[Federal Register Volume 61, Number 176 (Tuesday, September 10, 1996)]
[Proposed Rules]
[Pages 47692-47706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23072]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 243
RIN 2105-AB78
[Docket No. OST-95-950, Notice No. 96-23]
Passenger Manifest Information
AGENCY: Office of the Secretary (OST), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This document proposes to require that each air carrier and
foreign air carrier collect basic information from specified passengers
traveling on flight segments to or from the United States. U.S.
carriers would collect the information from all passengers and foreign
air carriers would collect the information for U.S. citizens and lawful
permanent residents of the United States. The information would include
the passenger's full name and passport number and issuing country code,
if a passport is required for travel. In addition, airlines would be
required to solicit the name and telephone number of a person or entity
to be contacted in case of emergency. Airlines would be required to
make a record of passengers who decline to provide an emergency
contact. The information would be provided to the Department of
Transportation and the Department of State in case of an aviation
disaster. The Department proposes to allow each airline to develop its
own collection system, a description of which would be filed with the
Department. Alternatively, the rule would provide that DOT may waive
compliance with certain requirements of the part if an air carrier or
foreign carrier has in effect a signed Memorandum of Understanding with
the Department of State concerning cooperation and mutual assistance
following aviation disasters abroad.
DATES: Comments must be received November 12, 1996.
ADDRESSES: Comments on this notice of proposed rulemaking should be
filed with: Docket Clerk, U.S. Department of Transportation, Room PL-
401, Docket No. OST-95-950, 400 7th Street, SW, Washington, DC 20590.
Five copies are requested, but not required.
FOR FURTHER INFORMATION CONTACT: Dennis Marvich, Office of
International Transportation and Trade, DOT, (202) 366-4398; or, for
legal questions, Joanne Petrie, Office of the General Counsel, DOT,
(202) 366-9306.
SUPPLEMENTARY INFORMATION:
Background
During the immediate aftermath of the tragic bombing of Pan
American Flight 103 over Lockerbie, Scotland on December 21, 1988, the
Department of State experienced difficulties in securing complete and
accurate passenger manifest information and in notifying the families
of the Pan American 103 victims. The Department of State did not
receive the information for ``more than seven hours after the tragedy''
(Report of the President's Commission on Aviation Security and
Terrorism, p. 100). When the Department of State did acquire the
passenger manifest information from Pan American, in accordance with
current airline practice, it included only
[[Page 47693]]
the passengers' surnames and first initials, which was insufficient
information to permit notification of the victims' families in a timely
manner.
Statutory Requirements
In response to the Report of the President's Commission on Aviation
Security and Terrorism, Congress and the Administration acted swiftly
to amend Section 410 of the Federal Aviation Act (now 49 USC 44909). PL
101-604, which was signed by President Bush on November 16, 1990,
mandates that,
the Secretary of Transportation shall require all United States air
carriers to provide a passenger manifest for any flight to
appropriate representatives of the United States Department of State
(1) not later than 1 hour after any such carrier is notified of an
aviation disaster outside the United States which involves such
flight; or (2) if it is not technologically feasible or reasonable
to fulfill the requirement of this subsection within 1 hour, then as
expeditiously as possible, but not later than 3 hours after such
notification.
The statute requires that the passenger manifest information
include the full name of each passenger, the passport number of each
passenger, if a passport is required for travel, and the name and
telephone number of an emergency contact for each passenger. The
statute further notes that the Secretary of Transportation shall
consider the necessity and feasibility of requiring United States
carriers to collect passenger manifest information as a condition for
passenger boarding of any flight subject to the passenger manifest
requirements. Finally, the statute provides that the Secretary of
Transportation shall consider a requirement for foreign air carriers
comparable to that imposed on U.S. air carriers. The statute provided
120 days after the date of enactment for the Secretary of
Transportation to require all United States air carriers to provide the
passenger manifest information to the Department of State.
The ANPRM
In order to implement the statutory requirements, the Department of
Transportation published an advance notice of proposed rulemaking
(ANPRM) on January 31, 1991 (56 FR 3810). The ANPRM requested comments
on how best to implement the statutory requirements. Among possible
approaches, the ANPRM noted that the Department might require airlines
to collect the data at the time of reservation and maintain it in
computer reservations systems. Alternatively, the ANPRM noted that the
Department might require each airline to develop its own data
collection system, which would be approved by the Department. The ANPRM
posed a series of questions concerning privacy concerns, current
practices in the industry and potential impacts on day-to-day
operations.
Comments to the ANPRM
Twenty-six comments were filed in response to the ANPRM. Commenters
included the Air Transport Association (ATA), the National Air Carrier
Association (NACA), the Regional Airline Association (RAA), Alaska
Airlines, American Trans Air, the American Society of Travel Agents
(ASTA), the ``Victims of Pan Am Flight 103'', the Asociacion
Internacional de Transporte Aereo Latinoamericano (AITAL), a combined
comment (filed by Air Canada, Air Jamaica, Balair, Condor Flugdienst
GmbH, and the Orient Airlines Association), Aerocancun, Air-India,
British Airways, Japan Airlines, Lineas Aereas Paraguayas, Nigeria
Airways, Royal Air Maroc, Swissair, the Embassy of Switzerland, the
Embassy of the Philippines, the United States Department of State
(Assistant Secretary for Consular Affairs), the U.S. Department of the
Treasury (U.S. Customs Service), the Commissioner of Customs, the
United States Government Interagency Border Inspection System (IBIS),
System One Corporation, and two individuals, Ms. Edwina M. Caldwell and
Ms. Kathleen R. Flynn. In addition, the views of Meetings and
Incentives in Latin America, an Illinois travel and tour company, are
included in the docket because of a communication to a Department
official after the ANPRM was issued.
The U.S. carriers shared similar concerns. They argued that the
requirements should be imposed equally upon U.S. and foreign airlines
in order to maintain a ``level playing field.'' To the extent
collecting the information causes passenger delays, it will degrade the
service of U.S. airlines and result in loss of business to foreign
competitors. Second, they argued that the information collection
requirements must be designed to minimize additional passenger
processing time. Those with automated reservations systems recognized
that additional passenger processing time would be minimized if
passenger manifest information is given at the time a reservation is
booked. ATA, for example, stated that it believed that airlines cannot
effectively collect this information at airport check-in because to do
so would require at least an extra 60 seconds per passenger. Thus, if
200 people on a given flight arrived at the airport without previously
having given passenger manifest information, such a requirement could
prolong processing by 3.3 person-hours.
ATA stated that to implement a passenger manifest information
requirement, airlines would need to augment personnel, reservation
systems, equipment and counter space. The last requirement, augmenting
counter space, is not possible at all airports, and is especially
difficult at foreign airports. In addition, ATA noted that intercarrier
information exchange procedures would have to be developed. ATA stated
that it is currently working on these procedures and asked that they
not be addressed by regulation. Further, ATA noted that the passenger
manifest requirement would mean that computer reservation systems,
carrier reservation and customer service/check-in, and travel agency
personnel would need training in new procedures. Finally, it stated
that it was unrealistic to expect airlines to produce a complete
manifest within one to three hours.
ATA also noted that three-quarters of international journeys are
booked through travel agents and stated that any rule issued by the
Department should assign travel agents responsibility for collecting
manifest information from the passengers who book through them. It
believed that some passengers will refuse to provide emergency contact
information and airlines, therefore, should only be required to solicit
the information rather than collect it. It stated that the Department
of State should treat the information as confidential and that the
information in the manifest should only be provided to family members.
ATA vigorously defended the airlines' historic role in having primary
responsibility for informing victims' families and argued that nothing
should be done to usurp that role.
ATA also provided detailed comments on specific issues raised in
the ANPRM. It stated that the definition of an aviation disaster was
both too narrow and too broad. It suggested that although carriers
should be responsible for obtaining the manifest information, they
should not be responsible for verifying its accuracy, and that if a
passenger declines to provide an emergency contact, the passenger
should not be refused transportation. It noted that charter and tour
operators, air taxi operators and commuter airlines should also be
required to collect information to the extent they are providing
foreign air transportation. ATA further argued that the information
should be required only for U.S. citizens based on the legislative
history of the
[[Page 47694]]
law and the need to minimize burdens on the carriers. ATA expressed
concern that the provision of manifest information by foreign air
carriers and foreign travel agents to U.S. air carriers could become a
very serious issue for U.S. air carrier operations at foreign
locations. If the information were not provided in advance, carriers
would have to collect it at check-in, which would seriously degrade the
competitiveness of U.S. carriers. It urged the U.S. Government to
negotiate with foreign governments assurances that such information
would be provided by foreign air carriers and foreign travel agents.
ATA also argued that, to the extent that foreign law prohibits
collection of this information, carriers should not be required to
collect it. ATA believed that the information collection requirement
should be applicable to all international flight segments (including
flights between two foreign points), except for flights between the
U.S. and Canada, Mexico, or the Caribbean. It argued that an exemption
for these latter flights is justified because of the proximity of these
nations, the lack of a passport requirement for travel to and from
them, the communities of interest between the countries, and the great
volume of transborder and Caribbean traffic.
Finally, ATA argued that in order to ameliorate delays, the State
Department should purchase, and distribute to carriers, automated
passport readers. It argued that any rule should be compatible with the
Advance Passenger Information System (APIS) program and that the
Department of State should create and maintain a data base of the
statutorily-required information.
The Regional Airline Association, whose members carry approximately
1.5 million passengers internationally per year, was concerned about
the potential costs associated with its members' inclusion in a rule.
It favored a system whereby carriers could adopt whatever data
collection system would work best. It questioned whether requiring
travel agents to collect the information would be practical. It
believed that foreign air carriers should be subject to the rule to
alleviate any possible competitive impact.
The comments of the National Air Carrier Association focused on
modifications to computer reservation system software. It proposed that
inclusion of passenger contact, passport number, etc. be a mandatory
element required to exit from a computerized passenger reservation
record. Second, it suggested that the ``passenger name list manifest''
should automatically access this information from the passenger name
record in case of an emergency. NACA also stated that the information
should be obtained on a ``best efforts'' basis, and that the U.S.
carriers should not be legally responsible for collecting or verifying
the information. It believed this caveat to be important particularly
for travel to countries not requiring passports and travel to countries
where applicable foreign law prohibits collection of personal
information. NACA further argued that tour operators should collect the
data for charter flights. Finally, it suggested that the data be
collected by both U.S. and foreign carriers for all passengers,
regardless of citizenship.
American Trans Air argued that the information collection request
should be applicable to all passengers traveling internationally, and
that if a passenger refused to provide the required information, the
carrier should have the option of refusing transportation or requiring
the passenger to sign a waiver. It noted concern over the high cost of
the rule relative to the benefit to U.S. carriers, and the potential
competitive impacts if foreign carriers were not required to collect
the information. In an attached letter, American Trans Air indicated
that for the 13 percent of its business for which it processed its own
reservations (American Trans Air is primarily engaged in charter
operations), it would not be that difficult a task to maintain
passenger manifest information in its reservations system, although
additional computer storage space would be required. It was concerned,
however, about the potential impacts of any regulation on its other
operations in which it does not directly handle reservations. These
operations include wholesale charters, wetleases/subservice, military
passengers, and incentive passenger charters.
Alaska Airlines was concerned that the rule might be applied to
domestic flights that traverse foreign or international airspace
enroute. It noted many practical difficulties in determining which
flights might be covered and the need to restructure domestic travel in
order to collect this information. Finally, like ATA, it argued that
the rules should only apply to international flights that require a
passport.
The foreign air carriers were unanimous in their opposition to
having the rule apply to them. Most noted the legislative history of
P.L 101-604 and the specific language in the statute directing the
Secretary to consider, not mandate, application to foreign air
carriers. Most discussed the principle of comity and argued that
application of the rule to foreign carriers, foreign citizens and
flights between two foreign points would be inappropriate and contrary
to international law. Several of the foreign carriers (Japan Airlines,
Royal Air Maroc, and Swissair) stated that collection of the
information would violate the law of their home country or at least be
restricted under foreign law. Others focused on practical difficulties
relating to lack of automation (which would mean that passenger
manifest information could only be collected at check-in), limited
telecommunication facilities, language barriers, and the excessive cost
and administrative burden that would result.
Japan Airlines also believed that its passengers would be reluctant
to provide personal information that might be turned over to the U.S.
Department of State, and which might be available to a range of other
persons. It noted that travel agents would likely not wish information
revealing the names of their clients placed in a computer reservation
system accessible to their competitors. Royal Air Maroc was concerned
that collection of the information would generally be by telephone
conversations between their reservations staff or travel agents and
individual passengers, and would be prone to error. Royal Air Maroc
asserted that this would impose an unacceptable burden because the
carrier would be forced to verify the information at check-in.
The Embassy of Switzerland stated that if the regulation were
extended to foreign air carriers, it would be contrary to Article 23 of
the Convention on International Civil Aviation and to Chapter 2 of
Annex 9 of the Convention. It further stated that Swiss law makes
unlawful, and subjects to criminal sanctions, the performance in
Switzerland of an act for a foreign state which by its nature is an act
performed by a public authority or a public officer. It stated that
this law would apply to any data collection performed in Switzerland by
Swissair pursuant to a Department of Transportation requirement under
consideration in this rulemaking. The comments of Swissair reiterated
these concerns and went on to argue that comity dictates that the
regulation not be applied to foreign air carriers. To the extent that
the Department is exploring foreign air carrier application, Swissair
believed such consideration should take place within the context of
bilateral negotiations or through the International Civil Aviation
Organization.
British Airways objected to the application of passenger manifest
requirements to foreign carriers, and argued that they were unnecessary
to achieve the objective of ensuring that a
[[Page 47695]]
foreign carrier is able to identify all affected passengers in the
event of an aviation disaster. It stated that it would even more
strongly object to the extent that passenger manifest requirements were
applied to foreign flight segments operated by foreign carriers.
British Airways believed that passenger manifest requirements would
result in immense administrative and operational burdens and would
increase passenger delay and inconvenience at already overtaxed
international airports. While it recognized that, under optimal
circumstances, the passenger manifest information would be provided at
the time the reservation is made, it said that, in practice, some or
all of the required information would need to be obtained during check-
in, thereby significantly increasing the required check-in time for
flights to and from the United States. It estimated the increased
check-in time needed to collect passenger manifest information for its
flights to and from the United States to be a minimum of 40 seconds per
passenger. Using scenarios of one-half of all passengers and all
passengers arriving at check-in without having provided passenger
manifest information, British Airways calculated that this would
translate into 2 to 4 hours of additional check-in processing time for
a 360 seat airplane.
British Airways also believed that passenger manifest requirements,
such as those set out in the ANPRM, would impose excessive and
unnecessary financial costs. It estimated its minimum costs for any
passenger manifest requirement to be: (1) Onetime costs of about
$100,000 for reprogramming of its Departure Control System; (2) onetime
costs of about $1 million for changes to its computer reservations
system; and (3) annual charges of (conservatively) about $500,000 for
additional reservations and check-in staff in the United States and the
United Kingdom.
The joint comment representing eighteen foreign carriers (Air
Canada, Air Jamaica, Balair, Condor Flugdienst GmbH, and the Orient
Airlines Association, which includes, Air New Zealand, Air Niugini, All
Nippon Airways, Cathay Pacific Airways, China Airlines, Garuda
Indonesia, Japan Airlines, Korean Air, Malaysia Airlines, Philippine
Airlines, Qantas Airways, Royal Brunei Airlines, Singapore Airlines,
and Thai Airways International) objected to application of the rule to
foreign air carriers and made three main arguments. First, the joint
commenters argued that application to foreign carriers would not result
in competitive balance, but instead would tip the scales further in
favor of U.S. carriers because foreign carriers are excluded from the
U.S. cabotage market. Second, the joint commenters argued that
unilateral regulation of foreign carriers by the Department would
conflict with the intent of other provisions of P.L. 101-604 that
committed the United States to pursue its aviation security objectives
through accepted multilateral and bilateral channels. In addition, they
argued that unilateral regulation of foreign air carriers conflicts
with the Chicago Convention and with the principles of comity and
reciprocity. Finally, the joint commenters perceived little or no
relationship between the collection of the specified passenger
information and enhanced aviation security. They argued that compliance
with the regulation would divert airline resources from enhanced
aviation security and improvements to facilitate efficient air
transportation, and would, at best, only marginally improve the State
Department's ability to quickly notify victims' families in the very
infrequent event of an air disaster. They argued that compliance would
involve significant costs in the areas of automation and additional
personnel, equipment, and airport counter space. In addition, they
stated that foreign carriers would have higher compliance costs than
U.S. airlines because foreign airlines are less automated, and because
conforming interline ticketing procedures to accommodate passenger
manifest information would be more expensive than conforming computer
reservations systems to do the same. They concluded that the excessive
costs of foreign carrier compliance are unreasonable.
AITAL, which represents 25 Latin American airlines, noted the heavy
workload that might be required by this rule, particularly since many
Latin American agencies and airport check-in counters are not
automated. In addition, it noted potential difficulties in
communicating this information promptly to the State Department in the
event of a disaster.
Aerocancun and Lineas Aereas Paraguay questioned whether many, if
any, concerned relatives would expect the U.S. State Department to have
immediate passenger information in the event of an aviation disaster
involving a foreign carrier. Aerocancun, which operates only charter
service, also noted that it has little or no contact with passengers
prior to their arrival at the departure airport. All of its sales and
solicitation activities are performed by travel agents (who are the
primary point of contact with the traveling public) and/or tour
operators. It stated that, as is customary in the charter market, it is
not given a copy of the passenger manifest until 48 hours before flight
departure and does not know of last-minute passengers until just prior
to departure. Moreover, Aerocancun does not have a computerized
reservation system. Both Aerocancun and Lineas Aereas Paraguay stated
that the passenger manifest requirements would lead to delays and
crowding at international airports.
The Embassy of the Philippines commented that Philippines Airlines
was concerned that a passenger manifest requirement would force it to
conduct tedious airport check-in procedures. Philippines Airlines also
anticipated that gathering of additional information from passengers
would require costly modifications to its computerized Departure
Control System.
ASTA, which represents approximately 15,000 travel agents, argued
that the Department should not require travel agents to collect and
report passport numbers and emergency contact information. ASTA
suggested that passengers complete a form similar to the Custom
Declaration at the time of departure and that the stack of forms should
constitute the manifest for a particular flight. If DOT did require
travel agents to collect information, it argued that the agent should
not be required to refuse to write a ticket if a passenger could not or
would not provide the requisite information. It noted that as a
practical matter, this information generally would need to be processed
through computer reservations systems, which not all agents can access.
It suggested that agents who do not have computer reservations systems
should be exempt from the rules. Failing that, it argued that these
agents should be permitted to satisfy the statute by delivering
whatever information is available to the airline by telephone when the
booking is made. In all cases, ASTA said that the compilation of an
actual ``manifest'' for each flight must be accomplished by the
airlines.
The Customs Service and the Interagency Border Inspection System
(which is comprised of the U.S. Customs Service, the Immigration and
Naturalization Service and the Departments of State and Agriculture)
urged the Department to design the passenger manifest requirements to
support the Advance Passenger Information System (APIS). APIS is an
existing, voluntary program that allows airlines to transmit the full
name, passport number, country of issuance, and date of birth for each
passenger
[[Page 47696]]
prior to arrival in the U.S. APIS data are used to identify high-risk
passengers and to facilitate the processing of low-risk passengers. The
facilitation benefits of APIS accrue to passengers, airlines, airport
operators, and government agencies. The U.S. Customs Service asked that
DOT require the collection of passengers' dates of birth, and said that
if this was done, airlines would possess all the necessary data to
participate in APIS. The Interagency Border Inspection System (IBIS)
suggested using the APIS system to fulfill DOT's passenger manifest
requirement and specified a comprehensive list of data elements that
should be included. At a minimum, IBIS would like the following
information for each passenger: last name, first name, date of birth,
nationality, travel document number, issuing country code for travel
document, passenger's travel origination point (country code), contact
name, and contact telephone number. Some of the agencies involved in
IBIS would also like to collect additional passenger information
consisting of visa issuing post, date of visa issuance and intended
destination (U.S. address or ``in transit'').
The Assistant Secretary of State for Consular Affairs suggested
that the rule cover U.S. citizens flying on U.S. or foreign air
carriers. The Assistant Secretary noted that the Department of State
has the responsibility to inform the families of U.S. citizens who are
victims of aviation disasters regardless of the nationality of the
airline. In addition, the Assistant Secretary noted that inclusion of
foreign air carriers would satisfy the concerns of certain U.S.
carriers that believe that application of such a regulation only to
them would imply that U.S. carriers are less safe than foreign
carriers. Finally, the Assistant Secretary noted that possible foreign
government objections to passenger manifest requirements on the basis
of their extraterritorial application would be lessened if the
information collection were limited to U.S. citizens on flights to and
from the United States.
The group, ``Victims of Pan Am Flight 103'' proposed a specific
method to collect passenger manifest information. It suggested that
boarding passes be redesigned to have a detachable stub that could be
filled out by passengers and dropped in a box just before boarding a
flight. It argued that such a method would require little work for the
airlines; would not violate privacy laws in foreign countries; would
allow medical personnel to obtain medical histories for survivors;
would give an accurate count of passengers so that rescuers would know
when to stop searching; and would allow airlines to deliver a correct
manifest to the State Department within one hour using a scanner on the
stubs.
Meetings and Incentives in Latin America stated that passport
numbers should be collected for all passengers, that collection of a
work or home telephone number for each passenger should be mandatory,
and that the party that makes the first contact with the passengers
should be the one responsible for collecting the information.
Of the two individuals who provided comments, Ms. Caldwell, a
former travel consultant, suggested that, to the extent possible, the
travel agent or airline reservation agent should collect the required
information. She suggested that the airport agent should check the
record to ensure that the information is in the record. She further
suggested that if a passenger refused to provide an emergency contact,
the passenger should sign or initial some document prior to boarding.
Finally, Ms. Caldwell stated that the rule should apply to all
passengers on both U.S. and foreign air carriers for all international
flights. Ms. Flynn, the mother of a passenger killed on Pan Am Flight
103, noted the hardships endured by the families and her belief that
the traveling public would prefer to have passenger manifest
information available in spite of some of the difficulties in
implementing P.L. 101-604. She stated her belief that this additional
information would deter certain terrorist activities.
System One, a computer reservations system provider, stated that
although most of the issues related to the collection of passenger
manifest data are airline issues, as a computer reservations systems
provider, it would have no problem complying with any proposed
regulations requiring data collection. It stated its willingness to
participate in any industry effort to automate the transmission and
collection of desired passenger data once agreed to by the Department
and the airlines. Finally, it stated that automated handling of this
type of information would improve compliance and facilitate the
participation of U.S. and foreign airlines.
Subsequent DOT Activity
In January 1992, President Bush announced a ``Regulatory Moratorium
and Review'' during which federal agencies were instructed to issue
only rules that addressed a pressing health or public safety concern.
During the course of the moratorium, the Department asked for comments
on its regulatory program. Comments that addressed the passenger
manifest information statutory requirement were filed by ATA,
Northwest, American, Air Canada, and Japan Airlines. ATA included
passenger manifest among ten DOT and FAA regulatory initiatives that,
if implemented, would be the most onerous for the airline industry. ATA
recommended that if additional passenger manifest information was to be
required, it should be limited to the information that is required by
the U.S. Custom Service's APIS program. Northwest supported the ATA
proposals and said they were part of an industry-wide effort to
identify significant regulatory impediments. American Airlines listed
the passenger manifest rulemaking in its top five (out of over 100)
pending aviation rulemakings that should be eliminated/substantially
revised. Air Canada said that if air carriers were required to adopt
the APIS standard advocated by ATA, its costs (and those of other
foreign air carriers) would be unnecessarily raised. Japan Airlines
said that any requirement to collect personal data from air passengers
would conflict with the Constitution of Japan, would be costly, and, to
the extent that it was anticipated that such data would be shared with
the APIS program, should be the subject of prior public discussion.
In the FY 1993 DOT Appropriations Act, Congress provided that none
of the FY 1993 appropriation could be used for a passenger manifest
requirement that only applies to U.S.-flag carriers. This provision was
repeated in subsequent DOT Appropriations. For the current year,
section 319 of the DOT FY 1996 Appropriation Act states:
None of the funds provided in this Act shall be made available
for planning and executing a passenger manifest program by the
Department of Transportation that only applies to United States flag
carriers.
In light of the totality of comments and the fact that aviation
disasters occur so rarely, DOT continued to examine whether there was a
low-cost way to implement a passenger manifest requirement. In 1995,
DOT considered seeking legislative repeal or modification of the
statutory requirements. In the November 28, 1995, Unified Agenda of
Federal Regulations, the passenger manifest entry stated that DOT ``is
recommending legislation to repeal the requirement [of passenger
manifests] because of the high costs and small benefits that would
result.''
[[Page 47697]]
Cali Crash
On December 20, 1995, American Airlines Flight 965, which was
flying from Miami to Cali, Colombia, crashed near Cali. There were
significant delays in providing the State Department with a complete
passenger manifest. Even when it was provided, the manifest was of
limited utility to State because it lacked the passport numbers of the
passengers. (The State Department did successfully carry out its other
post-crash responsibilities.) Department of Transportation staff met
with American Airlines to explore the logistical, practical and legal
problems that they encountered in the aftermath of the crash, and ways
these problems could be ameliorated in the future. We also met with
high level representatives of the State Department to discuss State's
needs and concerns on this matter.
Public Meeting
On March 29, 1996, DOT held a public meeting on implementing a
passenger manifest requirement. The notice announcing the public
meeting (61 FR 10706, March 15, 1996) noted that a long period of time
had passed since the 1991 advance notice of proposed rulemaking, and
that a public meeting during which stakeholders could exchange views
and update knowledge on implementing such a requirement was necessary
as a prelude to DOT proposing a passenger manifest information
requirement. The notice enumerated ten questions concerning information
availability and current notification practices, privacy
considerations, similar information requirements, information
collection techniques, and costs of collecting passenger manifest
information.
The meeting was attended by approximately 80 people. To facilitate
discussion, representatives of three family survivor groups (The
American Association for Families of KAL 007 Victims, Families of Pan
Am 103/Lockerbie, and Justice for Pan Am 103), the Air Transport
Association, the Regional Air Transport Association, the National Air
Carrier Association, the International Air Transport Association, the
American Society of Travel Agents, U.S. Department of State, U.S.
Customs Service, and DOT formed a panel. Members of the audience, who
included representatives of foreign governments, were invited to
participate in the discussion and did. The discussion lasted nearly 5
hours and covered a wide variety of topics. At the end of the meeting,
it was the consensus that one or more working groups headed by the Air
Transport Association would be formed to further explore some of the
issues raised.
Memorandum of Understanding
ATA convened a first working group that consisted of
representatives of two family groups (Families of Pan Am 103/Lockerbie
and American Association for Families of KAL 007 Victims), the National
Air Disaster Alliance, the Department of State, and several U.S.
airlines, with IATA in attendance. DOT was not a participant in the
group. The working group is negotiating a voluntary Memorandum of
Understanding (MOU) to be signed by individual airlines and the
Department of State. The MOU is expected to set forth a series of
procedures to facilitate smooth communication and prompt and accurate
notification of family members, including designation of points of
contact, information sharing, exchange of liaison officers,
specification of duties of liaison officers, cross-training and prompt
transmittal of accurate and useful passenger manifest information.
ATA also plans to integrate data issues into the work of this first
working group by expanding it. (Alternatively, a second working group
on data issues could be convened.) The expanded group is expected to
include, in addition to the first working group participants,
additional industry representatives and, perhaps, others who have data
bases that might provide quick access to information that might help in
the notification process.
TWA Flight 800
On July 17, 1996, TWA Flight 800, which was flying from New York to
Paris, went down off Long Island, New York. Local government officials
publicly commented on difficulties in determining exactly who was on
board the flight and in compiling a complete, verified manifest. (TWA
caregivers were generally praised for their efforts in the crash
aftermath.) Although this was an international flight, the crash
occurred in U.S. territorial waters and, therefore, the Department of
State had no specific role in family notification and facilitation for
U.S. citizens. The Department of State received inquiries from foreign
governments regarding the fates of their citizens, however, and DOT
also received such inquiries. In general, the TWA Flight 800 accident
dramatized the problems related to prompt notification.
The Notice of Proposed Rulemaking
This notice proposes to require that each air carrier and foreign
air carrier collect basic information from specified passengers
traveling on flight segments to or from the United States (``covered
flights''). U.S. carriers would collect the information from all
passengers and foreign air carriers would only be required to collect
the information for U.S. citizens and lawful permanent residents of the
United States. The information would include the passenger's full name
and passport number and issuing country code, if a passport is required
for travel. Carriers would be required to deny boarding to passengers
who do not provide this information. In addition, airlines would be
required to solicit the name and telephone number of a person or entity
to be contacted in case of an aviation disaster. Airlines would be
required to make a record of passengers who decline to provide an
emergency contact. Passengers who decline to provide emergency contact
information would not, however, be denied boarding. In the event of an
aviation disaster, the information would be provided to DOT and the
Department of State to be used for notification. DOT proposes to allow
each airline to develop its own procedures for soliciting, collecting,
maintaining and transmitting the information. The notice requests
comment on whether passenger date of birth should be collected, either
as additional information or as a substitute for required information
(e.g. passport number).
Section-by-Section Analysis
The authority for the rule would primarily be based on P.L. 101-
604, which was codified as 49 USC 44909. In addition, the Department
has broad authority under Subtitle XII (Transportation) of Title 49 of
the U.S. Code (``Transportation Code'') for rulemaking, security,
information collection and assessment of civil and criminal penalties.
Section 243.1 of the proposed rule notes that the purpose of the
part is to ensure that the U.S. Department of Transportation and the
U.S. Department of State have prompt and adequate information in case
of an aviation disaster on specified international flights. In
addition, it notes that the regulation is mandated by 49 USC 44909.
The definition section, Sec. 243.3, incorporates a number of
statutory definitions for the reader's convenience and clarifies the
use of various important terms used in the substantive requirements of
the proposed rule. In response to a number of comments on this issue,
the definition of aviation disaster has been tightened to follow more
closely the statutory requirements. ``Aviation Disaster'' would be
defined as
[[Page 47698]]
1) an occurrence associated with the operation of an aircraft that
takes place between the time any passengers have boarded the aircraft
with the intention of flight and all such persons have disembarked or
have been removed from the aircraft, and in which any person suffers
death or serious injury or in which the aircraft receives substantial
damage, and in which the death, injury or damage was caused by a crash,
fire, collision, sabotage, or accident; 2) a missing aircraft; or 3) an
act of air piracy. We tentatively conclude the first part of this
definition is vital because it relates to an objective occurrence that
serves as the basis for determining the timing of the actions
subsequently required. We request comments on whether the carrier
should have the duty to present the manifest when ``any'' passenger has
boarded the plane, or only when ``all'' passengers have boarded. The
proposed definition would require that carriers have information on
each passenger by the time each boards the airplane, rather than
waiting until all passengers have boarded. Although ATA objected to
this timeframe, it takes into account the possibility of an emergency
in which all passengers might not have boarded the aircraft.
The term ``U.S. citizen'' includes U.S. nationals as defined in 8
USC 1101(a). ``Lawful permanent resident'' includes those defined in 8
USC 1101(a)(20). In simpler terms, U.S. citizen means a person holding
a U.S. passport and a lawful permanent resident is a holder of a so-
called ``Green Card.''
In order to clarify which flight segments are subject to the rule,
the NPRM includes a definition for ``covered flight.'' In the NPRM,
covered flight means a flight segment operating to or from the United
States. It does not include any flight segment in which both the origin
and destination point are in the United States, even though some
portion of the flight may be over territory not belonging to the United
States. The definition also excludes any flight in which both the
origin and destination point are outside of the United States. There
would be many practical difficulties in getting foreign travel agents
to collect this information in foreign countries. Some countries would
certainly object to such a proposal on the grounds of
extraterritoriality. We tentatively find that the costs and legal
questions raised would far outweigh by the marginal benefit and,
therefore, are not proposing to extend the rule to these flights. We
request comments, however, on whether these flights should be covered.
A number of commenters raised privacy concerns related to providing
an emergency contact. In order to encourage passengers to provide the
information, the NPRM proposes to allow the emergency contact to be
either a person or an entity. The contact need not have any particular
relationship to a passenger. We tentatively believe that this flexible
approach will meet the needs of the State Department with the least
possible intrusion into the private lives of passengers. Passengers
that are uncomfortable, for whatever reason, with providing the name of
a particular person can provide the name of an entity such as a
business or other organization that should be contacted.
The term ``passenger'' is defined to include any person on board a
covered flight with the exception of the flight crew assigned to that
flight. In the past, there has been some confusion concerning the
number and identity of certain categories of passengers, particularly
non-revenue passengers, standbys and infants. The flight crew is
excluded from the definition because the carrier knows their identity
and has ready access to emergency information. Airline personnel who
are on board but not working on that particular flight segment (e.g.
``deadheads'' and spare crews for onward flight segments) would be
considered passengers for the purpose of this rule in order to ensure
their accountability. Standby passengers, by definition, board at the
last minute, when there is pressure on the airline to move the flight
away from the gate. In the past, there have been problems with
identifying standby passengers. Similarly, many airlines have not kept
records of infants under two years old who are traveling for free on
the lap of a passenger. In the case of an aviation disaster, we believe
it is important to have a complete manifest, even if this requires a
change of current airline practice.
Section 243.5, Applicability, states that this part applies to
covered flights operated by air carriers and foreign air carriers.
Under the Transportation Code, ``air carrier'' includes any citizen of
the United States who undertakes, whether directly or indirectly or by
a lease or any other arrangement, to engage in air transportation. For
example, air carriers include air taxis, commuter carriers, and charter
operators. Similarly, ``foreign air carrier'' is defined in the statute
to include any person, not a citizen of the United States, who
undertakes, whether directly or indirectly or by lease or any other
arrangement, to engage in foreign air transportation. In some
instances, there may be two or more air carriers or foreign air
carriers involved (e.g., a charter operator, which is an indirect air
carrier, selling transportation on a flight actually flown by an
unaffiliated direct air carrier or a carrier operating under a code
share agreement in which the service is held out under the name of one
carrier but actually provided by another carrier). In each example, the
two entities would have the legal responsibility for meeting the
requirements of this part. As a practical matter, we would anticipate
that the involved carriers would agree, by contract, which one would
collect, maintain and transmit the data. So long as the information is
collected, we would not require duplication of effort. The parties to
the contract would have to be vigilant, however, because they would be
jointly and individually responsible for compliance. A likely scenario
is that carriers will delegate some of the responsibility for
soliciting and collecting the information to travel agents. The same
admonition concerning ultimate responsibility would apply in that case.
In the comments, there was vigorous disagreement as to whether
foreign air carriers should be covered by the regulation. The
Department proposes to include foreign air carrier flight segments to
or from the United States. The State Department's responsibilities in
case of an aviation disaster apply to all U.S. citizens regardless of
the nationality of the carrier on which the citizen flies. Indeed,
since approximately one-half of all U.S. citizens who travel outside
the U.S. choose foreign carriers, failure to include foreign airlines
would severely hamper the ability of the State Department to carry out
its duties under 49 USC 44909. The failure to include foreign air
carriers could lead to disparate treatment of U.S. citizen passengers.
Finally, the language in the DOT Appropriations Act precludes the
Department from adopting a rule applicable only to U.S. carriers.
In order to ameliorate potential costs and other burdens, the
Department is proposing to limit the impact of the proposed rule in
four important ways. First, foreign air carriers would only be required
to collect information on U.S. citizens and lawful permanent residents
of the United States. Foreign air carriers would, of course, be free to
solicit the information from all its passengers if it chose to do so
and was not prohibited by applicable foreign law. Second, the rule
would only apply to flight segments to or from the U.S. Third, as
discussed below, we are proposing that carriers need not comply with
the regulation in places where solicitation or collection of the
information would be contrary to applicable foreign law, and carriers
(or the foreign government) notify DOT of
[[Page 47699]]
that fact. Finally, in order to provide even greater flexibility, we
are proposing that DOT may waive compliance with certain requirements
of this part if a carrier has in effect a signed Memorandum of
Understanding with the State Department.
The heart of the proposal, Sec. 243.7, Information Collection
Requirements, has two data collection requirements. The first requires
U.S. air carriers to collect the full name and passport number and
issuing country code for each passenger. U.S. air carriers are being
required to collect information for each passenger because the statute
speaks in terms of passengers. The two letter passport issuing country
code is being required, as an additional element beyond the information
specified in the statute, because having it broadens and enhances the
usefulness of having passport number alone. In the instance of an
aviation disaster that occurs on a U.S. air carrier on a covered
flight, collecting passport issuing country, in addition to passport
number for non-U.S. citizens and lawful permanent residents, will allow
the Department of State to respond more rapidly than has been possible
in the past to inquiries from foreign governments regarding their
citizens. It will also allow the response to be targeted to the
specific government, a desirable alternative to providing several
foreign governments each with an entire passenger manifest. Finally,
collecting issuing country code would eliminate possible confusion in
the aftermath of an aviation disaster that could result from two
passengers having the same passport number. It would only require
foreign air carriers to collect the full name and passport number for
each passenger who is a U.S. citizen or lawful permanent resident of
the United States. As collection of a passport number/passport number
and issuing country code is not required if the passenger is not
required to present his or her passport for travel to or from the
foreign point involved, we request comment as to whether U.S. airlines
should be required to collect country of citizenship from all
passengers on flights when a passport is not required for travel. The
second part of the rule would require each air carrier and foreign air
carrier to solicit from each covered passenger the name and telephone
number of a person or entity that should be contacted in the event of
an aviation disaster.
We request comment on whether we should require solicitation of
date of birth, either as a voluntary or required data element, and
whether this data element could substitute for the passport number/
passport number and issuing country code. Passenger first and last name
and date of birth, taken together, constitute the minimal passenger
information needed for participation in the Advance Passenger
Information System (APIS) of the U.S. Custom Service, and U.S.
government commenters raised the possibility that, once modified to
accommodate passenger emergency contact information, APIS could itself
fulfill all requirements of 49 USC 44909. Having the date of birth
would allow U.S. Customs to expedite clearance of low risk passengers
entering the United States and would facilitate the operations of air
carriers, airports and other government agencies. We request comment
generally regarding how APIS information can best be used to satisfy,
within the bounds of the statute, the information requirements in this
proposed rule. For those destinations where passports are not required,
collecting the date of birth would aid identification. Finally, in the
event of an aviation disaster, knowing the ages of passengers could aid
local jurisdictions in their emergency responses.
The carrier's duty is to solicit the information concerning
emergency contacts, and maintain it, if it is provided, for 24 hours
after completion or cancellation of the flight. To be sure that every
passenger is accounted for, the NPRM proposes that each carrier shall
maintain a record for each passenger who declines to provide this
information. No specific format for the record is proposed in order to
give carriers' maximum flexibility.
Although the proposed rule does not specify that the information
must be verified by the carrier, we would anticipate using a
``reasonable person'' standard before bringing enforcement action for
information that is inaccurate. We would not envision having carriers
check that the emergency contact is an actual person or entity or that
the phone number is accurate. The passenger's name should, however,
match that on the passport, if the passenger is required to present a
passport for travel or the photo identification presented for security
for travel where a passport is not required. 49 USC 44909 requires the
Secretary of Transportation to consider whether the collection of this
information should be a condition for boarding a flight. Because this
information is necessary for the Department of State to carry out its
responsibilities in notifying the families of victims of aviation
disasters overseas, we propose that the collection of the name and
passport number/passport number and issuing country code, if required
for travel, for each covered passenger be mandatory for boarding the
flight.
Another important provision of the proposal concerns the procedures
for collecting and maintaining the information. In response to the
nearly unanimous comments on this point, the Department is proposing to
allow carriers to use any method or procedure to collect, store and
transmit the required information, subject to three conditions. First,
information on individual passengers shall be collected before each
passenger boards the airplane. Some carriers might enlist travel agents
in collecting the information, others might use airport check-in, while
others might have passengers complete a form prior to boarding. Other,
equally acceptable, methods are certainly possible. Proposing a
performance-oriented standard rather than mandating exactly how the
information should be solicited, collected, maintained, and transmitted
should allow for innovation, efficiency, convenience, and cost-
consciousness.
Second, the information shall be kept for at least 24 hours after
the completion or cancellation of the covered flight in case there is
some problem that is not immediately discoverable. A collateral benefit
of this approach is that the information would be available for many
connecting flights between two foreign points. We request comments,
however, on what, if any, time should we require this information to be
retained. Carriers would not be required to destroy the information
after 24 hours, but could purge their files in their normal course of
business. It is our understanding that, as a practical matter, most air
carriers would probably keep the information in their computers until
passengers completed their itineraries. Information would, therefore,
be accessible for some international flight segments between two
foreign points on multi-leg journeys to or from the United States. We
request comments if our understanding is incorrect.
Third, to the extent that the information is otherwise
confidential, the information shall be kept confidential and shall be
released only to the U.S. Department of State or U.S. Department of
Transportation in the event of an aviation disaster or pursuant to U.S.
Department of Transportation oversight of this part. The only exception
to this requirement is that the information may be provided for use in
the Advance Passenger Information System, and to other U.S. or foreign
governmental entities as may be authorized by the Department of
[[Page 47700]]
Transportation. We envision that airline employees who have access to
passenger records would have access to this information, and that no
special handling would be required. Carriers currently have access to
potentially sensitive information, such as credit card numbers, special
medical needs, and religious dietary restrictions. If the information
is collected and maintained in the professional manner we have
experienced from airlines in the past, we do not anticipate serious
concerns regarding invasion of passenger privacy. We would, however,
deal strictly with unauthorized release of this information to any
third party, including the press.
The airline involved would be required to inform the U.S.
Departments of Transportation and State as soon as it learned of an
aviation disaster. Pursuant to the statutory mandate, the regulation
proposes that carriers shall transmit a complete and accurate
compilation of information to DOT and the Department of State within 1
hour. If it is not technologically feasible or reasonable to fulfill
the 1-hour requirement, then the information must be transmitted as
expeditiously as possible, but not later than 3 hours after the carrier
learns of the disaster. We are aware that some carriers believe that
this time frame is ambitious, if not impossible. The statute is very
clear on this point, however.
The NPRM would also require each air carrier to file with DOT a
statement summarizing how it will transmit and collect the passenger
manifest data. The purpose of the requirement is to provide important
information to the Departments of Transportation and State for planning
and response in case of an aviation disaster. The purpose is, as well,
to allow basic DOT oversight of the regulation. Given these purposes,
it is envisioned that the summary statements would include a complete
description of how the data will be transmitted, which we anticipate
could be accommodated in one typewritten page or less, and a very brief
description of how the data would be collected, which we anticipate
could be accommodated in most cases in one typewritten paragraph.
Carriers would be required to file their summary statements on or
before the date they begin collection of passenger manifest
information. The summary statements should also include a 24-hour
contact at the carrier to which a request from the Departments of State
or Transportation could be directed. Changes in how the information
would be transmitted and collected would also be required to be filed
on or before the date those changes were implemented. The
responsibility remains with the carrier to ensure that its procedures
meet the statutory and regulatory requirements.
The NPRM proposes that carriers not be required to solicit or
collect information in countries where such solicitation or collection
would violate applicable foreign law. Carriers that can support such a
claim are asked to inform the Department on or before the effective
date of this rule, or on or before beginning service to the United
States. The Department intends to maintain an up-to-date listing of
countries where adherence to all or a portion of this part would not be
required because of conflict with applicable foreign law. We are
hopeful that in the rare instances where this regulation may violate
applicable foreign law, the Department, the Department of State, and
carriers can work with the jurisdiction involved and agree to other
methods to achieve the same results. In some countries, it may be
illegal to require passengers to provide the information, but not
illegal to simply request it. In such instances, carriers might ask for
the information while making clear that it is up to the passenger
whether to provide it. We will work with foreign governments to address
any concerns.
Section 243.17 makes clear that the Department may exercise its
enforcement authority by requesting a carrier to produce a manifest for
a specified flight to ascertain the effectiveness of the carrier's
system. In addition, it may request further information about
collection, storage and transmission procedures at any time. If the
Department finds the carrier's system to be deficient, it may order
appropriate modifications. Section 243.19 notes that violations of the
provisions of this part are subject to civil and/or criminal penalties
for each violation as provided by 49 U.S.C. 46301, 46310 and 46316.
Section 243.21 provides that the Department may waive compliance
with certain requirements of this part if an air carrier or foreign air
carrier has in effect a signed Memorandum of Understanding with the
Department of State concerning cooperation and mutual assistance
following aviation disasters abroad. Carriers that have signed such a
Memorandum and that wish to take advantage of this shall submit two
copies of the signed Memorandum to the Assistant Secretary for Aviation
and International Affairs, U.S. Department of Transportation. The
carrier will be informed by the Assistant Secretary for Aviation and
International Affairs, or his or her designee, of the provisions of
this part, if any, that are waived by the Department based on the
Memorandum. Such determination will be made in writing to the carrier.
It is the Department's expectation that each carrier would still be
required to file a summary description of its collection and
transmission process and 24-hour contact number as required in
Sec. 243.13, and would be subject to the enforcement and penalty
provisions of Secs. 243.17 and 243.19.
Implementation Date
The Department proposes to make the final rule effective 90 days
after publication in the Federal Register. Carriers, particularly U.S.
airlines, have been on notice of the requirements in 49 U.S.C. 44909
since November 16, 1990. Because of the disproportionate burden that
this rule may place on small air carriers, we will consider delaying
the effective date for those carriers for a reasonable amount of time.
Economic Considerations
(Note: this section relies heavily on the Preliminary Regulatory
Evaluation that accompanies this NPRM; a copy of the Preliminary
Regulatory Evaluation is available in the Docket)
The Department is most interested in how it can fashion a final
rule so that U.S. and foreign carriers alike can achieve the most
effective transmission of information after an aviation disaster at
least cost. This proposal, if adopted as a final rule, would be
significant under E.O. 12866 and the Department of Transportation's
regulatory policies and procedures because of the public and
Congressional interest associated with the proposed rulemaking action.
The Department will make every effort to make the final rule as cost-
effective as possible, consistent with the clear-cut statutory
requirements (e.g., a phase-in period for small air carriers). The
proposed rule has been reviewed by the Office of Management and Budget.
As currently proposed, the total costs of implementing 49 U.S.C.
44909 are potentially large. Based on ANPRM comments (especially those
of British Airways, which provided the most detailed cost information
regarding implementing a passenger manifest requirement along the lines
of the statute), reasonable assumptions about the economics of
implementing a passenger manifest information requirement, and other
generally available information, the Department estimates that the
annual recurring costs of the proposed rule (which would be borne by
air carriers, travel agents, and covered passengers, who forego time
while being asked for and providing the information) would range
between about $27.6 and $44.8 million per year.
[[Page 47701]]
These costs would break out as follows: air carriers $6.2 million (U.S.
air carriers $4.4 million and foreign air carriers $1.8 million);
travel agents $4.3 million; and covered passengers $17.2 million to
$34.3 million. The one-time cost of the proposed rule (which would be
borne by air carriers) is estimated to be about $30.5 million and
includes the costs of modifying air carriers' departure control
systems, computer reservations systems, and interfaces with other
computer reservation systems to accommodate passenger manifest
information. The present value of the total costs of the proposed rule
over ten years is estimated to range between about $208.9 and $319.6
million.
There are two direct notification benefits of the proposed rule: 1)
More prompt and accurate initial notification to the families of U.S.-
citizen victims of an aviation disaster that occurs on a flight to or
from the United States (on a U.S. or foreign air carrier) and outside
the United States, and 2) more prompt and accurate initial notification
of the host governments of foreign-citizen passenger victims of an
aviation disaster that occurs on a flight to or from the United States
(on a U.S. air carrier) either outside or within the territory of the
United States. The Department estimates that were the proposed rule in
effect over ten years a total of 595 families and host governments
would have received such direct notification benefits. That is, the
Department estimates that over ten years there have been a total of 595
victims of aviation disasters in the two circumstances described above.
Compared to the present value of the total costs of the proposed rule
over ten years, the cost of the more prompt and accurate initial
notification to these direct beneficiaries, on a per victim basis,
ranges between about $350,000 and $540,000.
No accounting is made in the calculations above for more prompt and
accurate initial notification of families of U.S.-citizen victims of
aviation disasters that occur on flights to and from the United States,
and for which the disaster occurs within the United States (e.g., TWA
flight 800). None was made because the Department of State has no
responsibilities regarding the notification of families of U.S.-citizen
victims of an aviation disaster that occurs within the United States,
even if the flight involved is an international flight. And, the
primary focus of the statute is to provide information to the
Department of State. However, since, under the proposed rule, passenger
manifest information would have to be collected for all flights to and
from the United States for transmission to the Department of State in
the event of an aviation disaster that occurred outside of the United
States, it is quite possible that having it on-hand would also lead to
more prompt and accurate initial notification of the families of U.S.-
citizen victims of an aviation disaster on such a flight that occurs
within the territory of the United States. Such families are considered
to receive indirect notification benefits from the proposed rule. If
such families are accounted for, in addition to the families and host
governments counted above, then, were the rule in effect for a ten-year
period, the Department estimates that more prompt and accurate
notification of the families and host governments of 877 victims of
aviation disasters would have taken place. The cost of the more prompt
and accurate initial notification to these direct and indirect
beneficiaries, on a per victim basis, now ranges between about $238,000
and $364,500.
A different perspective on the cost of the proposed rule can be
gained from assuming that all recurring annual costs of the proposed
rule are paid by the passengers that provide passenger manifest
information. Employing this line of reasoning (this is an ``as if''
analysis since the Preliminary Regulatory Evaluation that accompanies
the NPRM in the docket does not calculate who will be able, or not
able, to pass along the costs of imposing a passenger manifest
information requirement), were the proposed rule in effect in 1994 when
about 71.5 million passenger (one-way) trips to and from the United
States would have been covered, the estimated cost per passenger per
one-way trip would have ranged between about $0.39 and $0.63. The
estimated cost per passenger per round-trip would have been double
these amounts, and would have ranged between about $0.77 and $1.25.
(Numbers may not add exactly due to rounding.)
To summarize the above, direct and indirect benefits of the
proposed rule accrue regarding more prompt and accurate initial
notification of the families of U.S.-citizen victims of an aviation
disaster on a flight to and from the United States that occurs outside
the United States (direct) and within the territory of the United
States (indirect). Direct notification benefits also accrue to the host
governments of foreign citizens of aviation disasters that occur
anywhere (outside or within the territory of the United States) on U.S.
air carriers, since the Department of State is able to respond to the
inquiries of these governments more quickly.
An idea of the magnitude of the reduction in initial notification
time of families of U.S.-citizen victims of aviation disasters that
occur outside the United States that might occur under the proposed
rule may be gained from examining the notification experience in the
Pan Am Flight 103 aviation disaster. There, according to the Report of
the President's Commission on Aviation Security and Terrorism, some
families of victims were notified by Pan American within about nine
hours or less after the disaster was learned of, and all families were
notified by Pan American within about 43 hours or less after the
disaster was learned of. Compliance with the proposed rule in the case
of Pan Am Flight 103 should have reduced notification times (to the
extent that passengers chose to provide emergency contact information)
by a maximum of about six to eight hours for the first group of
families of victims, and by a maximum of about 40 to 42 hours for the
remainder of the families of victims.
A third direct benefit of the proposed rule lies outside the realm
of notification benefits and was not mentioned above. This third direct
benefit of the proposed rule is an expected general increase in the
disaster response capability of the Department of State following an
aviation disaster. According to the Report of the President's
Commission on Aviation Security and Terrorism:
Failure to secure the [passenger] manifest quickly had a
negative ripple effect on the State Department's image in subsequent
activities. Thereafter, the Department appeared to lack control over
who should notify next of kin, an accurate list of next of kin, and
communications with the families. (p. 101)
Some idea of how much more quickly the Department of State might,
under the proposed rule, receive passenger manifest information
following an aviation disaster may be gained from examining the Pan Am
Flight 103 aviation disaster experience. There, the Department of State
was given by Pan American an initial passenger manifest, consisting of
surnames and first initials, about 7 hours after the disaster was
learned of. A passenger manifest containing more complete passenger
information together with contact information was provided to the
Department of State about 43 hours after the disaster was learned of,
and, at that time, Pan American also notified the Department of State
that all families of victims had been notified. The results of
compliance with the proposed rule in the case of Pan Am Flight 103
should have resulted in the provision of a
[[Page 47702]]
passenger manifest together with emergency contact information (to the
extent that passengers chose to provide emergency contact information)
to the Department of State in one to three hours after the disaster was
learned of.
The Department seeks, within present authority, to achieve more
prompt provision of manifest information and initial notification of
families of victims in the most cost effective way that is possible.
How to achieve this result is open to a good deal of uncertainty and
potential controversy. In order to reduce the potential costs of the
proposed rule, the Department could reduce passenger manifest
requirements to the absolute minimums required by 49 USC 44909. The
Department could, for example, not cover foreign carriers. However,
elimination of the coverage of foreign carriers from the proposed rule
would mean that about one half (40 percent) of all U.S. citizens
traveling between the United States and foreign countries would be
exempt from providing the passenger manifest information that is
required by 49 USC 44909. Omission of this large a portion of U.S.
citizens traveling between the United States and foreign countries
would severely limit the ability of the Department of State to comply
with the notification responsibilities that it is assigned by P.L. 101-
604.
In requesting comment on requiring carriers to collect passenger
date of birth (DOB) as an element of passenger manifest information,
either in addition to those required by 49 USC 44909, or as a
substitute for passport number/passport number and issuing country
code, the Department is exploring what are the best types of
information that are available to be collected in order to insure more
prompt and accurate initial notification. Collecting DOB may encourage
wider participation in the U.S. Customs Service's Advance Passenger
Information System (APIS), which has offsetting benefits to air
carriers and passengers in the form of better passenger facilitation.
Moreover, as is explained more fully in the Preliminary Regulatory
Evaluation, the incremental burden of a rule based on the statutorily-
required information could be reduced by as much as 50 percent for any
APIS-covered flight, since the information requirements of APIS and the
proposed rule overlap. Since DOB is recorded for more APIS-covered
passengers than is passport number, and DOB is known by passengers,
whereas passengers do not usually know their passport number,
collecting DOB may be, as well, less burdensome overall than collecting
passport number/passport number and issuing country code. This may even
be the case if DOB is collected for all locations, whereas passport
number/passport number and issuing country code is only envisioned to
be collected for countries that require a passport for travel to them.
As is mentioned in the proposed rule, the Department seeks to the
extent possible within statutory constraints to not unduly burden
smaller air carriers. Our decision to allow all air carriers to choose
the method of meeting the requirements of the proposed rule should
benefit small air carriers who may wish to use low-technology methods,
such as the approach suggested in ANPRM comments by the group,
``Victims of Pan Am Flight 103,'' which proposed that boarding passes
be redesigned to have a detachable stub that could be filled out by
passengers and dropped in a box just before boarding a flight. In these
comments, it was argued that such a method would require little work
for the airlines and, among other things, would allow an air carrier to
deliver a correct manifest to the State Department quickly by using a
scanner on the stubs.
Moreover, as was stated above, the Department will consider
delaying the effective date of the proposed rule for small air carriers
for a reasonable amount of time.
The actual costs of a passenger manifest requirement will depend on
a number of critical implementation and cost assumptions. With regard
to carrier participation in the APIS program, for example, it is a goal
of the U.S. Customs Service to have APIS cover 55 percent of all U.S.-
arriving passengers by the end of FY 1996, and we assume that for these
passengers the incremental costs of the manifest requirement could be
relatively low. As is mentioned in the Preliminary Regulatory
Evaluation, two U.S. air carriers have gone to the collection of APIS
information for outbound passengers (``Outbound API''). The information
is collected for the outbound passenger and then stored for input into
the APIS system when the passenger returns to the United States. These
carriers should have available for many passengers' round trips,
information that duplicates some of the information that is required in
the proposed rule. More air carriers may collect Outbound API once DOT
implements a passenger manifest requirement. Nevertheless, subject to
how air carriers participating in the APIS program choose generally to
implement the overlapping passenger manifest requirement, participation
in the APIS program may not influence the incremental costs of a
passenger manifest requirement on U.S. departing passengers. Thus, even
if a carrier participates in APIS, passenger manifest information
requirements applied to its outbound flights may still create
potentially high incremental costs.
The Department is also somewhat uncertain as to the final choice of
technique that carriers will choose in fulfilling their statutory
obligation to collect passenger manifest information. The choice could
affect our calculation of the actual economic impact of a passenger
manifest requirement. Smaller carriers could have more flexibility in
their choice of technique. As is explained in the Preliminary
Regulatory Evaluation, air carriers that use smaller aircraft, and
whose smaller passenger loads would be less likely to cause congestion
at the airport, would seem to be most able to take advantage of lower
technology or manual methods of collecting passenger manifest
information that might take place at the airport. Doing so could result
in small costs to the carriers and virtually no time forgone on the
part of the passengers from whom the information was collected, if the
collection was structured to occupy already available time. One such
method was mentioned above and would require passengers to submit
passenger manifest information on a portion of the boarding pass that
is collected by air carriers prior to boarding. However, we believe
that only a small portion of U.S.-citizen trips between the United
States and foreign countries take place on air carriers using smaller
aircraft. And, moreover, most ANPRM commenters indicated that passenger
manifest information would be collected using Computer Reservation
Systems (CRSs). Nonetheless, if further comment suggests that a
substantial number of carriers would use low technology methods of
collecting passenger manifest information, some downward adjustment of
the cost estimates of proposed rule could be warranted.
Finally, the Department is concerned about the reasonableness of
some of the analytical underpinnings of the comments that were
submitted in response to the ANPRM and the President's Regulatory
Moratorium and Review. In developing estimates of the cost of the
proposed rule, the Department has relied upon these comments generally
but has made adjustments to them. While the passenger manifest
information collection time estimates that appear in comments seem to
be plausible, the Department is very concerned about the accuracy of
the (implied) cost estimates for air carrier reservation and check-in
[[Page 47703]]
personnel compensation. As is gone into in detail in the Preliminary
Regulatory Evaluation, wages imputed from the cost estimates submitted
in response to the ANPRM work out to be far higher than would have been
expected. In the most extreme case, they work out to be about $44.00
per hour or $91,500.00 per annum. Such wage rates are difficult to
reconcile and have been adjusted downward in the DOT estimates of the
cost of the proposed rule. In place of them the Department has used a
yearly total compensation (salary plus fringe benefits) figure based on
a Bureau of Labor Statistics (BLS) proxy occupational category. This
figure, in 1994 dollars, is about $30,500.00.
However, as was shown at the beginning of this section, even using
the BLS total compensation figures, Departmental estimates of the cost
of the proposed rule continue to indicate a large cost of implementing
the passenger manifest information requirement in 49 USC 44909.
Moreover, the Departmental estimates are based on the 40 second
estimate given in the ANPRM comments of British Airways for the
additional time it would take to solicit and collect, at the time of
airport check-in, the passenger manifest information specified in the
statute. It was also assumed in the Departmental estimates that it
would take this same amount of time to solicit and collect passenger
manifest information at the time of reservation.
Adding seconds to or subtracting seconds from the 40 second
estimate has substantial implications for the estimates of the cost of
the proposed rule. For example, a one-second increase in the amount of
time that it is expected to take to solicit/collect all passenger
manifest information increases the estimated overall annual recurring
costs of the proposed rule by between about $691,000 to $1.1 million,
broken down by: U.S. air carriers $109,900; foreign air carriers
$44,900; travel agents $107,200; and passengers time forgone between
about $429,000 and $858,000. A sensitivity analysis of the economic
model that is used to estimate the costs of the proposed rule using
values of 40, 45, 50, 55, and 60 seconds (that is, the case presented
at the beginning of this section and then adding 5, 10, 15, and 20
additional seconds) as the amount of overall additional time that it is
assumed to take to solicit and collect passenger manifest information
yields the following results:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of seconds to solicit and collect passenger manifest information
Type of cost --------------------------------------------------------------------------------------------------------------------
40 sec. 45 sec. 50 sec. 55 sec. 60 sec.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual Recurring (low)............. $27.6 mil............. $31.1 mil............. $34.6 mil............ $38.0 mil............ $41.5 mil.
Annual Recurring (high)............ $44.8 mil............. $50.4 mil............. $56.0 mil............ $61.6 mil............ $67.2 mil.
--U.S. Carriers.................... $4.4 mil.............. $4.9 mil.............. $5.5 mil............. $6.0 mil............. $6.6 mil.
--Foreign Carriers................. $1.8 mil.............. $2.0 mil.............. $2.2 mil............. $2.5 mil............. $2.7 mil.
--Travel Agents.................... $4.3 mil.............. $4.8 mil.............. $5.4 mil............. $5.9 mil............. $6.4 mil.
--Passeng. time (low).............. $17.2 mil............. $19.3 mil............. $21.5 mil............ $23.6 mil............ $25.7 mil.
--Passeng. time (high)............. $34.3 mil............. $38.6 mil............. $42.9 mil............ $47.2 mil............ $51.5 mil.
Per enhanced notification (low).... $238,200.............. $263,600.............. $289,000............. $314,500............. $339,900.
Per enhanced notification (high)... $364,400.............. $405,700.............. $446,900............. $488,100............. $529,300.
Per one-way trip (low)............. $0.39................. $0.43................. $0.48................ $0.53................ $0.58.
Per one-way trip (high)............ $0.63................. $0.71................. $0.78................ $0.86................ $0.94.
--------------------------------------------------------------------------------------------------------------------------------------------------------
The Department seeks to derive final estimates of the cost of the
proposed rule that are as accurate as possible. Toward this end, the
Department invites general comments on any and all aspects of the
methods used to estimate the costs of the proposed rule that are
contained in the Preliminary Regulatory Evaluation. In addition, the
Department invites comments on the following six questions:
1. On average, what is the dollar amount for hourly total
compensation for air carrier reservations personnel, who would be
collecting passenger manifest information? What portion of the total
compensation figure is for salary and for fringe benefits?
2. On average, what is the dollar amount for hourly total
compensation for air carrier check-in personnel, who would be
collecting passenger manifest information? What portion of the total
compensation figure is for salary and for fringe benefits?
3. On average, what is the dollar amount for hourly total
compensation for travel agents, who would be collecting passenger
manifest information? What portion of the total compensation figure is
for salary and for fringe benefits?
4. What percentage of reservations for a flight are subsequently
canceled and then the same seat is resold to someone who actually
boards the flight? That is, on average, for every 100 persons that
eventually board an aircraft, from the time that the flight was
available to be booked how many persons have made reservations?
5. Comments received by the Department in response to the ANPRM and
otherwise have indicated that, were a passenger manifest information
requirement to be implemented, at many airports it would not be
possible for air carriers to expand counter space and employ more
check-in personnel in order to maintain existing check-in times. All
other things being equal, if this is the case, and other methods can
not be found for collecting additional passenger manifest information
more quickly at check-in or beforehand, congestion could result at
airports. Such congestion could cause an individual passenger to suffer
delays as he or she waits for other passengers to provide information,
in addition to the amount of time it takes for the individual passenger
to provide information. The comments received, however, offered no
guidance on how to quantify these congestion costs. The Department
solicits comment on how, were they to occur, such congestion costs
could be integrated into the economic model in the Preliminary
Regulatory Evaluation that underlies the Departmental estimates of the
costs of the proposed rule. How could sensitivity analyses be performed
on the congestion aspects of the resulting model?
6. The Department requests comments on the amount of fixed, one-
time costs associated with the rule. From ANPRM comments, these costs
would include primarily the cost of programmers' time (salaries and
benefits). We ask that commenters provide information in as much detail
as possible on the one-time costs associated with the proposed rule, as
well as all supporting explanations of the source and derivation of the
data. We specifically invite comments regarding the possible use of
computer
[[Page 47704]]
reservations systems or other current data systems to meet the goals of
the proposed rule and the estimated cost of changes to these systems.
Regulatory Flexibility Act
The Regulatory Flexibility Act was enacted by the United States
Congress to ensure that small businesses are not disproportionately
burdened by rules and regulations promulgated by the Government. At the
same time, 49 USC 44909 mandates that ``the Secretary of Transportation
shall require all United States air carriers to provide a passenger
manifest for any flight to appropriate representatives of the United
States Department of State.'' In its efforts both to comply with 49 USC
44909 and not to disproportionately burden the smaller air carriers and
travel agents, the Department proposes to allow the carriers to develop
their own passenger manifest data collection systems. Smaller air
carriers will be free to adopt a system that minimizes the burden on
them, so long as that system is capable of meeting the requirements set
out in the statute. If adopted, the rule would affect air taxi
operators, commuter carriers, charter operators, and possibly travel
agents. Some of these entities may be ``small entities'' within the
meaning of the Regulatory Flexibility Act. Although the rule might
affect a substantial number of small entities if it is adopted as
proposed, we do not believe that there would be a significant economic
impact because of the flexibility provided by the proposal. We
specifically request comments on whether there are significant economic
impacts on small entities that we have not identified or that we should
consider differently. In addition, we request comments on whether this
rule would have any disproportionate impact on travel agents. Based on
the information available at this time, I certify that this rule would
not, if adopted as proposed, have a significant economic impact on a
substantial number of small entities.
International Trade Impact Statement
This regulation would apply to all air carriers and foreign air
carriers that choose to serve the United States. The rule should not
affect either a U.S. air carrier's ability to compete in international
markets or a foreign air carrier's efforts to compete in the United
States. Neither should the overall level of travel to and from the
United States be affected.
Paperwork Reduction Act
This NPRM contains information collections that are subject to
review by OMB under the Paperwork Reduction Act of 1995 (P.L 104-13).
The title, description, and respondent description of the information
collections are show below and an estimate of the annual recordkeeping
and periodic reporting burden. Included in the estimate is the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Title: Passenger Manifest Information.
Need for Information: The information is required by 49 USC 44909
for use by the State Department;
Proposed Use of Information: The State Department would use the
information to inform passenger-designated emergency contacts about
aviation disasters and to answer inquiries from foreign governments
regarding aviation disasters. The information may be input into the
U.S. Customs Service's Advance Passenger Information System (APIS)
where it would be used to facilitate the processing of low-risk
passengers, identify high-risk passengers, and facilitate the
operations of air carriers, airports, and other government agencies.
Frequency: The manifests would be collected and maintained for each
covered flight;
Burden Estimate: Between $27.6 and 44.8 million per annum for air
carriers, foreign air carriers, travel agents, and passengers;
Respondents: About 71.5 million passengers per year at a rate of
between one or two collections per passenger; at least 1,074 U.S. air
carriers, and 493 foreign air carriers. We are unable to quantify the
number of travel agents that will be affected by this rule at this
time;
Form(s): No particular format or form would be required;
Average burden hours per respondent; An average of about 36 seconds
per collection.
Individuals and organizations may submit comments on the
information collection requirements by [insert date 60 days after
publication in the Federal Register] and should direct them to the
docket for this proceeding and the Office of Management and Budget, New
Executive Office Building, Room 10202, Washington, DC 20503, Attention:
Desk Officer for DOT/OST. Persons are not required to respond to a
collection of information unless it displays a currently valid OMB
control number.
Federalism Implications
The regulation proposed herein has no direct impact on the
individual states, on the balance of power in their respective
governments, or on the burden of responsibilities assigned them by the
national government. In accordance with Executive Order 12612,
preparation of a Federalism Assessment is, therefore, not required.
List of Subjects in 14 CFR Part 243
Air carriers, Aircraft, Air taxis, Air transportation, Charter
flights, Foreign air carriers, Foreign relations, Reporting and
recordkeeping requirements, Security.
Accordingly, the Department proposes to add a new part 243, in
chapter II of title 14 of the Code of Federal Regulations that would
read as follows:
PART 243--PASSENGER MANIFEST INFORMATION
Secs.
243.1 Purpose.
243.3 Definitions.
243.5 Applicability.
243.7 Information collection requirements.
243.9 Procedures for collecting and maintaining the information.
243.11 Transmission of information after an aviation disaster.
243.13 Filing requirements.
243.15 Conflicts with foreign law.
243.17 Enforcement.
243.19 Civil and criminal penalties.
243.21 Waivers.
Authority: 49 U.S.C. 40101, 40105, 40113, 40114, 41708, 41709,
41711 , 41501, 41702, 41712, 44909, 46301, 46310, 46316.
Sec. 243.1 Purpose.
The purpose of this part is to ensure that the U.S. Department of
Transportation and the U.S. Department of State have prompt and
adequate information in case of an aviation disaster on specified
international flights. This part is mandated by 49 U.S.C. 44909.
Sec. 243.3 Definitions.
Air piracy means any seizure or exercise of control, by force or
violence or threat of force or violence, or by any other form of
intimidation, and with wrongful intent, of an aircraft.
Aviation disaster means:
(1) An occurrence associated with the operation of an aircraft that
takes place between the time any passengers have boarded the aircraft
with the intention of flight and the time all such persons have
disembarked or have been removed from the aircraft, and in which any
person suffers death or serious injury or in which the aircraft
receives substantial damage, and in which the death, injury or damage
was caused by a crash, fire, collision, sabotage or accident;
(2) A missing aircraft; or
(3) An act of air piracy.
[[Page 47705]]
Covered flight means a flight segment operating to or from the
United States (i.e., the flight segment where the last point of
departure or the first point of arrival is in the United States.) A
covered flight does not include a flight in which both the origin and
destination points are in the United States, nor does it include
segments between U.S. cities of flights originating or terminating in a
foreign country, even though some portion of the flight segment is over
territory not belonging to the United States.
Emergency contact means a person or entity that should be contacted
in case of an aviation disaster. The contact need not have any
particular relationship to a passenger.
Full name means given name, middle name or initial, if any, and
family name or surname.
Passenger means every person aboard a covered flight segment
regardless of whether he or she paid for the transportation, had a
reservation, or occupied a seat, except the crew operating the flight.
For the purposes of this part, passenger includes, but is not limited
to, a revenue and non-revenue passenger, a person holding a confirmed
reservation, a standby or walkup, a person rerouted from another flight
or airline, an infant held upon a person's lap and any other person not
occupying a seat. Airline personnel who are on board but not working on
that particular flight segment would be considered passengers for the
purpose of this part.
Passport Issuing Country Code means the standard two-letter
designation for the country that issued the passport.
United States means the States comprising the United States of
America, the District of Columbia, and the territories and possessions
of the United States, including the territorial sea and the overlying
airspace.
U.S. citizen includes United States nationals as defined in 8
U.S.C. 1101(a)(22) and lawful permanent residents of the United States.
U.S. lawful permanent resident includes those defined in 8 U.S.C.
1101(a)(20).
Sec. 243.5 Applicability.
This part applies to covered flights operated by air carriers and
foreign air carriers.
Sec. 243.7 Information collection requirements.
(a) For covered flights, each U.S. air carrier shall:
(1) collect the full name and passport number and issuing country
code for each passenger. Collection of a passport number and issuing
country code is not required if the passenger is not required to
present his or her passport for travel to the foreign point involved.
Passengers for whom this information is not obtained shall not be
boarded;
(2) solicit a name and telephone number of an emergency contact
from each passenger; and
(3) maintain a record of the information collected pursuant to this
section as well as a record of each passenger who declines to provide
an emergency contact.
(b) For covered flights, each foreign air carrier shall:
(1) collect the full name and passport number for each passenger
who is a U.S. citizen or a U.S. lawful permanent resident. Collection
of a passport number is not required if the passenger is not required
to present his or her passport for travel to the foreign point
involved. U.S.-citizen passengers or U.S. lawful permanent residents
for whom this information is not obtained shall not be boarded;
(2) solicit a name and telephone number of an emergency contact
from each passenger who is a U.S. citizen or a U.S. lawful permanent
resident; and
(3) maintain a record of the information collected pursuant to this
section as well as a record of each passenger who declines to provide
an emergency contact.
Sec. 243.9 Procedures for collecting and maintaining the information.
Air carriers and foreign air carriers may use any method or
procedure to collect, store and transmit the required information,
subject to the following conditions:
(a) Information on individual passengers shall be collected before
each passenger boards the aircraft on a covered flight segment.
(b) The information shall be kept for at least 24 hours after the
completion or cancellation of the covered flight.
(c) To the extent that such information would otherwise be
confidential, the information shall be kept confidential and shall be
released only to the U.S. Department of State or U.S. Department of
Transportation in the event of an aviation disaster or pursuant to U.S.
Department of Transportation oversight of this part. The only exception
to this requirement is that the information may be provided for use in
the Advance Passenger Information System, and to other U.S. or foreign
governmental entities as may be authorized by the Department of
Transportation.
Sec. 243.11 Transmission of information after an aviation disaster.
(a) Each air carrier and foreign air carrier shall inform the
Director, Office of Intelligence and Security, U.S. Department of
Transportation, and the Director of American Citizen Services, Bureau
of Consular Affairs, U.S. Department of State immediately upon learning
of an aviation disaster involving a covered flight segment operated by
that carrier.
(b) Each air carrier and foreign air carrier shall transmit a
complete and accurate compilation of the information collected pursuant
Sec. 243.7 of this part to the U.S. Department of Transportation and
the U.S. Department of State within 1 hour after the carrier learns of
the disaster. If it is not technologically feasible or reasonable to
fulfill the 1-hour requirement, then the information shall be
transmitted as expeditiously as possible, but not later than 3 hours
after the carrier learns of the disaster.
Sec. 243.13 Filing requirements.
(a) Each air carrier and foreign air carrier that operates one or
more covered flights shall file with the U.S. Department of
Transportation a statement summarizing how it will transmit and collect
the passenger manifest information required by this part on or before
the date it begins collection. This description shall include a 24-hour
contact at the carrier who can be consulted concerning information to
be provided to the U.S. Department of State or U.S. Department of
Transportation and shall include sufficient detail to permit these
Departments to develop appropriate methods of receiving the
information.
(b) Each air carrier and foreign air carrier shall notify the DOT
of any contact change and shall file a description of any significant
change in its means of transmitting or collecting manifest information
on or before the date the change is made.
(c) All filings under this section should be submitted to the
Office of Intelligence and Security (S-60), Office of the Secretary,
U.S. Department of Transportation, 400 Seventh Street, SW., Washington,
DC 20590.
Sec. 243.15 Conflict with foreign laws.
(a) Air carriers and foreign air carriers are not required to
solicit or collect information under this part in countries where such
solicitation or collection would violate applicable foreign law, but
only to the extent that such solicitation or collection would violate
applicable foreign law.
(b) Air carriers and foreign air carriers that claim that such a
solicitation or
[[Page 47706]]
collection would violate applicable foreign law in certain foreign
countries shall inform the Office of Intelligence and Security (S-60),
U.S. Department of Transportation, 400 Seventh Street, SW., Washington,
DC 20590 of that claim on or before the effective date of this rule, or
on or before beginning service between that country and United States.
Such notification shall include copies of the pertinent foreign law as
well as a certified translation. Notifications will also be accepted
directly from foreign governments.
(c) The U.S. Department of Transportation shall maintain an up-to-
date listing of countries where adherence to all or a portion of this
part is not required because of a conflict with applicable foreign law.
Sec. 243.17 Enforcement.
The U.S. Department of Transportation may at any time require an
air carrier or foreign air carrier to produce a passenger manifest for
a specified flight segment to ascertain the effectiveness of the
carrier's system. In addition, it may require from any air carrier or
foreign air carrier further information about collection, storage and
transmission procedures at any time. If the Department finds an air
carrier's or foreign air carrier's system to be deficient, it will
require appropriate modifications, which must be implemented within a
specified period. In addition, the offending air carrier or foreign air
carrier may be subject to enforcement action.
Sec. 243.19 Civil and criminal penalties.
Each air carrier or foreign air carrier that violates the
provisions of this part is subject to civil and/or criminal penalties
for each violation as provided by 49 U.S.C. 46301, 46310 and 46316.
Sec. 243.21 Waivers.
The Department may waive compliance with certain requirements of
this part if an air carrier or foreign air carrier has in effect a
signed Memorandum of Understanding with the Department of State
concerning cooperation and mutual assistance following aviation
disasters abroad. Carriers that have signed such a Memorandum and that
wish to take advantage of this shall submit two copies of the signed
Memorandum to the Assistant Secretary for Aviation and International
Affairs, U.S. Department of Transportation. The carrier will be
informed by the Assistant Secretary for Aviation and International
Affairs, or his or her designee, of the provisions of this part, if
any, that are waived by the Department based on the Memorandum. Such
determination will be confirmed in writing to the carrier.
Issued in Washington, DC, on September 4, 1996.
Federico Pena,
Secretary.
[FR Doc. 96-23072 Filed 9-9-96; 8:45 am]
BILLING CODE 4910-62-P