Advance Information on Private Aircraft Arriving and Departing the United States, 68295-68313 [E8-26621]

Agencies

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

[Federal Register Volume 73, Number 223 (Tuesday, November 18, 2008)]
[Rules and Regulations]
[Pages 68295-68313]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-26621]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 231

Bureau of Customs and Border Protection

19 CFR Part 122

[CBP Dec. 08-43; Docket No. USCBP-2007-0064]
RIN 1651-AA41


Advance Information on Private Aircraft Arriving and Departing 
the United States

AGENCY: Customs and Border Protection, DHS.

ACTION: Final rule.

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SUMMARY: This rule finalizes, with modifications, amendments to U.S. 
Customs and Border Protection (CBP) regulations pertaining to private 
aircraft arriving and departing the United States. This final rule 
requires private aircraft pilots or their designees arriving in the 
United States from a foreign port or location destined for a U.S. port 
or location, or departing the United States to a foreign port or 
location, to transmit electronically to CBP passenger manifest 
information for each individual traveling onboard the aircraft. This 
final rule requires private aircraft pilots or their designees to 
provide additional data elements when submitting a notice of arrival 
and requires private aircraft pilots or their designees to submit a 
notice of departure. Private aircraft pilots (or their designees) will 
be required to submit the notice of arrival and notice of departure 
information to CBP through an approved electronic data interchange 
system in the same transmission as the corresponding arrival or 
departure passenger manifest information. Under this rule, this data 
must be received by CBP no later than 60 minutes before an arriving 
private aircraft departs from a foreign location destined for the 
United States and no later than 60 minutes before a private aircraft 
departs a U.S. airport or location for a foreign port or place.
    This rule also expressly acknowledges CBP's authority to restrict 
aircraft from landing in the United States based on security and/or 
risk assessments, or, based on such assessments, to specifically 
designate and limit the airports where aircraft may land or depart.

DATES: This final rule is effective on December 18, 2008. Compliance 
Date: Private aircraft pilots (or their designees) must comply with the 
requirements of this final rule on May 18, 2009.

FOR FURTHER INFORMATION CONTACT: For Operational aspects: Eric 
Rodriguez, Office of Field Operations, (281) 230-4642; or for Legal 
aspects: Glen Vereb, Office of International Trade, (202) 352-0030.

SUPPLEMENTARY INFORMATION:

I. Background
    A. Background and Authorities
    B. Current Requirements and Vulnerabilities for All Aircraft
    1. Advance Notice of Arrival
    a. Private Aircraft Arriving in the United States
    b. Private Aircraft Arriving From Areas South of the United 
States
    c. Aircraft Arriving From Cuba
    2. Permission To Land (Landing Rights)
    3. Vulnerabilities
II. Summary of Requirements in the Proposed Rule
    A. General Requirements for Private Aircraft Arriving in the 
United States
    1. Notice of Arrival
    2. CBP's Authority To Restrict and/or Deny Landing Rights
    B. Certain Aircraft Arriving From Areas South of the United 
States
    C. Notice of Arrival for Private Aircraft Arriving From Cuba
III. Discussion of Comments
IV. Summary of Changes Made to NPRM
V. Conclusion
VI. Regulatory Analyses
    A. Executive Order 12866 (Regulatory Planning and Review)
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act
    D. Executive Order 13132 (Federalism)
    E. Executive Order 12988 (Civil Justice Reform)
    F. National Environmental Policy Act
    G. Paperwork Reduction Act
    H. Privacy Statement
VII. Signing Authority
VIII. Amendments to the Regulations

I. Background

A. Background and Authorities

    A private aircraft,\1\ in contrast to a commercial aircraft,\2\ is 
generally any aircraft engaged in a personal or business flight to or 
from the United States which is not carrying passengers and/or cargo 
for commercial purposes. See 19 CFR 122.1(h). Pursuant to 19 U.S.C. 
1433, 1644 and 1644a, the Secretary of Homeland Security (Secretary) 
has broad authority respecting all aircraft, including private 
aircraft, arriving in and departing from the United States. The term 
``general aviation'' is commonly used in regard to private aircraft. 
Specifically, 19 U.S.C. 1433(c) provides that the pilot of any aircraft 
arriving in the United States or the U.S. Virgin Islands from any 
foreign location is required to comply with such advance notification, 
arrival reporting, and landing requirements as regulations may require. 
Under this authority, CBP can deny aircraft landing rights within the 
United States based on, among other considerations, security and/or 
risk assessments. Alternatively, based on such assessments, CBP may 
specifically designate and limit the airports where aircraft may land. 
In addition, under 19 U.S.C. 1433(d), an aircraft pilot is required to 
present or transmit to CBP through an electronic data interchange 
system such information, data, documents, papers or manifests as the 
regulations may require. Section 1433(e) provides, among other things, 
that aircraft after arriving in the United States or U.S. Virgin 
Islands may depart from the airport of arrival, but only in accordance 
with regulations prescribed by the Secretary. And, under 19 U.S.C. 1644 
and 1644a, the Secretary can designate ports of entry for aircraft and 
apply vessel entry and clearance laws and regulations to civil 
aircraft.
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    \1\ 19 CFR 122.1(h) defines a ``private aircraft'' as any 
aircraft engaged in a personal or business flight to or from the 
U.S. which is not: (1) Carrying passengers and/or cargo for 
commercial purposes; or (2) leaving the United States carrying 
neither passengers nor cargo in order to lade passengers and/or 
cargo in a foreign area for commercial purposes; or (3) returning to 
the United States carrying neither passengers nor cargo in ballast 
after leaving with passengers and/or cargo for commercial purposes.
    \2\ 19 CFR 122.1(d) defines ``commercial aircraft'' as any 
aircraft transporting passengers and/or cargo for some payment or 
other consideration, including money or services rendered. If either 
the arrival or departure leg of an aircraft's journey is commercial, 
then CBP considers both legs of the journey to be commercial.
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    Further, 46 U.S.C. 60105 provides that any vessel shall obtain 
clearance from the Secretary pursuant to regulation, in a manner 
prescribed by the Secretary, before departing the United States for a

[[Page 68296]]

foreign port or place. Because 19 U.S.C. 1644 and 1644a provide for the 
extension of the vessel entry and clearance laws and regulations to 
civil aircraft, the Secretary is authorized to issue regulations for 
civil aircraft that correspond with the vessel clearance requirements 
under 46 U.S.C. 60105. The previous ``exception'' from clearance 
requirements for private aircraft under 19 CFR 122.61 did not reflect a 
lack of statutory authority to regulate private aircraft. It reflected 
instead the Secretary's (then the Secretary of the Treasury's) 
discretion not to impose clearance requirements on that segment of 
civil aviation pursuant to the implementing regulations.

B. Current Requirements and Vulnerabilities for All Aircraft

1. Advance Notice of Arrival

    CBP currently requires aircraft pilots of all aircraft entering the 
United States from a foreign area, except aircraft of a scheduled 
airline arriving under a regular schedule, to give advance notice of 
arrival. See 19 CFR 122.31(a). Advance notice of arrival must be 
furnished by the pilot of the aircraft and is generally given when the 
aircraft is in the air. As described below, the regulations set forth 
the general rule for advance notice of arrival for private aircraft and 
specific requirements for certain aircraft arriving from areas south of 
the United States, including aircraft from Cuba.
a. Private Aircraft Arriving in the United States
    Pursuant to 19 CFR 122.22, private aircraft, except those arriving 
from areas south of the United States (discussed below), are required 
to give advance notice of arrival as set forth in 19 CFR 122.31. This 
notice must be provided to the port director at the place of first 
landing by radio, telephone, or other method, or through the Federal 
Aviation Administration (FAA)'s flight notification procedure. See 19 
CFR 122.31(c). The advance notice must include information about the 
number of alien passengers and number of U.S. citizen passengers, but 
the regulation does not require any identifying information for 
individual passengers onboard to be submitted.\3\ Nor does the current 
regulation provide a specific timeframe for when the notice of arrival 
shall be given, except that the pilot shall furnish such information 
far enough in advance to allow inspecting officers to reach the place 
of first landing of the aircraft. See 19 CFR 122.31(e).
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    \3\ 19 CFR 122.31 provides that the contents of advance notice 
of arrival shall include the following information: (1) Type of 
aircraft and registration number; (2) Name of aircraft commander; 
(3) Place of last foreign departure; (4) International airport of 
intended landing or other place at which landing has been authorized 
by CBP; (5) Number of alien passengers; (6) Number of citizen 
passengers; and (7) Estimated time of arrival.
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b. Private Aircraft Arriving From Areas South of the United States
    Private aircraft entering the continental United States from a 
foreign area in the Western Hemisphere south of the United States are 
subject to special advance notice of arrival and landing requirements. 
See 19 CFR 122.23-24. These aircraft include all private aircraft and 
commercial unscheduled aircraft with a seating capacity of 30 
passengers or less, or maximum payload capacity of 7,500 pounds or 
less. Pursuant to 19 CFR 122.23(b), such aircraft are required to give 
advance notice of arrival to CBP at the nearest designated airport to 
the border or coastline crossing point listed in 19 CFR 122.24(b). 
These aircraft must also provide advance notice of arrival at least one 
hour before crossing the U.S. coastline or border. See 19 CFR 
122.23(b). The pilot may provide advance notice of arrival for these 
aircraft by radio, telephone, or other method, or through the FAA 
flight notification procedure. The advance notice of arrival for such 
aircraft arriving from areas south of the United States must include 
the information listed in 19 CFR 122.23(c).\4\ Aircraft arriving from 
areas south of the United States that are subject to the requirements 
of 19 CFR 122.23 are required to land at designated airports listed in 
19 CFR 122.24(b), unless DHS grants an exemption from the special 
landing requirement.\5\
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    \4\ Section 122.23(c) provides that the contents of the advance 
notice of arrival shall include the following: (1) Aircraft 
registration number; (2) Name of aircraft commander; (3) Number of 
U.S. citizen passengers; (4) Number of alien passengers; (5) Place 
of last departure; (6) Estimated time and location of crossing U.S. 
border/coastline; (7) Estimated time of arrival; and (8) Name of 
intended U.S. airport of first landing, as listed in Sec.  122.24, 
unless an exemption has been granted under Sec.  122.25, or the 
aircraft has not landed in foreign territory or is arriving directly 
from Puerto Rico, or the aircraft was inspected by CBP officers in 
the U.S. Virgin Islands.
    \5\ 19 CFR 122.25 sets forth the procedures concerning exemption 
from special landing requirements--known as an overflight 
privileges.
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c. Aircraft Arriving From Cuba
    The current regulations require all aircraft entering the United 
States from Cuba, except for public aircraft,\6\ to give advance notice 
of arrival at least one hour before crossing the U.S. border or 
coastline. See 19 CFR 122.152 and 122.154. This notice must be 
furnished either directly to the CBP Officer in charge at the relevant 
airport listed in 19 CFR 122.154(b)(2) or through the FAA flight 
notification procedure. The advance notice of arrival for aircraft from 
Cuba must include the information listed in 19 CFR 122.154(c).\7\
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    \6\ 19 CFR 122.1(i) defines ``public aircraft'' as any aircraft 
owned by, or under the complete control and management of the U.S. 
government or any of its agencies, or any aircraft owned by or under 
the complete control and management of any foreign government which 
exempts public aircraft of the United States from arrival, entry and 
clearance requirements similar to those provided in subpart C of 
this part, but not including any government-owned aircraft engaged 
in carrying persons or property for commercial purposes.
    \7\ 19 CFR 122.154(c) provides that the contents of advance 
notice of arrival shall state: (1) Type of aircraft and registration 
number; (2) Name of aircraft commander; (3) Number of U.S. citizen 
passengers; (4) Number of alien passengers; (5) Place of last 
foreign departure; (6) Estimated time and location of crossing the 
U.S. coast or border; and (7) Estimated time of arrival.
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2. Permission To Land (Landing Rights)

    The current regulations require the owner or operator of any 
aircraft, including a private aircraft, arriving at a landing rights 
airport or user fee airport to request permission to land, known as 
landing rights, from CBP. See 19 CFR 122.14(a) and 122.15(a). A 
``landing rights airport'' is defined as any airport, other than an 
international airport or user fee airport, at which flights from a 
foreign area are given permission by CBP to land. See 19 CFR 122.1(f). 
A ``user fee airport'' is defined as an airport so designated by CBP 
and flights from a foreign area may be granted permission to land at a 
user fee airport rather than at an international airport or a landing 
rights airport. See 19 CFR 122.1(m). An informational listing of user 
fee airports is contained in section 122.15. Permission to land must be 
secured from the director of the port, or his representative, at the 
port nearest the first place of landing for both landing rights 
airports and user fee airports. However, the current regulations do not 
set forth a precise application procedure or time frame for securing 
permission to land.

3. Vulnerabilities

    DHS is working to strengthen general aviation security to further 
minimize the vulnerability of private aircraft flights being used to 
deliver illicit materials, transport dangerous individuals or employ 
the aircraft as a weapon. Today, compared to regularly scheduled 
commercial airline operations, little or no screening or vetting of the 
crew, passengers or the aircraft itself is required of private aircraft 
before entering or departing the United States

[[Page 68297]]

at air ports of entry (APOE). Some of these APOEs are located well 
within U.S. territory and near highly populated areas. DHS has 
developed this final rule to address these vulnerabilities and to 
enhance international and domestic general aviation security. This 
final rule includes the identification and vetting of passengers and 
crew on private aircraft prior to entering and departing U.S. airspace.

II. Summary of Requirements in the Proposed Rule

    On September 18, 2007, CBP published in the Federal Register a 
notice of proposed rulemaking (NPRM) entitled ``Advance Information on 
Private Aircraft Arriving and Departing the United States,'' proposing 
new requirements for private aircraft arriving to and departing from 
the United States, as described below. See 72 FR 53394.

A. General Requirements for Private Aircraft Arriving in the United 
States

    The NPRM proposed to require the pilot of any private aircraft 
arriving in the United States from a foreign port or location or 
departing the United States for a foreign port or location to transmit 
to CBP an advance electronic manifest comprised of specific information 
regarding each individual traveling onboard the aircraft pursuant to 19 
U.S.C. 1433, 1644 and 1644a.
1. Notice of Arrival
    The NPRM proposed adding data elements to the existing notice of 
arrival requirements and proposed a new notice of departure 
requirement. In addition, CBP would require pilots to provide the 
notice of arrival and notice of departure information through the 
electronic Advance Passenger Information System (eAPIS) \8\ Web portal 
or through another CBP-approved electronic data interchange system in 
the same transmission as the corresponding arrival or departure 
manifest information. Under the NPRM, these data are to be received by 
CBP no later than 60 minutes before an arriving private aircraft 
departs from a foreign location to a U.S. port or location, and no 
later than 60 minutes before a private aircraft departs a United States 
airport or location for a foreign port or place.
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    \8\ eAPIS is an online transmission system that meets all 
current APIS data element requirements for all mandated APIS 
transmission types.
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    The NPRM also proposed a new timeframe for reporting notice of 
arrival no later than 60 minutes prior to the aircraft's departure to 
the United States from a foreign port or location, as opposed to 60 
minutes before crossing the U.S border, as is the current requirement. 
Under the proposed rule, notice of arrival and manifest data would be 
required to be furnished as set forth in 19 CFR 122.22 for private 
aircraft, which requires submission of such information to CBP via an 
electronic data interchange system approved by CBP. All other aircraft 
subject to 19 CFR 122.23 would be required to report notice of arrival 
as required under that provision.
2. CBP's Authority To Restrict or Deny Aircraft Landing Rights
    The NPRM proposed to clarify landing rights procedures and 
departure clearance procedures, and acknowledge CBP's authority to 
restrict aircraft from landing in the United States based on security 
and/or risk assessments, or to specifically designate and limit the 
United States airports where aircraft may land or depart.

B. Certain Aircraft Arriving From Areas South of the United States

    The NPRM proposed to correct a discrepancy between the definition 
of ``private aircraft'' in 19 CFR 122.23, which encompasses both 
private aircraft and, in some instances, small, unscheduled commercial 
aircraft and the general definition provided for ``private aircraft'' 
in 19 CFR 122.1(h). This correction will properly indicate that section 
122.23 encompasses small, commercial aircraft that seat less than 30 
passengers, or have a maximum payload capacity of less than 7,500 
pounds, carrying people or cargo for hire, which are not currently 
covered by section 122.23(a)(1)(iii), but which, under section 
122.1(d), are considered commercial aircraft.

C. Notice of Arrival for Private Aircraft Arriving From Cuba

    The NPRM proposed that private aircraft arriving from Cuba, as 
provided for in 19 CFR 122.154, be required to provide notice of 
arrival and manifest data in the same manner as private aircraft that 
are subject to proposed 19 CFR 122.22. Private aircraft arriving from 
Cuba would continue to be required to provide notice of arrival 
information to the specifically designated airports where the aircraft 
will land: Miami International Airport, Miami, Florida; John F. Kennedy 
International Airport, Jamaica, New York; or Los Angeles International 
Airport, Los Angeles, California.

III. Discussion of Comments

    The NPRM requested comments to be submitted on or before November 
18, 2007, regarding the proposed amendments. CBP extended the comment 
period to December 4, 2007, by notice published in the Federal Register 
on November 14, 2007. See 72 FR 64012. A total of 2,907 comments were 
received from the general public, including individual pilots and 
members of various pilot associations. CBP's responses to the comments 
are provided below.

General Comments

    Comment: Several commenters requested that the comment period for 
the NPRM be extended an additional 60 days to January 18, 2008.
    Response: Although CBP did not extend the comment period for an 
additional 60 days, CBP did extend the comment period by an additional 
15 days, until December 4, 2007. See 72 FR 64012. CBP believed that the 
original 60-day comment period in addition to the 15-day extension 
provided the public with an adequate amount of time to submit comments. 
Moreover, based on the ample number of comments received by the end of 
the original comment period, CBP believed that public sentiment was 
accurately captured. Further extension of the comment period would 
delay implementing the final rule, which would allow the continued 
existence of vulnerabilities that threaten the security of the United 
States.
    Comment: Several hundred commenters objected to what was described 
as proposed user fees and contact fees, but did not specify the nature 
or source of such fees.
    Response: This final rule does not change existing user fees or 
create new user fees. User fees are not part of this rulemaking.
    Comment: Several commenters asked how DHS was going to control the 
flow of traffic at airports upon implementation of the rule.
    Response: This rule requires pilots to provide advance information 
on aircraft and individuals onboard that aircraft, prior to departure 
to or from the United States. CBP believes the collection and 
submission of this information will have a limited impact on the flow 
of traffic at airports. However, responsibility over the flow of air 
traffic at airports falls within the purview of the FAA.
    Comment: Commenters expressed concerns as to whether they would be 
required to electronically transmit manifest and notice of arrival 
information when a flight begins and ends in the same country but the 
aircraft utilized international airspace for routing purposes.
    Response: This rule does not regulate domestic flights as in the 
case of an

[[Page 68298]]

aircraft that takes off and lands within the United States, but 
utilizes foreign airspace. In addition, this rule does not regulate 
foreign flights in which a flight originates and terminates in that 
foreign country, but utilizes U.S. airspace. Therefore, those types of 
flights are unaffected by this rule.
    Comment: One commenter recommended that CBP use FAA future 
surveillance and make changes involving FAA and Automated Flight 
Service Stations (AFSS). In their comment, Aircraft Owners and Pilots 
Association (AOPA) recommended an evaluation of how the FAA's (Flight 
Service Stations) FSS system could be incorporated in the arrival 
notification procedures. The commenter asserted that FSS is similar 
with interfacing between FAA air traffic control facilities and CBP. 
AOPA also asserted in its comment that in September 2007, the FAA 
issued a proposed rule that would require all aircraft to be equipped 
with Automatic Dependent Surveillance--Broadcast (ADS-B) by 2020 in 
order to fly within Class B and C airspace and above 10,000 feet. ADS-B 
is a datalink technology that uses satellite-based navigation equipment 
located on board aircraft and positioning information from Global 
Positioning System (GPS) satellites to automatically transmit aircraft 
location and altitude to air traffic controllers and other nearby 
aircraft.
    Response: The technology referenced by the commenters is helpful to 
the FAA in monitoring airborne aircraft. However, the goal of this 
final rule is to obtain information on passengers and aircraft prior to 
take-off, not after an aircraft is airborne. CBP deems it more 
effective to identify potential risks to aviation and border security 
before an aircraft gains access to United States airspace.
    Comment: Several commenters expressed concern about names that are 
very common and continuously appearing on the ``Watch List'' which 
would either restrict or delay their arrival or departure.
    Response: CBP appreciates the concerns that members of the public 
have expressed regarding shared and/or similar names to those that 
appear on the consolidated U.S. government watchlist and the potential 
for misidentification. Maintenance of the watchlist is beyond the scope 
of this rule. For more information on the watchlist and how to seek 
redress, please refer to the U.S. Department of Homeland Security's 
Travel Redress Inquiry Program (DHSTRIP) by going to the Department of 
Homeland Security Web site, https://www.dhs.gov or by cutting and 
pasting the following web address into a web browser for information on 
how to address such issues: https://www.dhs.gov/xtrvlsec/programs/gc_1169676919316.shtm.
    Comment: Several hundred commenters requested that CBP meet with 
their association to discuss the proposed rule.
    Response: CBP did not hold public meetings on this proposed rule 
and did not meet with any individuals or associations to discuss the 
proposed rule. The 75-day comment period and the large number of 
comments received during the NPRM's comment period were sufficient for 
CBP to accurately determine public sentiment.
    Comment: One commenter alleged that the public had been 
disenfranchised of their right to comment on this NPRM because no 
comments were posted on 22 separate days during the comment period.
    Response: CBP works diligently to keep the public apprised of its 
current public policies, and takes steps in the form of published 
notices, notices of proposed rulemakings, final rules and other actions 
allowing for public comment. The commenter is correct that no comments 
were posted on https://www.regulations.gov on the days referenced during 
the comment period. However, there is a difference between comments 
being posted and comments being submitted and received. Depending on 
the method of submission (e.g., U.S. mail or online), the process of 
posting comments varies slightly, but it is never immediate. On the 
days referenced by the commenter, comments actually were submitted (and 
received) for each day. However, comments are not posted immediately 
when submitted because prior to being posted, all comments must be 
initially reviewed for various reasons, such as verifying the comments 
received in the mail are not duplicated in the electronic docket, use 
of inappropriate language or locating missing attachments. After this 
initial review, comments are then posted. All of the days referenced by 
the commenter were weekend days or holidays, with one exception (the 
Friday following Thanksgiving). Comments were not posted on those days 
because personnel were not available to perform the tasks referenced 
above.
    Comment: Some commenters expressed concern regarding how they could 
expect the transition from current methods of operation for 
international arrivals and departures by private aircraft at the 
various ports around the country to the newly required use of eAPIS to 
occur.
    Response: When these regulations become effective, there will be a 
transitional period during which the current manual process of 
requesting landing rights will gradually be replaced by this automated 
procedure (i.e., eAPIS). During this transitional period, pilots flying 
into locations that currently require advance arrangements with the CBP 
port to ensure the availability of CBP officers to process the aircraft 
should continue to follow those local procedures for requesting landing 
rights until instructed otherwise.

Implementation--Privacy Issues

    Comment: Several hundred commenters expressed concern that, as U.S. 
citizens, they should not be required to ``request permission'' to 
enter or leave their own country. Two commenters noted the proposed 
rule is an effort to increase surveillance and information gathering on 
U.S. citizens under the guise of security.
    Response: DHS is working to strengthen aviation security to further 
minimize the vulnerability of private aircraft flights being used to 
deliver illicit materials, transport dangerous individuals or employ 
the aircraft as a weapon. Today, compared to regularly scheduled 
commercial airline operations, little or no screening or vetting of the 
crew, passengers or the aircraft itself is required of private aircraft 
before entering or departing the United States at air ports of entry 
(APOE). Some of these APOEs are located well within U.S. territory and 
near highly populated areas. To address this vulnerability and further 
strengthen U.S. borders, DHS has developed this rule.
    The requirements under the final rule include the identification 
and vetting of individuals on private aircraft, prior to entering and 
departing U.S. airspace. Submission of information for all travelers, 
including U.S. citizens, on board a private aircraft arriving in the 
United States, is already authorized under 19 U.S.C. 1433(d), as 
implemented in 19 CFR 122.31 and 19 CFR 122.23. This final rule changes 
the timing of the arrival submission (60 minutes prior to departure) 
and the method of submission (through eAPIS or another CBP-approved 
data transmission method). It also requires transmission of departure 
manifest information for private aircraft--something CBP does not 
collect currently. CBP expects that early receipt of departure manifest 
data for private aircraft exiting the United States will allow CBP to 
assess the threat presented by the aircraft and persons onboard prior 
to takeoff, and thus aid CBP in

[[Page 68299]]

preventing terrorists or terrorist weapons from gaining access to an 
airborne aircraft.
    Furthermore, pursuant to 19 U.S.C. 1433(d) and (e), 1644 and 1644a, 
the Secretary has the authority to regulate the departure of aircraft, 
both commercial and private, including requiring passenger manifest 
information. Further authority may be found in 46 U.S.C. 60105, 
providing that any vessel shall obtain clearance from the Secretary, in 
a manner prescribed by the Secretary, before departing the United 
States for a foreign port or place; this authority is extended to the 
departure of aircraft pursuant to the provisions of 19 U.S.C. 1644 and 
1644a.
    Comment: Several commenters stated that the information required 
for the arrival and departure manifests goes beyond what is required 
for international commercial air passengers.
    Response: Under the current Advance Passenger Information System 
(APIS) requirements for commercial aviation, information is collected 
regarding passengers, crew and non-crew. See 19 CFR 4.64, 122.49a, 
122.49b, 122.49c, 122.75a and 122.75b. CBP is working to process 
arriving passengers on private aircraft in a similar manner. For 
private aircraft, CBP has determined that information regarding all 
individuals onboard the aircraft, as well as the aircraft, is relevant 
for purposes of law enforcement and threat assessment. Much of the 
information that CBP has determined necessary for collection regarding 
the individuals onboard departing and arriving private aircraft is 
comparable to the information that commercial air carriers are 
currently required to submit in electronic arrival and departure 
manifests for passengers and crew-members. Collecting this information 
prior to a private aircraft's arrival or departure will allow CBP to 
perform advance screening to identify any individuals who may pose a 
risk to aviation security prior to take off and access to U.S. 
airspace.
    With this final rule, electronic manifest information will be 
required for all aircraft, except public aircraft as defined in part 
122, arriving in or departing from the United States. Private aircraft 
will be covered by the provisions outlined in this rule and commercial 
aircraft will be covered by the provisions outlined in the other APIS 
regulations. See 19 CFR 122.49a, 122.49b, 122.49c, 122.75a, and 
122.75b.
    Comment: Several commenters expressed concern that submitting data 
through the eAPIS system will lead to increased identity theft. One 
commenter stated that hackers could steal a pilot's clearance.
    Response: CBP has a multi-layer approach to security of its 
databases, including software firewalls to prevent hackers from 
compromising its database and a secured log-in when one signs into 
eAPIS. CBP is very sensitive to the privacy issues associated with the 
use of eAPIS. For further information, CBP has published a Privacy 
Impact Statement (PIA) that outlines in detail what records are kept, 
how they are kept, and for how long they are kept. See https://dhs.gov/xinfoshare/publications/editorial_0511.shtm.

Implementation--Modes of Transportation

    Comment: A few commenters wanted to know if hot air balloons 
constituted aircraft subject to the proposed rulemaking.
    Response: Pursuant to 19 CFR 122.1(a), ``aircraft'' is defined as 
``any device now known, or hereafter invented, used or designed for 
navigation or flight in the air. It does not include ``hovercraft,'' 
which is a vehicle that hydroplanes on a thin layer of air just above 
the surface of water or land. Because hot air balloons are designed and 
used for flight in the air, they meet the definition of an ``aircraft'' 
set forth in 19 CFR 122.1(a). Thus, hot air balloons are considered 
aircraft under CBP regulations and are subject to this final rule.
    Comment: Many comments stated that if other modes of 
transportation, such as passenger vehicles, buses, trucks, and boats 
are not subject to the presentation requirement for arrival and 
departure manifests, private aircraft should not be either.
    Response: CBP disagrees. Submission of notice of arrival 
information indicating the number of citizen passengers and alien 
passengers arriving by air in the United States is already required 
under 19 CFR 122.31 and 19 CFR 122.23. Additionally, pursuant to 19 
U.S.C. 1433(d), (e), 1644 and 1644a, the Secretary has the authority to 
prescribe regulations regarding the departure of aircraft, both 
commercial and private. Further authority exists in 46 U.S.C. 60105, 
which provides that any vessel shall obtain clearance from the 
Secretary, in a manner prescribed by the Secretary, before departing 
the United States for a foreign port or place. This authority is 
extended to aircraft pursuant to the provisions of 19 U.S.C. 1644 and 
1644a.
    Although the timing of the submission, the method of submission, 
and the data elements required are being modified, CBP does not 
anticipate this final rule to negatively affect private aircraft 
outside the United States because notice of arrival requirements are 
already in place and do not cause severe economic hardship. 
Additionally, other modes of transportation besides aircraft and 
vessels, specifically trucks and trains, are subject to manifest 
requirements. The statutory basis for requiring a manifest from a 
``vehicle'' (which includes trucks and trains) is found in 19 U.S.C. 
1431(b). The regulatory provisions implementing this statute are spread 
throughout 19 CFR Part 123 (see, e.g., sections 123.3, 123.4, 123.5, 
123.91, 123.92, etc.). Vehicles required to submit a manifest would do 
so through presentation of CBP Form 7533 Inward Cargo Manifest for 
Vessel Under Five Tons, Ferry, Train, Car, Vehicle, etc., which 
requires the following information be submitted: name or number and 
description of importing conveyance, name of master or person in 
charge, name and address of owner, foreign port of lading, U.S. port of 
destination, port of arrival, date of arrival, bill of lading or marks 
& numbers of consignee on package, car number and initials, number and 
gross weight (in kilos or pounds) of packages and description of goods, 
and name of consignee. As indicated by the aforementioned data elements 
for vehicles, many elements are similar to those that will be required 
for private aircraft under this final rule.
    CBP does not require manifests from passenger vehicles unless they 
are carrying commercial goods. Non-commercial pleasure boats are exempt 
from the entry/manifest requirements under 19 CFR 4.94. Private 
aircraft, unlike other modes of transportation, present a unique threat 
because they are not inspected at the physical border and will travel 
over U.S. territory before CBP has the opportunity to inspect them.

Implementation--General

    Comment: One commenter expressed concern that a terrorist could use 
the eAPIS system to verify whether certain names are on the ``No-Fly'' 
list.
    Response: CBP has taken into consideration potential threats and 
intentional misuse of the eAPIS system in the development of system 
access and security. If an individual on the ``No-Fly'' list is 
identified on the manifest, DHS will conduct a risk-based analysis to 
determine whether to grant, restrict or deny landing rights. If landing 
rights are restricted or denied, the pilot will be provided with 
appropriate instructions and contact information.
    Comment: Several hundred commenters stated that the requirement for 
clearance to leave the United States should be deleted because the U.S.

[[Page 68300]]

government should not care if ``terrorists'' are leaving the country. 
Three commenters questioned how CBP would be able to apprehend 
terrorist suspects if we did not allow them to enter the United States.
    Response: CBP disagrees. CBP believes that the outbound passenger 
manifest information allows CBP and other law enforcement officials to 
better identify individuals who may be on the ``No-Fly'' watch list 
when either arriving in or leaving from the United States. 
Additionally, outbound information is necessary because any airborne 
aircraft can be used to transport a dangerous device and gain access to 
U.S. airspace. CBP's main concern is to keep individuals who are on the 
``No-Fly'' list from traveling by air, whether outgoing or incoming to 
prevent threats to our homeland security. As a result, CBP is able to 
conduct better risk assessments which can lead to higher rates of 
detection of individuals who are on the ``No-Fly'' list. In addition, 
CBP has authority under 8 U.S.C. 1185 to regulate the entry and exit of 
individuals from the United States.
    Comment: Several hundred commenters stated that the rule does 
nothing to increase security for private aircraft operators because 
passengers aboard private aircraft generally have an established 
relationship with the pilot.
    Response: CBP disagrees. The purpose of this rule is to increase 
U.S. national security as well as that of private aircraft operators. 
As such, it is entirely possible that the family members, friends, 
acquaintances and employers who may travel as passengers on private 
aircraft are in fact on the ``No-Fly'' list unbeknownst to the pilot, 
which will affect whether CBP grants, denies, or restricts landing 
rights to the aircraft. Because the advance screening will allow for 
the identification of individuals on the ``No-Fly'' list and as such 
will prevent these individuals from gaining access to U.S. airspace, 
the rule will in fact increase security for private aircraft operators. 
As previously stated, CBP believes that the passenger manifest 
information allows CBP and other law enforcement officials to better 
identify the travel plans of individuals on the ``No-Fly'' list. The 
final rule addresses the threat to national security presented by 
private aircraft or any of its occupants, whether or not the operator 
of the aircraft has a personal relationship with any or all passengers.
    Comment: Several commenters suggested that DHS should allow private 
aircraft pilots to submit passenger manifest data for both departure 
from the United States and return to the United States prior to leaving 
the United States to accommodate situations where communications 
equipment may not be available or reliable outside the United States.
    Response: CBP agrees. Under the final rule, as well as proposed in 
the NPRM, pilots may submit passenger manifest data via the eAPIS 
portal for both departure and arrival manifests (that is, the outbound 
and the return flight inbound manifests) prior to departure from the 
United States. As proposed in the NPRM, such advance submission of 
arrival and departure manifests is permitted under this final rule, 
inasmuch as only a minimum time frame for submission of the arrival 
and/or departure manifest was indicated. This final rule in no way 
restricts pilots from submitting manifests in advance of their 
departure from the United States to a foreign port or location. In 
fact, such early submissions are encouraged and, in cases where pre-
clearance services are made available abroad, the early submission 
(from the United States or the originating foreign country) could help 
expedite the processing of the flight at the pre-clearance site.
    Comment: Several hundred commenters stated that this rule will 
negatively affect humanitarian and tourist visits from U.S. citizens to 
other countries. One commenter stated that this rule would adversely 
affect business travel.
    Response: CBP disagrees. Submission of notice of arrival 
information for U.S. citizens entering the United States is already 
required for commercial flights in 19 CFR 122.31 and 19 CFR 122.23. 
Although the timing of the submission, the method of submission, and 
the data elements required are being modified, this final rule is not 
anticipated to negatively affect trips outside the United States 
because notice of arrival requirements are already in place and do not 
cause severe economic hardship.
    Comment: Several hundred commenters stated that current systems and 
procedures are adequate and new requirements are not necessary.
    Response: CBP disagrees. The purpose of this rule is to provide CBP 
and other law enforcement officials with advance electronic information 
regarding pilots and passengers traveling via private aircraft to allow 
DHS to conduct timely risk and threat assessments. The pre-screening of 
passenger names against the ``No-Fly'' list prior to departure from or 
to the United States will allow DHS to conduct threat assessments 
allowing the advance identification of individuals on the ``No-Fly'' 
list prior to take off and access to U.S. airspace.
    Comment: Several commenters stated that approval should be given 
annually and not on a per-flight basis. Two commenters recommended 
approval every five years. One commenter recommended a NEXUS type 
program for private aircraft.
    Response: CBP disagrees. Every flight that takes off for departure 
and/or arrival in the United States poses a possible threat by allowing 
access to United States airspace by every individual onboard the 
aircraft. For risk assessment purposes, this arrival and departure 
manifest information is necessary for each flight arriving in and 
departing from the United States. This is so because it will allow CBP 
to use the most up-to-date intelligence to properly react to any 
persons or aircraft that pose a threat to aviation and national 
security. CBP notes, however, that arrival and departure manifest 
information for a particular flight may be submitted even months in 
advance of arrival or departure, but no later than 60 minutes prior to 
departure of the private aircraft to or from the United States.
    Comment: Several hundred commenters indicated that the rule is 
unnecessary because small private aircraft cannot cause significant 
damage or threat.
    Response: CBP disagrees. Any size aircraft (large or small) may 
meet the definition of a private aircraft under CBP regulations. 
Furthermore, even though large aircraft may inflict more damage if 
flown into infrastructure, both large and small aircraft present a 
threat because they may be used to transport terrorists or terrorist 
weapons. Creating an exemption for private aircraft would provide a 
loophole that could compromise our national security. Furthermore, the 
purpose of the rule is not only to provide CBP with advance aircraft 
information, but to also provide CBP with advance information regarding 
pilots and passengers traveling via private aircraft. This will allow 
DHS to conduct threat assessments and reduce the probability of a 
terrorist attack by allowing for the advance identification of 
individuals on the ``No-Fly'' list prior to their gaining access to 
U.S. airspace via an airborne aircraft, and granting, denying or 
restricting landing rights accordingly. This information is needed for 
each flight by private aircraft arriving in and departing from the 
United States, regardless of the size or weight.
    Comment: Thirteen commenters suggested that if one of the 
passengers is not approved to come into the United States, the flight 
may be unexpectedly grounded abroad for an extended period of time 
until the issue is resolved. One commenter stated that pilots should 
not be responsible for law enforcement

[[Page 68301]]

duties. Another commenter wanted to know his liability if one of his 
passengers shows up on the ``No-Fly'' list.
    Response: DHS will resolve any delays as quickly as possible and 
estimates that the frequency of such occurrences should be very low.
    CBP does not expect the pilot to be responsible for law enforcement 
duties. The pilot is best situated to review passenger documents and to 
verify that the passengers he will be flying appear to match the travel 
documents presented. Yet, although the pilot bears responsibility for 
the accuracy of the data submitted, DHS is responsible for any 
necessary enforcement that flows from that data.
    If an individual on the ``No-Fly'' watch list is identified on the 
manifest, DHS will conduct a risk-based analysis and make a 
determination whether to grant, restrict or deny landing rights. If 
landing rights are restricted or denied, the pilot will be provided 
with appropriate instructions and contact information. Provided the 
pilot, in accordance with his/her legal obligations under this rule, 
correctly transmits the manifest information and follows the 
instructions provided by CBP and/or TSA regarding the boarding or non-
boarding of particular passengers, he should have no liability.
    Comment: Several commenters stated that there was no basis in 
existing law for the Secretary to exercise departure clearance 
authority over private aircraft.
    Response: CBP disagrees. As previously stated, pursuant to 19 
U.S.C. 1433(e), 1644 and 1644a, the Secretary has the authority to 
prescribe regulations regarding the departure of aircraft to and from 
the United States, both commercial and private. Further authority may 
be found in 46 U.S.C. 60105, providing that any vessel shall obtain 
clearance from the Secretary, in a manner prescribed by the Secretary, 
before departing the U.S. for a foreign port or place; and that 
authority is extended to civil aircraft under 19 U.S.C. 1644 and 1644a. 
The ``exception'' previously provided for private aircraft under 19 CFR 
122.61 was not the result of a lack of statutory authority to regulate 
private aircraft. Instead, the Secretary (then, the Secretary of the 
Treasury), exercised his discretion at the time not to impose clearance 
requirements on that segment of civil aviation. With this new rule, the 
Secretary has determined that, after September 11, 2001, the clearance 
requirements in this rule are necessary and appropriate.
    Comment: One commenter stated that the passenger manifest 
requirement for departure is extremely cumbersome as private flights 
require flexibility in terms of passengers actually onboard at 
departure.
    Response: The rule provides that, if a departure manifest is 
submitted to CBP before all individuals arrive for transport, the pilot 
is required to submit any changes to traveler information, and receive 
a new clearance from CBP. If the changes are submitted less than 60 
minutes prior to departure, the pilot is only required to receive a new 
clearance from CBP prior to departing, he does not necessarily need to 
wait an additional 60 minutes. By not requiring that the pilot wait a 
full 60 minutes, CBP believes that the rule provides sufficient 
flexibility and promotes efficiency.
    Comment: One commenter stated that CBP should no longer require CBP 
Form 178 (Private Aircraft Enforcement System Arrival Report) as the 
included information will be electronically transmitted to CBP one hour 
prior to departure.
    Response: CBP agrees. CBP Form 178 was created as an internal 
Customs form for the use by Customs inspectors. Because the information 
on the CBP Form 178 is now electronically available to CBP officers 
through eAPIS, CBP will no longer require the form.

Implementation--Enforcement

    Comment: Two commenters raised concerns whether the proposed rule 
was in compliance with unspecified international transportation and 
customs treaty agreements. One of the two commenters was concerned that 
CBP had not communicated with the international branch of the U.S. 
Department of Transportation regarding the proposed rule's impact upon 
international obligations.
    Response: CBP believes that the rule is in compliance with all 
applicable international agreements. International law recognizes a 
State's right to regulate aircraft entering into, within or departing 
from its territory. International treaties, such as the Chicago 
Convention, contain provisions requiring aircraft in U.S. territory to 
comply with a broad array of U.S. laws and regulations. For example, 
Article 11 of the Chicago Convention requires compliance with ``the 
laws and regulations of a contracting State relating to the admission 
to or departure from its territory of aircraft engaged in international 
air navigation, or to the operation and navigation of such aircraft 
while within its territory.'' Similarly, Article 13 requires compliance 
with a State's laws and regulations ``as to the admission to or 
departure from its territory of passengers, crew or cargo of aircraft * 
* * upon entrance into or departure from, or while within the territory 
of that State.'' The tenets of the Chicago Convention obligations are 
followed in this final rule.
    Comment: Several hundred commenters questioned CBP's ability to 
receive and process private aircraft APIS transmissions in a timely 
manner. One commenter stated that if CBP cannot provide a response 
within five minutes, approval should be assumed to be granted. One 
commenter indicated that this rule has very little chance of being 
implemented with the limited staff that CBP has available. One 
commenter asked what assurance the pilot will have that the eAPIS 
transmission was received.
    Response: CBP anticipates handling the volume of private aircraft 
submissions through the enhanced capabilities of the eAPIS portal and 
other CBP-approved submission methods. CBP is capable of receiving and 
processing tens of thousands of private aircraft manifest submissions 
daily. Additionally, small commercial carriers currently use eAPIS 
successfully to make timely submissions of passenger manifest data. A 
pilot may not depart without receiving a ``cleared'' message from CBP 
and following all other instructions provided by DHS in the response to 
the eAPIS submission. Pilots will know that the eAPIS transmission has 
been received, based upon CBP's response to the transmission. Clearance 
for a flight to or from the United States should never be assumed 
regardless of the amount of time that has elapsed; only the pilot's 
receipt of a cleared response from CBP ensures that the agency has 
received the arrival and/or departure manifest submission.
    Comment: Many commenters questioned the necessity of the proposed 
rule since the manifest information submitted via eAPIS cannot and/or 
will not be physically verified by CBP.
    Response: CBP appreciates this concern. Because CBP officers do 
meet private aircraft upon arrival, it is imperative that the 
electronic manifest be available for CBP verification prior to the 
aircraft's arrival in the United States. Additionally, electronic 
departure manifests will be available for verification by CBP officers 
prior to the aircraft's departure from the United States.
    Comment: Many commenters stated that Puerto Rico should not be 
considered a foreign location, and flights from Puerto Rico to the 
continental United States should not be subject to the requirements of 
the rule.

[[Page 68302]]

    Response: CBP agrees. CBP would like to clarify that as proposed in 
the NPRM and as finalized in this rule, under 19 CFR 122.22(a) ''United 
States'' means the continental United States, Alaska, Hawaii, Puerto 
Rico, the Virgin Islands of the United States, Guam and the 
Commonwealth of Northern Mariana Islands. Accordingly, flights between 
Puerto Rico and other locations in the United States would not be 
subject to the requirements of this rule.
    Comment: Several commenters inquired as to what penalties would be 
imposed if a pilot fails to file an arrival or departure manifest and 
obtain the required clearance for landing before taking off for the 
United States from a foreign port or place or departing the United 
States for a foreign destination.
    Response: Pilots of aircraft departing the United States, or 
departing a foreign place for the United States, who fail to comply 
with the terms of this rule are subject to a civil penalty of $5,000 
for the first violation and $10,000 for each subsequent violation as 
prescribed in 19 U.S.C. 1436(b) and 19 CFR 122.166(a)(c)(1). The pilot 
may also be subject to criminal penalties for violations under 19 
U.S.C. 1436(c). In addition, the U.S. government has established 
protocols and procedures to defend and protect its airspace against 
potential threats if it is unable to identify the intention of any 
aircraft.
    Comment: One commenter pointed out that 8 CFR 231.3 which provides 
exemptions for private vessels and aircraft from manifest requirements, 
exempts private aircraft and, therefore, contradicts the requirements 
proposed by the NPRM. The commenter suggested that it be amended to 
conform to the requirements proposed by the NPRM.
    Response: Although CBP does not believe any real conflict exists to 
the extent this final rule is under Title 19, rather than Title 8, CBP 
agrees that clarification regarding exemptions for private aircraft 
noted in title 8 of the Code of Federal Regulations is appropriate to 
avoid any confusion. Section 231.3 of title 8 of the Code of Federal 
Regulations will be amended to reference the requirements for arrival 
and departure manifest presentation of 19 CFR 122.22.

Implementation--60 Minute Requirement

    Comment: Several hundred commenters asked if CBP could guarantee 
that aircraft operators will receive a response within 45 minutes of 
transmitting the arrival information and manifest data so that they can 
proceed to the aircraft, taxi and takeoff 60 minutes after they submit 
the information. Two commenters stated that waiting for permission from 
DHS to depart is a terrible burden that will lead to delays.
    Response: In most cases, an automated analysis will create a rapid 
response well within the 60 minute time period. In other cases, 
additional review may be necessary, requiring additional time. DHS will 
strive to process each request within 60 minutes of receipt or as 
quickly as possible to avoid delays.
    Comment: Many commenters expressed concerns that a pilot would have 
to resubmit new arrival times to FAA and wait additional time if CBP's 
response to arrival and/or departure manifests occurred 10 minutes 
after the pilot's stated departure time submitted in FAA flight plans.
    Response: CBP wishes to clarify that once pilots have submitted 
their completed passenger manifest data and have received electronic 
clearance to depart regarding the transmission from CBP, they are free 
to depart. Absent changes to the information previously transmitted, an 
additional submission is not necessary unless otherwise indicated by 
CBP. Pilots may contact the intended port of arrival telephonically or 
by radio with expected time of arrival updates. The 60-minute 
requirement is designed to give CBP an adequate amount of time to 
respond to the eAPIS transmission so that pilots will be able to make 
their scheduled departure time, as reported to FAA. Pilots also have 
the option of submitting an arrival/departure manifest to CBP earlier 
than 60 minutes prior to take off if that is their preference.

Communications--Equipment Concerns

    Comment: Several hundred commenters stated that the equipment 
required to submit APIS information is not available in all general 
aviation airports.
    Response: CBP recognizes that not all private aircraft departure 
locations are equipped to submit APIS data in the timeframe required. 
Under this final rule, CBP is allowing private aircraft pilots a great 
deal of flexibility in how and when they submit passenger manifest data 
to CBP. A pilot may submit complete, correct, and accurate passenger 
manifest data any time in advance, but no later than 60 minutes prior 
to departure to or from the United States, allowing the flexibility to 
provide data prior to travel to or from a remote location. As one 
alternative, a pilot may also have a third-party agent submit the data. 
Additionally, in response to the comments received from the NPRM, 
certain elements of a previously submitted arrival and/or departure 
manifest (i.e., flight cancellation, expected time of arrival and 
changes in arrival location) may now be amended via telephone, radio or 
by existing processes and procedures if access to the Internet is 
unavailable.
    Original arrival and departure manifests generally must be 
submitted via eAPIS or another CBP-approved data interchange system. 
However, on a limited case-by-case basis, CBP may permit a pilot to 
submit or update notice of arrival and arrival/departure manifest 
information telephonically when unforeseen circumstances preclude 
submission of the information via eAPIS. Under such circumstances, CBP 
will manually enter the notice of arrival and arrival/departure 
manifest information provided by the pilot and the pilot is required to 
wait for CBP screening and approval to depart. CBP will strive to 
process such manual submissions as quickly as possible; however, the 
processing of these non-electronic manifests may significantly delay 
clearance.
    Finally, when there is a change in the expected time of arrival due 
to unforeseen conditions such as weather changes, the pilot is 
permitted to contact the intended port of arrival with the new expected 
time of arrival telephonically, by radio, or via the FAA automated 
flight service stations (AFSS) and/or flight services.
    Comment: Several hundred commenters noted that few private aircraft 
have the necessary equipment on board to transmit an arrival manifest 
should they need to divert to a U.S. airport in the case of emergency. 
Two commenters stated that the requirement to provide a 30-minute 
arrival notice places an undue burden on the pilot. One commenter 
stated weather can play a part in causing a diversion while already in 
flight.
    Response: With respect to an aircraft arriving at a U.S. port, 
``emergency'' means an urgent situation due to a mechanical, medical, 
or security problem affecting the flight, or an urgent situation 
affecting the non-U.S. port of destination that necessitates a detour 
to a U.S. port. CBP's policy on emergency landings remains unchanged 
and permission continues to be granted on a case-by-case basis. CBP 
will take into consideration the nature of the emergency prior to 
issuing any penalties and as a mitigating factor when any penalties 
issued by the agency are considered in the administrative petition 
process.
    Comment: Several hundred commenters asked if facsimile, telephone, 
use of Flight Service Station and/or email transmissions would be

[[Page 68303]]

acceptable alternatives in addition to transmissions through eAPIS. 
Five commenters inquired as to whether the additional passenger 
information required by CBP could be added to the flight plan 
notification that they already file with the FAA.
    Response: Although CBP will allow the submission of arrival 
manifests well in advance of the actual arrival of the aircraft and 
approve the passengers and aircraft depending upon the outcome of the 
screening process, the pilot may still be required, per any 
instructions received from CBP, to contact CBP at the arrival airport 
to confirm CBP officer availability at that port for the expected time 
and date of arrival indicated in the manifest. Under this final rule, 
facsimile, email transmissions, or submission via another agency such 
as the (FAA) of arrival and departure manifest data are not acceptable 
methods of original submission. Methods such as facsimile, email and 
telephone can lead to inaccuracies, tend to be inefficient and do not 
promote the uniformity that submission via one standard method allows. 
That said, on a limited case-by-case basis, CBP may permit a pilot to 
submit or update notice of arrival and arrival/departure manifest 
information telephonically when unforeseen circumstances preclude 
submission of the information via eAPIS. CBP also may review and 
approve alternative methods for electronically transmitting the 
required data to CBP. For example, a pilot may authorize a third-party 
to submit the original arrival and/or departure manifest data on the 
pilot's behalf.
    Certain elements of a previously submitted arrival and/or departure 
manifest may be amended or supplemented via telephone or radio if 
access to the Internet is unavailable. Also, when there is a change in 
the expected time of arrival due to unforeseen conditions such as 
weather changes, the pilot is permitted to contact the intended port of 
arrival with the new expected time of arrival telephonically, by radio, 
or via the FAA automated flight service station (AFSS) and/or flight 
services.
    Comment: One commenter had concerns about backup procedures should 
eAPIS not be available due to CBP/DHS system outages.
    Response: In the event that eAPIS is unavailable, authorized users 
will need to contact CBP at the intended U.S. airport of arrival/
departure for instructions on how to proceed in submitting required 
information. Each outage presents unique circumstances that will be 
dealt with on a case-by-case basis per the port's instructions.

Communications--General

    Comment: Several commenters stated that the requirement to provide 
a 24-hour point of contact is difficult because private aircraft 
operators do not normally have 24-hour operation centers.
    Response: The data element ``24-hour point of contact'' in Sec.  
122.22, paragraphs (b)(4)(xx) and (c)(4)(xviii) will be changed to 
``24-hour Emergency Point of Contact'' to clarify that the named entity 
or individual provided for in this element is available for contact by 
CBP should an emergency arise (as opposed to day to day operations) and 
CBP needs information about the flight as a result of communication 
equipment failure or pilot unavailability.
    Comment: Several commenters stated that submitting the transponder/
beacon code and/or decal number in eAPIS was not possible because it 
was not available 60 minutes prior to takeoff. One commenter was 
concerned about supplying the CBP decal number as the decal may be 
purchased upon arrival in the United States.
    Response: CBP agrees and is amending 19 CFR 122.22 (b)(4)(xviii) 
and (c)(4)(xix) so that the transponder code will no longer be listed 
as a required data element and the decal number will be required to be 
submitted if available.