP sufficient time to respond to identified 
threats.
    However, as discussed previously, this final rule includes 
provisions designed to assist TSA in its aviation security mission. 
These provisions are set forth in security programs, EAs, and SDs 
already issued by TSA to the air carriers and address electronic 
manifest transmission requirements for crew members (on passenger and 
all-cargo flights) and non-crew members (all-cargo flights only) 
traveling onboard commercial aircraft arriving in, departing from, 
continuing within (foreign air carriers only), and overflying the 
United States. These provisions are authorized under TSA law and 
regulations (49 U.S.C. 114 and 49 CFR part 1500), and, with the 
exception of overflights, also fall within the authority of 49 U.S.C. 
44909, as amended by the ATSA, and 8 U.S.C. 1221, as amended by the 
EBSA. These provisions require the advance transmission of crew 
manifest information no later than 60 minutes prior to departure of the 
aircraft and have been adopted for incorporation into this final rule 
in Sec. Sec.  122.49b and 122.75b, pertaining respectively to crew and 
non-crew members on flights to, continuing within, and overflying the 
United States and to the same persons on flights departing from the 
United States. In this final rule, the 60-minute requirement is limited 
to crew and non-crew in these scenarios.
    (2) With this final rule, as set forth in (1) above, crew member 
and non-crew member manifests are now required no later than 60 minutes 
prior to departure. Last minute crew changes (updating manifests within 
60 minutes of departure) will be accommodated only upon approval by 
TSA. Failure to obtain timely approval may result in possible denial of 
flight clearance or diversion of the flight to another port, as 
appropriate. CBP notes that the updating manifest requirement in this 
final rule applies only to crew members and non-crew members. There is 
no manifest updating provision for passengers.
    (3) CBP agrees with the commenter's preference regarding updating 
(amending) manifests. As such, where submission of updated information 
is provided for in this final rule, it is only the updated information 
that is required, although a complete manifest may be transmitted 
through APIS with updated information if the carrier desires. Further, 
while the INS NPRM provided for amendment of the departure manifests to 
reflect the disembarkation of passengers or crew members, the text of 
this final rule reflects that the amendment provisions apply only to 
additions to crew member and non-crew member manifests. The APIS system 
is not capable of deleting manifest information already transmitted, so 
reporting disembarkations is not required in the manifest amendment 
provisions of this final rule.
    (4) Regarding the meaning of ``departure time,'' for aircraft, 
departure time is the moment at which the aircraft's wheels are up and 
off the runway and the aircraft is en route to its destination. The 
``wheels up'' concept is the same for other scenarios covered in this 
final rule, such as flights continuing within and overflying the United 
States.
    Comment: Two commenters stated that, while Sec.  122.49a(b) 
required that Customs timely receive the electronic transmission of the 
passenger manifest and the crew manifest for a covered flight, air 
carriers could not guarantee receipt of the information by Customs, 
only its transmission by the carrier.
    Response: Section 122.49a(b) regarding arriving passengers and 
Sec.  122.49b(b) in this final rule regarding arriving crew members 
require both the transmission and the receipt of the requisite manifest 
information because transmission without receipt defeats the purpose 
behind the statutory requirement that the carrier ``provide'' the 
manifest by electronic transmission. The APIS application will provide 
an automatic confirmation procedure for notifying a registered sender 
that the transmitted manifest data was received by CBP.
    Comment: This comment discussion (regarding the issue of privacy) 
includes comments on both the Customs Interim Rule and the INS NPRM.
    Seven commenters remarked that requiring the disclosure to Customs 
of passenger manifest data might conflict with the requirements of 
foreign privacy laws. These commenters opined that the U.S. Government 
should engage in a dialogue with applicable foreign governments to 
resolve this issue. Also,

[[Page 17828]]

a large majority of the 328 commenters to the INS NPRM expressed 
concern with respect to the right to privacy of travelers and the 
protection of data by the agency.
    Response: CBP has fully complied with, and will continue to ensure 
compliance with, all requirements of the Privacy Act of 1974, 5 U.S.C. 
552a. APIS data is used primarily for law enforcement purposes and in 
accordance with all applicable laws of the United States. Those U.S. 
laws, and the measures taken by CBP to implement such laws, protect 
against misuse of, or unauthorized access to, the information in the 
system.
    APIS data largely consists of information that appears on the 
biographical data page of travel documents, including passports issued 
by governments worldwide. The collection of this information is 
generally consistent with the recommended document standards and 
practices of the International Civil Aviation Organization (ICAO) set 
forth in ICAO Document 9303, ``A Passport with Machine Readable 
Capability.'' APIS data elements have been collected routinely over the 
years by governments of countries into which a traveler seeks entry 
(that is, by requiring the traveler to present a government-issued 
travel document). Moreover, CBP has the statutory authority to require 
presentation of the information by travelers upon their arrival at the 
U.S. border. Through APIS, CBP can efficiently and effectively conduct 
its necessary risk assessment of travelers, while substantially 
facilitating bona fide travel and avoiding substantial delays in the 
processing of travelers. Accordingly, CBP does not believe that APIS 
will give rise to any new or increased threats to personal privacy 
interests.
    More detailed information regarding the collection and safeguarding 
of APIS data is available in the APIS Privacy Impact Assessment (PIA) 
published in conjunction with this final rule.
    Comment: This comment discussion (regarding the right to travel) 
addresses comments made in response to both the Customs Interim Rule 
and the INS NPRM. Several commenters remarked that collection of 
information through APIS would infringe on the right to travel as 
recognized by the Supreme Court in Kent v. Dulles, 357 U.S. 116 (1958).
    Response: CBP recognizes, as the Supreme Court has stated, that the 
right to travel is an important and long-cherished liberty. Although a 
passenger's refusal to supply the information required by the 
regulatory text will result in denying that person access to 
international travel on commercial vessels and aircraft, the new 
provisions will not violate a constitutional right to travel. The 
Supreme Court has recognized that the right to travel abroad is not an 
absolute right, and the Court has recognized that no government 
interest is more compelling than the security of the nation. Haig v. 
Agee, 453 U.S. 280, 307 (1981). The government may place reasonable 
restrictions on the right to travel in order to protect this compelling 
interest. Id.; see also Eunique v. Powell, 302 F. 3d 971, 974 (9th Cir. 
2002); Hutchins v. District of Columbia, 188 F. 3d 531, 537 (D.C. Cir. 
1999).
    The restrictions this final rule places on certain modes of travel 
(here, by effectively denying access to certain international travel if 
a passenger or crew member refuses to provide the information required) 
are reasonable and narrowly drawn to ensure accurate identification of 
individuals. Moreover, the restrictions imposed through the required 
submission of information are far more likely to promote the ability to 
travel than to restrict it. In fact, as recent events have shown, the 
ability to travel can be severely restricted by terrorist threats to 
our means of transportation. See National Commission on Terrorist 
Attacks Upon the United States, Final Report 29 (Norton 2004) (noting 
FAA's September 11, 2001, instruction to all aircraft to land at the 
nearest airport). Congress, through legislation discussed throughout 
this document, has required certain safeguards involving the coll