Advance Information on Private Aircraft Arriving and Departing the United States, 53394-53406 [E7-18121]
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Federal Register / Vol. 72, No. 180 / Tuesday, September 18, 2007 / Proposed Rules
DEPARTMENT OF HOMELAND
SECURITY
Bureau of Customs and Border
Protection
19 CFR Part 122
[USCBP–2007–0064]
RIN 1651–AA41
Advance Information on Private
Aircraft Arriving and Departing the
United States
Customs and Border Protection,
Department of Homeland Security.
ACTION: Notice of proposed rulemaking.
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AGENCY:
SUMMARY: This notice of proposed
rulemaking (NPRM) proposes 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 Customs and Border
Protection (CBP) an advance electronic
transmission of information regarding
each individual traveling onboard the
aircraft.
This NPRM also proposes to add data
elements to the existing notice of arrival
requirements and proposes a new notice
of departure requirement. The notice of
arrival and notice of departure
information would be required to be
submitted to CBP through an approved
electronic data interchange system in
the same transmission as the
corresponding arrival or departure
manifest information. Under the NPRM,
this data must be received by CBP no
later than 60 minutes before an arriving
private aircraft departs from a foreign
location and no later than 60 minutes
before a private aircraft departs a United
States airport or location for a foreign
port or place.
Finally, this NPRM proposes to clarify
landing rights procedures and departure
clearance procedures as well as
expressly setting forth CBP’s authority
to restrict aircraft from landing in the
United States based on security and/or
risk assessments; or, based on those
assessments, to specifically designate
and limit the airports from where
aircraft may land or depart.
DATES: Written comments must be
received on or before November 19,
2007.
ADDRESSES: You may submit comments,
identified by docket number USCBP–
2007–0064, by one of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments
via docket number.
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• Mail: Border Security Regulations
Branch, Office of International Trade,
U.S Customs and Border Protection,
1300 Pennsylvania Avenue, NW., (Mint
Annex), Washington, DC 20229.
Instructions: All submissions received
must include the agency name and
document number for this rulemaking.
All comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided. For
detailed instructions on submitting
comments and additional information
on the rulemaking process, see the
‘‘Public Participation’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov. Submitted
comments may also be inspected on
regular business days between the hours
of 9 a.m. and 4:30 p.m. at the Office of
International Trade, Customs and
Border Protection, 799 9th Street, NW.,
5th Floor, Washington, DC.
Arrangements to inspect submitted
comments should be made in advance
by calling Mr. Joseph Clark at (202) 572–
8768.
FOR FURTHER INFORMATION CONTACT: For
Operational Matters—Michael Kaneris,
Office of Field Operations, Customs and
Border Protection, 202–344–1584. For
Legal Matters—Glen Vereb, Branch
Chief, Office of International Trade,
Regulations & Rulings, Customs and
Border Protection, 202–572–8700.
SUPPLEMENTARY INFORMATION: The
Supplementary Information section is
organized as follows:
I. Public Participation
II. Background and Current Requirements
A. Background and Authorities
B. Current Requirements for All Aircraft
1. Advance Notice of Arrival
a. Private Aircraft Arriving in the U.S.
b. Certain Aircraft Arriving From Areas
South of the U.S.
c. Aircraft Arriving From Cuba
2. Permission to Land (Landing Rights)
C. Current Requirements for Commercial
Aircraft
III. Proposed Requirements
A. General Requirements for Private
Aircraft Arriving in the United States
1. Notice of Arrival
2. Arrival Manifest Data Requirement
3. Method of Transmitting Information to
CBP
B. Certain Aircraft Arriving From Areas
South of the United States
C. Notice of Arrival for Private Aircraft
Arriving From Cuba
D. Private Aircraft Departing the United
States
1. Departure Manifest Data Requirement
2. Notice of Departure
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3. Aircraft Required to Clear
E. Landing Rights
1. Landing Rights Airports
2. Aircraft Required to Land
IV. 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
V. Signing Authority
VI. Proposed Regulatory Amendments
I. Public Participation
Interested persons are invited to
participate in this rulemaking by
submitting written data, views, or
arguments on all aspects of the notice of
proposed rulemaking. The Department
of Homeland Security (DHS) also invites
comments that relate to the economic,
environmental, or federalism effects that
might result from this proposal.
Comments that will provide the most
assistance to the Department in
developing these procedures will
reference a specific portion of the
proposed rule, explain the reason for
any recommended change, and include
data, information, or authority that
support such recommended change.
II. Background and Current
Requirements
A. Background and Authorities
Pursuant to 19 U.S.C. 1433(c), the
Secretary of Homeland Security has
broad authority to regulate all aircraft,
including private aircraft, arriving in
and departing from the United States. A
private aircraft, in contrast to a
commercial aircraft,1 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). Specifically,
section 1433(c) provides that the pilot of
any aircraft arriving in the United States
or the Virgin Islands from any foreign
1 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. It should be noted that
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. 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
U.S. 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 U.S.
carrying neither passengers nor cargo in ballast after
leaving with passengers and/or cargo for
commercial purposes.
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location is required to comply with such
advance notification, arrival reporting,
and landing requirements as regulations
may require. This statute provides CBP
with the authority to deny landing
rights to aircraft within the United
States based on security and/or risk
assessments, or based on those
assessments to specifically designate
and limit the airports where aircraft may
land. In addition, under the statute (19
U.S.C. 1433(d)), an aircraft pilot is
required to present or transmit to CBP
through an electronic 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 Virgin Islands may only depart
from the airport in accordance with
regulations prescribed by the Secretary.
Additionally, pursuant to 19 U.S.C.
1644a and 1644, the Secretary can
designate ports of entry for aircraft and
apply vessel entry and clearance
regulations to civil aviation.
B. Current Requirements for All Aircraft
1. Advance Notice of Arrival
DHS 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.
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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 given 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. 19 CFR
122.31(c). The advance notice of arrival
requires information about the number
of alien passengers and number of U.S.
citizen passengers, but it does not
require any identifying information for
individual passengers onboard to be
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submitted.2 The current regulations do
not provide a specific timeframe when
the notice of arrival shall be given, but
direct 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. 19
CFR 122.31(e).
b. Certain Aircraft Arriving From Areas
South of the United States
Certain 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. 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. 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).3
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 CBP
grants an exemption from the special
landing requirement.4
2 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 citizens passengers; and
(7) estimated time of arrival.
3 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 § 122.24, unless an exemption
has been granted under § 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.
4 19 CFR 122.25 sets forth the procedures
concerning exemption from special landing
requirements—known as an overflight privilege.
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c. Aircraft Arriving From Cuba
The current regulations require
private aircraft entering the United
States from Cuba, except for public
aircraft,5 to give advance notice of
arrival at least one hour before crossing
the U.S. border or coastline. 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).6
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 (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
§ 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 timeframe for
securing permission to land.
C. Current Requirements for
Commercial Aircraft
In contrast to private aircraft,
commercial air carriers are required to
5 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
U.S. 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.
6 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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electronically transmit passenger arrival
manifests to CBP no later than 15 7
minutes (19 CFR 122.75a(b)(2)) after the
departure of the aircraft from any place
outside the United States (19 CFR
122.49a(b)(2)) and passenger departure
manifests no later than 15 minutes prior
to departure of the aircraft from the
United States. Manifests for crew
members on passenger flights and allcargo flights and manifests for non-crew
members on all-cargo flights must be
electronically transmitted to CBP no
later than 60 minutes prior to the
departure of any covered flight to,
continuing within, or overflying the
United States (19 CFR 122.49b(b)(2))
and no later than 60 minutes prior to the
departure of any covered flight from the
United States. 19 CFR 122.75b(b)(2).
Commercial air carriers transmit
passenger information to CBP through
the Advance Passenger Information
System (APIS) which is an electronic
data interchange system 8 approved by
DHS for use by international
commercial air and vessel carriers. By
receiving the advance passenger and
crew information, CBP is able to
perform enforcement and security
queries against various multi-agency
law enforcement and terrorist databases
in connection with international flights
to and from the United States. Based on
the manifest reporting requirements for
commercial air carriers, CBP currently
has the capability to review advance
information on commercial air travelers
to assess potential risks.
This proposed rule allows for a risk
assessment of all private aircraft
traveling internationally and will aid
CBP in obtaining advance information
so that risk analyses may be conducted
before the departure of private aircraft
bound for or departing the United States
in an effort to improve border security.
This rule serves to provide the nation,
7 CBP published a final rule in the Federal
Register on August 23, 2007 (72 FR 48320), which
amends its regulations regarding the electronic
transmission of manifest data by commercial air
carriers bound for and departing the United States,
to require the APIS transmission 30 minutes prior
to securing of the aircraft doors (APIS 30 interactive
and non-interactive) and up to the time the aircraft
doors are secured for APIS Quick Query (AQQ)
transmissions. This rule takes effect February 19,
2008.
8 A DHS-approved electronic data interchange
system is any electronic system that is approved by
DHS that allows the public to interface with DHS
for the purposes of transmitting required
information. CBP anticipates that most
transmissions will be made using eAPIS which is
an example of such an application and is an
application that is available through the internet.
The pilot may choose to authorize an agent to
transmit the data if internet access is not available
at the pilot’s location or for other reasons of
convenience. The pilot remains responsible for the
timing and accuracy of the transmission.
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private aircraft operators, and the
international traveling public,
additional security from the threat of
terrorism and enhance CBP’s ability to
carry out its border enforcement
mission.
III. Proposed Requirements
Private aircraft operators currently do
not electronically transmit to CBP
advance notice of arrival through an
approved electronic data interchange
system. In addition, private aircraft,
unlike commercial aircraft, are not
presently required to electronically
transmit passenger arrival and departure
manifests that provide identifying
information for individuals onboard the
aircraft before arriving in or departing
from the United States. CBP regulations
do not contain precise procedures for a
private aircraft operator to follow to
request permission to land at landing
rights airports. Private aircraft operators
are also currently not required to
provide notice of departure or obtain
clearance prior to departing the United
States.
Accordingly, CBP’s current
regulations do not provide CBP with the
necessary information to fully assess
potential threats posed by private
aircraft entering into and departing from
the United States. To adequately and
accurately assess potential threats posed
by private aircraft entering and
departing the United States, CBP needs
sufficient and timely information about
the impending arrival or departure of a
private aircraft, the passengers and crew
onboard, and clear procedures regarding
landing rights and departure clearance.
Without these tools, CBP currently lacks
the capability to perform risk
assessments on passengers traveling on
private aircraft.
Under this rule, CBP is proposing
regulatory changes that include
requiring the advance electronic
information of notice of arrival
combined with passenger manifest data
for those aboard private aircraft that
arrive in and depart from the United
States. Additionally, this rule proposes
amendments regarding notice of arrival
requirements, landing rights, and
departure requirements.
The proposed changes would provide
CBP with more detailed information
about arriving and departing private
aircraft and persons onboard within a
timeframe that would enable CBP to
more fully pre-screen information on all
individuals intending to travel onboard
private aircraft to or from the United
States. As a result, CBP would more
accurately assess the risks that certain
flights may pose to national security and
take appropriate action. Moreover, these
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changes would enable CBP to minimize
potential threats posed by private
aircraft by identifying high-risk
individuals and aircraft and allowing
CBP to coordinate with airport
personnel and domestic or foreign
government authorities to take
appropriate action when warranted by a
threat.
A. General Requirements for Private
Aircraft Arriving in the United States
This rule proposes to add new
passenger manifest and departure
requirements and to revise existing
notice of arrival and landing rights
requirements for private aircraft arriving
in the United States from a foreign
location or departing the United States
to a foreign location.
1. Notice of Arrival
This NPRM proposes to require pilots
of private aircraft arriving in the United
States from a foreign port or location to
transmit notice of arrival information to
CBP through a CBP-approved electronic
data interchange system no later than 60
minutes prior to departure from a
foreign port or location. ‘‘Departure’’
would be defined as ‘‘the point at which
the aircraft is airborne and the aircraft
is en route directly to its destination.’’
See proposed § 122.22(a). Under this
proposed rule, aircraft that are not
originally destined for the United States
but are diverted to the United States due
to an emergency would be required to
transmit an arrival manifest no later
than 30 minutes prior to arrival,
although the circumstances of the
emergency situation and whether or not
the aircraft is equipped to make the
transmission will be taken into
consideration by CBP.
This NPRM also proposes expanding
the data elements that private aircraft
operators are required to report in the
notice of arrival. The current contents of
notice of arrival reporting for private
aircraft require that the following data
elements be submitted by telephone,
radio or other method: type of aircraft
and registration number, name of
aircraft commander, place of last foreign
departure, international airport or
intended landing or other place at
which landing has been authorized by
CBP, number of alien passengers,
number of citizen passengers and
estimated time of arrival. This rule
proposes to clarify the existing notice of
arrival reporting requirements for
private aircraft by duplicating the data
elements provided in 19 CFR 122.31,
which apply to all aircraft (including
private aircraft), into 19 CFR 122.22,
which applies specifically to private
aircraft. This NPRM also proposes to
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expand the data elements for notice of
arrival regarding private aircraft. The
proposed data elements for notice of
arrival report include the following:
aircraft registration number, decal
number, place of last departure, aircraft
tail number, aircraft call sign, aircraft
type, date of aircraft arrival, complete
itinerary, estimated time of arrival,
estimated time and location of crossing
the U.S. border/coastline, name of
intended airport of first landing, owner/
lessee name and address, pilot license
number, pilot address, country of
issuance of pilot’s license, transponder
code, color, operator name and address,
and 24-hour point of contact.
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2. Arrival Manifest Data Requirement
This NPRM proposes that private
aircraft pilots arriving in the United
States would be responsible for
submitting manifest data that provides
identifying information for all
individuals on board the aircraft no later
than 60 minutes prior to departure from
a foreign port or location. This manifest
data would be provided simultaneously
with the notice of arrival information
and would include the following
information for all individuals onboard
the aircraft: full name; date of birth;
gender; citizenship; country of
residence; status on board the aircraft
(i.e., passenger or crew member); travel
document type; travel document
number; travel document country of
issuance; travel document expiration
date; alien registration number, redress
number (if available),9 and address
while in the United States.
The pilot collecting the manifest
information would be required to
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 the traveler is
the person to whom the travel document
was issued.10 If additional passengers
not included in the manifest arrive after
the manifest data was submitted to CBP,
the pilot would be responsible for
submitting a corrected manifest. The
pilot would be required to await CBP
approval of the corrected manifest
before departing. Additionally, any
9 The redress number is the number assigned by
DHS to an individual processed through the redress
procedures described in 49 CFR part 1560, subpart
C.
10 Further information outlining the various types
of travel documents approved by DHS can be found
at: https://www.cbp.gov/linkhandler/cgov/travel/
inspections_carriers_facilities/doc_require.ctt/
doc_require.pdf.
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approval to land at a United States
airport or location from a foreign port or
location that was previously granted by
CBP as a result of the original manifest’s
submission would be invalidated. If a
subsequent manifest is submitted less
than 60 minutes prior to departure, the
private aircraft pilot must resubmit the
arrival manifest and receive approval
from CBP for the amended manifest
containing the added or amended
information before allowing the aircraft
to depart the foreign location, or the
aircraft may be, as appropriate, denied
clearance to depart, diverted from
arriving in the United States, or denied
permission to land in the United States.
Certain private aircraft may also be
subject to the Transportation Security
Administration (TSA) security and
boarding requirements for large aircraft
including those contained in 49 CFR
1544.
3. Method of Transmitting Information
to CBP
Under this proposed rule, both the
notice of arrival information and
manifest data must be transmitted in the
same transmission via electronic
submissions through the Electronic
Advance Passenger Information System
(eAPIS) 11 Web portal or by a CBPapproved alternative transmission
medium. More information on eAPIS is
available at https://www.cbp.gov (related
links). Under this proposed rule, any
electronic data interchange system
approved by CBP would be an
acceptable method for private aircraft to
submit notice of arrival information and
manifest data. The pilot would be
responsible for submitting this
information, but could authorize
another party to submit the information
on his or her behalf. After CBP receives
the submitted information, DHS would
send a message to the submitter of the
manifest information before departure
from a foreign airport indicating that the
information has been received and
specifying whether landing rights have
been granted at the requested airport,
granted at a different airport designated
by CBP, or denied. There will be a
transitional period during which the
current manual process of requesting
landing rights will gradually be replaced
by this automated procedure.
A private aircraft pilot who chooses
not to transmit required arrival manifest
data by means of a CBP-approved
interactive 12 electronic transmission
11 eAPIS
is an online transmission system that
meets all current and future APIS data element
requirements for all mandated APIS transmission
types.
12 CBP anticipates that most pilots of private
aircraft will use the eAPIS web portal as the
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system would be required to make batch
manifest transmissions by means of a
non-interactive electronic transmission
system approved by CBP. The private
aircraft pilot would make a single,
complete batch manifest transmission
containing all the required arrival
manifest data for every person on the
aircraft.
After receipt of the manifest
information, as in the case where the
manifest information is conveyed using
a CBP-approved interactive electronic
transmission system, CBP would
perform an initial security vetting of the
data and grant, deny, or restrict landing
rights as appropriate.
Through an analysis of the data
provided by the pilot’s transmission,
DHS will be able to identify passengers
who are designated as selectee or no-fly.
This and other information will be used
in determining whether landing rights
or clearance will be granted, restricted
or denied. DHS is evaluating whether to
inform the pilot, in the event that CBP
denies or restricts landing rights for the
plane, which passenger(s) has been
identified by DHS on the selectee or nofly lists so that the pilot may better
understand potential threats to the
security of the aircraft. In addition, such
notification could avoid additional
flight delays or disruptions by allowing
the pilot to remove that individual from
the flight until such time as the
individual resolves the selectee or no-fly
designation with TSA under TSA’s
redress system. Accordingly, DHS is
soliciting public comments on the
economic costs and benefits of notifying
a pilot about an individual selectee or
no-fly match being aboard the aircraft.
DHS is also seeking comments on any
operational and privacy concerns
associated with sharing such
information.
B. Certain Aircraft Arriving From Areas
South of the United States
This NPRM proposes a new timeframe
for reporting notice of arrival, which
would be 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 this proposed rule,
notice of arrival would be required,
along with manifest data being
furnished as set forth in 19 CFR 122.22
for private aircraft, which requires
transmission method of choice because of the ease
and availability of internet access. Electronic
EDIFACT transmissions are currently used by
commercial carriers to transmit passenger data to
CBP. Pilots of large business aircraft could choose
to use this or other CBP-approved electronic
transmission medium rather than the eAPIS portal.
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Federal Register / Vol. 72, No. 180 / Tuesday, September 18, 2007 / Proposed Rules
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.
This NPRM also proposes 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). To
correct this discrepancy, CBP is
proposing to revise the heading for 19
CFR 122.23 to read ‘‘Certain aircraft
arriving from areas south of the U.S.’’
Additionally, the proposed regulatory
text would expressly state the specific
types of aircraft to which the section
applies rather than defining them. These
proposed amendments to 19 CFR 122.23
would make the section easier for the
public to understand.
C. Notice of Arrival for Private Aircraft
Arriving From Cuba
This NPRM proposes that private
aircraft arriving from Cuba, as provided
for in 19 CFR 122.154, would 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 airport 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.
D. Private Aircraft Departing the United
States
pwalker on PROD1PC71 with PROPOSALS2
1. Departure Manifest Data Requirement
This NPRM proposes to require the
pilot of a private aircraft departing the
United States to a foreign port or
location to submit a departure manifest
to CBP. Similar to the arrival manifest,
the departure manifest would contain
information identifying all individuals
onboard the aircraft. The timeframe for
submission of the departure manifest
would be no later than 60 minutes prior
to departure from the United States to
a foreign port or location. This NPRM
clarifies the pilot’s responsibility to
ensure that a departure manifest
regarding all individuals onboard the
private aircraft is submitted and
specifies that the transmission of the
manifest data must be through any CBPapproved electronic data interchange
system. The information to be provided
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in the departure manifest would be the
same as that provided in the arrival
manifest.13
Under this proposed rule, the pilot
collecting the information would be
responsible for comparing the travel
document presented by each individual
attempting to travel onboard the aircraft
with the DHS-approved travel document
information he or she is transmitting to
CBP. The pilot would also be
responsible for ensuring that the
information is correct and that the
traveler is the person to whom the travel
document was issued.
This NPRM clarifies that if a
departure manifest is submitted to CBP
before all individuals arrive for
transport, the pilot must resubmit an
amended manifest with all required
information, and any clearance
previously granted by CBP as a result of
the original manifest’s submission
would be invalidated. The pilot would
have an obligation to make necessary
changes to the departure manifest and
specifies what circumstances would
constitute necessary changes (e.g.,
adding a name or any required
information or amending previously
submitted information). If changes are
submitted less than 60 minutes prior to
departure, the pilot would be required
to receive a new clearance from CBP
before departing.
2. Notice of Departure
This NPRM proposes to require
private aircraft leaving the United States
for a foreign port or location to obtain
clearance from CBP prior to departing
from the United States. Under this
proposed rule, private aircraft pilots
departing for a foreign port or location
would be required to submit an
electronic departure manifest on all
individuals onboard the aircraft, and
notice of departure information no later
than 60 minutes prior to departure.
Notice of departure elements would
constitute the following information:
aircraft registration number, type of
aircraft, call sign (if available), decal
number, place of last departure, date of
aircraft departure, estimated time of
departure, estimated time and location
of crossing U.S. border/coastline, name
of intended foreign airport of first
landing, owner/lessees name (last, first,
and, if available, middle), owner/lessees
13 Like the arrival manifest, the departure
manifest would include the following information
for all individuals onboard the aircraft: Full name;
date of birth; gender; citizenship; country of
residence; status on board the aircraft (i.e.,
passenger or crew member); travel document type;
travel document number; travel document country
of issuance; travel document expiration date; alien
registration number, redress number if available
and address while in the United States.
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Sfmt 4702
street address (number and street, city,
state, zip code, country, telephone
number, fax number, and e-mail
address), pilot/private aircraft pilot
name (last, first and, if available,
middle), pilot license number, pilot
street address: (number and street, city,
state, zip code, country, telephone
number, fax number and e-mail
address), country of issuance of pilot’s
license, operator name (last, first, and if
available, middle), operator street
address: (number and street, city, state,
zip code, country, telephone number,
fax number and e-mail address), 24-hour
point of contact (e.g., broker, dispatcher,
repair shop) name, transponder code
(beacon number), color, complete
itinerary (intended foreign airport
destinations for 24 hours following
departure).
3. Aircraft Required To Clear
The existing regulatory language in 19
CFR 122.61 exempts public and private
aircraft from leaving the United States
for a foreign area from having to obtain
clearance prior to departing from the
United States. As such, CBP is
proposing to revise paragraph (a) of
§ 122.61 to indicate that private aircraft
leaving the United States for a foreign
area are required to obtain clearance
from CBP as set forth in the language
proposed for § 122.26. The paragraph
will further state that all other aircraft,
except public aircraft, leaving the
United States or the U.S. Virgin Islands
are required to clear if they carry
passengers and/or merchandise for hire
or take aboard or discharge passengers
and/or merchandise for hire in a foreign
area. See 19 CFR 122.61(a) and (b).
These proposed changes are necessary
to effectuate the new requirements
regarding the filing of a departure
manifest and electronic clearance for
private aircraft prior to departure for a
foreign port or place.
The process of receiving electronic
clearance to depart would operate in
substantially the same manner as
submission of an arrival data manifest.
Prior to departing the United States, a
private aircraft pilot would submit
departure manifest data on all
individuals onboard the aircraft, await
CBP’s confirmation of receipt of the
manifest data, and await CBP clearance
to depart the United States. CBP’s
clearance, i.e., permission to depart the
United States, would be transmitted to
the pilot from CBP via an electronic data
interchange system approved by CBP.
As with the transmission of arrival
data manifests, a private aircraft pilot
that chooses not to transmit required
notice of departure, departure manifests
by means of a CBP-approved interactive
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This proposed rule would also expressly
provide that CBP may deny landing
rights or direct an aircraft to a landing
location.
electronic transmission system must
make batch manifest transmissions in
accordance with CBP policy as
discussed earlier in section III.A.3.,
entitled ‘‘Method of Transmitting
Information to CBP.’’
E. Landing Rights
CBP currently requires all aircraft
arriving at a landing rights airport to
request permission to land, known as
landing rights, from CBP. Given CBP’s
authority to deny landing rights within
the United States and to restrict landing
to airports designated by CBP,14 this
NPRM proposes to expressly state CBP’s
authority to deny permission to land in
the United States and/or limit aircraft
landing locations.
1. Landing Rights Airports
The current provisions of 19 CFR
122.14 do not adequately provide for
when or how the request for permission
to land at a landing rights airport should
be given to the director of the port of
entry or station nearest the first place of
landing. Under this proposed rule,
private aircraft pilots would seek
permission to land at a landing rights
airport when the notice of arrival
information is transmitted via a CBP
approved electronic data interchange
system no later than 60 minutes prior to
departure from a foreign port or place
pursuant to the proposed language in 19
CFR 122.22. The pilot would then be
required to wait for CBP to transmit a
message that landing rights have been
granted at the particular landing rights
airport. These requirements would also
apply to private aircraft landing at user
fee airports pursuant to 19 CFR 122.15.
2. Aircraft Required To Land
This NPRM proposes to clarify CBP’s
authority to deny permission to land in
the United States and to designate the
specific locations at which unusually
high-risk aircraft may land. Currently
under 19 CFR 122.32, any aircraft that
is coming into the United States from a
foreign location (including Puerto Rico)
must land unless exempted by the
Federal Aviation Administration. This
proposed rule would expressly provide
that CBP’s authority to deny permission
to land in the United States, in addition
to the current FAA exemption excusing
the requirement to land, as the two
exclusive reasons that an aircraft
coming into the United States from a
foreign area shall not land in the United
States.
IV. Regulatory Analyses
A. Executive Order 12866 (Regulatory
Planning and Review)
This proposed rule is not
‘‘economically significant’’ under
Executive Order 12866 because it will
not result in the expenditure of more
than $100 million in any one year. The
Office of Management and Budget
(OMB) has reviewed this rule under that
Order. Comments regarding the analysis
may be submitted by any of the methods
described under the ADDRESSES section
of this document.
Currently, pilots of private aircraft
must submit information regarding
themselves, their aircraft, and any
53399
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 1 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 for the pilot is
similar to what is already required; it
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 estimates that approximately twothirds 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)
Aircraft/pilot
arrivals
pwalker on PROD1PC71 with PROPOSALS2
Airport
Ft. Lauderdale Intl. Airport, FL .............................................
West Palm Beach, FL ..........................................................
New York-Newark, Newark, NJ ...........................................
Miami Airport, FL .................................................................
Fort Pierce, FL .....................................................................
Otay Mesa, CA ....................................................................
San Juan, PR .......................................................................
Hidalgo, TX ..........................................................................
Calexico, CA ........................................................................
JFK Airport, NY ....................................................................
Laredo, TX ...........................................................................
Tucson, AZ ...........................................................................
El Paso, TX ..........................................................................
Houston/Galveston, TX ........................................................
Seattle, WA ..........................................................................
Brownsville, TX ....................................................................
San Antonio, TX ...................................................................
Bellingham, WA ...................................................................
Remaining 223 airports ........................................................
14 See
Percent of
total aircraft
12,831
9,031
6,464
5,676
5,216
4,944
4,090
3,827
3,597
3,497
3,280
3,013
2,548
2,534
2,529
2,303
2,185
2,160
58,834
9
7
5
4
4
4
3
3
3
3
2
2
2
2
2
2
2
2
42
Passenger
arrivals
37,848
25,109
29,779
17,596
11,376
18,216
10,821
8,647
7,963
16,492
10,974
9,059
9,544
10,850
6,238
7,027
8,520
3,106
206,159
19 U.S.C. 1433(c) and 1644a(b)(1)(A).
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E:\FR\FM\18SEP2.SGM
18SEP2
Percent of
total
passengers
8%
6
7
4
2
4
2
2
2
4
2
2
2
2
1
2
2
1
45
Average passengers
per arrival
2.9
2.8
4.6
3.1
2.2
3.7
2.6
2.3
2.2
4.7
3.3
3.0
3.7
4.3
2.5
3.1
3.9
1.4
3.5
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TABLE 1.—SUMMARY OF ARRIVALS AND PASSENGERS ABOARD PRIVATE AIRCRAFT (2006)—Continued
Aircraft/pilot
arrivals
Airport
pwalker on PROD1PC71 with PROPOSALS2
Total ..............................................................................
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. While the current
data elements for pilots are very similar
to the proposed requirements, 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
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 the
proposed requirements, 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
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19:41 Sep 17, 2007
Jkt 211001
Percent of
total aircraft
138,559
100
U.S. coastline or border. There are no
such timing requirements for other
areas. Thus, some pilots and their
passengers may decide that in order 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 Federal Aviation
Administration’s (FAA) document on
critical values, $37.20.15 This represents
a weighted cost for business and leisure
general aviation travelers. CBP believes
this is a reasonable approximation of the
average value of a pilot’s and traveler’s
time. However since this estimate may
be an underestimate of the value of time
for general aviation passengers and
pilot’s engaged in international travel,
CBP requests comments on this
estimate.
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.
15 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.
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Passenger
arrivals
455,324
Percent of
total
passengers
100
Average passengers
per arrival
3.3
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 eAPIS process.
While a law enforcement response is not
required under this proposed rule, CBP
estimates the costs for such a response
in order to avoid underestimating the
costs of this rule. For the purposes of
this analysis, CBP estimates that on two
occasions annually, a general aviation
flight has 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 onehour delay to resolve the no-fly
designation. CBP also assumes the
resolution process will require 1 hour of
law enforcement time at a TSAestimated 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 submission. For the purposes of
this analysis, CBP estimates that once
per year, a general aviation flight is
denied landing rights. CBP again
assumes that four individuals (the pilot
plus three passengers) will be affected,
but that 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]. CBP is seeking
comment on the assumptions made for
these incident responses.
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The total annual cost of the proposed
rule is expected to be $8.8 million. Over
10 years, this would total a present
value cost of $66.0 million at a 7 percent
discount rate ($77.1 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
successful 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.
In light of these limitations, we
conduct a ‘‘breakeven’’ analysis to
determine what change in the reduction
of risk would be necessary in order 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 general
aviation aircraft is 3,384 pounds and
carries an average of a little over four
people (1 pilot and 3 passengers).16
Some general aviation 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.
Additionally, we present four attack
scenarios. Scenario 1 explores a
situation where only 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 general aviation aircraft—
one pilot, three passengers) to 1,000
casualties but no loss of physical
capital. We acknowledge that this
scenario is not necessarily realistic
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.17 This value is for an
aircraft built prior to 1982, which is a
substantial proportion (75 percent) of
the general aviation fleet of aircraft.18
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
53401
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.19 This report also
estimates the ‘‘ripple effects’’ of the
attack—the air traffic shutdown, lost
tourism in New York City, and longterm 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.
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 proposed 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
73.1 percent (Scenario 1, 4 casualties
avoided) in order for the benefits of the
rule to exceed the costs to break even.
TABLE 2.—ANNUAL RISK REDUCTION REQUIRED (%) FOR NET COSTS TO EQUAL BENEFITS
[Annualized at 7 percent over 10 years]
Scenario 1:
loss of life only
pwalker on PROD1PC71 with PROPOSALS2
Casualties avoided
Scenario 2:
loss of life and
aircraft (low
value)
Scenario 3:
loss of life and
aircraft (high
value)
Scenario 4:
loss of life and
catastrophic
loss of property
73.1
29.3
2.9
0.3
72.6
29.2
2.9
0.3
63.5
27.6
2.9
0.3
<1
<1
<1
<1
36.6
14.6
1.5
0.1
36.4
14.6
1.5
0.1
34.0
14.2
1.5
0.1
<1
<1
<1
<1
$3M VSL:
4 ................................................................................................................
10 ..............................................................................................................
100 ............................................................................................................
1,000 .........................................................................................................
$6M VSL:
4 ................................................................................................................
10 ..............................................................................................................
100 ............................................................................................................
1,000 ................................................................................................................
16 Federal Aviation Administration. 2005.
Economic Values for FAA Investment and
Regulatory Decisions, A Guide. Prepared by GRA,
Inc. July 3, 2007. Table ES–1.
17 Federal Aviation Administration. 2005.
Economic Values for FAA Investment and
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Regulatory Decisions, A Guide. Prepared by GRA,
Inc. July 3, 2007. Table ES–1. This estimate has not
been adjusted for inflation.
18 Federal Aviation Administration. 2005.
Economic Values for FAA Investment and
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Regulatory Decisions, A Guide. Prepared by GRA,
Inc. July 3, 2007. Table 3–14.
19 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.
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B. Regulatory Flexibility Act
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CBP has prepared this section to
examine the impacts of the proposed
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-forprofit 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
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 proposed
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.’’ We welcome comments on our
assumptions. If we do not receive
comments that demonstrate that the rule
results in significant economic impacts,
we may certify that this action does not
have a significant economic impact on
a substantial number of small entities
during the final rule.
Comments regarding the analysis may
be submitted by any of the methods
described under the ADDRESSES section
of this document.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), enacted as
Public Law 104–4 on March 22, 1995,
requires each Federal agency, to the
extent permitted by law, to prepare a
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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 proposed rule in
accordance with the principles and
criteria in the Executive Order and have
determined that it does not have
federalism implications or a substantial
direct effect on the States. The proposed
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 proposed 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
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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 noninvasive 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 proposed collections of
information in this document. The
proposed collection is contained in 19
CFR 122.22. This information would 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 and/or record
keepers are individuals and businesses.
Under § 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 of
several 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 proposed rule
has been submitted to the OMB for
review in accordance with the
Paperwork Reduction Act of 1995 (44
U.S.C. 3507). An agency may not
conduct, and a person is not required to
respond to, a collection of information
unless the collection of information
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displays a valid control number
assigned by OMB.
Estimated Burden Requirements for
Pilots of Private Aircraft Under § 122.22
Estimated annual reporting and/or
recordkeeping burden: 70,000 hours.
Estimated average annual burden per
respondent/recordkeeper: 30 minutes
(0.50) hours.
Estimated number of respondents
and/or recordkeepers: 140,000.
Estimated annual frequency of
responses: 2.
Estimated Burden Requirements for
Passengers
Estimated annual reporting and/or
recordkeeping burden: 7820.
Estimated reporting burden per
respondent/or recordkeeping burden: 1
minute.
Estimated number of respondents
and/or recordkeepers: 460,000.
Estimated annual frequency of
responses: 1.
Comments on the collection of
information should be sent to the Office
of Management and Budget, Attention:
Desk Officer of the Department of
Homeland Security, Office of
Information and Regulatory Affairs,
Washington, DC 20503. Comments
should be submitted within the
timeframe that comments are due
regarding the substance of the proposal.
Comments are invited on: (a) Whether
the collection is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
(b) the accuracy of the agency’s estimate
of the burden of the collection of the
information; (c) ways to enhance the
quality, utility, and clarity of the
information to be collected; (d) ways to
minimize the burden of the collection of
information on respondents, including
through the use of automated collection
techniques or other forms of information
technology; and (e) estimates of capital
or startup costs and costs of operations,
maintenance, and purchase of services
to provide information.
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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 Predeparture final rule published in the
Federal Register on August 23, 2007 (72
FR 48320), a System of Records Notice
was published in the Federal Register
on that same date (72 FR 48349). In light
of the amendments to the regulations
proposed in this document, CBP is in
the process of updating the APIS PIA.
Additionally, CBP and the DHS Privacy
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Office are currently reviewing the APIS
SORN to determine if any amendments
are needed to ensure privacy
compliance for APIS. Accordingly, if it
is determined that amendments are
necessary, an update to the SORN will
be published.
DHS is seeking comment on the
privacy impacts of the expansion of the
population that will be covered by this
rule. Presently, the Advanced Passenger
Information System (APIS) System of
Records Notice (SORN) published in the
Federal Register on August 23, 2007 (72
FR 48349) would cover this population.
The APIS SORN currently covers the
collection of APIS information in both
the commercial and private aircraft
context. Comments will be considered
and addressed in the development of
this final rule, additionally any updates
to the APIS SORN required by the rule
or DHS’s analysis of the comments from
this NPRM will be incorporated into the
APIS SORN prior to the collection of
personally identifiable information
under the rule.
V. Signing Authority
The signing authority for these
amendments falls under 19 CFR 0.2(a).
Accordingly, this document is signed by
the Secretary of Homeland Security (or
his delegate).
VI. Proposed Regulatory Amendments
List of Subjects in 19 CFR Part 122
Air carriers, Aircraft, Airports,
Reporting and recordkeeping
requirements, Security measures.
Amendments to the Regulations
For the reasons stated in the
preamble, it is proposed to amend part
122 of title 19, Code of Federal
Regulations (19 CFR part 122) as
follows:
PART 122—AIR COMMERCE
REGULATIONS
1. The general authority citation for
part 122 and the specific authority
citations for sections 122.12, 122.14,
122.22, 122.23, 122.24, 122.26, 122.32,
122.61 and 122.154 continue 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.
2. Revise § 122.0 to read as follows:
§ 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. They do not apply to Guam,
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Midway, American Samoa, Wake,
Kingman Reef, Johnston Island, and
other insular possessions of the United
States not specified herein. They do
apply to the U.S. Virgin Islands as stated
in subpart N (§§ 122.41 through
122.144), and Cuba as stated in subpart
O (§§ 122.151 through 122.158).
(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.
3. Amend § 122.12 by revising
paragraph (c) to read as follows:
§ 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 § 122.0(b) of this Title,
CBP has the authority to deny
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 § 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 § 122.22,
except in the case of emergency or
forced landings.
*
*
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*
*
4. Revise § 122.14 to read as follows:
§ 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.
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(i) Additional flights, charters or
changes in schedule—(A) 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 shall be made to the port
director for landing rights. All requests
shall be made not less than 48 hours
before the intended time of arrival,
except in emergencies. If the request is
oral, it shall be put in writing before or
at the time of arrival.
(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 § 122.22. Prior to departure
as defined in section 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 § 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;
(v) The granting of the requested
landing rights would not be in the best
interests of the Government; or
(vi) 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 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
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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 § 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 §§ 24.17
and 24.22(e) of this chapter).
5. Revise § 122.22 to read as follows:
§ 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, Guam, and the
Virgin Islands of the United States.
(b) Electronic manifest requirement
for all individuals onboard private
aircraft 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
submitting this information, but may
authorize another party to submit the
information on their behalf. 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
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paragraphs (b)(3) and (b)(4) of this
section is transmitted to CBP:
(i) No later than 60 minutes prior to
departure of the aircraft; 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 onboard the aircraft;
(vii) Travel document type (e.g.
P=passport; A=alien registration card);
(viii) Passport number, if a passport is
required or approved DHS travel
document;
(ix) Passport/Travel document
country of issuance;
(x) Passport (or other DHS approved
travel document) expiration date;
(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 and crew
onboard the aircraft;
(xiii) Redress number, if available.
(4) Notice of arrival. The advance
notice of arrival must include the
following that applies to the aircraft:
(i) Aircraft registration number;
(ii) Type of Aircraft;
(iii) Call sign (if available);
(iv) Decal number;
(v) Place of last departure;
(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 122.24 if
applicable, unless an exemption has
been granted under 122.25, or the
aircraft was inspected by CBP Officers
in the U.S. Virgin Islands);
(x) Owner/Lessee’s name (last, first,
and, if available, middle);
(xii) Owner/Lessee’s address (number
and street, city, state, zip code, country,
telephone no., fax no., and e-mail
address);
(xii) Pilot/Private aircraft pilot name;
(xiii) Pilot license number;
(xiv) Pilot street address (number and
street, city, state, zip code, country,
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telephone no., fax no., and e-mail
address);
(xv) Country of issuance of pilot’s
license;
(xvi) Operator name (last, first, and if
available, middle);
(xvii) Operator street address (number
and street, city, state, zip code, country,
telephone no., fax no., and e-mail
address);
(xviii) Transponder code (beacon
number);
(xix) Color;
(xx) Complete Itinerary (foreign
airports landed at within past 24 hours
prior to landing in United States);
(xxi) 24-hour Point of contact (e.g.,
broker, dispatcher, repair shop) name
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 depart. Prior to
departure from the foreign port or place,
the pilot of a private aircraft must
receive a message from DHS approving
departure for the United States, or
following any instructions contained
therein prior to departure.
(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 are
necessary, an updated and amended
manifest must be resubmitted. If a
subsequent manifest is submitted less
than 60 minutes prior to departure, the
private aircraft pilot must resubmit the
arrival manifest and receive approval
from CBP for the amended manifest
containing the added or amended
information before allowing the aircraft
to depart the foreign location, or the
aircraft may be, as appropriate, denied
clearance to depart, 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.
(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
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responsible for submitting this
information, but may authorize another
party to submit the information on their
behalf. 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 paragraph (c)(3). All data
pertaining to the aircraft, and all
individuals on board the aircraft must
be transmitted at the same time.
(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 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 all
individuals onboard the aircraft must be
submitted:
(i) Full name of all individuals
onboard the aircraft (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) Travel document type (e.g.
P=passport; A=alien registration card);
(viii) Passport number, if a passport is
required, or approved DHS travel
document;
(ix) Passport/Travel document
country of issuance, if such a document
is required;
(x) Passport/Travel document
expiration date, if such a document is
required;
(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 and crew
onboard the aircraft;
(xiii) Redress number, if available.
(4) Notice of Departure information.
For private aircraft departing the United
States, the following departure
information must be submitted:
(i) Aircraft registration number;
(ii) Type of Aircraft;
(iii) Call sign (if available);
(iv) Decal number;
(v) Place of last departure;
(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;
(x) Owner/Lessee’s name (last, first,
and, if available, middle);
(xi) Owner/Lessee’s street address
(number and street, city, state, zip code,
country, telephone no., fax no., and email address);
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(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 code, country,
telephone no., fax no., and e-mail
address);
(xv) Country of issuance of pilot’s
license;
(xvi) Operator name (last, first, and if
available, middle):
(xvii) Operator street address (number
and street, city, state, zip code, country,
telephone no., fax no., and e-mail
address);
(xviii) 24-hour Point of contact (e.g.,
broker, dispatcher, repair shop) name
and phone number;
(xix) Transponder code (beacon
number);
(xx) Color;
(xxi) Complete itinerary (intended
foreign airport destinations for 24 hours
following departure).
(5) Permission to depart. Prior to
departure from the foreign port or place,
the pilot of a private aircraft must
receive a message from DHS approving
departure for the United States, or
following any instructions contained
therein prior to departure.
(6) Changes to manifest. The private
aircraft pilot is obligated to make
necessary changes to the manifest data
after transmission of the manifest to
CBP. If changes are necessary, an
updated and amended manifest must be
resubmitted. If a subsequent manifest is
submitted less than 60 minutes prior to
departure, the private aircraft pilot must
resubmit the arrival manifest and
receive approval from CBP for the
amended manifest containing the added
or amended information before allowing
the aircraft to depart the U.S. location,
or the aircraft may be, as appropriate,
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. Amend § 122.23 by revising the
section heading and the heading of
paragraph (a), the introductory text of
paragraph (a)(1) and paragraph (b). The
revisions read as follows:
§ 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
described in paragraph (a) of this
section arriving in the Continental
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Federal Register / Vol. 72, No. 180 / Tuesday, September 18, 2007 / Proposed Rules
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 Coast 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 122.1(1)) from Puerto
Rico (if conducting flight rules ), must
furnish a notice of intended arrival.
Private aircraft must transmit an
advance notice of arrival as set forth in
§ 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 by telephone,
radio, other method or the Federal
Aviation Administration in accordance
with paragraph (c) of this section.
8. Amend § 122.24 by revising the
section heading, paragraph (a), the
heading to paragraph (b) and removing
all of the text of paragraph (b) except for
the table. The revisions read as follows:
§ 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 122.23 are required to
furnish a notice of intended arrival in
compliance with § 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 § 122.25. In addition to
the requirements of this section, pilots
of aircraft to which § 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 or if
the aircraft was inspected by CBP
officers in the U.S. Virgin Islands.
(b) List of designated airports.
*
*
*
*
*
9. Amend § 122.25 to replace the term
‘‘private aircraft,’’ wherever it appears
with the term ‘‘an aircraft subject to
122.23.’’
10. Revise § 122.26 to read as follows:
pwalker on PROD1PC71 with PROPOSALS2
§ 122.26
Entry and clearance.
Private aircraft, as defined in
§ 122.1(h) arriving in the United States,
are not required to formally enter. No
later than 60 minutes prior to departure
from the United States to a foreign
location, manifest data for all
individuals onboard a private aircraft
and departure information must be
VerDate Aug<31>2005
19:41 Sep 17, 2007
Jkt 211001
submitted as set forth in § 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 § 122.22(c),
and grants electronic clearance via
electronic mail or telephone.
11. Revise § 122.31 to read as follows:
§ 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 shall 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 § 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 § 122.154 in subpart O of
this part.
(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 § 122.23 of this
part.
(iv) Other aircraft. The commander of
an aircraft not otherwise covered by
paragraphs (c)(i), (c)(ii) and (c)(iii) of
this section must give advance notice of
arrival as set forth in paragraph (d) of
this section. Notice shall 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 landing shall 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)(iv) of this
section must include the following
information:
(1) Type of aircraft and registration
number;
(2) Name of aircraft commander;
PO 00000
Frm 00014
Fmt 4701
Sfmt 4702
(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)(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.
(f) Notice of other Federal agencies.
When advance notice is received, the
port director shall inform any other
concerned Federal agency.
12. Revise § 122.32 to read as follows:
§ 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 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.
13. In § 122.61 revise the introductory
text of paragraph (a) to read as follows:
§ 122.61
Aircraft required to clear.
(a) Private aircraft leaving the United
States for a foreign area are required to
clear as set forth in § 122.26. All other
aircraft, except for public aircraft,
leaving the United States for a foreign
area, are required to clear if:
*
*
*
*
*
14. Amend § 122.154 by adding
paragraph (d) below, and revising
paragraph (a) to read as follows:
§ 122.154
Notice of arrival.
(a) Application. All aircraft entering
the U.S. from Cuba shall 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
§ 122.22 of this part.
Michael Chertoff,
Secretary.
[FR Doc. E7–18121 Filed 9–17–07; 8:45 am]
BILLING CODE 9111–14–P
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[Federal Register Volume 72, Number 180 (Tuesday, September 18, 2007)]
[Proposed Rules]
[Pages 53394-53406]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-18121]
[[Page 53393]]
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Part V
Department of Homeland Security
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Bureau of Customs and Border Protection
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19 CFR Part 122
Advance Information on Private Aircraft Arriving and Departing the
United States; Proposed Rule
Federal Register / Vol. 72, No. 180 / Tuesday, September 18, 2007 /
Proposed Rules
[[Page 53394]]
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DEPARTMENT OF HOMELAND SECURITY
Bureau of Customs and Border Protection
19 CFR Part 122
[USCBP-2007-0064]
RIN 1651-AA41
Advance Information on Private Aircraft Arriving and Departing
the United States
AGENCY: Customs and Border Protection, Department of Homeland Security.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This notice of proposed rulemaking (NPRM) proposes 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 Customs and Border Protection (CBP) an
advance electronic transmission of information regarding each
individual traveling onboard the aircraft.
This NPRM also proposes to add data elements to the existing notice
of arrival requirements and proposes a new notice of departure
requirement. The notice of arrival and notice of departure information
would be required to be submitted to CBP through an approved electronic
data interchange system in the same transmission as the corresponding
arrival or departure manifest information. Under the NPRM, this data
must be received by CBP no later than 60 minutes before an arriving
private aircraft departs from a foreign location and no later than 60
minutes before a private aircraft departs a United States airport or
location for a foreign port or place.
Finally, this NPRM proposes to clarify landing rights procedures
and departure clearance procedures as well as expressly setting forth
CBP's authority to restrict aircraft from landing in the United States
based on security and/or risk assessments; or, based on those
assessments, to specifically designate and limit the airports from
where aircraft may land or depart.
DATES: Written comments must be received on or before November 19,
2007.
ADDRESSES: You may submit comments, identified by docket number USCBP-
2007-0064, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments via docket number.
Mail: Border Security Regulations Branch, Office of
International Trade, U.S Customs and Border Protection, 1300
Pennsylvania Avenue, NW., (Mint Annex), Washington, DC 20229.
Instructions: All submissions received must include the agency name
and document number for this rulemaking. All comments received will be
posted without change to https://www.regulations.gov, including any
personal information provided. For detailed instructions on submitting
comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov. Submitted comments
may also be inspected on regular business days between the hours of 9
a.m. and 4:30 p.m. at the Office of International Trade, Customs and
Border Protection, 799 9th Street, NW., 5th Floor, Washington, DC.
Arrangements to inspect submitted comments should be made in advance by
calling Mr. Joseph Clark at (202) 572-8768.
FOR FURTHER INFORMATION CONTACT: For Operational Matters--Michael
Kaneris, Office of Field Operations, Customs and Border Protection,
202-344-1584. For Legal Matters--Glen Vereb, Branch Chief, Office of
International Trade, Regulations & Rulings, Customs and Border
Protection, 202-572-8700.
SUPPLEMENTARY INFORMATION: The Supplementary Information section is
organized as follows:
I. Public Participation
II. Background and Current Requirements
A. Background and Authorities
B. Current Requirements for All Aircraft
1. Advance Notice of Arrival
a. Private Aircraft Arriving in the U.S.
b. Certain Aircraft Arriving From Areas South of the U.S.
c. Aircraft Arriving From Cuba
2. Permission to Land (Landing Rights)
C. Current Requirements for Commercial Aircraft
III. Proposed Requirements
A. General Requirements for Private Aircraft Arriving in the
United States
1. Notice of Arrival
2. Arrival Manifest Data Requirement
3. Method of Transmitting Information to CBP
B. Certain Aircraft Arriving From Areas South of the United
States
C. Notice of Arrival for Private Aircraft Arriving From Cuba
D. Private Aircraft Departing the United States
1. Departure Manifest Data Requirement
2. Notice of Departure
3. Aircraft Required to Clear
E. Landing Rights
1. Landing Rights Airports
2. Aircraft Required to Land
IV. 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
V. Signing Authority
VI. Proposed Regulatory Amendments
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
notice of proposed rulemaking. The Department of Homeland Security
(DHS) also invites comments that relate to the economic, environmental,
or federalism effects that might result from this proposal. Comments
that will provide the most assistance to the Department in developing
these procedures will reference a specific portion of the proposed
rule, explain the reason for any recommended change, and include data,
information, or authority that support such recommended change.
II. Background and Current Requirements
A. Background and Authorities
Pursuant to 19 U.S.C. 1433(c), the Secretary of Homeland Security
has broad authority to regulate all aircraft, including private
aircraft, arriving in and departing from the United States. A private
aircraft, in contrast to a commercial aircraft,\1\ 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). Specifically, section 1433(c) provides
that the pilot of any aircraft arriving in the United States or the
Virgin Islands from any foreign
[[Page 53395]]
location is required to comply with such advance notification, arrival
reporting, and landing requirements as regulations may require. This
statute provides CBP with the authority to deny landing rights to
aircraft within the United States based on security and/or risk
assessments, or based on those assessments to specifically designate
and limit the airports where aircraft may land. In addition, under the
statute (19 U.S.C. 1433(d)), an aircraft pilot is required to present
or transmit to CBP through an electronic 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 Virgin Islands may only
depart from the airport in accordance with regulations prescribed by
the Secretary. Additionally, pursuant to 19 U.S.C. 1644a and 1644, the
Secretary can designate ports of entry for aircraft and apply vessel
entry and clearance regulations to civil aviation.
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\1\ 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. It should
be noted that 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. 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 U.S. 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 U.S.
carrying neither passengers nor cargo in ballast after leaving with
passengers and/or cargo for commercial purposes.
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B. Current Requirements for All Aircraft
1. Advance Notice of Arrival
DHS 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 given 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. 19 CFR 122.31(c).
The advance notice of arrival requires information about the number of
alien passengers and number of U.S. citizen passengers, but it does not
require any identifying information for individual passengers onboard
to be submitted.\2\ The current regulations do not provide a specific
timeframe when the notice of arrival shall be given, but direct 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. 19 CFR 122.31(e).
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\2\ 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 citizens
passengers; and (7) estimated time of arrival.
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b. Certain Aircraft Arriving From Areas South of the United States
Certain 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.
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. 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).\3\ 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 CBP grants an exemption from the special landing
requirement.\4\
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\3\ 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.
\4\ 19 CFR 122.25 sets forth the procedures concerning exemption
from special landing requirements--known as an overflight privilege.
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c. Aircraft Arriving From Cuba
The current regulations require private aircraft entering the
United States from Cuba, except for public aircraft,\5\ to give advance
notice of arrival at least one hour before crossing the U.S. border or
coastline. 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).\6\
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\5\ 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 U.S. 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.
\6\ 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 (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 Sec. 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 timeframe for securing
permission to land.
C. Current Requirements for Commercial Aircraft
In contrast to private aircraft, commercial air carriers are
required to
[[Page 53396]]
electronically transmit passenger arrival manifests to CBP no later
than 15 \7\ minutes (19 CFR 122.75a(b)(2)) after the departure of the
aircraft from any place outside the United States (19 CFR
122.49a(b)(2)) and passenger departure manifests no later than 15
minutes prior to departure of the aircraft from the United States.
Manifests for crew members on passenger flights and all-cargo flights
and manifests for non-crew members on all-cargo flights must be
electronically transmitted to CBP no later than 60 minutes prior to the
departure of any covered flight to, continuing within, or overflying
the United States (19 CFR 122.49b(b)(2)) and no later than 60 minutes
prior to the departure of any covered flight from the United States. 19
CFR 122.75b(b)(2).
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\7\ CBP published a final rule in the Federal Register on August
23, 2007 (72 FR 48320), which amends its regulations regarding the
electronic transmission of manifest data by commercial air carriers
bound for and departing the United States, to require the APIS
transmission 30 minutes prior to securing of the aircraft doors
(APIS 30 interactive and non-interactive) and up to the time the
aircraft doors are secured for APIS Quick Query (AQQ) transmissions.
This rule takes effect February 19, 2008.
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Commercial air carriers transmit passenger information to CBP
through the Advance Passenger Information System (APIS) which is an
electronic data interchange system \8\ approved by DHS for use by
international commercial air and vessel carriers. By receiving the
advance passenger and crew information, CBP is able to perform
enforcement and security queries against various multi-agency law
enforcement and terrorist databases in connection with international
flights to and from the United States. Based on the manifest reporting
requirements for commercial air carriers, CBP currently has the
capability to review advance information on commercial air travelers to
assess potential risks.
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\8\ A DHS-approved electronic data interchange system is any
electronic system that is approved by DHS that allows the public to
interface with DHS for the purposes of transmitting required
information. CBP anticipates that most transmissions will be made
using eAPIS which is an example of such an application and is an
application that is available through the internet. The pilot may
choose to authorize an agent to transmit the data if internet access
is not available at the pilot's location or for other reasons of
convenience. The pilot remains responsible for the timing and
accuracy of the transmission.
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This proposed rule allows for a risk assessment of all private
aircraft traveling internationally and will aid CBP in obtaining
advance information so that risk analyses may be conducted before the
departure of private aircraft bound for or departing the United States
in an effort to improve border security. This rule serves to provide
the nation, private aircraft operators, and the international traveling
public, additional security from the threat of terrorism and enhance
CBP's ability to carry out its border enforcement mission.
III. Proposed Requirements
Private aircraft operators currently do not electronically transmit
to CBP advance notice of arrival through an approved electronic data
interchange system. In addition, private aircraft, unlike commercial
aircraft, are not presently required to electronically transmit
passenger arrival and departure manifests that provide identifying
information for individuals onboard the aircraft before arriving in or
departing from the United States. CBP regulations do not contain
precise procedures for a private aircraft operator to follow to request
permission to land at landing rights airports. Private aircraft
operators are also currently not required to provide notice of
departure or obtain clearance prior to departing the United States.
Accordingly, CBP's current regulations do not provide CBP with the
necessary information to fully assess potential threats posed by
private aircraft entering into and departing from the United States. To
adequately and accurately assess potential threats posed by private
aircraft entering and departing the United States, CBP needs sufficient
and timely information about the impending arrival or departure of a
private aircraft, the passengers and crew onboard, and clear procedures
regarding landing rights and departure clearance. Without these tools,
CBP currently lacks the capability to perform risk assessments on
passengers traveling on private aircraft.
Under this rule, CBP is proposing regulatory changes that include
requiring the advance electronic information of notice of arrival
combined with passenger manifest data for those aboard private aircraft
that arrive in and depart from the United States. Additionally, this
rule proposes amendments regarding notice of arrival requirements,
landing rights, and departure requirements.
The proposed changes would provide CBP with more detailed
information about arriving and departing private aircraft and persons
onboard within a timeframe that would enable CBP to more fully pre-
screen information on all individuals intending to travel onboard
private aircraft to or from the United States. As a result, CBP would
more accurately assess the risks that certain flights may pose to
national security and take appropriate action. Moreover, these changes
would enable CBP to minimize potential threats posed by private
aircraft by identifying high-risk individuals and aircraft and allowing
CBP to coordinate with airport personnel and domestic or foreign
government authorities to take appropriate action when warranted by a
threat.
A. General Requirements for Private Aircraft Arriving in the United
States
This rule proposes to add new passenger manifest and departure
requirements and to revise existing notice of arrival and landing
rights requirements for private aircraft arriving in the United States
from a foreign location or departing the United States to a foreign
location.
1. Notice of Arrival
This NPRM proposes to require pilots of private aircraft arriving
in the United States from a foreign port or location to transmit notice
of arrival information to CBP through a CBP-approved electronic data
interchange system no later than 60 minutes prior to departure from a
foreign port or location. ``Departure'' would be defined as ``the point
at which the aircraft is airborne and the aircraft is en route directly
to its destination.'' See proposed Sec. 122.22(a). Under this proposed
rule, aircraft that are not originally destined for the United States
but are diverted to the United States due to an emergency would be
required to transmit an arrival manifest no later than 30 minutes prior
to arrival, although the circumstances of the emergency situation and
whether or not the aircraft is equipped to make the transmission will
be taken into consideration by CBP.
This NPRM also proposes expanding the data elements that private
aircraft operators are required to report in the notice of arrival. The
current contents of notice of arrival reporting for private aircraft
require that the following data elements be submitted by telephone,
radio or other method: type of aircraft and registration number, name
of aircraft commander, place of last foreign departure, international
airport or intended landing or other place at which landing has been
authorized by CBP, number of alien passengers, number of citizen
passengers and estimated time of arrival. This rule proposes to clarify
the existing notice of arrival reporting requirements for private
aircraft by duplicating the data elements provided in 19 CFR 122.31,
which apply to all aircraft (including private aircraft), into 19 CFR
122.22, which applies specifically to private aircraft. This NPRM also
proposes to
[[Page 53397]]
expand the data elements for notice of arrival regarding private
aircraft. The proposed data elements for notice of arrival report
include the following: aircraft registration number, decal number,
place of last departure, aircraft tail number, aircraft call sign,
aircraft type, date of aircraft arrival, complete itinerary, estimated
time of arrival, estimated time and location of crossing the U.S.
border/coastline, name of intended airport of first landing, owner/
lessee name and address, pilot license number, pilot address, country
of issuance of pilot's license, transponder code, color, operator name
and address, and 24-hour point of contact.
2. Arrival Manifest Data Requirement
This NPRM proposes that private aircraft pilots arriving in the
United States would be responsible for submitting manifest data that
provides identifying information for all individuals on board the
aircraft no later than 60 minutes prior to departure from a foreign
port or location. This manifest data would be provided simultaneously
with the notice of arrival information and would include the following
information for all individuals onboard the aircraft: full name; date
of birth; gender; citizenship; country of residence; status on board
the aircraft (i.e., passenger or crew member); travel document type;
travel document number; travel document country of issuance; travel
document expiration date; alien registration number, redress number (if
available),\9\ and address while in the United States.
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\9\ The redress number is the number assigned by DHS to an
individual processed through the redress procedures described in 49
CFR part 1560, subpart C.
---------------------------------------------------------------------------
The pilot collecting the manifest information would be required to
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 the traveler is the person to whom the travel
document was issued.\10\ If additional passengers not included in the
manifest arrive after the manifest data was submitted to CBP, the pilot
would be responsible for submitting a corrected manifest. The pilot
would be required to await CBP approval of the corrected manifest
before departing. Additionally, any approval to land at a United States
airport or location from a foreign port or location that was previously
granted by CBP as a result of the original manifest's submission would
be invalidated. If a subsequent manifest is submitted less than 60
minutes prior to departure, the private aircraft pilot must resubmit
the arrival manifest and receive approval from CBP for the amended
manifest containing the added or amended information before allowing
the aircraft to depart the foreign location, or the aircraft may be, as
appropriate, denied clearance to depart, diverted from arriving in the
United States, or denied permission to land in the United States.
Certain private aircraft may also be subject to the Transportation
Security Administration (TSA) security and boarding requirements for
large aircraft including those contained in 49 CFR 1544.
---------------------------------------------------------------------------
\10\ Further information outlining the various types of travel
documents approved by DHS can be found at: https://www.cbp.gov/
linkhandler/cgov/travel/inspections_carriers_facilities/doc_
require.ctt/doc_require.pdf.
---------------------------------------------------------------------------
3. Method of Transmitting Information to CBP
Under this proposed rule, both the notice of arrival information
and manifest data must be transmitted in the same transmission via
electronic submissions through the Electronic Advance Passenger
Information System (eAPIS) \11\ Web portal or by a CBP-approved
alternative transmission medium. More information on eAPIS is available
at https://www.cbp.gov (related links). Under this proposed rule, any
electronic data interchange system approved by CBP would be an
acceptable method for private aircraft to submit notice of arrival
information and manifest data. The pilot would be responsible for
submitting this information, but could authorize another party to
submit the information on his or her behalf. After CBP receives the
submitted information, DHS would send a message to the submitter of the
manifest information before departure from a foreign airport indicating
that the information has been received and specifying whether landing
rights have been granted at the requested airport, granted at a
different airport designated by CBP, or denied. There will be a
transitional period during which the current manual process of
requesting landing rights will gradually be replaced by this automated
procedure.
---------------------------------------------------------------------------
\11\ eAPIS is an online transmission system that meets all
current and future APIS data element requirements for all mandated
APIS transmission types.
---------------------------------------------------------------------------
A private aircraft pilot who chooses not to transmit required
arrival manifest data by means of a CBP-approved interactive \12\
electronic transmission system would be required to make batch manifest
transmissions by means of a non-interactive electronic transmission
system approved by CBP. The private aircraft pilot would make a single,
complete batch manifest transmission containing all the required
arrival manifest data for every person on the aircraft.
---------------------------------------------------------------------------
\12\ CBP anticipates that most pilots of private aircraft will
use the eAPIS web portal as the transmission method of choice
because of the ease and availability of internet access. Electronic
EDIFACT transmissions are currently used by commercial carriers to
transmit passenger data to CBP. Pilots of large business aircraft
could choose to use this or other CBP-approved electronic
transmission medium rather than the eAPIS portal.
---------------------------------------------------------------------------
After receipt of the manifest information, as in the case where the
manifest information is conveyed using a CBP-approved interactive
electronic transmission system, CBP would perform an initial security
vetting of the data and grant, deny, or restrict landing rights as
appropriate.
Through an analysis of the data provided by the pilot's
transmission, DHS will be able to identify passengers who are
designated as selectee or no-fly. This and other information will be
used in determining whether landing rights or clearance will be
granted, restricted or denied. DHS is evaluating whether to inform the
pilot, in the event that CBP denies or restricts landing rights for the
plane, which passenger(s) has been identified by DHS on the selectee or
no-fly lists so that the pilot may better understand potential threats
to the security of the aircraft. In addition, such notification could
avoid additional flight delays or disruptions by allowing the pilot to
remove that individual from the flight until such time as the
individual resolves the selectee or no-fly designation with TSA under
TSA's redress system. Accordingly, DHS is soliciting public comments on
the economic costs and benefits of notifying a pilot about an
individual selectee or no-fly match being aboard the aircraft. DHS is
also seeking comments on any operational and privacy concerns
associated with sharing such information.
B. Certain Aircraft Arriving From Areas South of the United States
This NPRM proposes a new timeframe for reporting notice of arrival,
which would be 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 this proposed rule, notice of arrival would be
required, along with manifest data being furnished as set forth in 19
CFR 122.22 for private aircraft, which requires
[[Page 53398]]
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.
This NPRM also proposes 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). To correct this discrepancy, CBP is
proposing to revise the heading for 19 CFR 122.23 to read ``Certain
aircraft arriving from areas south of the U.S.'' Additionally, the
proposed regulatory text would expressly state the specific types of
aircraft to which the section applies rather than defining them. These
proposed amendments to 19 CFR 122.23 would make the section easier for
the public to understand.
C. Notice of Arrival for Private Aircraft Arriving From Cuba
This NPRM proposes that private aircraft arriving from Cuba, as
provided for in 19 CFR 122.154, would 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 airport 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.
D. Private Aircraft Departing the United States
1. Departure Manifest Data Requirement
This NPRM proposes to require the pilot of a private aircraft
departing the United States to a foreign port or location to submit a
departure manifest to CBP. Similar to the arrival manifest, the
departure manifest would contain information identifying all
individuals onboard the aircraft. The timeframe for submission of the
departure manifest would be no later than 60 minutes prior to departure
from the United States to a foreign port or location. This NPRM
clarifies the pilot's responsibility to ensure that a departure
manifest regarding all individuals onboard the private aircraft is
submitted and specifies that the transmission of the manifest data must
be through any CBP-approved electronic data interchange system. The
information to be provided in the departure manifest would be the same
as that provided in the arrival manifest.\13\
---------------------------------------------------------------------------
\13\ Like the arrival manifest, the departure manifest would
include the following information for all individuals onboard the
aircraft: Full name; date of birth; gender; citizenship; country of
residence; status on board the aircraft (i.e., passenger or crew
member); travel document type; travel document number; travel
document country of issuance; travel document expiration date; alien
registration number, redress number if available and address while
in the United States.
---------------------------------------------------------------------------
Under this proposed rule, the pilot collecting the information
would be responsible for comparing the travel document presented by
each individual attempting to travel onboard the aircraft with the DHS-
approved travel document information he or she is transmitting to CBP.
The pilot would also be responsible for ensuring that the information
is correct and that the traveler is the person to whom the travel
document was issued.
This NPRM clarifies that if a departure manifest is submitted to
CBP before all individuals arrive for transport, the pilot must
resubmit an amended manifest with all required information, and any
clearance previously granted by CBP as a result of the original
manifest's submission would be invalidated. The pilot would have an
obligation to make necessary changes to the departure manifest and
specifies what circumstances would constitute necessary changes (e.g.,
adding a name or any required information or amending previously
submitted information). If changes are submitted less than 60 minutes
prior to departure, the pilot would be required to receive a new
clearance from CBP before departing.
2. Notice of Departure
This NPRM proposes to require private aircraft leaving the United
States for a foreign port or location to obtain clearance from CBP
prior to departing from the United States. Under this proposed rule,
private aircraft pilots departing for a foreign port or location would
be required to submit an electronic departure manifest on all
individuals onboard the aircraft, and notice of departure information
no later than 60 minutes prior to departure. Notice of departure
elements would constitute the following information: aircraft
registration number, type of aircraft, call sign (if available), decal
number, place of last departure, date of aircraft departure, estimated
time of departure, estimated time and location of crossing U.S. border/
coastline, name of intended foreign airport of first landing, owner/
lessees name (last, first, and, if available, middle), owner/lessees
street address (number and street, city, state, zip code, country,
telephone number, fax number, and e-mail address), pilot/private
aircraft pilot name (last, first and, if available, middle), pilot
license number, pilot street address: (number and street, city, state,
zip code, country, telephone number, fax number and e-mail address),
country of issuance of pilot's license, operator name (last, first, and
if available, middle), operator street address: (number and street,
city, state, zip code, country, telephone number, fax number and e-mail
address), 24-hour point of contact (e.g., broker, dispatcher, repair
shop) name, transponder code (beacon number), color, complete itinerary
(intended foreign airport destinations for 24 hours following
departure).
3. Aircraft Required To Clear
The existing regulatory language in 19 CFR 122.61 exempts public
and private aircraft from leaving the United States for a foreign area
from having to obtain clearance prior to departing from the United
States. As such, CBP is proposing to revise paragraph (a) of Sec.
122.61 to indicate that private aircraft leaving the United States for
a foreign area are required to obtain clearance from CBP as set forth
in the language proposed for Sec. 122.26. The paragraph will further
state that all other aircraft, except public aircraft, leaving the
United States or the U.S. Virgin Islands are required to clear if they
carry passengers and/or merchandise for hire or take aboard or
discharge passengers and/or merchandise for hire in a foreign area. See
19 CFR 122.61(a) and (b). These proposed changes are necessary to
effectuate the new requirements regarding the filing of a departure
manifest and electronic clearance for private aircraft prior to
departure for a foreign port or place.
The process of receiving electronic clearance to depart would
operate in substantially the same manner as submission of an arrival
data manifest. Prior to departing the United States, a private aircraft
pilot would submit departure manifest data on all individuals onboard
the aircraft, await CBP's confirmation of receipt of the manifest data,
and await CBP clearance to depart the United States. CBP's clearance,
i.e., permission to depart the United States, would be transmitted to
the pilot from CBP via an electronic data interchange system approved
by CBP.
As with the transmission of arrival data manifests, a private
aircraft pilot that chooses not to transmit required notice of
departure, departure manifests by means of a CBP-approved interactive
[[Page 53399]]
electronic transmission system must make batch manifest transmissions
in accordance with CBP policy as discussed earlier in section III.A.3.,
entitled ``Method of Transmitting Information to CBP.''
E. Landing Rights
CBP currently requires all aircraft arriving at a landing rights
airport to request permission to land, known as landing rights, from
CBP. Given CBP's authority to deny landing rights within the United
States and to restrict landing to airports designated by CBP,\14\ this
NPRM proposes to expressly state CBP's authority to deny permission to
land in the United States and/or limit aircraft landing locations.
---------------------------------------------------------------------------
\14\ See 19 U.S.C. 1433(c) and 1644a(b)(1)(A).
---------------------------------------------------------------------------
1. Landing Rights Airports
The current provisions of 19 CFR 122.14 do not adequately provide
for when or how the request for permission to land at a landing rights
airport should be given to the director of the port of entry or station
nearest the first place of landing. Under this proposed rule, private
aircraft pilots would seek permission to land at a landing rights
airport when the notice of arrival information is transmitted via a CBP
approved electronic data interchange system no later than 60 minutes
prior to departure from a foreign port or place pursuant to the
proposed language in 19 CFR 122.22. The pilot would then be required to
wait for CBP to transmit a message that landing rights have been
granted at the particular landing rights airport. These requirements
would also apply to private aircraft landing at user fee airports
pursuant to 19 CFR 122.15. This proposed rule would also expressly
provide that CBP may deny landing rights or direct an aircraft to a
landing location.
2. Aircraft Required To Land
This NPRM proposes to clarify CBP's authority to deny permission to
land in the United States and to designate the specific locations at
which unusually high-risk aircraft may land. Currently under 19 CFR
122.32, any aircraft that is coming into the United States from a
foreign location (including Puerto Rico) must land unless exempted by
the Federal Aviation Administration. This proposed rule would expressly
provide that CBP's authority to deny permission to land in the United
States, in addition to the current FAA exemption excusing the
requirement to land, as the two exclusive reasons that an aircraft
coming into the United States from a foreign area shall not land in the
United States.
IV. Regulatory Analyses
A. Executive Order 12866 (Regulatory Planning and Review)
This proposed rule is not ``economically significant'' under
Executive Order 12866 because it will not result in the expenditure of
more than $100 million in any one year. The Office of Management and
Budget (OMB) has reviewed this rule under that Order. Comments
regarding the analysis may be submitted by any of the methods described
under the ADDRESSES section of this document.
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 1 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 for the pilot is similar to what
is already required; it 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 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
-------------------------------------------------------------------------------
[[Page 53400]]
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.
While the current data elements for pilots are very similar to the
proposed requirements, 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 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
the proposed requirements, 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 in order 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
Federal Aviation Administration's (FAA) document on critical values,
$37.20.\15\ This represents a weighted cost for business and leisure
general aviation travelers. CBP believes this is a reasonable
approximation of the average value of a pilot's and traveler's time.
However since this estimate may be an underestimate of the value of
time for general aviation passengers and pilot's engaged in
international travel, CBP requests comments on this estimate.
---------------------------------------------------------------------------
\15\ 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
eAPIS process. While a law enforcement response is not required under
this proposed rule, CBP estimates the costs for such a response in
order to avoid underestimating the costs of this rule. For the purposes
of this analysis, CBP estimates that on two occasions annually, a
general aviation flight has 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 submission.
For the purposes of this analysis, CBP estimates that once per year, a
general aviation flight is denied landing rights. CBP again assumes
that four individuals (the pilot plus three passengers) will be
affected, but that 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]. CBP is
seeking comment on the assumptions made for these incident responses.
[[Page 53401]]
The total annual cost of the proposed rule is expected to be $8.8
million. Over 10 years, this would total a present value cost of $66.0
million at a 7 percent discount rate ($77.1 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 successful 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.
In light of these limitations, we conduct a ``breakeven'' analysis
to determine what change in the reduction of risk would be necessary in
order 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
general aviation aircraft is 3,384 pounds and carries an average of a
little over four people (1 pilot and 3 passengers).\16\ Some general
aviation 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.
---------------------------------------------------------------------------
\16\ 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 only 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 general aviation
aircraft--one pilot, three passengers) to 1,000 casualties but no loss
of physical capital. We acknowledge that this scenario is not
necessarily realistic 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.\17\ This value is for an aircraft built prior to 1982,
which is a substantial proportion (75 percent) of the general aviation
fleet of aircraft.\18\ 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).
---------------------------------------------------------------------------
\17\ 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.
\18\ 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 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.\19\ 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.
---------------------------------------------------------------------------
\19\ 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 proposed 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
73.1 percent (Scenario 1, 4 casualties avoided) in order for the
benefits of the rule to exceed the costs to break even.
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
only (low value) (high value) loss of
property
----------------------------------------------------------------------------------------------------------------
$3M VSL:
4........................................... 73.1 72.6 63.5 <1
10.......................................... 29.3 29.2 27.6 <1
100......................................... 2.9 2.9 2.9 <1
1,000....................................... 0.3 0.3 0.3 <1
$6M VSL:
4........................................... 36.6 36.4 34.0 <1
10.......................................... 14.6 14.6 14.2 <1
100......................................... 1.5 1.5 1.5 <1
1,000........................................... 0.1 0.1 0.1 <1
----------------------------------------------------------------------------------------------------------------
[[Page 53402]]
B. Regulatory Flexibility Act
CBP has prepared this section to examine the impacts of the
proposed 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
