[Federal Register Volume 68, Number 2 (Friday, January 3, 2003)]
[Proposed Rules]
[Pages 292-302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-33145]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 68, No. 2 / Friday, January 3, 2003 / 
Proposed Rules  

[[Page 292]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 217, 231 and 251

[INS No. 2182-01]
RIN 1115-AG57


Manifest Requirements Under Section 231 of the Act

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to implement section 402 of the Enhanced 
Border Security and Visa Entry Reform Act of 2002 (Pub. L. 107-173), 
which requires the submission of arrival and departure manifests 
electronically in advance of an aircraft or vessel's arrival in or 
departure from the United States. This rule also proposes to require 
manifest data on certain passengers and voyages previously exempt from 
this requirement. This rule is necessary to provide the U.S. 
Immigration and Naturalization Service (Service) with advance 
notification of information necessary for the identification of 
passengers, crewmembers and any other occupant transported. This 
information will assist in the efficient inspection of passengers and 
crewmembers, and is necessary for the effective enforcement of the 
immigration laws.

DATES: Written comments must be submitted on or before February 3, 
2003.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division, Immigration and Naturalization Service, 
425 I Street NW., Room 4034, Washington, DC 20536. To ensure proper 
handling, please reference INS No. 2182-01 on your correspondence. 
Comments may be submitted electronically to the Service at 
[email protected]. Comments submitted electronically must include INS 
No. 2182-01 in the subject heading so that the comments can be 
electronically transmitted to the appropriate program office for 
review. Comments are available for public inspection at the above 
address by calling (202) 514-3291 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Michael J. Flemmi, Assistant Chief 
Inspector, Office of Inspections, Immigration and Naturalization 
Service, 425 I Street NW., Room 5237, Washington, DC 20536, telephone 
number (202) 305-9247.

SUPPLEMENTARY INFORMATION:

What Manifest Requirements Are Imposed By Section 231 of the 
Immigration and Nationality Act (Act)?

    On November 28, 2001, Congress passed section 115 of the Department 
of Justice Appropriations Act of 2002 (Title I of Pub. L. 107-77), 
which authorized the Attorney General to impose by regulation 
requirements for submitting electronic arrival and departure lists or 
manifests by any public or private carrier transporting persons to and 
from the United States. Prior to the passage of section 115 of Public 
Law 107-77, section 231 of the Act did not explicitly address the 
electronic submission of such information. On May 14, 2002, section 115 
of Public Law 107-77 was superseded when Congress enacted section 402 
of the Enhanced Border Security and Visa Entry Reform Act of 2002 (Pub. 
L. 107-173).
    Section 402 of Public law 107-173 amended section 231 of the Act by 
requiring that commercial carriers transporting passengers to or from 
the United States deliver arrival and departure manifest information 
electronically to the Service, beginning no later than January 1, 2003. 
The carrier must submit an arrival manifest prior to the commercial 
vessel or aircraft's arrival at a port-of-entry in the United States. 
In addition, with certain exceptions, carriers must provide departure 
manifest information before the departure of a commercial vessel or 
aircraft from the United States.
    Section 231(c) of the Act, as amended by section 402, provides 
specific elements that must be included in arrival and departure 
manifests. Section 402 also eliminated prior statutory exemptions from 
the manifest requirements of section 231 of the Act previously 
applicable to alien crewmembers and persons arriving from or departing 
to foreign contiguous territory by air.
    Finally, section 402 raised the penalty for failure to comply with 
manifest requirements to $1,000 per violation. Under section 231(f) of 
the Act, as amended, the Service may impose a fine on a carrier for 
each person for whom an accurate and full manifest is not submitted.

How Are Arrival and Departure Manifests and Lists Currently Collected 
for Passengers?

    Arrival and departure manifests are currently submitted as follows: 
in the form of a separate Form I-94, Arrival-Departure Record, or as a 
Form I-94W, Nonimmigrant Visa Waiver Arrival-Departure Record, or as a 
Form I-94T, Arrival-Departure Record (Transit Without Visa) 
(collectively Form I-94) for each passenger not exempt from the 
manifest requirements. The Form I-94 is a perforated numbered card and 
is composed of an arrival portion collected by the Service at the time 
of arrival and a departure portion that is returned to the alien 
passenger. Upon departure, the reverse-side of the departure portion 
must be completed by the departure carrier at the time of the alien's 
departure and submitted to the Service at the port-of-departure. In 
accordance with 8 CFR 231.2, the outbound carrier currently has 48 
hours to submit the departure Form I-94 to the Service. The Service 
enters Form I-94 data into the Nonimmigrant Information System (NIIS), 
thus recording the alien's arrival and departure into and out of the 
United States.

Which Passengers Are Currently Exempt From the Passenger Manifest 
Requirements?

    Service regulations at 8 CFR part 231 currently provide that 
manifests in the form of a Form I-94 do not have to be submitted for 
the following passengers: United States citizens, lawful permanent 
resident aliens of the United States, immigrants to the United States, 
and certain in-transit passengers. Service regulations also exempt the 
manifest requirements for aircraft and vessels arriving in the United 
States directly from Canada, or departing to Canada. Vessels or 
aircraft arriving in the U.S. Virgin Islands directly from the British 
Virgin Islands, or departing the U.S. Virgin Islands directly to the

[[Page 293]]

British Virgin Islands, are similarly exempt from the manifest 
requirements.

What Are the Current Arrival and Departure Manifest Requirements for 
Crewmembers?

    Currently, crew arrival and departure manifest requirements are 
governed solely by section 251 of the Act and Service regulations at 8 
CFR part 251. Arrival and departure manifests for vessels may be 
submitted on Form I-418, Passenger List-Crew List, while aircraft may 
satisfy this requirement by submission of a United States Customs 
Service Form 7507 or on the International Civil Aviation Organization's 
General Declaration. Pursuant to section 251(d) of the Act, the Service 
may impose a fine of $220 (as adjusted for inflation) for each 
crewmember for whom an accurate and full manifest is not submitted

How Does the New Law Change the Requirements for Crewmembers?

    Prior to the enactment of section 115 of the Department of Justice 
Appropriations Act of 2002, and later, section 402 of the Enhanced 
Border Security and Visa Entry Reform Act of 2002, the scope of section 
231 of the Act was limited to alien and U.S. citizen passengers. 
Section 231 of the Act, as amended by section 402, no longer contains 
such restrictions. Section 402 authorizes the collection of information 
not only on passengers being transported to or from the United States 
on commercial aircraft or vessels but on crewmembers and other 
occupants transported on such conveyances. Accordingly, the Service is 
using its authority under section 231 of the Act, as amended, to 
require electronic arrival and departure manifest information on 
crewmembers of commercial aircraft or vessels that are transporting 
passengers to or from the United States.

Will Carriers Be Required To Submit Electronic Manifest Information for 
Other Classes of Individuals Who Are Not Currently Included in the 
Manifest Requirement?

    Yes. This rule proposes to require that electronically transmitted 
arrival and departure manifests be submitted for all passengers and 
crewmembers transported on commercial aircraft or vessels, including 
passengers who are United States citizens, Canadian citizens, lawful 
permanent resident aliens of the United States, immigrants to the 
United States, in-transit passengers, and persons on vessels or 
aircraft arriving in the United States directly from Canada or 
departing the United States directly to Canada as well as persons 
arriving in the U.S. Virgin Islands directly from the British Virgin 
Islands or departing the U.S. Virgin Islands directly to the British 
Virgin Islands.

What Is the Advance Passenger Information System (APIS)?

    The APIS is a system where commercial air carriers collect and 
submit biographical data from a passport, visa or other travel document 
at a foreign port and transmit this information electronically to the 
Service and the United States Customs Service (USCS) in advance of the 
commercial aircraft's arrival in the United States. The Service began 
implementing APIS in conjunction with the USCS in 1989 as an effort to 
meet airport inspection challenges which included increased passenger 
volumes, especially during peak hours and seasons, combined with 
staffing and facilities limitations.
    A Memorandum of Understanding (MOU) governs the administration of 
the APIS program and is a formal agreement between the three U.S. 
Federal Inspection Services (FIS) agencies (USCS, the Service, and the 
U.S. Department of Agriculture, Animal and Plant Health Inspection 
Service (USDA-APHIS)) and participating air carriers. The APIS MOU 
specifies national performance standards for all parties. Under this 
MOU, the airlines agreed to send advance passenger information to the 
Government agencies and in return, the FIS agencies agreed to expedite 
the processing of APIS flights. Pursuant to the MOU, as carriers 
provided additional and more accurate passenger information, the FIS 
agencies would improve their processing times.
    Currently, over 140 carriers are signatories to the APIS MOU, and 
two Governments (Australia and New Zealand) electronically transmit 
APIS data to the USCS Data Center in Newington, Virginia. Once this 
rule becomes effective, the need for this MOU will be superceded.
    Prior to the enactment of section 115 of the Aviation and 
Transportation Security Act, Public Law 107-71, 115 Stat. 597 (2001), 
the electronic transmission of such manifest data was voluntary.

What Data Elements Must Be Submitted by a Carrier?

    Section 231(c) of the Act, as amended, provides that the following 
information must be provided for each person listed on a manifest 
required to be submitted in accordance with section 231 (a) or (b): 
Complete name; date of birth; citizenship; sex; passport number and 
country of issuance; country of residence; United States visa number, 
date, and place of visa issuance, where applicable; alien registration 
number, where applicable; United States address while in the United 
States; and such other information as the Attorney General, in 
consultation with the Secretaries of State and the Treasury, determines 
is necessary for the identification of the persons transported, for the 
enforcement of the immigration laws, and to protect public safety and 
national security.
    Under some circumstances, however, not all of this information must 
be submitted. For example, a passport number and visa information may 
be omitted in the event a Canadian national is exempt from the passport 
and visa requirement under 8 CFR 212.1. The visa information may be 
omitted in the event a passenger under the Visa Waiver Program is 
exempt from the visa requirement under 8 CFR part 217. A passport 
number and visa information may be omitted in the event a U.S. citizen 
is exempt from the passport and visa requirement under 22 CFR part 53. 
All of the other data elements, however, will be required. The Service 
will notify the carrier industry of any policy or operational issues 
that affect the APIS program.

Will the Transmission of Data in Accordance With the Current APIS 
Program Satisfy the Proposed Rule's Electronic Manifest Requirement?

    As noted previously, section 231(c) of the Act, as amended by the 
Enhanced Border Security and Visa Entry Reform Act of 2002 (Pub. L. 
107-173), prescribes specific information that must be included in 
arrival and departure manifests. The current data elements transmitted 
via APIS do not contain all of the elements that are statutorily 
required by section 231(c) of the Act, as amended.
    The proposed rule includes the following statutorily-mandated 
manifest information that is not currently collected under the APIS 
system:
    (1) Place of visa issuance;
    (2) The United States address while in the United States; and
    (3) The country of residence.
    It is important to note, however, that all items listed above are 
currently required on the paper Form I-94, which has legally sufficed 
for this arrival manifest. This rule proposes to amend only the format 
and time frame by which this information must be provided. The proposed 
rule requires that this information be submitted by the air and sea 
carriers to the Service via the USCS APIS system.

[[Page 294]]

What Is EDIFACT?

    The Electronic Data Interchange for Administration, Commerce, and 
Trade (EDIFACT) is the technical message format that allows for the 
transmission of the APIS data elements to the U.S. government in a 
standardized way. There are two EDIFACT versions, (1) The United States 
EDIFACT format (US EDIFACT); and (2) the United Nations EDIFACT (UN 
EDIFACT) format. The USCS developed the US EDIFACT message format 
between 1989 and 1992 in cooperation with the governments of Australia 
and New Zealand during the initial implementation of the Advance 
Passenger Information System. The US EDIFACT standard is being used to 
transmit the current APIS information. The following US EDIFACT 
technical documentation and guidelines are available from the USCS: (1) 
Advanced Passenger Information for Airlines; (2) Advance Passenger 
Information (API) Guidelines for Customs and Air Carriers, and (3) US 
EDIFACT Overview. Carriers currently transmit APIS information using 
the US EDIFACT format. The amount of information that can be 
transmitted through the APIS system, via the US EDIFACT for now is 
limited. This format cannot accommodate the new data elements such as 
US address, visa number, date, and place of issuance, and country of 
issuance that are required by section 402 of Public Law 107-173. Given 
these limitations in the US EDIFACT format, the Service anticipates the 
carriers will convert their reservation or computer systems to the UN 
EDIFACT format which can accommodate the required additional data 
elements. Additional information on UN EDIFACT can be located at the 
following Web site: http://www.unece.org/trade/untdid/welcome.htm.
    Converting to the UN EDIFACT format will improve the accuracy and 
efficiency of data, and comply with the new additional data element 
requirements. The USCS expects to upgrade the APIS system to accept the 
UN EDIFACT format in January 2003. The USCS will provide UN EDIFACT 
documentation and guidelines in the near future.
    The Air Transport Association (ATA), International Air Transport 
Association (IATA), and the governments of Canada, Mexico, New Zealand, 
Australia, and United Kingdom all support the conversion to APIS UN 
EDIFACT format in an effort to establish a worldwide format standard 
for the electronic transmission of arrival and departure manifests.
    In 2003, the Service anticipates the carriers will convert their 
systems from the US EDIFACT format to the UN EDIFACT format to 
facilitate their transmission of the new data element requirements. 
Until carriers convert their systems to the UN EDIFACT format, the APIS 
system will be able to accommodate both the US EDIFACT and the UN 
EDIFACT format transmissions. This conversion is not expected to affect 
small entities since the USCS is developing a Web-based APIS UN EDIFACT 
system, that is expected to be complete in April 2003.

Will the Service Impose Any Fines on the Carriers for Not Submitting 
the New Data Elements on January 1, 2003?

    No. The Service will not impose any fines until the regulation is 
published as a final rule. The Service may impose fines under section 
231 of the Act in cases where the carrier fails to transmit an 
electronic record after the final rule becomes effective. However, 
before issuing any fines during the conversion period (from the 
effective date of the final rule through December 31, 2003), the 
Service will evaluate a carrier's performance to determine whether it 
has made a good faith effort to comply with the electronic transmission 
requirement. The Service will consider the following factors: (1) 
Whether the carrier notified the Service of any problems it was 
experiencing in submitting the information; (2) whether the carrier has 
a backorder for the purchase of additional equipment, such as document 
readers; (3) the completion of the APIS UN EDIFACT format by the 
Service and the USCS; and (4) the totality of circumstances of each 
carrier's attempt to comply with this regulation. The Service has the 
authority to mitigate or remit fines under 8 CFR 280.5.
    The Service will continue to accept the current APIS arrival and 
departure data elements in the US EDIFACT format until carriers can 
convert to the UN EDIFACT format, through at least the end of 2003. The 
Service will require that the carriers notify the Service of when they 
will be able to comply with the UN EDIFACT format.

Does the Service Propose To Require Any Other Additional Electronic 
Information?

    Yes. The Attorney General, in consultation with the Secretaries of 
State and the Treasury, may also require additional manifest 
information if the information is deemed necessary for the 
identification of the persons transported and for the enforcement of 
the immigration laws and to protect safety and national security. 
Pursuant to that authority, the proposed rule prescribes adding a 
Passenger Name Record (PNR) locator or a unique identifier or 
reservation number. The PNR locator is a unique passenger identifier 
that is specific to the airline industry in their reservation systems. 
This does not require carriers to create new identifying systems. In 
any database system a unique identifier is not difficult to create. 
This identifier is very important to the Service because this will 
assist the Service in matching an arrival record with a departure 
record. The Service is particularly interested in comments by the 
carrier industry to the proposal that carriers submit the PNR locator 
number or unique identifier electronically as part of the manifest 
requirement.
    The Service has consulted with the USCS, the U.S. Coast Guard 
(USCG), and the U.S. Department of State on this proposed additional 
data element.

When Are Carriers Required To Submit the Electronic Arrival and 
Departure Manifests?

    This rule proposes to require commercial carriers transporting any 
person by air to any port within the United States from any place 
outside the United States to submit electronic arrival passenger 
manifests to the Service no later than 15 minutes after the flight 
departs from the last foreign port or place. This will allow the 
Service to check the manifest information against appropriate security 
databases prior to arrival. This rule further proposes that air 
carriers be required to submit the arrival crew manifest electronically 
to the Service in advance of departure from the last foreign port or 
place. This is the current transmission requirement for air carriers 
submitting electronic arrival information under the APIS program, and 
this requirement will also conform to the USCS' rule published at 66 FR 
67482 (December 31, 2001).
    In consultation with the USCG and the cargo and cruise line 
industry, the Service proposes to require that a vessel on a voyage of: 
(1) 96 hours or more must submit the information required in the 
crewmember and passenger manifests at least 96 hours before entering 
the port or place of destination; (2) less than 96 hours but not less 
than 24 hours must submit the crewmember and passenger manifests not 
less than 24 hours before entering the port or place of destination; or 
(3) less than 24 hours must submit the crewmember and passenger 
manifests prior to departing the port or place of departure. These 
requirements will conform to 33 CFR

[[Page 295]]

160.207(a) in the USCG's Notice of Proposed Rule Making (NPRM) 
published at 67 FR 41659 (June 19, 2002). These timeframes will provide 
the Service and USCG with adequate time to review the electronic 
arrival manifests for arriving vessels. In addition, these requirements 
are more in accord with commercial maritime operations, which differ 
greatly from those of the airline industry. This alignment of 
submission time requirements will facilitate the Government's ongoing 
efforts to develop a system that eliminates multiple transmissions of 
manifest information to both the Service and the USCG.
    The proposed rule requires that carriers transporting persons to 
points outside of the United States submit electronic departure 
passenger and crewmember data lists or manifests to the Service no 
later than 15 minutes before the flight or vessel has departed from the 
United States. This will allow the Service to check the manifest 
information against the appropriate security databases prior to 
departure. If additional passengers or crewmembers board after the 
original manifest has been submitted, or if passengers or crewmembers 
exit after boarding but prior to departure, carriers will also be 
required to submit amended or updated passenger and crewmember manifest 
information electronically to the Service no later than 15 minutes 
after the flight or vessel has departed from the United States. This 
will allow the Service to continue to check any new information against 
the appropriate security databases. Although the number of last minute 
passengers will vary, the Service believes that carriers will be able 
to provide electronic departure passenger and crewmember data lists or 
manifests on approximately 80 to 95 percent of their total number of 
passengers when submitting the required information 15 minutes prior to 
departure. Failure to submit an amended manifest 15 minutes after 
departure, if necessary, may result in a fine.
    For purposes of determining the time of departure for purposes of 
submitting electronic manifest information under this rule, the Service 
will use the same definitions already used by other agencies. For air 
carriers, the time of departure is the point at which the wheels are up 
on the aircraft and the aircraft is directly en route to or from the 
United States. For vessels, the time of departure is that time when the 
vessel gets under way on its outward voyage and proceeds on the voyage 
without, thereafter, coming to rest in the harbor from which it is 
going. See 19 CFR chapter I, part 4 (August 30, 2002).

Will Transmission of Data in Accordance With the Proposed Rule Satisfy 
the Electronic Transmission Requirements Prescribed Under Section 
217(h)(2)(B) of the Act?

    Yes. Section 217 of the Act, relating to the Visa Waiver Program, 
contains similar requirements for the electronic submission of arrival 
and departure information pertaining to visa waiver program passengers. 
This rule proposes to amend 8 CFR part 217 to provide that an alien who 
applies for admission under the provisions of section 217 of the Act 
after arriving via sea or air at a port-of-entry, will not be admitted 
under the Visa Waiver Program unless the carrier transporting such an 
alien electronically transmits passenger arrival and departure data in 
accordance with 8 CFR 231.1, for each Visa Waiver Program passenger 
being transported.

What Manifest Information Will Carriers Be Responsible for Submitting 
Between January 1, 2003, and the Publication of a Final Rule?

    In accordance with section 402 of Public Law 107-173, not later 
than January 1, 2003, the master or commanding officer, or authorized 
agent, owner, or consignee of a commercial aircraft or vessel to 
transmit electronically arrival and departure manifests to the Service 
for each passenger not currently exempt from the manifest requirements 
pursuant to 8 CFR 231.1, or 231.2. These manifests must contain the 
data elements specified in section 231(c) of the Act as amended, for 
each passenger listed on the manifest. In accordance with section 
231(a) of the Act, arrival manifests must be electronically submitted 
to the Service prior to the arrival of the commercial aircraft or 
vessel. In addition, carriers may electronically submit departure data 
up to 48 hours after departure, exclusive of Saturdays, Sundays and 
legal holidays in accordance with 8 CFR 231.2
    Until a final regulation is published, however, the Service will 
not require the electronic transmission of arrival or departure 
manifests for crewmembers because the submission of manifests 
containing crewmember information was not contemplated by the current 
regulations promulgated under section 231 of the Act.

Will Manifests in Paper Form Still Be Required on January 1, 2003?

    As of January 1, 2003, carriers will no longer be required to 
submit Forms I-94 to the Service for the passengers they transport to 
or from the United States if they are electronically submitting arrival 
and departure manifests that include all of the data elements mandated 
by Section 231(c) of the Act. The carriers in full compliance with 
their obligations to transmit the prescribed manifest information 
electronically should still distribute Forms I-94 to their passengers 
who will be responsible for completing and submitting the Form I-94 to 
the Service to facilitate the inspections process. The Service will 
then compare and analyze the accuracy and efficiency of matching the 
electronic arrival and departure information with the paper arrival and 
departure information. In addition, not all travelers enter and exit 
the United States at the same location. A traveler may enter the United 
States at an air port-of-entry and leave at a land border port-of-
entry. In this scenario, the Service will not be able to match the 
record of arrival with the record of departure electronically. A 
traveler who enters the United States via the air or sea port-of-entry 
may exit at a land border port-of-entry; therefore, this traveler will 
need a copy of the Form I-94. The traveler is required to return the 
departure Form I-94 at the land border port-of-entry; otherwise the 
Service would not know that they had exited the United States.
    Until those provisions of the Service's regulations in 8 CFR part 
251 requiring the submission of crew manifests in paper format are 
rescinded, commercial air and sea carriers transporting passengers to 
or from the United States shall continue to submit the Form I-418. 
Carriers also should continue to submit USCS Form 7507 and/or the 
International Civil Aviation Organization's (ICOA) General Declaration, 
as appropriate. Any determinations to eliminate these forms will be 
made by the proper agency.
    The Service is requiring both an electronic and paper format to 
compare and analyze the accuracy and completeness of the electronic 
passenger manifest with the current paper process. The Service will 
randomly select data from the paper I-94 input manually into the Non-
Immigrant Information System (NIIS) and compare that data to the same 
record that was input electronically and received from the airlines. 
The Service will compare the accuracy, time of availability of the 
data, and completeness of the data. If the data received through the 
electronic manifest is superior to that of the manually input data, 
then a policy decision will be made as to whether or not to continue 
the use of the paper Form I-94 as a manifest.

[[Page 296]]

    In addition, the paper Form I-418 is currently used when vessels 
arrive in the United States and continue coastwise to other ports 
within the United States (for example, from Baltimore, Maryland to 
Newark, New Jersey to Boston, Massachusetts). The paper Form I-418 is 
still required because the Service and USCS have not developed an APIS-
like system for carriers that continue coastwise to other ports within 
the United States. Therefore, an electronic manifest is required when a 
commercial carrier arrives in and departs from the United States, but 
an electronic manifest is not required when vessels are traveling 
between the ports-of-entry in the United States. The Service currently 
is assessing the continued value of the paper Form I-418. Carriers, 
however, will have to continue to submit this form, when required under 
8 CFR 251.1(a), until such time that the technical infrastructure is in 
place between ports-of-entry.

Are There Any Penalties for Submitting an Incomplete or Inaccurate 
Electronic Arrival or Departure Manifest?

    Yes. Section 231(g) of the Act, as amended, provides that if any 
public or private carrier, or the agent of any transportation line, has 
refused or failed to provide manifest information as required, or the 
manifest information provided is not accurate and full, such carrier, 
or agent shall pay the Commissioner the sum of $1,000 for each person 
with respect to whom accurate and full manifest information is not 
provided, or with respect to whom the manifest information is not 
prepared as prescribed. Fines for violations of section 231 and 251 of 
the Act may be imposed and collected in accordance with 8 CFR part 280. 
However, the Service, as a matter of discretion, does not intend to 
impose fines against carriers for violations of section 231 of the Act 
until a final regulation is published.

Are Ferries Required To Submit Electronic Arrival and Departure 
Manifests?

    No. This proposed rule adds a definition of the term ``ferry'' 
based on the existing USCG maritime safety regulations at 46 CFR 70.10-
15. The determination of whether a particular service is ``ferry'' 
service is a case-by-case determination in which, should the question 
arise, the Service will refer to the USCG classification of the vessel 
or vessels providing the service.
    The Service will also refer to other relevant definitions from the 
USCG regulations that are applicable to the definition of ``ferry.'' In 
particular, the USCG regulations define ``coastwise'' service as 
navigation in the ocean or Gulf of Mexico 20 nautical miles or less 
offshore (46 CFR 70.10-13), and ``ocean'' service as navigation in the 
ocean or the Gulf of Mexico more than 20 nautical miles offshore (46 
CFR 70.10-31). Vessels in ocean or coastwise service are not ferries 
and, therefore, the Service proposes that sea carriers must submit 
electronic arrival and departure manifests for those vessels. This 
includes all vessels that travel between the United States and foreign 
adjacent islands.
    However, otherwise qualifying services in ``lakes, bays, and 
sounds'' such as Puget Sound or the Great Lakes will be considered 
ferries (see 46 CFR 70.10-23) and therefore are not required to submit 
electronic arrival and departure manifests.
    In order to qualify as a ferry, a vessel's service must be over the 
most direct water route and only make provisions for deck passengers 
and vehicles. The Service is aware that some vessels may offer extended 
dining services, even overnight accommodations or gambling, that are 
commonly associated with the operation of a cruise ship rather than a 
ferry. The Service will not extend this exemption to such vessels.

Regulatory Flexibility Act

    The Service drafted this rule in consideration of the need to 
minimize its impact on small businesses. Based upon preliminary 
information available, the Service is unable to state with certainty 
that this rule, if promulgated, will not have the effect on small 
businesses of the type described at 5 U.S.C. 605. Accordingly, the 
Service has prepared the following Regulatory Flexibility Act (RFA) 
analysis in accordance with 5 U.S.C. 603.

A. Need for and Objectives of This Proposed Rule

    This proposed rule will implement section 231 of the Act as amended 
by section 402 of Public Law 107-73. Section 231 of the Act provides, 
among other things, that commercial vessels or aircraft transporting 
passengers to and from the United States must electronically transmit 
to the appropriate immigration officer not later than January 1, 2003, 
arrival and departure manifests containing such information and 
delivered in such a manner and timeframe as may be prescribed in 
accordance with section 231.
    The enactment of section 402 of Public Law 107-173 reflects 
Congress' desire to ensure that commercial air and sea carriers submit 
to immigration officials passenger and crewmember information within a 
timeframe and in a particular format in order to maximize the 
Government's efforts to (1) identify persons being transported to and 
from the United States, (2) enforce the immigration laws, and (3) 
protect public safety and national security.

B. Description and Estimates of the Number of Small Entities Affected 
By This Proposed Rule

    A ``small business'' is defined by the RFA to be the same as a 
``small business concern'' under the Small Business Act (SBA), 15 
U.S.C. 632. Under the SBA, a ``small business concern'' is one that: 
(1) Is independently owned and operated; (2) is not dominant in its 
field of operation; and (3) meets any additional criteria established 
by the SBA. It will be the duty of the appropriate officer of any 
commercial aircraft or vessel regardless of ownership, size or 
dominance in the field to provide the information prescribed in the 
proposed rule in the timeframe and format proposed therein.
    Based upon the information available to the Service, there appear 
to be two distinct groups of businesses that will be affected by this 
proposed rule: (1) Larger commercial air and sea carriers, and (2) 
smaller commercial air and sea carriers (e.g., air carriers that employ 
not more than 1,500 employees and sea carriers that employ not more 
than 500 employees) as defined by the United States Small Business 
Administration.
    The Service estimates that there are approximately 108 large 
commercial carriers. Data provided by the United States Small Business 
Administration suggests that at least 446 small carriers will be 
affected by this rule. In addition, data provided by the USCG suggests 
that as many as 14,000 small commercial carriers potentially could be 
affected. Although the Service consulted with a number of the affected 
entities, including ATA, IATA, and the International Council of Cruise 
Lines (ICCL), the Service realizes that not all interested persons and 
entities may have been fully represented prior to the publication of 
this proposal. Therefore, the Service is requesting that comments be 
submitted to help ensure that the concerns of all interested parties 
are considered. Commenters may wish to identify the type of industry; 
including the number of companies/individuals involved and the annual 
income conducted; how the proposed regulatory requirements would impact 
that industry; and any suggestions on how the final regulations might 
be better tailored to the industry without

[[Page 297]]

compromising the intent of the statute which is to enhance national 
security, public safety, and the enforcement of the immigration laws 
through timely identification of persons being transported to and from 
the United States.
    Commenters should note that the submission of any comments or 
information on these or other matters addressed by this proposed rule 
is entirely voluntary and the Service is not prescribing the use of any 
form for this information.
    Pursuant to the RFA and public policy concerns, the Service 
encourages all affected entities to provide specific estimates, 
wherever possible, of the economic costs that this rule will impose and 
the benefits that it will bring. The Service asks affected small 
businesses to estimate what these regulations will cost as a percentage 
of their total revenues, to enable the Service to ensure that small 
businesses are not unduly burdened.
1. Large Commercial Carriers
    The Service has drafted this proposed rule to ensure the minimum 
possible impact on these businesses while complying with the statutory 
requirements. To ensure flexibility, the regulation does not mandate a 
specific electronic data interchange system that must be used. The 
regulation provides only that the transportation provider use a system 
that is approved by the Service.
    The carriers must contact the USCS for additional technical 
information. The USCS and Service have APIS account managers to work 
with the carriers at the San Francisco, California, Houston, Texas, and 
Newark, New Jersey ports-of-entry. The APIS account managers have 
informed and notified the carriers of the new requirements, and will 
respond to any APIS issues, and act as a liaison between the carriers 
and the Service/USCS Headquarters. The USCS also provides APIS 
guidelines and documentation for the air carriers' technical staff. The 
USCS is currently updating a guideline for the sea carriers.
    The Service and USCS have been working with the carrier industry 
for the past 10 years developing, implementing, and improving the 
arrival APIS information. The Service does not know how many systems 
are incompatible with APIS. However, EDIFACT is an international 
standard with which most carriers will be able to comply. For carriers 
that cannot comply with this requirement, alternatives are available. 
The Service believes that the EDIFACT system is flexible because it is 
an international standard with which all carriers and other governments 
can comply.
    Because the information must be transmitted via the USCS Data 
Center, it is anticipated that carriers will transmit this data via the 
EDIFACT message format that was developed by the USCS in connection 
with the initial implementation of the APIS. The USCS has specified the 
data elements and codes to be used. The Service and USCS are currently 
working with the World Customs Organizations (WCO) to inform, update, 
and develop international electronic arrival and departure manifest 
standards for all carriers. The USCS is currently in the process of 
converting from the US EDIFACT message format to the UN EDIFACT format.
    Moreover, commercial air carriers operating passenger flights have 
been required to electronically submit many of the data elements 
prescribed in the proposed rule to the USCS in advance of arrival since 
December 21, 2001. Other data elements in this proposed rule are 
statutorily mandated and, in accordance with statute, must be provided 
both upon arrival and departure. The Service and USCS have consulted 
with ATA, IATA, and ICCL on the current and additional data elements 
for the arrival and departure manifests. Where the proposed rule 
requires data elements that are not mandated by statute, the opinions 
of the industry representatives were taken into consideration so as to 
impose no greater burden than is necessary.
    The requirement in this proposed rule that carriers submit specific 
manifest information electronically may require large commercial 
carriers to purchase equipment or develop integrated systems for that 
purpose. As discussed below in the section on Executive Order 12866, 
the Service estimates that larger commercial carriers may incur 
programming costs of $400,000 to implement these requirements, with an 
ongoing operational cost of $1 per passenger.
2. Small Commercial Carriers
    In addition to large commercial carriers, the Service believes that 
there may be a large number of smaller commercial aircraft and vessel 
operators that will be affected by the proposed rule. The Service does 
not have specific information about how much of an economic impact this 
rule might have on smaller commercial carriers. According to the United 
States Small Business Administration, there are 383 scheduled air 
passenger transportation companies with less than 1,500 employees and 
63 deep sea passenger transportation companies with less than 500 
employees. The information provided by the United States Small Business 
Administration suggests that these 446 companies have average annual 
receipts of approximately $16 million. The Service believes that this 
rule will have a proportionally smaller economic impact upon smaller 
rather than larger carriers because of the volume of passengers they 
carry. In addition, smaller commercial carriers should not have to 
incur substantial initial programming costs. As discussed in the 
Executive Order 12866 section below, the Service estimates that the 
average reprogramming costs are approximately $400,000 per carrier for 
large carriers. A comparable conversion for a small carrier would be 
much less. Some vendors currently are providing equipment and software 
utilizing the US EDIFACT standard for small commercial carriers in the 
range of $6,800 to $7,200 per machine. One vendor has estimated that 
his conversion costs would be approximately $1,200 for his customers. 
This equipment automates much of the data submission process and 
performs functions comparable to equipment used by large commercial 
carriers, albeit on a much smaller scale. The Service estimates that 
new equipment and software that utilizes the UN EDIFACT standard should 
cost approximately as much as the current equipment and software.
    The USCS also has an e-mail system that allows small entities to 
submit arrival and departure data electronically. In addition, the USCS 
is in the process of developing a Web-based APIS specifically for small 
entities, with an estimated completion date in April 2003. For either 
system, all that is required is a computer, e-mail, or access to the 
internet by the small entities to transmit the electronic arrival and 
departure manifests. This cost is minimal to the small entities. 
Indeed, the Service believes that most small carriers already will 
possess the necessary equipment and will not have to incur any 
additional costs. A carrier that decided to purchase a new personal 
computer should be able to do so for under $1,000. Access to the 
internet is estimated to cost approximately $20 per month.
    While small entities will be required to submit new additional data 
(such as the United States address while in the United States, visa 
number, and place of issuance, where applicable, and country of 
residence), the collection of this information should not impose a 
significant burden on small entities. Therefore, the economic impact on

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small entities by this rule will be minimal.
    The ongoing costs to small carriers of submitting this information 
to the Service is difficult for the Service to quantify. The Service 
believes that the number of passengers that small commercial carriers 
transport in a given year may vary greatly. The IATA, however, 
estimates this rule will cost large commercial carriers approximately 
$1 per transaction per passenger for additional time costs. The Service 
believes that this estimate also may be applicable to small commercial 
carriers.
    The Service is requesting comment on the impact that this proposed 
rule would have on small commercial carriers. The Service is 
particularly interested in comments concerning the number of these 
smaller entities transporting passengers, the number of passengers they 
transport each year, the ongoing costs this rule would impose 
(including any incremental cost per passenger), and their estimates on 
the economic impact of this rule.

C. Recordkeeping and Reporting Requirements

    The purpose of this rule is to implement an ongoing reporting 
requirement for carriers. All small entities that transport passengers 
and crew to any seaport or airport of the United States from outside 
the United States will be required to comply with the arrival and 
departure manifest requirements. The submission of the required data 
elements will not require any unusual professional skills. The data 
that must be collected are basic and its submission should not be 
difficult. For purposes of complying with its Paperwork Reduction Act, 
the Service has estimated that 600 respondents will spend approximately 
10 minutes a day in order to provide the required data. The Service 
based its estimate of 10 minutes on its experience in connection with 
the transmission of data elements under the Visa Waiver Program. See 67 
FR 63246 (October 11, 2002).

D. Other Federal Regulations

    This proposed rule does not duplicate, overlap, or conflict with 
other federal regulations. The rule was drafted after consultation with 
the USCS and the USCG and designed to work in coordination with their 
regulations. The Service, USCG, and USCS are currently coordinating 
their efforts to develop an electronic arrival and departure manifest 
system that meets the requirements of all three agencies. Submitting 
APIS meets the requirements of both the Service and USCS. The marine 
industry will have to continue to forward a separate Notice of Arrival 
(NOA) submission to the USCG, until such time that the technical 
infrastructure is in place to ensure that the USCG can obtain 
electronic data from APIS and import this data into a Coast Guard 
database.
    As discussed above, the Service will require the continued 
submission of the paper Form I-94 in order to compare and analyze the 
accuracy and completeness of the electronic passenger manifest with the 
current paper process. The paper Form I-418 also is still required 
because the Service and USCS have not developed an APIS-like system for 
carriers that continue coastwise to other ports within the United 
States.

E. Issues Raised and Alternatives Suggested

    The Service has little discretion regarding the scope of this rule 
and its impact on small entities because of explicit requirements in 
section 402 of Public Law 107-173. While consulting with ATA, IATA, and 
ICCL, a number of issues were raised concerning the impact on passenger 
check-in times resulting from the collection of the data required by 
this proposed rule. These requirements are, with only one exception 
(PNR locator or unique number), statutorily required. The Service 
considered the need for the inclusion of the PNR, and determined that 
it was necessary to simplify the data submission process. The use of an 
unique identifier is a standard data processing tool and is extremely 
useful both to the Service and to commercial carriers. Its elimination 
would only serve to make the submission and tracking of manifests more 
difficult.
    The Service also considered different electronic data submission 
requirements. The Service could not continue with the US EDIFACT 
standard because it will not support the data elements called for by 
section 402 of Public Law 107-173. The UN EDIFACT standard was selected 
because it will be the dominant standard throughout the world and its 
use will simplify the data submission process for commercial carriers. 
The use of another standard would only serve to balkanize the data 
submission process.
    The Service, however, has decided to allow commercial carriers to 
utilize alternative methods for the electronic submission of the 
manifests, as long as they are approved by the Service. For example, 
small carriers may use a USCS e-mail system. In addition, the USCS also 
is in the process of developing a Web-based APIS specifically for small 
entities which can be used for data submission when it is available. 
The purpose of these options is to reduce the possible economic impact 
the manifest reporting requirements will have on small commercial 
carriers. The use of these alternatives will benefit small commercial 
carriers who may not have access to the resources available to large 
carriers. The Web-based APIS and e-mail options eliminate the need for 
small commercial carriers to adopt data submission processes similar to 
those utilized by large commercial carriers.
    Large commercial carriers also may utilize these options, but 
because of the volume of passengers whose arrival and departure data 
they may be submitting, the Service does not anticipate that these 
options will be used frequently by large carriers. The Service 
continues to entertain carrier proposals for pilot projects involving 
the collection of the required information electronically.

F. Conclusion

    The Service believes that, given the statutory mandate in section 
231 of the Act requiring that manifests containing certain prescribed 
data elements be electronically transmitted to the Service no later 
than January 1, 2003, this proposed rule meets the stated objectives 
while reducing as much as possible the burden imposed on affected 
transportation providers. The Service consulted with the air and sea 
carrier industries in developing this rule. The Service took into 
account their concerns in drafting the proposed rule. The Service 
intends to maintain an on-going dialogue with the affected industries.
    The Service welcomes comments on its analysis under the RFA.

Unfunded Mandates Reform Act of 1995

    This rule may result in approximately $124 million in operational 
costs and one-time programming costs of approximately $42 million on 
the private sector. Therefore, under the Unfunded Mandates Reform Act 
of 1995, this is a private sector mandate. Accordingly, the Service has 
conducted a cost/benefit assessment which is set forth in the Executive 
Order 12866 section below. This discussion assesses the costs and 
benefits resulting from the implementation of section 402 of the 
Enhanced Border Security and Visa Entry Reform Act of 2002 (Pub. L. 
107-173). This rule, however, will not result in the expenditure by 
state, local and tribal governments, in the aggregate, of $100 million 
or more in any one year, and it will not significantly or uniquely 
affect small governments. The Service is requesting that comments be 
submitted

[[Page 299]]

to help ensure that the concerns of all interested parties are 
considered.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule may result in an annual effect on the economy of $100 
million or more and is therefore considered a major rule as defined by 
section 804 of the Small Business Regulatory Enforcement Act of 1996. 
This rule, however, will not result in a major increase in costs or 
prices; or significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of United 
States-based companies to compete with foreign-based companies in 
domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice, Immigration 
and Naturalization Service, to be an economically significant 
regulatory action under Executive Order 12866, section 3(f), Regulatory 
Planning and Review. Accordingly, this regulation has been submitted to 
the Office of Management and Budget for review.

1. This Rule Does Not Require Carriers To Switch to the UN EDIFACT 
Standard

    Carriers currently submit arrival and departure manifests 
electronically to APIS. In accordance with section 402 of Public Law 
107-173, this proposed rule also requires carriers to transmit 
additional data elements (e.g., U.S. address, visa information, PNR 
locator). These additional data elements are not currently included in 
the APIS data being transmitted and carriers would have to incur some 
costs adapting their systems to include these elements.
    However, many of the carriers with which the Service consulted, 
informed the Service that they have decided not to add the additional 
data elements to their APIS submissions. Rather, carriers plan on 
converting their systems from the US EDIFACT format to the UN EDIFACT 
format.
    Carriers are making this change in data format for their own 
business reasons because it is the format being adopted in several 
foreign countries, such as Canada, Mexico, Australia, New Zealand, and 
United Kingdom. The Service wants to emphasize that neither section 231 
of the Act nor this proposed rule require carriers to convert to the UN 
format. This movement to the UN format was based upon international 
agreements between the Immigration and Customs Services of several 
countries and is an international standard adopted by the IATA and ATA.

2. Estimated Costs

A. One Time Programming Costs
    The conversion in EDIFACT data formats which the carriers are 
undertaking on their own initiative makes it difficult for them to 
provide the Service with the actual costs to them resulting from the 
new additional data elements required by the statute and this proposed 
rule. The estimated cost range has been from thousands of dollars for 
the smaller carriers with a low volume of passengers to several million 
dollars for a larger carriers with a high volume number of passengers. 
The high-end estimates include the conversion of the US/UN EDIFACT 
reprogramming costs to the carrier's existing reservation systems and 
the hiring of additional personnel.
    Carriers have informed the Service regarding the cost of new 
equipment they will be purchasing on their own initiative as part of 
their conversion to the UN EDIFACT format. Since the additional data 
elements this rule requires carriers to collect are not, at present, 
machine-readable, the Service has not included new equipment costs in 
its estimates below. The reprogramming costs below include both the 
cost of changing from the US to the UN EDIFACT format (which is not 
required by this rule) and the costs of processing the new data 
elements required by this rule, but the estimates below are the best 
that the carriers have been able to provide the Service regarding their 
non-equipment related costs of complying with this rule.
    According to IATA, the average reprogramming costs are estimated at 
$400,000 per carrier. The total reprogramming costs are estimated at 
$36,800,000 (92 air carriers x $400,000).
    The International Council of Cruiselines (ICCL) represents 16 
passenger cruiselines. The estimated reprogramming costs reported by 
ICCL members is $2,000,000 (16 x $125,000).

92 IATA carriers...........................................   $36,800,000  .....................................
16 ICCL carriers...........................................     2,000,000  .....................................
                                                            --------------
IATA and ICCL carriers.....................................    38,800,000  .....................................
Other carriers.............................................     2,716,000  ($38,800,000 x 20% of remaining
                                                                            carriers =
                                                            --------------
                                                             ............  7,760,000 x 35% of IATA/ICCL carrier
                                                                            costs).
    Total..................................................    41,516,000  Estimated total one-time programming
                                                                            costs.
 

    The 108 carriers represented by IATA and ICCL account for the vast 
majority (75-80 percent) of passengers covered by this rule. Therefore, 
the Service has estimated that the remaining 20 percent of the 
passengers transported by other carriers at a cost of $7,760,000 
($38,800,000 x 20 percent). The Service then estimated that these other 
carrier (non-IATA and ICCL carriers) costs at approximately 35 percent 
of the IATA and ICCL carrier costs. Since, the USCS already provides an 
e-mail APIS account and will be developing a Web-Base APIS system for 
the small entities, the Service estimates that the reprogramming costs 
for the small and medium size entities will be much lower than the IATA 
and ICCL carrier costs. Therefore, the other carriers estimated 
reprogramming costs are calculated at $2,716,000 ($7,760,000 x 35 
percent).
B. Operational Costs
    The IATA estimates this rule will cost carriers approximately $1 
per transaction per passenger for additional time costs. The IATA has 
estimated that this will amount to approximately $62 million for the 
inbound and the same for outbound with total estimated annual costs at 
$124 million.
    However, the Service believes that some of these processing costs 
can be deferred or reduced by travelers providing these additional data 
elements to the travel agencies, Web-based/Internet or kiosk type 
reservations systems, thereby reducing the check-in time.

3. Much of the Information Required By This Rule is Already Being 
Submitted Electronically to the Service

    USCS regulations already require all air carriers to submit arrival 
manifests electronically. In addition, Service regulations already 
require air and sea carriers to submit arrival and departure manifests 
electronically, for passengers traveling pursuant to the Visa Waiver 
Program. However, carriers have informed the Service that it is more

[[Page 300]]

efficient for them to transmit electronic manifest information for all 
(not just Visa Waiver Program) passengers. Over 80 percent of these 
carriers currently submit arrival and departure manifests 
electronically for all passengers. This fact suggests that the costs of 
this rule will not be great since a substantial majority of the 
carriers already provide most of the information this rule would 
require.

4. Benefits This Rule Provides

    Advanced electronic manifest provide the Service with the ability 
to conduct advance record checks of passengers entering and departing 
the United States. This allows the Service to check and pre-screen the 
names of known inadmissible aliens, terrorists, and other dangerous 
criminals prior to entering the United States. With the recent 
improvements and enhancements to the APIS and other enforcement 
database(s), which can identify high-risk passengers for more intensive 
questioning upon arrival, the Service has been able to prevent an 
increase in the number of aliens attempting to enter the United States 
illegally.
    APIS also allows the Service to check for removable aliens, 
terrorists, and other dangerous criminals prior to exiting the United 
States. With advance prescreening of passengers, the Service will be 
able to process low-risk travelers with minimum delay and concentrate 
on high-risk travelers who may pose a threat to national security. APIS 
allows immigration intelligence officers to analyze the patterns and 
associations of alien smugglers on a real-time basis.
    The Service and the USCS are in the process of including the USCG's 
vessel crewmember manifest requirements into the APIS. Currently, the 
cargo industry must submit separate paper manifests, one to the Service 
and one to the USCG. The carrier associations have indicated that they 
prefer to transmit one manifest electronically that meets all of the 
requirements for the Service, USCS, and USCG, thereby reducing the need 
to submit three separate paper manifests. APIS is a joint effort 
supported by the Service, USCS, USCG, foreign governments, World 
Customs Organization (WCO), ATA, IATA, ICCL, and other intereste 
stakeholders.
    The UN EDIFACT format will improve the transmission of the 
electronic arrival and departure data. Currently, all of the carriers 
cannot submit 100 percent of the required APIS data in the US EDIFACT 
format. In addition, passenger data elements sometimes get lost in the 
APIS transmission. The US EDIFACT does not allow the carrier to receive 
a confirmation message that the APIS transmission was submitted and 
received by the system (for example, if an e-mail message is sent, a 
receipt is sent back to the original sender to confirm that the e-mail 
was received and opened by the intended user). The potential exists 
that any lost records of a passenger will not be searched in the 
appropriate database(s), and the absence of such checks on a particular 
alien in advance of arrival could pose a threat to national security. 
In addition, each loss of records in the transmission will cause a 
delay in the inspection processing of passengers because the 
immigration inspector will have to manually enter each passenger's name 
in the database(s), process the information, and ask any additional 
immigration related questions. This delay may have an impact on the 
wait time of the other passengers waiting to be inspected at primary 
inspection for admission to the United States. These delays may cause 
some of the passengers to miss their connecting flights, thereby 
causing an additional expense to the carriers. Therefore, conversion to 
the UN EDIFACT is expected to greatly enhance and improve the 
transmission of the electronic arrival and departure manifests.
    The Service welcomes comments on its assessment under Executive 
Order 12866.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with Executive Order 
13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a federalism 
summary impact statement.

Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    This rule requires that carriers provide arrival and departure 
manifests electronically to the Service. This requirement is considered 
an information collection requirement under the Paperwork Reduction 
Act.
    Accordingly, the Service has submitted an information collection 
request to the Office of Management and Budget (OMB) for review and 
clearance in accordance with the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).
    All comments and suggestions, or questions regarding additional 
information, to include obtaining a copy of the proposed information 
collection instrument with instructions, should be directed to the 
Immigration and Naturalization Service, Regulations and Forms Services 
Division, 425 I Street NW., Suite 4034, Washington, DC 20536; 
Attention: Richard A. Sloan, Director, (202) 514-3291.
    We request written comments and suggestions from the public and 
affected agencies concerning the proposed collection of information. 
Any comments on the information collection must be submitted on or 
before March 4, 2003. Your comments should address one or more of the 
following four points:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the proposed collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of the information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    Overview of this information collection:
    (1) Type of information collection: New.
    (2) Title of Form/Collection: Electronic arrival-departure 
manifests.
    (3) Agency form number, if any, and the applicable component of the 
Department of Justice sponsoring the collection: No form number (File 
number OMB-32), Immigration and Naturalization Service.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Business or Individuals. Section 402 of the 
Enhanced Border Security and Visa Entry Reform Act requires arrival and 
departure manifests to be delivered electronically no later than 
January 1, 2003. The information collection is necessary to comply with 
section 402 and to ensure that the Service receives accurate passenger 
and crewmember arrival and departure information in a timely manner.

[[Page 301]]

    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: 600 respondents 
at 10 minutes multiplied by 365 days.
    (6) An estimate of the total of public burden (in hours) associated 
with the collection: Approximately 36,500 burden hours.
    If additional information is required contact Richard A. Sloan, 
Director, (202) 514-3291.

List of Subjects

8 CFR Part 217

    Air carriers, Aliens, Maritime carriers, Passports and Visas.

8 CFR Part 231

    Air carriers, Aliens, Maritime carriers, Reporting and 
recordkeeping requirements

8 CFR Part 251

    Vessels, Alien crewmembers, Maritime carriers, Reporting and 
recordkeeping requirements.
    Accordingly, chapter I of the title 8 of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 217--VISA WAIVER PROGRAM

    1. The authority citation for part 217 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.
    2. Section 217.7 is revised to read as follows:


Sec.  217.7  Electronic data transmission requirement.

    (a) An alien who applies for admission under the provisions of 
section 217 of the Act after arriving via sea or air at a port-of-entry 
will not be admitted under the Visa Waiver Program unless the carrier 
transporting such an alien electronically transmits passenger arrival 
and departure data in accordance with 8 CFR 231.1, for each Visa Waiver 
Program passenger being transported on the aircraft or vessel.
    (b) For those carriers that fail to submit electronic arrival and 
departure manifests electronically, the Service will evaluate the 
carrier's compliance with immigration requirements as a whole. The 
Service will inform the carrier of any noncompliance and then may 
revoke any contract agreements between the Service and the carrier. The 
carrier may also be subject to fines for violations of manifest 
requirements or other statutory provisions. The Service will also 
review each Visa Waiver Program applicant who applies for admission and 
on a case-by-case basis, may authorize a waiver under current Service 
policy and guidelines or deny the applicant admission into the United 
States.

PART 231--ARRIVAL AND DEPARTURE MANIFESTS

    3. The heading for part 231 is revised as set forth above.
    4. The authority citation for part 231 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1221, 1228, 1229; 8 CFR 
part 2.

    5. Section 231.1 is revised to read as follows:


Sec.  231.1  Electronic arrival and departure manifests for passengers 
and crew.

    (a) Definitions. As used in this part, the terms:
    Appropriate official means the master or commanding officer, or 
authorized agent, owner, or consignee of a commercial aircraft or 
vessel.
    Commercial aircraft means commercial aircraft as defined in Sec.  
286.1(c) of this chapter.
    Commercial vessel means commercial vessel as defined in Sec.  
286.1(d) of this chapter.
    Crewmember has the same meaning as the term crewman defined in 
section 101(a)(10) of the Act.
    Ferry means a commercial vessel that has provisions only for deck 
passengers and/or vehicles, operating on a short run on a frequent 
schedule between two points over the most direct water route, and 
offering a public service of a type normally attributed to a bridge or 
tunnel. Vessels in coastwise or ocean service, as defined in the 
regulations of the USCG, 46 CFR part 70, are not ferries and, 
accordingly, are required to transmit electronic arrival and departure 
manifests.
    Passenger means any person being transported on a commercial 
aircraft or commercial vessel who is not a crewmember.
    United States means United States as defined in section 101(a)(38) 
of the Act.
    (b) Electronic arrival manifest. An appropriate official of every 
commercial vessel or aircraft arriving in the United States from any 
place outside of the United States shall transmit electronically to the 
Service a passenger arrival manifest and a crewmember arrival manifest. 
The electronic arrival manifest must contain the data elements set 
forth in paragraph (e) of this section for each passenger and 
crewmember.
    (1) For aircraft, an appropriate official must transmit the 
passenger arrival manifest no later than 15 minutes after the flight 
has departed from the last foreign port or place. The crewmember 
arrival manifest must be transmitted electronically to the Service in 
advance of departure from the last foreign port or place.
    (2) For vessels, an appropriate official must transmit the 
passenger and crewmember arrival manifests:
    (i) at least 96 hours before entering the port or place of 
destination, for voyages of 96 hours or more;
    (ii) at least 24 hours before entering the port or place of 
destination, for voyages of less than 96 hours but not less than 24 
hours; or
    (iii) prior to departing the port or place of departure, for 
voyages of less than 24 hours.
    (c) Electronic departure manifests. An appropriate official of 
every commercial vessel or aircraft departing from the United States to 
any place outside of the United States shall transmit electronically to 
the Service a passenger departure manifest and a crewmember departure 
manifest. The electronic departure manifest must contain the data 
elements set forth in paragraph (e) of this section for each passenger 
and crewmember.
    (1) An appropriate official of a commercial vessel or aircraft must 
transmit both the passenger departure manifest and the crewmember 
departure manifest to the Service no later than 15 minutes before the 
flight or vessel departs from the United States.
    (2) If additional passengers or crewmembers board or disembark 
after the original manifest has been submitted, an appropriate official 
of the vessel or aircraft concerned will also be required to submit 
amended or updated passenger and crewmember information electronically 
to the Service no later than 15 minutes after the flight or vessel has 
departed from the United States. An appropriate official of the 
aircraft or vessel concerned must also notify the Service 
electronically if a flight or voyage has been cancelled after a 
departure manifest has been submitted.
    (d) Electronic format.
    (1) The arrival and departure manifests for passengers and 
crewmember must be transmitted electronically to the Service via the 
USCS, by means of an electronic data interchange system that is 
approved by the Service.
    (2) The passenger arrival and departure manifests must be 
transmitted separately from the crewmember arrival and departure 
manifests. To distinguish the two manifests transmitted for a given 
flight or vessel, the crewmember arrival and departure manifests must 
have the alpha character ``C'' included in the transmission to denote 
that the manifest information pertains to the crewmembers for the 
flight or vessel.

[[Page 302]]

    (e) Contents of arrival and departure manifests. Each electronic 
arrival or departure manifest must contain the following information 
for all passengers or crewmembers:

------------------------------------------------------------------------
        AIR carrier information              SEA carrier Information
------------------------------------------------------------------------
Complete name (Last name, first name,    Complete name (Last name, first
 and middle name or initial).             name, and middle name or
                                          initial).
Date of birth..........................  Date of birth.
Citizenship (Country of document         Citizenship (Country of
 issuance).                               document issuance).
Gender (F=Female; M=Male)..............  Gender (F=Female; M=Male).
Passport number and country of           Passport number and country of
 issuance, if a passport is required.     issuance, if a passport is
                                          required.
Country of residence...................  Country of residence.
United States visa number, date, and     United States visa number,
 place of issuance, where applicable      date, and place of issuance,
 (arrivals only).                         where applicable (arrivals
                                          only).
Alien registration number, where         Alien registration number,
 applicable.                              where applicable.
United States address while in the       United States address while in
 United States (number and street,        the United States (number and
 city, state, zip code).                  street, city, state, zip
                                          code).
International Air Transport Association  Arrival Port Code.
 (IATA) Arrival Port Code.
IATA Departure Port Code...............  Departure Port Code.
Flight Number..........................  Voyage number.
Date of Flight Arrival.................  Date of Vessel Arrival.
Date of Flight Departure...............  Date of Vessel Departure.
Airline Carrier Code...................  Country of Registry/Flag.
Document Type (e.g., P=Passport;         Document Type (e.g.,
 V=Visa; A=Alien Registration).           P=Passport; V=Visa; A=Alien
                                          Registration).
Date of Document Expiration............  Date of Document Expiration.
A unique passenger identifier, or        A unique passenger identifier,
 reservation number or Passenger Name     or reservation number or
 Record (PNR) locator.                    Passenger Name Record (PNR)
                                          locator.
                                         Vessel Name.
                                         International Maritime
                                          Organization (IMO) number or
                                          the official number of the
                                          vessel.
------------------------------------------------------------------------

    (f) Ferries. The provisions of this part relating to the 
transmission of electronic arrival and departure manifests shall not 
apply to a ferry (if the passengers are subject to a land-border 
inspection by the Service upon arrival in the United States).
    (g) Progressive clearance. Inspection of arriving passengers may be 
deferred at the request of the carrier to an onward port of 
debarkation. Authorization for this progressive clearance may be 
granted by the Regional Commissioner when both the initial port-of-
entry and the onward port are within the same regional jurisdiction, 
but when the initial port-of-entry and onward port are located within 
different regions, requests for progressive clearance must be 
authorized by the Assistant Commissioner for Inspections. When 
progressive clearance is requested, the carrier shall present Form I-92 
in duplicate at the initial port-of-entry. The original Form I-92 will 
be processed at the initial port-of-entry, and the duplicate noted and 
returned to the carrier for presentation at the onward port of 
debarkation.

PART--251 ARRIVAL AND DEPARTURE MANIFESTS AND LISTS: SUPPORTING 
DOCUMENTS

    7. The heading for part 251 is revised as set forth above.
    8. The authority citation for part 251 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1221, 1281, 1282; 8 CFR part 2.


Sec.  251.5  [Redesignated as Sec.  251.6]

    9. Section 251.5 is redesignated as Sec.  251.6.
    10. Section 251.5 is added to read as follows:


Sec.  251.5  Electronic arrival and departure manifest for crew member.

    In addition to submitting arrival and departure manifests in a 
paper format in accordance with Sec. Sec.  251.1, 251.3, and 251.4, the 
master or commanding officer, or authorized agent, owner, or consignee 
of any aircraft or vessel transporting passengers to any airport or 
seaport of the United States from any place outside of the United 
States or from any airport or seaport of the United States to any place 
outside of the United States must submit electronic arrival and 
departure manifests for all crewmembers on board in accordance with 8 
CFR 231.1.
    11. Newly redesignated Sec.  251.6 is revised to read as follows:


Sec.  251.6  Exemptions for private vessels and aircraft.

    The provisions of this part relating to the presentation of arrival 
and departure manifests shall not apply to a private vessel or private 
aircraft not engaged directly or indirectly in the carrying of persons 
or cargo for hire.

Michael J. Garcia,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-33145 Filed 12-30-02; 4:31 pm]
BILLING CODE 4410-10-P