[Federal Register Volume 72, Number 163 (Thursday, August 23, 2007)]
[Rules and Regulations]
[Pages 48320-48345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15985]



[[Page 48319]]

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Part II





Department of Homeland Security





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Bureau of Customs and Border Protection



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19 CFR Parts 4 and 122; 6 CFR Part 5



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



Privacy Act of 1974: Customs and Border Protection Advanced Passenger 
Information System of Records; Notice



Privacy Act of 1974: Implementation of Exemptions; Advanced Passenger 
Information System; Proposed Rule

  Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / 
Rules and Regulations  

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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

19 CFR Parts 4 and 122

[USCBP-2005-0003; CBP Dec. 07-64]
RIN 1651-AA62


Advance Electronic Transmission of Passenger and Crew Member 
Manifests for Commercial Aircraft and Vessels

AGENCY: Customs and Border Protection, DHS.

ACTION: Final rule.

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SUMMARY: This rule adopts as final, with the modifications set forth in 
this document, proposed amendments to Customs and Border Protection 
(CBP) regulations concerning electronic manifest transmission 
requirements relative to travelers (passengers, crew members, and, in 
some instances, non-crew members) onboard international commercial 
flights and voyages arriving in and departing from the United States. 
The rule is designed to enhance national security and the level of 
security provided under the regulations for the commercial air and sea 
travel industries, and consequently increase national security in 
general. The rule also implements the Intelligence Reform and Terrorism 
Prevention Act of 2004, which requires that electronic manifest 
information for passengers onboard commercial aircraft arriving in and 
departing from the United States, and passengers and crew onboard 
arriving and departing commercial vessels (with certain exceptions), be 
vetted by DHS against a government-established and maintained terrorist 
watch list prior to departure of the aircraft or vessel.
    Under this final rule, there are three options for air carriers to 
transmit manifest data for aircraft departing from or en route to the 
United States: Transmission of passenger manifests in batch form by an 
interactive method no later than 30 minutes prior to the securing of 
the aircraft doors (APIS 30); transmission of individual passenger 
manifest information as each passenger checks in for the flight, up to, 
but no later than, the time the flight crew secures the aircraft doors 
(APIS interactive Quick Query or AQQ); and transmission of passenger 
manifests in batch form by a non-interactive method no later than 30 
minutes prior to the securing of the aircraft doors (APIS 30 ``non-
interactive'').
    For sea travel, CBP will require vessel carriers to transmit 
passenger and crew manifests for vessels departing from the United 
States no later than 60 minutes prior to departure. For vessels 
departing from foreign ports destined to arrive at a U.S. port, CBP is 
retaining the current requirement to transmit passenger and crew 
arrival manifest data at least 24 hours and up to 96 hours prior to the 
vessel's entry at the U.S. port of arrival.

DATES: Effective Date: February 19, 2008.

FOR FURTHER INFORMATION CONTACT: Robert Neumann, Program Manager, 
Office of Field Operations, Bureau of Customs and Border Protection 
(202-344-2605).

SUPPLEMENTARY INFORMATION: 

Acronyms and Abbreviations

    The following acronyms and abbreviations are used throughout this 
document:

    APIS: The Advance Passenger Information System; the electronic 
data interchange system approved by CBP for air carrier 
transmissions (to CBP) of electronic passenger, crew member, and 
non-crew member manifest data.
    APIS 30: This refers to the two electronic batch passenger 
manifest transmission options available to air carriers under this 
final rule, one of which is interactive and the other of which is 
not; both are so named because the batch passenger manifest must be 
transmitted under either option no later than 30 minutes prior to 
the securing of the aircraft (defined below).
    APIS 60: This refers to the two electronic batch passenger 
manifest transmission options proposed in the NPRM, one of which was 
interactive and the other of which was not; both were so named 
because it was proposed (but not adopted in this final rule) that 
the batch passenger manifest be transmitted under either option no 
later than 60 minutes prior to the aircraft's push-back from the 
gate. This term can also apply to the transmission process for 
commercial vessels departing from the United States, provided for in 
this final rule to require passenger and crew manifest transmissions 
60 minutes prior to departure.
    AQQ: APIS Quick Query, an interactive electronic transmission 
functionality for transmitting required individual passenger 
manifest data to CBP through APIS.
    ATSA: Aviation and Transportation Security Act (2001).
    CBP: Bureau of Customs and Border Protection.
    DHS: Department of Homeland Security.
    eAPIS: CBP Internet functionality for air carriers making 
required APIS transmissions to CBP.
    eNOA/D: Refers to U.S. Coast Guard (USCG) Internet functionality 
available to vessel carriers for making required APIS transmissions 
to CBP and required Notice of Arrival transmissions to the USCG.
    EBSVERA: Enhanced Border Security and Visa Entry Reform Act of 
2002.
    INS: Immigration and Naturalization Service.
    IRTPA: Intelligence Reform and Terrorism Protection Act of 2004.
    OCS: Outer Continental Shelf (of the United States).
    OMB: Office of Management and Budget.
    PIA: Privacy Impact Analysis.
    SORN: System of Records Notice; a notice required to be 
published in the Federal Register under the Privacy Act (5 U.S.C. 
552a) concerning a group of any records under the control of any 
agency from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual.
    TRIP: Travelers Redress Inquiry Program; a DHS program for 
individuals who have inquiries or seek resolution regarding 
difficulties they experienced during their travel screening at 
transportation hubs.
    TSA: Transportation Security Administration, DHS.
    TSC: Terrorist Screening Center, Department of Justice.
    UN/EDIFACT: United Nations Electronic Data Interchange For 
Administration, Commerce, and Trade.
    USCG: U.S. Coast Guard, DHS.
    US/EDIFACT: United States Electronic Data Interchange For 
Administration, Commerce, and Trade.

Table of Contents

    The SUPPLEMENTARY INFORMATION section of this final rule sets forth 
the basis, purpose, and particulars of this rulemaking and is organized 
as follows:

I. Background and Purpose
    A. Advance Passenger Information System (APIS)
    B. Rationale for Change
    1. Continued Threat of Terrorist Attacks Affecting Commercial 
Travel
    2. IRTPA
II. Discussion of the Final Rule
    A. Air Carrier Requirements
    1. Change Regarding Definition of ``Departure'' for Aircraft
    2. Manifest Transmission Options
    B. Vessel Requirements
III. Discussion of Comments
    A. Comments Pertaining to the Proposed Rule
    1. General Comments
    2. Comments Beyond the Scope
    3. Comments by (or on Behalf of) Air Carriers
    4. Comments by (or on Behalf of) Vessel Carriers and Outer 
Continental Shelf Operators
    B. Comments Pertaining to the Regulatory Assessment
IV. Conclusion and Summary of Changes Made to the APIS Regulations 
by This Final Rule
V. Regulatory Analyses
    A. Executive Order 12866 (Regulatory Planning and Review)
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act
    D. Executive Order 13132 (Federalism)
    E. Executive Order 12988 (Civil Justice Reform)
    F. National Environmental Policy Act
    G. Paperwork Reduction Act

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    H. Signing Authority
    I. Privacy Statement

I. Background and Purpose

    On July 14, 2006, CBP published a notice of proposed rulemaking 
(NPRM or proposed rule) in the Federal Register (71 FR 40035) proposing 
amendments to CBP regulations concerning the advance electronic 
transmission of passenger manifests for commercial aircraft arriving in 
and departing from the United States, and of passenger and crew 
manifests for commercial vessels departing from the United States. The 
proposed rule also solicited public comments. An economic analysis of 
the rule was made available to the public at http://www.regulations.gov 
(under docket number USCBP-2005-0003). This final rule discusses the 
comments received by CBP on the proposed rule and adopts the proposed 
amendments as final, with the modifications explained further below.

A. Advance Passenger Information System

    The Advance Passenger Information System (APIS) is a widely-
utilized electronic data interchange system approved by CBP. APIS is 
used by international commercial air and vessel carriers to transmit 
electronically to CBP certain data on passengers and crew members. APIS 
often will be referred to as ``the CBP system'' in this document to 
reflect transmissions of information to and from CBP.
    APIS was developed by the former U.S. Customs Service (Customs) in 
1988, in cooperation with the former Immigration and Naturalization 
Service (INS) and the airline industry. As a voluntary program, APIS 
was widely used, making it nearly an industry standard. After a period 
of voluntary participation, the Federal government implemented 
requirements governing the advance electronic transmission of passenger 
and crew member manifests for commercial aircraft and commercial 
vessels in accordance with several statutory mandates. These mandates 
include, but are not limited to: Section 115 of the Aviation and 
Transportation Security Act (ATSA), Public Law 107-71, 115 Stat. 597; 
49 U.S.C. 44909 (applicable to passenger and crew manifests for flights 
arriving in the United States); section 402 of the Enhanced Border 
Security and Visa Entry Reform Act of 2002 (EBSVERA), Public Law 107-
173, 116 Stat. 543; 8 U.S.C. 1221 (applicable to passenger and crew 
manifests for flights and vessels arriving in and departing from the 
United States); and CBP's general statutory authority under 19 U.S.C. 
1431 and 1644a (requiring manifests for vessels and aircraft).
    The Transportation Security Administration (TSA) also regulates the 
security of, among others, certain U.S. aircraft operators (49 CFR part 
1544) and foreign air carriers (49 CFR parts 1546 and 1550) that 
conduct passenger and all-cargo operations to, from, within, and 
overflying the United States. In addition to these regulations, TSA has 
implemented detailed security requirements tailored for specific 
sectors of the transportation industry that are implemented through 
security programs, Security Directives (SDs), \1\ and Emergency 
Amendments (EAs). See, e.g., 49 CFR 1544.305, 1546.105, 1550.5. Under 
certain SDs and EAs now in effect, TSA requires the advance submission 
of crew member and non-crew member manifest information for certain 
flights operating to, from, continuing within, and overflying the 
United States.
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    \1\ Security programs, SDs and EAs generally contain sensitive 
security information under 49 CFR 1520.5(b)(2) and thus are not 
disclosed to the general public.
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    A more detailed description of the legal authorities for DHS to 
collect advance passenger manifest information is set forth in a final 
rule issued by CBP on April 7, 2005 (70 FR 17820) (the 2005 APIS Final 
Rule), establishing CBP's current APIS regulations. See 19 CFR 4.7b, 
4.64, 122.49a-122.49c, 122.75a, and 122.75b. The 2005 APIS Final Rule 
also amended the APIS regulations to incorporate the requirement 
pertaining to electronic manifest transmissions for passengers and crew 
onboard vessels and aircraft arriving in and departing from the United 
States (8 CFR 231.1 and 231.2, respectively). See also 8 CFR 217.7 
(pertaining to the electronic data transmission requirement and the 
Visa Waiver Program).
    Under APIS, CBP requires air carriers and vessel carriers to 
collect and transmit information that consists primarily of information 
that appears on the biographical data page of travel documents, such as 
passports issued by governments worldwide. Many APIS data elements 
(such as name, date of birth, gender, country of citizenship, passport 
or other travel document information) routinely have been collected 
over the years by a country's government, when a traveler seeks entry 
into that country, by requiring the traveler to present a government-
issued travel document containing that information. Today, CBP uses 
this biographical data to perform enforcement and security queries 
against various multi-agency law enforcement and terrorist databases in 
connection with, as appropriate, international commercial flights to, 
from, continuing within, and overflying the United States and 
international commercial vessel voyages to and from the United States.
    For commercial air travel, CBP currently requires air carriers to 
electronically transmit passenger arrival manifests to CBP no later 
than 15 minutes after the aircraft's departure from any place outside 
the United States (Sec.  122.49a(b)(2)), and passenger departure 
manifests no later than 15 minutes prior to departure of the aircraft 
from the United States (Sec.  122.75a(b)(2)). Manifests for crew 
members on passenger and all-cargo flights and non-crew members on all-
cargo flights must be electronically transmitted to CBP no later than 
60 minutes prior to the departure of any covered flight to, continuing 
within, or overflying the United States (Sec.  122.49b(b)(2)), and no 
later than 60 minutes prior to the departure of any covered flight from 
the United States (Sec.  122.75b(b)(2)).
    For commercial sea travel, CBP currently requires vessel carriers 
to electronically transmit arrival passenger and crew member manifests 
at least 24 hours (for voyages of fewer than 24 hours), and up to 96 
hours (for voyages of 96 or more hours), prior to the vessel's entry at 
a U.S. port or place of destination, depending on the length of the 
voyage (for voyages of 24, but less than 96 hours, transmission must be 
prior to departure of the vessel from any place outside the United 
States). See Sec.  4.7b(b)(2). A vessel carrier also must 
electronically transmit passenger and crew member departure manifests 
to CBP no later than 15 minutes prior to the vessel's departure from 
the United States. See Sec.  4.64(b)(2).
    CBP currently requires that manifest information for passengers, 
crew members, and non-crew members, as appropriate, be electronically 
transmitted for these aircraft and vessel arrivals and departures, and 
for crew and non-crew member manifest information for flights 
continuing within and overflying the United States. These regulations 
serve to provide the nation, the carrier industries, and the 
international traveling public, with additional security from the 
threat of terrorism.

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B. Rationale for Change

1. Continued Threat of Terrorist Attacks Affecting Commercial Travel
    DHS's primary impetus for this rulemaking initiative is to respond 
to the continuing terrorist threat facing the United States, the 
international trade and transportation industries, and the 
international traveling public. The proposed rule referenced several 
terrorist incidents to demonstrate the longstanding and continued 
nature of the threat, including terrorist hijackings of commercial 
aircraft in the 1970s, the thwarted plot to explode 12 commercial 
airliners over a 48-hour period in 1996, instances where credible 
intelligence resulted in numerous flight delays and cancellations 
during the 2003 holiday season, and repeated intelligence-generated 
security alerts, including an alert identifying a threat to Washington, 
DC, and New York City leading up to the 2004 Presidential election. The 
NPRM also mentioned past terrorist attacks against passenger vessels to 
demonstrate the wide range of possible targets that may be chosen by 
terrorists. Terrorist attacks on rail systems in Madrid and London in 
2004 and 2005, further demonstrate the continued threat of terrorism to 
commercial travel. More recently, in August 2006, shortly after the 
July 14, 2006, publication of the proposed rule, U.S. and British law 
enforcement and intelligence agencies exposed a terrorist bomb plot in 
England involving a threat to several U.S.-bound flights by London-
based terrorists intending to use common liquid materials to construct 
a bomb onboard aircraft. These incidents underscore the need to 
continue to review and revise travel and transportation-related 
security programs and systems. And terrorists threaten not only human 
life, but the economic well-being of the commercial air and vessel 
carrier industries--industries of great importance to the United States 
and world economies.
    The current system--which requires transmission of information only 
after departure for flights en route to the United States--has resulted 
in costs to industry. Several times since Fall 2004, identification of 
a high-risk passenger by DHS after departure of an aircraft en route to 
the United States has resulted in the diversion of the aircraft to a 
different U.S. port, or a ``turnback'' to the port of departure. While 
necessary to safeguard both national security and the passengers on an 
aircraft or vessel, these measures are costly to the affected carriers.
    To address these legitimate threats of terrorism and enhance 
national security, DHS and the air and vessel carrier industries, under 
the governing statutes and regulations, are required to take steps to 
alleviate the risks and protect these vital industries and the public.
2. IRTPA
    On December 17, 2004, the Intelligence Reform and Terrorism 
Prevention Act of 2004 (IRTPA), Public Law 108-458, 118 Stat. 3638, was 
enacted. Sections 4012 and 4071 of IRTPA require DHS to issue a notice 
of proposed rulemaking to establish procedures to allow for pre-
departure vetting of passengers onboard aircraft, and passengers and 
crew onboard vessels, bound for and departing from the United States. 
IRTPA's goal is ensuring that potential terrorists are targeted prior 
to departure of the aircraft or vessel.
    Congress, in enacting IRTPA, expressly recognized the need to fully 
perform vetting of manifest information prior to the departure of 
commercial aircraft and vessels traveling to and from the United 
States. Section 4012(a)(2) of IRTPA directs DHS to issue a rule 
providing for the collection of passenger information from 
international flights to or from the United States and comparison of 
such information by DHS with a consolidated terrorist watch list 
maintained by the Federal government before departure of the aircraft. 
Section 4071(1) of IRTPA requires DHS to compare vessel passenger and 
crew information with information from the consolidated terrorist watch 
list before departure of a vessel bound for or departing from the 
United States. In accordance with IRTPA, DHS will use the consolidated 
terrorist watch list of known and suspected terrorists maintained by 
the Terrorist Screening Center (TSC) of the Department of Justice (DOJ) 
to vet passengers and crew members traveling on flights to and from the 
United States and on vessels departing from the United States.
    The IRTPA mandates that DHS collect manifest information in 
sufficient time to ensure that the Federal government can perform 
security analysis and take appropriate action prior to the departure of 
aircraft and vessels. To meet this requirement, CBP must amend its 
current APIS regulations. Accordingly, CBP, under this final rule, will 
collect and vet required APIS data before passengers board aircraft 
bound for or departing from the United States. For sea travel, CBP will 
collect and vet passenger and crew data earlier than is permitted under 
existing regulations for vessels departing from the United States, in 
order to increase our ability to detect high-risk persons before they 
can perpetrate a terrorist act.
    Security is an ongoing process. Through this final rule, CBP 
establishes new requirements for the pre-departure transmission of 
traveler and crew data. These requirements will serve as a layer of 
protection against high-risk travelers while facilitating lawful 
travel.

II. Discussion of the Final Rule

    On July 14, 2006, CBP published its NPRM in the Federal Register 
(71 FR 40035) proposing to amend APIS regulations concerning aircraft 
bound for and departing from the United States and vessels departing 
from the United States. The preamble of the proposed rule sets forth 
various discussions regarding the proposed amendments, the background 
and purpose thereof, and the proposed manifest data transmission and 
security vetting process. DHS recommends reading that publication for a 
more detailed discussion and description of the proposed amendments.

A. Air Carrier Requirements

1. Change Regarding Definition of ``Departure'' for Aircraft
    In the NPRM, CBP proposed to change the definition of ``departure'' 
of an aircraft from ``wheels-up,'' (e.g. the moment the landing gear is 
retracted into the aircraft immediately after takeoff and the aircraft 
is en route directly to its destination) to ``push back'' (e.g. the 
moment the aircraft leaves the gate). This definition is important 
because a carrier's obligation to transmit data to CBP has been tied to 
departure.
    CBP initially believed that redefining ``departure'' as noted 
above, and instituting earlier manifest transmission time requirements 
tied to that definition, would resolve these problems and provide 
sufficient time for effective vetting of aircraft passengers prior to 
departure. Thus, CBP proposed that ``departure'' for aircraft should be 
defined to occur the moment the aircraft pushes back from the gate, a 
point in the process closely proximate to the moment when the doors are 
closed on the aircraft. CBP subsequently determined, however, that some 
flights covered by the APIS regulations never ``push back'' from a gate 
prior to departure. Therefore, CBP is not redefining ``departure'' in 
this final rule; instead, CBP is adopting ``securing of the aircraft,'' 
or the moment the aircraft's doors are closed and secured for flight, 
as the touchstone for transmitting information to CBP. See Sec.  
122.49a(a).

[[Page 48323]]

2. Manifest Transmission Options
    The proposed rule explains some of the security risks of high-risk 
and potentially high-risk passengers boarding an aircraft before they 
have been fully vetted. Such a passenger might have the opportunity to 
plant or retrieve a disassembled improvised explosive device or other 
weapon, the detonation of which could have grave consequences in loss 
of life, damage to aircraft and airport infrastructure, and economic 
harm to the airline industry and the U.S. and world economies in 
general. Once on board, a terrorist or terrorists could attempt to 
hijack or otherwise take over the aircraft with potentially devastating 
effect. To address this risk, the NPRM proposed a system that would 
enable CBP to prevent the boarding of a high-risk passenger, while 
providing options for air carriers to transmit manifest information in 
a manner suited to their operations.
    The NPRM proposed three options for transmitting required manifest 
data, two that employ an interactive process and one employing a non-
interactive process: (1) Transmitting complete manifests in batch form 
no later than 60 minutes prior to departure of the aircraft (APIS 
interactive batch or APIS 60); (2) transmitting passenger data as each 
passenger checks in for the flight, up to but no later than 15 minutes 
prior to departure (APIS interactive Quick Query or AQQ); and (3) 
transmitting passenger manifests in batch form no later than 60 minutes 
prior to departure by means of a non-interactive method (APIS 60 ``non-
interactive'').\2\ These three options remain in the final rule with 
modification concerning the timing of transmissions. CBP has changed 
the timing for transmission of passenger data to require transmission 
of APIS batch submissions--both interactive and non-interactive--no 
later than 30 minutes prior to the securing of the aircraft doors, and 
the transmission of data by APIS AQQ up until the time the aircraft 
doors are secured by flight crew. (Accordingly, APIS 60 is now referred 
to as APIS 30 for both interactive and non-interactive batch options). 
CBP determined that the change from 60 minutes to 30 is possible as a 
result of system improvements developed during the period of heightened 
alert after the August 2006 failed London bombing plot.
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    \2\ As discussed in the proposed rule, carriers might elect not 
to employ an interactive method because of the cost of modifying 
their transmission systems or because their particular operations 
are not well suited to interactive communication. Such carriers are 
typically unscheduled air carrier operators, such as seasonal 
charters, air taxis, and air ambulances, that currently employ eAPIS 
(Internet method) for manifest data transmission.)
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    Although the APIS regulations, under this final rule, will require 
transmission of passenger manifest data for air carriers no later than 
30 minutes before securing the aircraft's doors for batch 
transmissions, and up to the time the aircraft's doors are secured for 
AQQ transmissions, CBP also encourages air carriers to transmit 
manifest information, if available, as soon as possible and up to 72 
hours before the scheduled flight. While this early transmission is not 
mandatory under this final rule, early transmission would provide 
greater flexibility to CBP in vetting the information. This timing also 
is consistent with the timing under consideration by TSA in the 
development of its Secure Flight program. At their discretion, carriers 
could begin making transmissions up to 72 hours prior to scheduled 
departure under this final rule, which would--if the 72-hour 
requirement in the Secure Flight rule becomes final--allow carriers to 
avoid making a second set of system adjustments to comply with the 
Secure Flight program's second phase pertaining to international 
flights. Advance transmissions will enable earlier vetting by CBP and 
earlier issuance of boarding passes by carriers if warranted by vetting 
results, relieving the pressure that a high volume of later-transmitted 
data could have on the carriers' operations. DHS believes that earlier 
transmissions, though not required, would be to the carriers' advantage 
and encourages carriers to adopt it as a best business practice. TSA 
has published a proposed rule for the Secure Flight program in this 
edition of the Federal Register.
    The two interactive transmission options allow carriers to 
electronically receive return messages from CBP in real time. This is 
an improvement over the current APIS manifest transmission process, in 
which CBP's communications with carriers are by telephone or email. 
These real-time return messages can be sent to the carrier within 
seconds (in AQQ) or within a minute or two (in batch transmission) of 
the CBP system's receipt of passenger manifests or passenger manifest 
data. Under the AQQ option, return messages may be received at the 
carrier's check-in counter.
    Either interactive option will require a modification to a 
participating carrier's electronic transmission system. Therefore, 
before commencing operation of the interactive system and transmitting 
manifest information in accordance with either interactive option, a 
carrier must be certified by CBP, i.e., CBP will test the carrier's 
system and certify it as presently capable of operating as required. 
(CBP notes that in the event of a system outage, carriers would use an 
alternative communication procedure, regardless of which manifest 
transmission option the carrier employed.)
    Under this final rule, carriers choosing not to employ one of the 
interactive transmission options will transmit passenger manifests in 
batch form no later than 30 minutes prior to securing the doors by 
means of a non-interactive method. This option is now referred to as 
the ``APIS 30 non-interactive'' option. Because these carriers do not 
have to modify their transmission systems, they will not require CBP 
certification.
    The interactive options are likely to be adopted by large carriers 
and most of these carriers are expected to employ the AQQ option (or 
both AQQ and APIS interactive batch).\3\ Small carriers that transport 
significantly fewer international air passengers are likely to use the 
APIS 30 non-interactive option.
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    \3\ Large carriers are responsible for transporting over 95% of 
all international air passengers involving arrivals at or departures 
from a U.S. port.
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    The manifest transmission and security vetting process set forth in 
the NPRM has been modified in this final rule, in part to reflect a 
more specific description of the various steps involved and to show 
more precisely the roles of DHS's component agencies CBP and TSA, as 
the government assumes the vetting function for APIS purposes 
(currently performed by the air carriers). We note that the watch list 
vetting process for international flights, in which CBP currently plays 
a major role under existing APIS regulations, will be assumed 
eventually by TSA, while, after this transition, CBP will continue to 
require complete APIS transmissions by applicable deadlines to support 
its traditional customs, immigration, and border enforcement/security 
purposes. (TSA's role as a partner in this APIS process under this 
final rule should not be confused with TSA's Secure Flight program, now 
in development, for vetting domestic flights and for assuming, at a 
later time, the vetting function for international flights.)
    The APIS data transmission/security vetting process under this 
final rule is a joint CBP/TSA operation, since it combines data 
collection under the CBP APIS regulations through the CBP system; 
initial, automatic vetting of data by the CBP system; and the further, 
manual vetting by TSA analysts of data

[[Page 48324]]

related to passengers identified as high-risk (``not-cleared'') during 
initial vetting. TSA is assisted in the further vetting process by the 
TSC and, in some circumstances, by other Federal security/law 
enforcement agencies, such as the Federal Bureau of Investigation 
(FBI). The process involves the air carrier's transmission of passenger 
APIS data to the CBP system no later than a specific deadline prior to 
departure as specified in the final rule (but, as discussed above, 
transmission of data as early as 72 hours prior to scheduled departure 
is encouraged as a best business practice). The process also involves 
initial, automated vetting of the data against the No-Fly and Selectee 
watch lists by the CBP system, and a quick response by the CBP system, 
sending the initial vetting result for each passenger to the carrier as 
either a ``cleared, ``not-cleared,'' or ``selectee'' message. Together, 
the No-Fly and Selectee watch lists contain data on known and suspected 
terrorists, and persons involved in, and suspected of involvement in, 
terrorist activities. Passenger data that matches or possibly matches 
data on the No-Fly list will generate a ``not-cleared'' response from 
the CBP system. An inadequate passenger record of transmitted APIS data 
that cannot be properly vetted will also generate a ``not-cleared'' 
response. Passenger data that matches or possibly matches data on the 
Selectee watch list will generate a ``selectee'' response from the CBP 
system.
    The message returned to the carrier by the CBP system, upon 
completion of the initial vetting, determines what action the carrier 
will take with respect to each passenger: the carrier will not issue a 
boarding pass to, or board, any passenger generating a ``not-cleared'' 
instruction; the carrier will identify a ``selectee'' passenger for 
secondary screening (typically, a further examination of the 
passenger's person and/or baggage), in accordance with applicable TSA 
requirements; and the carrier will be required to retransmit corrected 
data or transmit new data relative to a passenger generating a ``not-
cleared'' instruction due to incomplete/inadequate data. A ``selectee'' 
passenger is issued a boarding pass with an instruction that secondary 
screening is required.
    CBP then forwards the data related to a passenger generating a 
``not-cleared'' response to TSA for further analysis to confirm matches 
and resolve false positives. At the same time, the carrier will 
immediately contact TSA to seek resolution of the ``not-cleared'' 
message by providing additional information, if necessary. Where the 
further vetting of ``not-cleared'' passengers results in such 
passengers being cleared for boarding or in being identified instead as 
``selectees,'' TSA will contact the carrier with appropriate 
notification.
(a) Vetting Response Messages and Secondary Screening of ``Selectee'' 
Passengers
    This final rule modifies the proposed rule to specify that a 
``selectee'' vetting result also will be sent to the carriers by the 
CBP system regardless of the transmission option chosen by the carrier 
and that, in accordance with applicable TSA requirements, ``selectee'' 
passengers will be subject to secondary screening before entering the 
secure area.
(b) Connecting Passengers
    Unlike the proposed rule, the regulatory texts of this final rule 
include a reference to connecting passengers with boarding passes whose 
APIS data has not been collected by the responsible carrier and vetted 
by the CBP system when they arrive at the connecting airport. The 
applicable provisions of the regulation (the interactive batch and AQQ 
provisions), as amended in this final rule, specify that carriers must 
collect all required APIS data, at the gate or other suitable place, 
and await appropriate vetting results (``cleared'' or ``selectee'') 
before boarding these passengers (validation also occurs as carriers 
will either swipe the travel document or personally observe it at the 
gate). This is the only instance under the APIS process where a carrier 
is allowed to issue a boarding pass to a passenger, or have a boarding 
pass issued to a passenger by another carrier it has made arrangements 
with concerning connecting passengers, for an APIS-covered flight 
without first having received an appropriate vetting result for that 
passenger.
    Finally, where the interactive batch transmission option is 
employed and connecting passengers with boarding passes arrive at the 
gate (or other suitable location) within the 30-minute window, the 
carrier is not required to wait 30 minutes from the time the data is 
transmitted to secure the aircraft and depart, provided that 
appropriate vetting results are received, and validation occurs, before 
any connecting passenger is boarded.
(c) Effect of a ``Not-Cleared'' Instruction
    In the NPRM, CBP proposed that a carrier using either of the batch 
transmission options must not board a passenger subject to a ``not-
cleared'' vetting instruction. This final rule changes the requirement 
to prohibit these carriers from issuing a boarding pass to such 
passengers. This change merely brings the APIS regulation into 
conformance with existing TSA requirements to which carriers are 
already subject. CBP's proposed prohibition on issuing a boarding pass 
to such passengers under the AQQ option also is adopted in the final 
rule.
    Also, the NPRM's regulatory text provides that a carrier is bound 
by a ``not-cleared'' instruction, even when the further vetting process 
has not been concluded before departure. While this specific language 
does not appear in the regulatory texts of this final rule, the rule 
makes clear that a carrier may not issue a boarding pass to, or board, 
a ``not-cleared'' passenger unless such passenger is cleared to board 
during further vetting and the carrier has received that further 
vetting result (either a ``cleared'' or ``selectee'' instruction).
(d) ``Acknowledgement'' Requirement
    CBP initially proposed that a carrier using the AQQ option must 
contact CBP to acknowledge receipt of a ``not-cleared'' instruction. 
This step in the process has been determined to present an unnecessary 
burden on the electronic transmission/communication process. 
Accordingly, CBP has removed this requirement from the final rule.
(e) ``Resolution Contact'' Requirement
    In the NPRM, CBP proposed that a carrier using the AQQ transmission 
option, at its discretion, could seek resolution of a ``not-cleared'' 
instruction by providing additional information about a ``not-cleared'' 
passenger to assist in the further vetting of that passenger. This 
final rule makes this resolution contact mandatory for all carriers 
regardless of the transmission option chosen and specifies that the 
carrier must contact TSA for this purpose.
(f) Close-Out Message
    CBP proposed that carriers, regardless of the transmission option 
chosen, would send to CBP, no later than 30 minutes after departure, a 
unique identifier for each passenger that checked-in for, but did not 
board, the flight for any reason (referred to as a close-out message). 
This final rule changes the close-out message requirement by applying 
it only to the interactive transmission options (batch and AQQ), 
specifying that transmission must be no later than 30 minutes after the 
securing of the aircraft, and clarifying that the carrier may identify 
passengers who did not board the aircraft in the close-out message by

[[Page 48325]]

specific passenger data (such as, and typically, by use of a 
passenger's name).

B. Vessel Requirements

    As explained in the NPRM, and mentioned previously in this final 
rule, CBP determined that the appropriate level of security for vessels 
departing from the United States is to prevent such a departure with a 
high-risk passenger or crew member onboard (a known or suspected 
terrorist identified by vetting against the terrorist watch list). This 
determination was based on CBP's recognition that the commercial vessel 
travel industry operates in a vastly different manner than does the air 
travel industry. Commercial vessel carriers typically allow boarding 
several hours (usually three to six hours) prior to departure. (CBP 
also notes that the definition of ``departure'' for commercial vessels 
is found in 19 CFR 4.0(g) and, for APIS purposes, is regarded to mean 
the moment when the vessel, with all passengers and/or cargo onboard, 
leaves the dock directly en route to its foreign destination.) Thus, 
unlike the commercial air travel environment, a manifest transmission 
requirement designed to prevent the possibility of a high-risk vessel-
boarding likely would require extraordinary adjustments to the 
carriers' operations and have a significant impact on passengers. This 
would frustrate CBP's intent, and the purpose of various requirements 
governing Federal rulemaking, to achieve the agency's goal (enhanced 
security) without imposing an unreasonable burden on affected parties.
    Thus, CBP proposed that vessel carriers transmit passenger and crew 
manifests for vessels departing from the United States no later than 60 
minutes prior to departure. This timing requirement will remain the 
same in this final rule. This change will achieve the level of security 
sought by CBP for these vessels and thereby meet the purposes of the 
governing statutes, including the pre-departure vetting mandate of 
IRTPA. CBP noted in the NPRM that the electronic system for 
transmission of required vessel manifest data (arrival and departure) 
is now the (Internet-based) eNOA/D system of the U.S. Coast Guard 
(USCG). This is not an interactive system; so, unlike air carriers 
operating under the APIS 30 interactive or AQQ options, vessel carriers 
would not have to obtain system certification.
    After transmission of the manifest data, the initial automated 
vetting process, which will involve vetting against the same terrorist 
watch list used for aircraft passenger vetting, CBP will issue a ``not-
cleared'' instruction for matches, possible matches, and incomplete/
inadequate passenger records or crew data. Passengers or crew who are 
not matched by CBP will generate ``cleared'' messages. Carriers will be 
able to prevent the boarding of ``not-cleared'' persons if such persons 
have not already boarded (due to the very early boarding allowed). CBP 
notes that a ``not-cleared'' message returned to the carrier by CBP for 
an inadequate record would instruct the carrier to retransmit complete/
corrected data.
    CBP proposed that, during further vetting (which is the same 
process as described previously for air carriers), passengers and crew 
for whom ``not-cleared'' instructions were generated during the initial 
automated vetting procedure would be either confirmed as high-risks or 
resolved and cleared. The proposed rule pointed out that the current 
requirement for batch manifest transmission--no later than 15 minutes 
prior to a vessel's departure from a U.S. port--does not provide enough 
time to fully vet passengers or crew members or allow, where necessary, 
for the removal of a confirmed high-risk passenger or crew member from 
a vessel prior to departure. The APIS 60 procedure implemented under 
this final rule will provide CBP the time it needs, in the great 
majority of cases, to fully vet ``not-cleared'' passengers and crew 
members and to remove those confirmed as high-risk from the vessel 
prior to departure, thereby achieving the appropriate level of security 
sought by CBP. CBP does not guarantee these results in every instance 
and much depends on the carriers' procedures for locating and de-
boarding identified high-risk travelers.
    For vessels departing from foreign ports destined to arrive at a 
U.S. port, CBP is retaining the current requirement to transmit 
passenger and crew arrival manifest data at least 24 hours and up to 96 
hours prior to a vessel's entry at the U.S. port of arrival. This 
requirement is consistent with the USCG's ``Notice of Arrival'' (NOA) 
requirements. (Under 33 CFR 160.212, arriving vessel carriers transmit 
manifest data to the USCG to meet its NOA requirement. The data is then 
forwarded to CBP, permitting additional compliance with CBP's APIS 
requirement with the one carrier transmission.) Moreover, the threat 
posed by a high-risk passenger or crew member once onboard a vessel is 
different to some extent from that posed by a high-risk passenger 
onboard an aircraft. A hijacked vessel's movements over the water and 
its range of available targets could be more readily contained than 
those of an aircraft, thus reducing the opportunity for a terrorist to 
use the vessel as a weapon against a U.S. port or another vessel.

III. Discussion of Comments

    The NPRM requested comments, to be submitted on or before August 
14, 2006, regarding the proposed amendments and its accompanying 
economic evaluation. The comment period was extended to October 12, 
2006, by notice published in the Federal Register (71 FR 43681) on 
August 2, 2006. A total of 54 comments were received. CBP responds to 
the comments below, first to those pertaining to the proposed 
amendments, and second, to those pertaining to the economic evaluation.

A. Comments Pertaining to the Proposed Regulation

1. General Comments
    Comment: Five commenters requested an extension of the public 
comment period for the NPRM.
    Response: CBP extended the comment period an additional 60 days (to 
October 12, 2006) in a notice published in the Federal Register (71 FR 
43681) on August 2, 2006.
    Comment: One commenter expressed general disagreement with the 
proposed rule without noting specific issues. Several commenters 
generally supported the NPRM. Two commenters expressed support for the 
interactive APIS process. Another commenter expressed support for CBP's 
assuming responsibility for watch list screening and removing this 
responsibility from the carriers.
    Response: CBP appreciates the supportive comments and is unable to 
respond to non-specific disagreements.
    Comment: One commenter expressed appreciation for CBP continuing to 
provide the eAPIS transmission method for those carriers that cannot 
implement the interactive APIS transmission options.
    Response: CBP appreciates this comment and notes that it is working 
to establish a Web interface that will greatly improve the speed and 
security of APIS transmissions via eAPIS.
    Comment: Three commenters urged that dialogue continue between CBP 
and the airline industry prior to publication of the final rule. One 
commenter stated that CBP should launch an aggressive outreach campaign 
to inform the public of the new requirements. This commenter also asked 
that CBP assemble an advisory group comprised of air carrier and CBP 
representatives to examine emerging operational issues regarding 
implementation of a final rule.
    Response: CBP has worked extensively with the carriers and their

[[Page 48326]]

representatives throughout this rulemaking process and is committed to 
continue that work to successfully and efficiently implement this final 
rule. This communication between CBP and the industry serves the 
essential purpose of an advisory group. CBP is committed to a robust 
public outreach effort so that impacts of the final rule are minimized 
and understood by the traveling public.
    Comment: Numerous commenters stated that the proposed 
implementation date for the final rule should be extended beyond 180 
days. Alternatives suggested included 300 days, one year, 18 months, 
and two years following publication of the final rule. Eight commenters 
requested that CBP refrain from implementing the final rule until the 
APIS program has been coordinated with TSA's Secure Flight program. Two 
commenters suggested a phased approach to implementation of the rule 
for the airline industry. One commenter asked that carriers be exempt 
from employing interim transmission methods until certified by CBP to 
use AQQ.
    Response: CBP does not agree with these comments to prolong 
implementation of the final rule. As was recently evidenced by the 
increased security alert for flights departing from the United Kingdom, 
there is, and continues to be, a real threat to the aviation industry. 
CBP has been directly engaged with the air carrier industry in the 
continued development of the pre-departure APIS process, and many air 
carriers are taking steps to design their internal and external (third-
party) interface processes. CBP continues to work with the air carrier 
industry to implement the pre-departure vetting of passengers. Carriers 
that cannot transition their systems to implement either of the 
proposed interactive options within the 180-day time frame will have to 
employ the non-interactive batch transmission option after the delay 
period's expiration. During the interim period, after publication of 
the final rule and before expiration of the delay period, carriers will 
be allowed to transmit manifest data by an available non-interactive 
method. CBP will eventually discontinue email transmissions by 
carriers, but eAPIS will continue to be available to carriers for 
manifest transmissions.
    Regarding coordination with the Secure Flight program, the APIS 
pre-departure requirements under this final rule will likely be 
effective prior to implementation of the Secure Flight program, which 
remains in development at TSA. CBP, and TSA, however, have worked to 
make programming changes required for APIS compliance compatible, to 
the extent possible, with those that are anticipated to be required 
under Secure Flight. For example, under the process to be implemented 
under this final rule, CBP is encouraging, but not requiring under the 
rule, carriers to make transmissions of data as early as 72 hours prior 
to scheduled departure for early security vetting and early issuance of 
boarding passes if warranted, a feature expected to be part of the TSA 
Secure Flight program in some form. DHS encourages carriers to adopt 
early transmissions as a best business practice. The CBP system will be 
able to receive manifest data transmitted early, and CBP will perform 
early vetting of this data if transmitted. CBP also is encouraging, but 
not requiring, that carriers include in their transmissions redress 
numbers issued by TSA (or any other unique passenger number approved by 
DHS for the purpose) to facilitate identification of passengers on a 
TSA cleared list (of passengers who have requested redress respecting a 
previous false positive vetting result) that will be checked in the 
vetting process.
    Comment: One commenter stated that the NPRM, if adopted, would 
infringe on First Amendment rights because the rule restricts free 
movement of people into the United States.
    Response: CBP does not agree that the changes made in this final 
rule will restrict the free movement of people arriving in and 
departing from the United States. Requiring carriers to submit 
passenger information in accordance with current APIS regulations and 
the amendments of this final rule, which affect the timing of data 
transmission and process, does not deny or impede the ability of people 
to travel to and from the United States. These regulations, as amended 
by this final rule, are within CBP's authority pursuant to the Aviation 
Transportation Security Act of 2001, the Enhanced Border Security and 
Visa Entry Reform Act of 2002, and the Intelligence Reform and 
Terrorism Prevention Act of 2004. As stated by CBP in the 2005 APIS 
Final Rule (70 FR 17828), the U.S. Supreme Court has recognized that 
the right to travel abroad is not an absolute right and that ``no 
government interest is more compelling than the security of the 
Nation.'' Haig v. Agee, 453 U.S. 280, 307 (1981). The Supreme Court 
also has stated that the government may place reasonable restrictions 
on the right to travel in order to protect this compelling interest. 
See id. (reminding that the ``right'' of international travel can be 
regulated within the bounds of due process); see also Eunique v. 
Powell, 302 F. 3d 971, 974 (9th Cir. 2002) (Fernandez, J.); Hutchins v. 
District of Columbia, 188 F. 3d 531, 537 (DC Cir. 1999).
    In addition, a ``Civil Liberties Costs and Benefits'' analysis was 
included in the 2005 APIS Final Rule (70 FR 17847), and it concluded 
that the non-quantified benefits (enhanced security, increased travel) 
exceed the non-quantified costs (the collection of personal data that 
would, to some extent, deter persons from traveling) flowing from the 
rule. This final rule does not affect the collection of data 
provisions. This final rule affects only the time requirements for 
transmission of that data and the process by which it is collected and 
transmitted to the CBP system and the system communicates with the 
carriers to report security vetting results. CBP, without agreeing that 
the rule's changes impose an additional cost on travelers, submits that 
any increase in the deterrent impact on prospective legitimate 
travelers that these changes might cause would be negligible, since 
carriers already require international passengers to arrive at the 
airport early and passengers will still be able to benefit from early 
check-in processes. This negligible increase in non-quantifiable costs, 
if there is one, should be weighed against the likely increase in the 
non-quantifiable benefits that will derive from the timing and process 
changes made in this final rule: an enhanced aviation security process, 
with a greater ability to prevent a terrorist incident, and the 
resultant possible increase in passengers who appreciate a safer air 
travel environment. In the 2005 APIS Final Rule, CBP stated that the 
regulation then published was designed to enhance the ability to 
travel, not to restrict it. CBP believes that the security enhancement 
achieved in this final rule published today will likewise further 
enhance, rather than impair, the public's ability and willingness to 
travel.
    Comment: One commenter asked how and when the public would be 
notified of the finalization of the rule.
    Response: The publication of this final rule in the Federal 
Register is notification that the rule has been adopted as final and 
will become effective on February 19, 2008.
2. Comments Beyond the Scope of the Rule
    Comment: Eight commenters submitted several comments on the AQQ 
Interactive User Guide.
    Response: Comments on the user guide (now known as the 
``Consolidated User Guide'') are beyond the scope of this rule. The 
APIS regulation, unlike

[[Page 48327]]

the guide, is not designed to provide detailed and comprehensive 
technical specifications, guidance, or instructions for operation of 
the electronic transmission system. An updated guide is currently in 
preparation.
    Comment: Four commenters stated that the Form I-94 Arrival/
Departure Record should be eliminated. One commenter stated that the 
Form I-418 Passenger List-Crew List should be eliminated, and another 
recommended that the general customs declaration (CF 6059B) be 
eliminated.
    Response: Comments on the Form I-94, Form I-418, and the general 
customs declaration are beyond the scope of this rule.
    Comment: One commenter stated that the planned PASS card should be 
accepted in the air travel environment.
    Response: Comments on the PASS card, the State Department's 
proposed passport card for travel to the United States from within the 
Western Hemisphere, are beyond the scope of this rule.
    Comment: One commenter stated that the transit without visa (TWOV) 
program should be reinstated.
    Response: Comments on the currently suspended TWOV program, which 
allowed passengers from certain designated countries to transit through 
the United States without a visa, are beyond the scope of this rule.
    Comment: One commenter stated that International Air Transport 
Association (IATA) should develop a standard for transmission and 
sharing of AQQ messages between air carriers.
    Response: The decision to share APIS data between air carriers is 
outside the purview of CBP's authority and beyond the scope of this 
rule. While data-sharing agreements between carriers are business 
decisions unique to each carrier or carrier alliance, CBP acknowledges 
that such agreements would enhance the APIS data transmission/security 
clearance process, particularly with respect to connecting passengers.
    Comment: Two commenters stated that air cargo manifests could not 
be submitted 60 minutes prior to departure without seriously disrupting 
cargo operations on small carriers.
    Response: CBP notes that this rule does not change any requirements 
for submitting cargo manifests for aircraft or vessels. The rule is 
narrowly applicable to passenger manifests for flights arriving in and 
departing from the United States and passenger and crew manifests for 
vessels departing from the United States. Comments on other sections of 
the CBP regulations or any other provisions of the current APIS 
regulations are beyond the scope of this rule.
    Comment: Six commenters requested that the final rule require air 
carriers to transmit to CBP only the APIS data elements that are 
obtainable from the machine-readable zone of the travel document 
presented by the passenger.
    Response: The NPRM did not propose changes to the required data 
elements under the APIS regulations; rather, the NPRM is limited to 
proposed changes in the timing and manner of submission of this 
information to CBP. Therefore, comments regarding required APIS data 
elements are beyond the scope of this rule, although CBP, in this 
document, encourages, but does not require, carriers to include in 
their transmission of manifests or manifest data passenger redress 
numbers issued by TSA (or another unique identifier approved by DHS for 
the purpose) to facilitate resolution of possible matches.
    Comment: One commenter asked if the proposed change regarding 
vessel carrier transmission of passenger and crew manifests no later 
than 60 minutes prior to departure would be applicable for vessels 
departing from foreign ports bound for the United States. This same 
commenter asked if APIS data could be transmitted 10 minutes prior to 
departure. Another commenter asked if a final rule would affect pre-
clearance processing for voyages beginning in Canada and bound for the 
United States.
    Response: As set forth in the NPRM, the proposed change to a 60-
minute prior to departure requirement is applicable only for vessels 
departing from the United States, not for vessels departing from a 
foreign port bound for the United States. Comments on the vessel 
arrival scenario are beyond the scope of this rule. CBP nonetheless 
notes that for arriving vessels, CBP is retaining the requirement to 
transmit passenger and crew manifest data at least 24 hours and up to 
96 hours prior to a vessel entering the U.S. port of arrival.
    Comment: Two commenters stated that the rulings and regulations 
governing the U.S. Outer Continental Shelf (OCS) and Exclusive Economic 
Zone (EEZ) should be completely reworked in conjunction with the USCG.
    Response: Changes to the regulations and agency rulings pertaining 
to OCS activities and the definition of the EEZ are beyond the scope of 
this rule.
3. Comments From (or on Behalf of) Air Carriers
    Comment: One commenter requested that CBP clarify in the 
regulations that air carriers alone supply APIS data and be liable for 
its accuracy.
    Response: Under the current APIS regulations (Sec. Sec.  
122.49a(b)(1) and 122.75a(b)(1)), commercial air carriers are 
responsible for transmitting APIS manifest data. In addition, the 
current regulations require the carriers to compare the travel document 
presented by a passenger with the information it is sending to CBP for 
the purpose of ensuring, to the extent possible in the circumstances, 
that the information is correct, the document appears to be valid for 
travel, and the person presenting the document is the one to whom it 
was issued (Sec. Sec.  122.49a(d) and 122.75a(d)). The final rule does 
not change these provisions.
    Comment: One commenter asked that flights of less than one hour be 
exempt from the rule, that flights between the United States and 
territories in the Caribbean be exempt, and that carriers should be 
able to submit a request for exemptions on certain routes. Another 
commenter asked that passengers on flights chartered by the Department 
of Defense (DOD) be exempt from the rule.
    Response: CBP does not agree with these comments, and the final 
rule's amendments will not include exemptions for the circumstances, 
routes, or passengers described. However, the transmission of APIS data 
is not required for flights between the United States and U.S. 
territories and possessions. It also is noted that the APIS manifest 
transmission requirement does not apply to active duty U.S. military 
personnel traveling as passengers on DOD commercial chartered aircraft. 
See Sec. Sec.  122.49a(c) and 122.75a(c).
    Comment: Three commenters requested that carriers operating flights 
from pre-clearance locations be exempt from APIS transmission 
requirements for passengers that have been processed at those locations 
prior to entering the United States. One commenter contended that 
requiring APIS transmissions for these flights would be redundant.
    Response: CBP disagrees with these comments. The amendments of the 
final rule apply to flights from pre-clearance locations. Currently, 
carriers departing from pre-clearance locations are required to ensure 
that passengers are vetted for APIS purposes. Under this final rule, 
carriers are required to collect and transmit all required APIS data 
elements in accordance with applicable provisions (for either the batch 
or the AQQ process), including the timing of manifest transmission and 
others explained further in this section.

[[Page 48328]]

    Comment: One commenter requested that the email system currently 
employed to transmit APIS batch manifests be maintained until the new 
interactive capabilities proposed are in place.
    Response: CBP has established a web application, eAPIS, which will 
allow submitters to upload batch manifests in lieu of an email 
communication. Furthermore, CBP is developing a web service through 
eAPIS that will afford a more automated process for manifest 
submissions. CBP is expecting to discontinue email transmission for 
APIS manifests in 2007, at which time email users can adopt the eAPIS 
transmission process.
    Comment: Four commenters inquired about the responsibility, under a 
final rule, for vetting passengers against the terrorist watch list. 
One commenter asked for clarification on the management of the list. 
Two commenters asked if carriers would be responsible for checking air 
carrier employees against the list. Three commenters requested 
confirmation that, under the proposed AQQ option, the government will 
perform terrorist watch list vetting for the domestic portion of an 
international itinerary. One commenter asked for AQQ to be available to 
vet airline crew.
    Response: Under the manifest transmission/security vetting process 
as implemented under this final rule, the government will perform No-
Fly and Selectee watch list vetting of passengers traveling on 
international flights to and from the United States and of passengers 
and crew traveling on international voyages departing from the United 
States (use of the No-Fly list not being limited to aircraft vetting). 
The carriers will be relieved of that responsibility upon the effective 
date of this rule, but only with respect to those flights and voyages 
subject to the APIS provisions of the CBP regulations. As the 
government is assuming the vetting responsibility for APIS purposes, 
carrier management of these watch lists (No-Fly and Selectee) for APIS 
purposes is beyond the scope of the rule. However, carriers remain 
subject to any applicable TSA requirements to check pertinent watch 
lists, such as a watch list for vetting carrier employees; management 
of such watch lists also is beyond the scope of this rule.
    As noted previously, CBP is designing its systems to align, to the 
extent possible, international APIS security vetting requirements and 
process with TSA's anticipated domestic Secure Flight program security 
vetting requirements and process.
    Regarding the vetting of domestic flights, the APIS regulations 
cover international flights (i.e., flights to and from the United 
States and, relative to aircraft crew and non-crew members only, 
flights continuing within (after arrival from a foreign port) and over-
flying the United States). Therefore, the APIS regulations do not cover 
the domestic portion of an international flight from one U.S. port to 
another before departure to a foreign port, and this final rule does 
not concern the vetting of flights continuing within the United States, 
a domestic leg, as APIS data is required only for crew and non-crew, 
not passengers, on those flights.
    Finally, the amendments of the final rule do not affect the APIS 
regulations concerning air carrier manifest transmissions for crew and 
non-crew members; the AQQ process is for passenger manifest data 
transmission. Under applicable APIS regulations, the carrier must 
transmit crew manifests no later than 60 minutes prior to departure 
(wheels-up) (Sec. Sec.  122.49b and 122.75b).
    Comment: Numerous comments concerned the definition of 
``departure'' for aircraft. Fourteen commenters stated that the 
definition of departure should remain ``wheels-up,'' as set forth in 
the current regulation. One commenter agreed with the definition of 
departure as ``push-back from the gate.'' A few commenters pointed out 
that not all carrier operations involve aircraft pushing back from a 
gate.
    Response: CBP has reconsidered the matter and is retaining the 
current definition of departure (wheels-up) in the regulation. However, 
since the commenters' objection to the proposed definition change 
relates to the timing of manifest transmissions, CBP notes additionally 
that such transmissions under the final rule will be tied to the moment 
the aircraft's doors are closed and secured for flight (referred to as 
the ``securing of the aircraft''), a time closely proximate to push-
back from the gate but applicable to all aircraft, including smaller 
carriers whose operations do not involve a departure gate. 
Consequently, the final rule will not revise the definition of 
``departure'' as proposed but will add the definition of ``securing the 
aircraft.'' See Sec.  122.49a(a).
    Thus, as explained in further detail in comment responses below 
dealing with the proposed rule's manifest transmission time 
requirements, the final rule will require batch passenger arrival and 
departure manifest transmissions no later than 30 minutes prior to the 
securing of the aircraft. For the AQQ arrival and departure scenarios, 
passenger manifest data transmissions are allowed up to the securing of 
the aircraft. The retained definition of ``departure'' as wheels-up 
continues to apply to transmissions of crew and non-crew manifests.
    Comment: Numerous comments concerned the NPRM's 60-minute APIS 
batch transmission option. Many commenters suggested that the proposed 
requirement to transmit batch information 60 minutes prior to departure 
(push-back) be reduced to something less than 60 minutes, stating 
primarily that manifests may not be complete at 60 minutes out and that 
this option places an unreasonable burden on carrier operations. One 
commenter stated that this option would be especially burdensome where 
passengers already have undergone a security background check. 
Recommendations for an alternative time requirement included 30 minutes 
and 15 minutes prior to departure, maintaining the current regulation's 
requirements (15 minutes after wheels-up departure for arriving flights 
and no later than 15 minutes prior to wheels-up departure for departing 
flights), and requiring transmission when a flight is downloaded to the 
carrier's departure control system.
    Response: Based on lessons learned during the aftermath of the 
exposed bomb plot in London, and the consequent technical and 
operational adjustments made in the manifest transmission and security 
vetting processes during that time which allowed CBP to complete the 
process more quickly, CBP has determined that the proposed 60-minute 
time requirement can be reduced without sacrificing security 
effectiveness (a CBP-imposed pre-condition to any reduction). Thus, for 
batch manifest transmissions, for flights en route to (arriving 
flights) and departing from (departing flights) the United States, CBP 
is modifying the proposal in the final rule to provide that carriers 
must transmit batch passenger manifests no later than 30 minutes prior 
to the securing of the aircraft. See Sec. Sec.  122.49a(b)(2) and 
122.75a(b)(2) and the immediately previous comment and response 
regarding the definition of ``departure'' for aircraft.
    This manifest transmission timing change allows carriers to make 
transmissions later in the process (aircraft loading/boarding/departure 
process) than was proposed in the NPRM, and therefore calls upon 
carriers to take into consideration that the carrier may not receive 
the results of vetting information transmitted to CBP close to the 30-
minute deadline prior to the aircraft's scheduled departure. This could 
cause aircraft departure delays or

[[Page 48329]]

departures that leave behind one or more customers (passengers 
generating ``not-cleared'' initial vetting responses) who are not 
permitted to board the aircraft because of a not-cleared response or 
inability to complete screening. While CBP believes that 30 minutes is 
sufficient time for completion of the full vetting process most of the 
time, it cannot guarantee this result in every instance. Carriers also 
should consider that under current TSA requirements and this final 
rule, carriers must contact TSA to seek resolution of ``not-cleared'' 
vetting results. Transmitting manifests as late as 30 minutes prior to 
securing the aircraft will leave little time for this required task. 
CBP, therefore, encourages air carriers to submit manifest information 
as early as possible to ensure timely completion of vetting prior to 
the aircraft's scheduled departure.
    CBP expects that carriers will exercise sound business judgment 
regarding when to transmit manifests. Sound judgment that lessens risk 
will have a positive impact on the process, making it more effective 
for all concerned. In this regard, the final rule also makes clear that 
multiple batch transmissions are permitted and that a carrier may 
employ both the APIS batch process for early transmissions and the AQQ 
process for transmissions within the 30-minute window.
    In addition, carriers have requested that CBP allow manifest data 
transmissions as early as 72 hours prior to departure. CBP agrees that 
such early transmissions, which DHS encourages carriers to adopt as a 
best business practice, would generate early vetting results, subject 
to later validation by the carrier (swiping of passport or other travel 
document or examination of document by carrier personnel), and allow 
early issuance of boarding passes, resulting in fewer passengers to be 
vetted within the 30-minute window and a reduced risk of passengers 
missing their flights while further vetting is conducted. With respect 
to early transmissions, as noted previously, TSA is developing the 
Secure Flight program to be administered and enforced by TSA and is 
preparing a proposed rule for implementation of the program that may 
mandate carrier transmission of certain data pertaining to passengers 
as early as 72 hours prior to scheduled departure for security vetting 
purposes. With the best interest of the traveling public and the 
industry in mind, DHS encourages carriers to begin development of a 
process for making early transmissions to enhance later alignment 
between the APIS and Secure Flight programs; once Secure Flight is 
operational, TSA will eventually assume the complete terrorist vetting 
function for both international and domestic flights, while, after this 
transition, CBP will continue to require complete APIS transmissions by 
applicable deadlines for purposes of its traditional customs, 
immigration, and border enforcement/security functions. DHS is 
committed to working with the carriers to ensure that any processes 
developed include carrier input and take into consideration the 
important interests of the public and the carrier industry. CBP notes 
that it has dedicated a team of officers (operating over the past two 
years) to work with various carriers, carrier industry partners, and 
TSA in the development of coordinated processes that will benefit all 
parties.
    CBP acknowledges that some carriers, typically smaller carriers 
that employ the batch transmission process (either interactive or non-
interactive), may not be able to make early transmissions. CBP is 
confident that the transmission/security vetting process will work 
adequately for these carriers most of the time and that the intended 
security goals will be achieved.
    Further to the matter of security effectiveness, CBP has determined 
that the batch transmission provisions of the APIS regulation should 
mirror current TSA requirements that prohibit carriers from issuing 
boarding passes to passengers who have not been either ``cleared'' for 
boarding or designated as ``selectees;'' thus, the batch transmission 
provisions of the final rule are modified accordingly to require that 
carriers must not issue boarding passes to passengers generating a 
``not-cleared'' vetting response (the converse being that carriers may 
issue boarding passes only to ``cleared'' and ``selectee'' passengers). 
See Sec. Sec.  122.49a(b)(1)(ii)(A) and (B) and 122.75a(b)(1)(ii)(A) 
and (B). The NPRM proposed that carriers using either of the batch 
manifest transmission options preclude a passenger from boarding the 
aircraft, without prohibiting issuance of the boarding pass, if not 
cleared by the CBP system. This change merely brings the APIS 
regulation into conformance with existing TSA requirements to which 
carriers are already subject.
    Finally, regarding passengers who have already undergone a security 
background check, presumably conducted by an air carrier or by another 
private entity on the carrier's behalf, CBP cannot accept a carrier's 
privately conducted background investigation in lieu of the vetting of 
APIS data against government established and maintained watch lists.
    Comment: Fourteen commenters stated that the proposed requirement 
that carriers must transmit APIS passenger data via the AQQ process by 
15 minutes prior to aircraft departure (push-back) is unnecessary as 
long as the passengers receive security clearance prior to boarding the 
aircraft.
    Response: Under the proposed rule, carriers using AQQ would be 
required to transmit individual passenger data up to, but no later 
than, 15 minutes prior to departure (push-back) and to not issue a 
boarding pass to any passenger not cleared by the CBP system. The final 
rule retains the latter requirement prohibiting issuance of the 
boarding pass; this prohibition mirrors current TSA requirements that 
prohibit carriers from issuing boarding passes to passengers until the 
passenger names have been compared against the applicable terrorist 
watch lists and cleared for boarding. However, CBP agrees with the 
commenters that the 15-minute transmission deadline is unnecessary 
because air carriers are prohibited from issuing a boarding pass until 
the passenger is cleared and the AQQ process is capable of producing an 
initial vetting response within seconds of the transmission of data to 
the CBP system. Therefore, CBP is eliminating the proposed 15-minute 
time frame from the final rule's AQQ provision; the final rule permits 
carriers using AQQ to transmit APIS data up to the securing of the 
aircraft, i.e., the moment at which the aircraft's doors are closed and 
secured for flight. See Sec. Sec.  122.49a(b)(2) and 122.75a(b)(2) 
below. DHS has determined that this procedure still accomplishes its 
security goal to keep high-risk passengers from boarding an aircraft 
and to prevent the baggage of such passengers from being loaded onto 
the aircraft.
    CBP again notes that this transmission time change for the AQQ 
process calls upon the carriers to take into consideration the risk 
associated with late transmissions (those made just before or otherwise 
too close to the deadline for completion of further vetting of ``not-
cleared'' passengers) and to exercise sound business judgment to avoid 
having to face a choice between delayed aircraft departures or 
departures that leave behind one or more customers (passengers 
generating ``not-cleared'' vetting responses) who were not permitted to 
board the aircraft.
    Transmissions of data as early as 72 hours prior to scheduled 
departure, which carriers have requested and CBP encourages as a best 
business practice, would generate early vetting results, subject to 
later validation by the carrier (swiping of passport or other travel

[[Page 48330]]

document or examination of document by carrier personnel), fewer 
passengers to be vetted later in the process, and a reduced risk of 
passengers missing their flights while further vetting is conducted. 
CBP encourages carriers to begin development of a process for making 
early transmissions to enhance later alignment between the APIS and 
Secure Flight programs. Once Secure Flight becomes operational, TSA 
will eventually assume the complete pre-departure terrorist vetting 
function for both international and domestic flights, while, after this 
transition, CBP will continue to require complete APIS transmissions by 
applicable deadlines for purposes of its traditional customs, 
immigration, and border enforcement/security functions.
    Comment: Eight commenters asked about the steps or processes that 
would follow a carrier's receipt of a ``not-cleared'' message from CBP. 
One commenter stated that passengers receiving an initial ``not-
cleared'' message must be processed promptly. Another stated that 
``false positives'' must be minimized. A third commenter stated that 
most passengers generating ``not-cleared'' messages are innocent.
    Response: Under the final rule's (interactive and non-interactive) 
batch manifest transmission and AQQ transmission options, a carrier may 
not issue a boarding pass to a passenger whose data generates a ``not-
cleared'' response from the CBP system. Put another way, a carrier must 
not issue a boarding pass to a passenger unless it receives a 
``cleared'' or ``selectee'' vetting response from the CBP system. In 
the latter instance, a ``selectee'' passenger may board the aircraft 
after successfully undergoing secondary screening (such as searching a 
passenger's baggage or person manually or otherwise), in accordance 
with applicable TSA requirements.
    Additionally, the carrier may not load onto the aircraft, or must 
remove if already loaded, the baggage of a ``not-cleared'' passenger. A 
carrier may not, under any circumstances, transport baggage belonging 
to a passenger who has not been cleared. A carrier must contact TSA to 
seek resolution of ``not-cleared'' responses by providing additional 
information about the ``not-cleared'' passenger, if necessary (meaning 
if TSA requires additional information that the carrier can provide to 
complete further vetting). A requirement to acknowledge receipt of a 
``not-cleared'' response by sending a return message to the CBP system 
was proposed for the AQQ option. CBP has decided to delete that step 
from the process in this final rule. The ``resolution contact'' 
requirement, which was discretionary in the NPRM for the AQQ option but 
is now mandatory for all transmission options, has been modified to 
mirror existing TSA requirements. While these changes regarding the 
resolution contact requirement (making it mandatory and also applicable 
to interactive and non-interactive batch users) represent a change from 
what was proposed, the final rule merely conforms the APIS regulation 
with the existing TSA requirements to which carriers are already 
subject. See Sec. Sec.  122.49a(b)(1)(ii)(A), (B), and (C) and 
122.75a(b)(1)(ii)(A), (B), and (C).
    In addition, TSA will contact the carrier to clear a ``not-
cleared'' passenger for boarding, or to downgrade such a passenger to 
``selectee'' status, should the clearance or downgrade be warranted by 
the results of the further vetting analysis. However, should there be 
insufficient time to complete further vetting, the carrier is bound by 
the ``not-cleared'' instruction. Carriers are expected to exercise 
sound business judgment in implementing the steps or processes needed 
to ensure compliance with the amendments of this final rule and 
applicable TSA requirements regarding ``not-cleared'' passengers and 
their baggage. TSA will not contact the carrier to confirm a ``not-
cleared'' vetting result (but will be able to inform the carrier about 
the status of a ``not-cleared'' passenger during the resolution 
communication).
    CBP assures the commenters that steps are being taken to minimize 
false positives, but notes that these can never be eliminated entirely. 
The further vetting process and the requirement that carriers contact 
TSA to resolve a ``not-cleared'' vetting response are two measures 
designed to clear false positives. CBP also will have real-time access 
to the list maintained by TSA of people who have obtained redress 
through TSA's redress process; an automated check against the list 
could clear a passenger initially identified as ``not-cleared'' and 
preempt the CBP system from issuing the ``not-cleared'' instruction. 
The TSA redress list will be used to check every passenger who 
generates a ``not-cleared'' response during initial vetting, whether or 
not the ``not-cleared'' passenger has a redress number. Redress numbers 
are issued by TSA to passengers who request redress for a false 
positive vetting result. CBP strongly encourages (but is not requiring 
under this final rule) carriers to transmit redress numbers (or any 
other unique identifier approved by DHS for that purpose) within their 
APIS transmissions if such numbers are available. DHS has recently 
published a notice announcing a department-wide redress policy that 
will be applicable to pre-departure passenger vetting as well as other 
watch list vetting activities (http://www.dhs.gov/trip). DHS's 
``Traveler Redress Inquiry Program'' (TRIP) is a voluntary program that 
provides a one-stop mechanism to request redress for passengers who 
believe that they were erroneously denied or delayed boarding due to 
DHS security screening, denied or delayed entry into or departure from 
the United States at a port of entry, or identified for secondary 
screening. TRIP will provide traveler redress intake and processing 
support while working with relevant DHS components to review and 
respond to requests for redress. TRIP applies also to screening at 
seaports.
    Finally, regarding false positives, CBP recommends that carriers 
minimize instances of manifest data transmissions too close to the 
transmission deadline (30 minutes prior to securing the aircraft or, 
for AQQ users, the securing of the aircraft) to allow for completion of 
the further vetting process. As stated previously, CBP believes that 30 
minutes is sufficient time to complete the vetting process in most 
cases for batch transmissions but is unable to guarantee that result in 
every instance. The CBP system may not be able to complete further 
vetting when AQQ users transmit data too close in time to the securing 
of the aircraft.
    Comment: Four commenters asked if a carrier would be required to 
wait 60 minutes before departing where there was a passenger change 
subsequent to the carrier's submission of an eAPIS report.
    Response: Under the final rule, if a carrier using eAPIS (Internet 
process) or any batch manifest transmission process requiring 
transmission no later than 30 minutes prior to securing the aircraft 
has a passenger change subsequent to making a batch transmission, the 
carrier will be required to transmit the change no later than 30 
minutes prior to securing the aircraft (updating a passenger manifest 
prior to the deadline is permitted). Should a ``cleared'' response be 
received for that passenger within that 30-minute window, the carrier 
could then issue the boarding pass and board the cleared passenger; the 
aircraft could depart without waiting for the 30-minute window to 
elapse.
    Comment: Six commenters requested that carriers be able to select 
the method of APIS transmission (batch or AQQ) on a per-flight basis to 
allow for situations where AQQ is not practical.

[[Page 48331]]

    Response: A carrier may utilize either or both of the options on a 
per-flight or per-manifest basis according to the carrier's operational 
needs. CBP recognizes that some carriers may want to employ the batch 
process for early transmissions and then change to individual 
passenger, AQQ transmission within the 30-minute window. Any 
combination is acceptable, provided that the time and other 
requirements for each option are met.
    Comment: Ten commenters expressed concerns regarding the proposed 
rule's requirement that carriers making transmissions under the AQQ 
option are precluded from issuing boarding passes to passengers until 
they are cleared by the CBP system.
    Response: As mentioned (and cited) previously, current TSA 
requirements preclude carriers from issuing a boarding pass for any 
travelers who are not cleared against the No-Fly terrorist watch list. 
Thus, for originating passengers boarding flights en route to or 
departing from the United States, the AQQ vetting process under the 
final rule (as well as the final rule's batch transmission options) 
mirrors the current process with which the carriers already comply. DHS 
has determined that this is the most effective way, under either the 
batch or AQQ transmission processes, to ensure that passengers who are 
not cleared by CBP are prevented from posing a threat to the aircraft.
    Comment: One commenter stated that, under the AQQ process, the 
initial vetting response must be sent immediately if it is to be 
awaited by the carrier as each passenger checks in.
    Response: Regarding the initial (automated) vetting response under 
AQQ, CBP agrees with the commenters and assures carriers that the AQQ 
process will provide a ``real-time'' vetting result, which normally 
will be sent within seconds of receipt of the data.
    Comment: One commenter requested that CBP eliminate the requirement 
to return a message to CBP confirming the receipt of a ``not-cleared'' 
message.
    Response: CBP has removed the ``acknowledgement'' requirement from 
the regulatory texts in this final rule. CBP's technical experts 
recommended removal due to the burden on the electronic transmission/
communication process. See amended Sec.  122.49a(b)(ii)(B).
    Comment: Nine commenters stated that through-checked passengers in 
transit (connecting passengers) will be negatively affected by the 
proposed rule's AQQ requirement that APIS information be sent at check-
in. Another commenter stated that CBP should eliminate provisional 
boarding passes as discussed in the NPRM regarding connecting 
passengers.
    Response: CBP understands that, under some circumstances, 
connecting passengers may be disadvantaged to some extent under the 
rule as proposed and adopted; however, CBP has designed the process to 
minimize occurrences of delayed or missed flights. The comments pertain 
to a circumstance where connecting passengers arrive at the airport 
(from which the APIS-regulated connecting flight departs directly to or 
from the United States), already in possession of boarding passes for 
that flight, despite the fact that the APIS-responsible carrier has not 
collected required APIS data for those passengers and they have not yet 
been cleared by the CBP system. This circumstance contrasts with the 
ordinary AQQ transmission/security vetting procedure (applicable to 
originating passengers), as proposed in the NPRM, where the carrier 
transmits passenger data to the CBP system as passengers check in, and 
the CBP system responds in seconds with a vetting result. Under the 
proposed AQQ provision, vetting by the CBP system and the system's 
return of a ``cleared'' response to the carrier precede issuance of a 
boarding pass.
    In the NPRM, CBP explained that it would consider boarding passes 
issued to connecting passengers in the described circumstance as 
provisional. Carriers would be required to obtain required data from 
these passengers, in a manner compatible with their procedures/
operations, and transmit such data to the CBP system as required under 
the regulation. Thus, under the final rule, a carrier must provide APIS 
data upon the connecting passengers' arrival at the gate, or some other 
suitable place designated by the carrier, so long as either a 
``cleared'' or ``selectee'' message is received prior to boarding the 
passengers. (As the carrier receives from the CBP system a ``cleared'' 
or ``selectee'' response for a connecting passenger, it may then board 
that passenger.) The applicable AQQ provision of the regulation is 
modified to clarify this procedure for connecting passengers with 
previously issued boarding passes, and the procedure has been added to 
the interactive batch transmission provision. See Sec. Sec.  
122.49a(b)(1)(ii)(B) and (C) and 122.75a(b)(1)(ii)(B) and (C). CBP 
notes that this procedure would not apply for connecting passengers who 
do not yet have boarding passes for the APIS-regulated flight to or 
from the United States. These passengers would have to report to the 
carrier's check-in/reservation counter (or other suitable location of 
the carrier's choosing) for collection of APIS data and issuance of 
boarding passes. Also, the non-interactive batch transmission option, 
employed by carriers that are not likely to have connecting flight 
operations, does not provide for this procedure to collect and transmit 
passenger data at the gate for connecting passengers. Any such 
passengers will have to follow the instructions of the carrier (such 
as, perhaps, reporting to the carrier's check-in/reservation counter).
    The provisional boarding pass concept is also applied to any 
instance where a carrier issues a boarding pass before validating the 
APIS data, i.e., before the passenger's passport or other travel 
document is swiped through a machine reader for verification or the 
travel document data is manually verified by carrier personnel. Until 
this is done, the carrier may not allow the passenger to board the 
aircraft. If the air carrier determines during validation that a 
passenger's data is different from what was used to obtain the boarding 
pass, the newly presented data must be transmitted to the CBP system 
for vetting and clearance.
    Comment: One commenter asked why any passengers would be delayed 
and have to be rerouted if the carrier is using AQQ. Another commenter 
asked for clarification of why, in some instances, CBP would not be 
able to complete the vetting analysis and clear a passenger prior to 
departure (push-back).
    Response: Under the AQQ process, a ``not-cleared'' response will be 
provided to the carrier within seconds of transmission of data, but the 
resolution of a ``not-cleared'' result will require further review of 
the data to confirm the result or identify a false positive. This will 
take additional time but could lead to a ``not-cleared'' passenger 
being cleared for issuance of a boarding pass (possibly as a 
``selectee'') in time to make the flight. In the simple case, the 
vetting result will be produced more quickly than it will in a more 
complex case. Thus, where the carrier transmits manifest data to the 
CBP system shortly before the securing of the aircraft, there may not 
be sufficient time to obtain a further vetting result for a passenger 
generating a ``not-cleared'' response during the initial vetting 
process. (This also could happen with batch transmissions, although to 
a lesser degree of likelihood (compared to a last-minute AQQ 
transmission) because the deadline for batch transmissions is 30 
minutes prior to the securing of the aircraft.) The carrier thus may 
face a choice between delaying the flight or

[[Page 48332]]

departing without the ``not-cleared'' passenger. (Such a passenger 
could be rebooked but only if cleared during further vetting.) It is 
expected that carriers will exercise sound business judgment in their 
manifest data transmission process and take this situation into account 
(for both batch and AQQ transmissions).
    Comment: Seven commenters requested that carriers should be able to 
make AQQ APIS transmissions and obtain passenger clearances well in 
advance of departure (push-back), with some recommending as much as 
four days in advance.
    Response: CBP agrees that carriers should be able to make APIS 
manifest data transmissions well in advance of the APIS regulations' 
transmission time frames and notes that nothing in the regulations 
precludes a carrier from doing so. As noted in a previous comment 
response, the CBP system has the ability to accept certain passenger 
data up to 72 hours in advance, including APIS data. Such very early 
transmissions would be more likely under either of the batch 
transmission options, as AQQ transmissions are more likely to occur in 
closer proximity to the time or day of the flight. However, as 
mentioned previously, any early ``cleared'' vetting result obtained in 
this process is considered provisional by CBP until the passport or 
other travel document is validated, either by the swiping of the travel 
document's machine-readable zone or through manual verification by the 
carrier. Successful validation by the carrier of any passenger holding 
a provisional boarding pass as herein described (i.e., based on early 
data transmission and early receipt of a ``cleared'' response) requires 
that the APIS passenger data checked during validation be identical to 
the passenger data transmitted early to obtain the boarding pass. Where 
the data transmitted differs from data presented at validation, the 
carrier must transmit the new data and obtain vetting clearance on that 
data. Until that occurs, the carrier may not allow the passenger to 
board.
    As stated in a previous comment response, CBP encourages carriers 
to develop a process for making early transmissions.
    Comment: One commenter asked for clarification on the check-in 
process when some passengers use kiosks or remote check-in (Internet), 
or when check-in occurs days in advance of arrival in the United 
States. Three commenters stated that the final rule must accommodate 
self-service check-in schemes.
    Response: The check-in process begins when the passenger initiates 
a request for a boarding pass to a flight directly bound for or 
departing from the United States and can occur at the airport check-in 
counter, an airport kiosk, or an online Web site within 24 hours of 
scheduled departure; carriers can issue boarding passes no earlier than 
24 hours prior to scheduled departure and only to passengers who have 
been cleared by the CBP system. The final rule does not preclude 
passengers from continuing to use any of these check-in processes. 
However, regardless of the manner by which the passenger checks in, the 
carrier's obligation under the final rule is to transmit manifests 
containing required data (batch process), or transmit required manifest 
data for individual passengers (AQQ), by the required time, obtain a 
``cleared'' result from the CBP system before issuing a boarding pass 
to passengers, and to validate the passenger's data before boarding if 
validation did not occur previously. The carriers are expected to 
exercise their sound business judgment to meet these requirements in a 
manner that best suits their operations and avoids departure delays or 
other problems. Carriers must continue to comply with TSA requirements 
as well.
    Comment: Several comments concerned the close-out message that the 
proposed rule would require air carriers to transmit no later than 30 
minutes after the securing of the aircraft. One commenter asked if the 
final rule will require air carriers to send the names of passengers 
who were previously cleared but were then off-loaded as a result of 
extenuating circumstances. Four commenters requested clarification 
regarding the use of a unique identifier for passengers. Two commenters 
suggested that the regulation be amended to provide the carriers the 
option of sending either a close-out message listing passengers who did 
not board the aircraft or a cancellation message for each individual 
passenger not boarded. Three commenters indicated their preference for 
sending a cancellation message, stating that there is no need for 
departure close-out messages. One commenter requested that a close-out 
message be transmitted 45 minutes after departure (push-back) rather 
than 30 minutes as proposed. One commenter asked if a carrier using 
eAPIS would have to submit a final passenger manifest (close-out 
message).
    Response: Under the final rule, an air carrier using one of the 
interactive options must send a close-out message identifying 
passengers who were previously cleared for the flight by the CBP system 
but then, for any reason, did not board the aircraft and make the 
flight (i.e., were not onboard the airborne aircraft). In the close-out 
message, the carrier may report, by use of a unique identifier or 
specific passenger data (such as full name), either all the passengers 
boarded and making the flight or only the checked-in passengers who did 
not board and make the flight. The final rule amends the applicable 
texts to clarify this option. See Sec. Sec.  122.49a(b)(1)(ii)(B) and 
(C) and 122.75a(b)(1)(ii)(B) and (C) of this rule. CBP uses the unique 
identifier or personal data contained in the close-out message to 
manage the dynamic building of an APIS manifest. The designation of the 
unique identifier is within the sole discretion of the carrier. The 
close-out message will not contain any new information, even where 
passenger data (name) is used instead of a unique identifier. CBP 
recognizes that carriers using eAPIS will not be able to transmit a 
unique identifier and thus has amended the non-interactive batch 
transmission provision of the rule to remove this requirement. See 
Sec. Sec.  122.49a(b)(1)(ii)(A) and 122.75a(b)(1)(ii)(A).
    CBP disagrees that the close-out message is unnecessary, as the 
close-out message provides pieces of information that a cancellation 
message does not, including the individual passengers onboard the 
aircraft and the total passengers onboard the aircraft. Therefore, 
under the final rule, a carrier may choose either message for notifying 
the CBP system that a passenger did not board an aircraft, provided 
that a carrier sending a cancellation message for that purpose also 
sends a close-out message for the flight. Also, CBP disagrees that the 
proposed timing of the close-out message should be changed. The time 
frames set forth in the final rule ensure that close-out messages are 
received and processed for short-duration flights prior to their 
arrival in the United States.
    A carrier will not be in compliance with the regulation should a 
flight arrive in the United States with a passenger onboard who is not 
on the flight manifest or without a passenger onboard who is on the 
flight manifest. The close-out message will be similarly evaluated for 
accuracy, and the carrier will be found in non-compliance for 
inaccuracies of this kind. The same applies for flights departing from 
the United States upon their arrival at the foreign port of 
destination.
    Comment: One commenter asked if a carrier would be able to delete a

[[Page 48333]]

passenger from a manifest submitted early.
    Response: At this time, a carrier cannot delete a passenger from a 
manifest previously submitted through eAPIS.
    Comment: Three commenters asked if an on-demand or charter air 
carrier would be required to receive an ``all clear'' message from CBP 
prior to departure. One of these commenters asked how this message 
would be communicated and whether CBP will issue a ``not-cleared'' 
message to a third-party provider. Another of these commenters asked if 
the eAPIS process would accept a separate point of contact for each 
manifest submitted.
    Response: Regarding vetting result messages using the non-
interactive batch process (eAPIS), a confirmation message will be 
returned to the sender, provided that the sender's address is recorded 
with the CBP system. The CBP system will provide only the status of 
``not-cleared'' and ``selectee'' passengers; ``cleared'' passenger 
results will not be indicated. The absence of a ``not-cleared'' message 
in the confirmation response, therefore, should be interpreted as a 
``cleared'' message for all passengers, and the carrier would be free 
to depart with all passengers onboard. A ``selectee'' response would 
require the carrier or TSA (or, in some circumstances, an appropriate 
foreign authority) to subject the passenger to secondary screening, 
under applicable TSA requirements, but normally would not impede 
departure. The person identified as the primary point of contact in a 
carrier's eAPIS account will receive the message confirmation for each 
manifest that is submitted. CBP is currently exploring the possibility 
of enhancing the capability for eAPIS to allow for multiple points of 
contact to receive confirmations.
    Comment: Five commenters stated that CBP should bear the costs of 
rerouting a passenger if CBP is the party responsible for delaying the 
passenger.
    Response: CBP disagrees. TSA will review and conduct further 
analysis of ``not-cleared'' results to identify false positives and 
then use the CBP system to notify the carrier of the disposition. TSA 
cannot control the time required to resolve ``not-cleared'' messages, 
and that time will vary. CBP acknowledges that determining check-in 
times is a business decision that the air carrier industry has very 
clearly asked to be left free to make. However, CBP cannot guarantee 
that ``not-cleared'' messages relative to passenger data transmitted as 
late as 30 minutes prior to securing the aircraft (APIS batch 
transmission) or just prior to securing the aircraft (AQQ 
transmissions) will be resolved in time to allow these travelers to 
make their intended flights. As the timing of check-in and manifest or 
manifest data transmissions is largely in the control of carriers, CBP 
will not be responsible for incurring the costs of these business 
decisions. For this reason, CBP encourages carriers to transmit data 
for as many passengers as possible as early as practicable.
    Comment: Seven commenters asked what the back-up system would be in 
case of communications or system downtime.
    Response: If a carrier or the CBP system experiences difficulties 
that impede the carrier's efforts to transmit manifests, the carrier's 
Principal Security Officer (PSO) or Operations Control Center (OCC) 
should contact the TSA Office of Intelligence to receive further 
instructions. Under no circumstances is a carrier permitted to issue 
boarding passes to or board passengers who have not been properly 
vetted and cleared for boarding (upon generating either a ``cleared'' 
or ``selectee'' vetting response). System outages will be discussed in 
detail in CBP's updated user guide currently in preparation.
    Comment: One commenter stated that CBP should ensure that all 
arrangements have been made with foreign law enforcement officials to 
ensure that personnel are available to deal with passengers denied 
clearance. Five commenters stated that air carrier personnel should not 
be primarily responsible for what they perceive as law enforcement 
activities.
    Response: Air carrier personnel will not be responsible to perform 
law enforcement activities under the final rule. Multiple U.S. 
Government agencies are continuing to coordinate with international law 
enforcement officials to ensure that travelers identified on government 
(terrorist) watch lists are handled expeditiously and with minimal 
impact on the carrier or the traveling public. Under current 
regulations and this final rule, carriers are responsible for 
validating passenger data (confirming that the passenger is the person 
identified in the travel document presented and that the travel 
document data matches the data that the carrier transmitted to the CBP 
system for that passenger) and for ensuring that any passenger 
generating a ``not-cleared'' message is not permitted to board an 
aircraft (which is achieved under this final rule by precluding 
issuance of a boarding pass to such a passenger).
    Comment: Two commenters asked if, under the final rule, air 
carriers would submit crew manifests separately from passenger 
manifests.
    Response: Under the current APIS regulations, transmissions under 
UN/EDIFACT (United Nations/Electrical Data Interchange for 
Administration, Commerce, and Trade) for passengers and crew may be 
included in a single manifest. The final rule does not change that 
practice. However, under current regulations and this final rule, there 
are different transmission time requirements for passenger and crew 
manifests. Thus, because the APIS regulations currently require (and 
this final rule does not change) transmission of crew (or non-crew) 
manifests no later than 60 minutes prior to departure (wheels-up) 
(Sec. Sec.  122.49b and 122.75b) and passenger manifests no later than 
30 minutes prior to the securing of the aircraft, the carrier must be 
mindful of these different time frames if transmitting a combined 
manifest (containing both passengers and crew). It is noted that the 
APIS AQQ transmission option under this final rule is for passengers 
only, and these transmissions are permitted up to the securing of the 
aircraft. Any carrier that employs AQQ must submit a crew manifest no 
later than 60 minutes prior to departure.
    Comment: Regarding the NPRM's proposed limit of the size of AQQ 
passenger record transmissions to ten passengers, one commenter asked 
that the limit be increased to twenty and another suggested fifty. One 
commenter stated that there should be no limit.
    Response: While the NPRM's background explanation appeared to limit 
the size of AQQ passenger record transmissions, the final rule does not 
address this matter. Information on the number of passengers that may 
be contained in one message transmission is more appropriately covered 
in the user guide (an update of which is currently in preparation).
    Comment: Three commenters sought reassurance that the matching 
algorithms used for passenger vetting are robustly designed and tested.
    Response: CBP assures the commenters that the name-matching 
algorithms are routinely tested and calibrated to ensure that they are 
robust without generating an unmanageable workload in positive hits 
(``not-cleared'' results) for either the government or the carriers.
    Comment: One commenter stated that a passenger whose APIS data is 
insufficient for clearance purposes should be treated as a 
``selectee.''
    Response: CBP disagrees with this comment. A ``selectee'' vetting 
result does not preclude the carrier from

[[Page 48334]]

issuing a boarding pass to the ``selectee'' passenger. Since the actual 
vetting status (or security risk level) of a passenger whose data is 
incomplete or inadequate remains unknown, treating such a passenger as 
a ``selectee,'' and thus allowing him to board the aircraft, would 
constitute a security liability. Therefore, the vetting process under 
the final rule will ensure that such a ``not-cleared'' passenger is 
prevented from boarding an aircraft (by precluding issuance of a 
boarding pass) until a vetting result can be obtained.
    Comment: One commenter requested that air carriers be able to use, 
for employing the proposed APIS 60 or AQQ interactive manifest 
transmission options, any software previously certified by CBP without 
having to seek additional certification.
    Response: CBP notes that previously authorized software is 
acceptable for air carrier use without additional authorization; 
however, for the new interactive realm of communication, CBP will 
require appropriate testing to ensure proper connectivity between CBP 
and the transmitter before that software can be utilized. This testing 
and CBP's acknowledgement that the carrier's system is ``interactive 
capable'' are referred to as ``certification'' in the final rule. CBP 
notes that carriers not opting for interactive transmission do not 
require CBP certification.
    Comment: Two commenters asked if APIS requirements would be 
applicable in emergency situations.
    Response: The final rule does not change current regulations 
regarding APIS manifest transmission requirements in emergency 
situations. Under the current regulations, an aircraft not destined to 
the United States but diverted there due to an emergency must transmit 
a passenger manifest no later than 30 minutes prior to the aircraft's 
arrival at the U.S. port. For a vessel similarly diverted to a U.S. 
port, the passenger manifest is required prior to the vessel's entry 
into that port. Both provisions allow that in cases of non-compliance 
due to an emergency, CBP will take into consideration that the carrier 
was not equipped to make the APIS transmission (where that is the case) 
and the circumstances of the emergency situation. See Sec. Sec.  
4.7b(b)(2)(i)(D) and 122.49a(b)(2)(iii).
    Comment: One commenter asked whether there would be a trial period 
to correct systems discrepancies prior to implementation of the 
interactive transmission systems provided for under the proposed rule.
    Response: The final rule will be effective 180 days following its 
publication in the Federal Register. During this 180-day period, 
carriers will have the opportunity to test their systems with CBP and 
work cooperatively to correct system discrepancies.
4. Comments From (and on Behalf of) Vessel Carriers and Carriers 
Operating Within the Outer Continental Shelf (OCS)
    Comment: Two commenters asked for clarification on how the rule 
would affect operations on and movements on the OCS, and three 
commenters requested that carrier operations involving the transport of 
OCS employees be exempt from the rule. Two commenters asked if there 
are APIS reporting requirements for foreign and U.S. personnel (U.S. 
citizens) who arrive in the United States from a location on the OCS 
that is considered a U.S. port or place.
    Response: Through this final rule, CBP does not intend to change 
the regime created by existing statutes, regulations, and rulings 
pertaining to OCS issues. The final rule applies to vessel movements 
from a U.S. port or place bound for a place on the OCS that is 
considered ``outside the United States'' (as opposed to a place (e.g., 
a vessel, rig, or platform) considered a U.S. point by virtue of its 
attachment to the OCS) under existing statutory authority, and to 
vessel movements from such a place on the OCS to a U.S. port or place. 
CBP notes that the final rule applies to similar air carrier movements. 
In addition, data must be transmitted for all persons, i.e., all 
travelers (crew members, workers, and others) regardless of citizenship 
or status under immigration laws, onboard OCS operating vessels and 
aircraft subject to the APIS regulations. Finally, carriers arriving 
from a U.S. port or place (on the OCS or not) into another U.S. port or 
place (on the OCS or not) are not required by CBP to transmit APIS 
data.
    Comment: Two commenters asked if the terms ``foreign area'' used 
for aircraft and ``foreign port or place'' used for vessels are 
synonymous for the purposes of transmitting APIS data relative to 
carriers operating on the OCS.
    Response: CBP notes that the term ``foreign area'' is not used in 
Sec. Sec.  122.49a, 122.49b, 122.75a, or 122.75b pertaining to aircraft 
arrivals in and departures from the United States; nor does the term 
``foreign port or place'' appear in Sec. Sec.  4.7b or 4.64 pertaining 
respectively to vessel arrivals in and departures from the United 
States. As mentioned previously, the final rule applies to vessel and 
air carrier movements from a U.S. port or place bound for a place on 
the OCS that is considered ``outside the United States'' under existing 
provisions and rules, and to vessel and air carrier movements from such 
a place on the OCS to a U.S. port or place. However, CBP again notes 
that there are existing statutory and regulatory provisions, as well as 
agency rulings, concerning the OCS that provide clarification of this 
and other issues.
    Comment: One commenter asked if vessel carriers would still be able 
to send updated APIS data no later than 12 hours after departure. One 
commenter asked if an update could be submitted in the event of a crew 
change-over.
    Response: The final rule does not change the provisions pertaining 
to amendments to crew manifests. Therefore, vessel operators will still 
be able to send amendments after submission of the APIS crew manifest 
up to 12 hours after departure, as provided in Sec.  4.7b(b)(2)(ii) 
pertaining to vessel arrivals and Sec.  4.64(b)(2)(ii) pertaining to 
vessel departures. Passenger manifests, however, cannot be amended.
    Comment: Two commenters stated that cruise lines should be able to 
transmit only the names of cruise passengers compiled during booking to 
meet the requirements of this rule.
    Response: CBP disagrees. The eNOA/D submission portal managed by 
USCG, through which APIS manifest data are transmitted for both 
arriving and departing vessels, requires that all required data 
elements be transmitted for each passenger, not merely the names. A 
vessel carrier may, however, transmit the required data elements in 
Sec.  4.64(b)(3)(i) through (x) for any portion of the passengers or 
crew in advance of the transmission deadline, provided that this 
transmission is followed by timely transmission of a final, complete, 
and validated manifest (through eNOA/D) no later than 60 minutes prior 
to departure from the U.S. port.
    Comment: One commenter asked if a cruise carrier's receipt of a 
``not-cleared'' message from CBP would result in the ship not being 
allowed to depart on time.
    Response: Under the final rule, a cruise ship cannot depart with a 
passenger onboard whose data has generated a ``not-cleared'' message. 
Because cruise ships allow passengers to board early (as much as five 
or six hours early), CBP cannot guarantee that a ``not-cleared'' 
message will be sent to the carrier before the ``not-cleared'' 
passenger has boarded (as the passenger could be boarded before the 
data is transmitted to the CBP system for vetting). Where such a 
passenger has

[[Page 48335]]

boarded the vessel, the carrier must locate and remove him and his 
baggage from the vessel. CBP believes that the 60-minute transmission 
requirement is sufficient time to fully vet passengers and crew and 
allow the carrier to remove a person generating a ``not-cleared'' 
response; however, CBP cannot guarantee that result in every instance. 
Where the full vetting process (initial and further vetting, both of 
which are performed by CBP for commercial vessels) has not been 
completed prior to scheduled departure, a carrier has the choice to 
either delay departure and await the results of further vetting or 
depart on time after removing the ``not-cleared'' passenger in question 
(and his baggage) from the vessel. Although a business decision, 
carriers can review their business process to determine the potential 
benefits related to early transmission of APIS data, which may afford 
more time for security vetting.
    Comment: One commenter requested clarification on how CBP would 
transmit a ``not-cleared'' message for a crewmember to a vessel 
operator.
    Response: CBP currently generates an APIS confirmation message for 
vessels transmitting manifests through the eNOA/D portal. The 
confirmation message, which is sent to the reporting party shown in the 
manifest, will contain the ``not-cleared'' message for the relevant 
crew member.
    Comment: One commenter requested that reporting requirements for 
CBP and the USCG regulations be reconciled so that a carrier is able to 
file a single departure report.
    Response: Under its current reporting requirements, USCG does not 
require notices of departure (departures from the United States) except 
in certain, limited situations (such as vessels with hazardous cargo). 
USCG is planning to amend its regulations to generally require a notice 
of departure. CBP will continue to work with the USCG to ensure that 
carriers are not subject to duplicative reporting requirements, just as 
was done for arriving vessels.
    Comment: Two commenters requested that the proposed 60-minute prior 
to departure requirement be amended, stating that it is too burdensome 
for cruise lines to meet. One commenter stated that the 60-minute 
requirement is unworkable for operations on the OCS.
    Response: CBP disagrees. Nothing in the final rule precludes a 
vessel carrier from transmitting available APIS data in advance of the 
60-minute deadline for manifest transmissions. Early transmission and 
vetting of passenger and crew member data will facilitate and enhance 
the effectiveness of the process. Even where a carrier waits until 60 
minutes prior to departure to transmit a single, complete manifest, the 
60-minute window is expected to provide, in most instances, sufficient 
time for CBP to identify and notify the carrier of any ``not-cleared'' 
vetting results and to complete vetting, and for the carrier to locate 
and remove from the vessel the passengers and/or crew members who 
generated the ``not-cleared'' responses (along with their baggage). A 
shorter time for completion of the process would risk failure to 
achieve the desired security goal (preventing vessel departures with a 
high-risk passenger or crew member onboard) and would increase the risk 
of a delayed departure.
    CBP believes that carriers operating on the OCS will be able to 
comply with the 60-minute requirement without an unacceptable impact on 
their operations.
    Comment: One commenter requested that cruise lines be permitted to 
implement AQQ.
    Response: CBP and USCG will continue working to develop manifest 
transmission methods that do not impose duplicative submission 
requirements on vessel carriers; this will include exploring with 
vessel carriers the feasibility of developing an interactive procedure 
for these carriers.
    Comment: One commenter asked whether transmission of APIS data is 
required for voyages between two U.S. ports.
    Response: Carriers are not required to transmit APIS data for 
voyages between two U.S. ports.
    Comment: One commenter asked if a vessel carrier would be required 
to sit at the dock for 60 minutes following submission of APIS data 
awaiting clearance to depart (from a U.S. port).
    Response: Under the final rule, the APIS transmission must occur no 
later than 60 minutes prior to the intended vessel departure. A 
confirmation message will be sent to the reporting party shown in the 
manifest. If the confirmation message clears all crewmembers and 
passengers on board, the vessel can depart regardless of whether the 
full 60-minute window has elapsed. If the confirmation message includes 
a ``not-cleared'' result, the carrier may wait until further vetting 
can be completed. If the further vetting result clears the ``not-
cleared'' traveler within the 60-minute window, the carrier is free to 
depart.

B. Comments Pertaining to the Regulatory Assessment

    A ``Regulatory Assessment'' of the proposed APIS rule was posted on 
the CBP Web page and in the Federal Docket Management System with the 
NPRM. The following are comments received on that analysis and CBP's 
responses to those comments:
    Comment: Two commenters stated that a satisfactory assessment of 
costs and benefits cannot be made until the system and procedures have 
been fully tested.
    Response: Executive Order 12866 and OMB Circular A-4 require that 
an agency conduct an economic analysis for all significant regulatory 
actions, as defined under section 3(f) of that Executive Order. This 
analysis must contain an identification of the regulatory baseline as 
well as the anticipated costs and benefits of the rule on relevant 
stakeholders. The analysis prepared for the NPRM was reviewed by the 
Office of Management and Budget (OMB).
    Comment: One commenter argued that the costs estimated for 
passengers and air carriers relative to prohibiting boarding within 15 
minutes of departure are too low and provided its own analysis. The 
commenter noted that air carriers, not the commenter, would have to 
provide the data necessary to reassess the economic impacts.
    Response: CBP appreciates this comment and the detail that 
accompanied the estimate provided in the comment. However, the 
commenter presented an estimate that was overly pessimistic and 
represented an absolute ``worst-case'' scenario that would rarely, if 
ever, be realized.
    Comment: Five commenters stated that the estimated delay of 4 hours 
for passengers who would not make their flights was too low.
    Response: CBP notes that a sensitivity analysis was conducted that 
estimated the costs to passengers of an eight-hour delay. This analysis 
has been retained in the final ``Regulatory Assessment'' available in 
the public docket for this rule in addition to an analysis of a 24-hour 
delay.
    Comment: One commenter stated that the estimated annual two percent 
increase in international air passengers was ``pessimistic'' and 
underestimated overall costs for the industry.
    Response: CBP agrees with this comment. The ``Regulatory 
Assessment'' has been modified to account for a five percent (5%) 
annual increase in international air passengers.
    Comment: One commenter stated that the percentage of passengers who 
would miss their connecting flights under the AQQ option with the 15-
minute transmission deadline should be closer to two percent (2%) 
rather than the 0.5 percent estimated in the ``Regulatory Assessment,'' 
based on limited testing

[[Page 48336]]

the commenter has conducted. Another commenter stated that the 0.5 
percent estimate is too low.
    Response: CBP appreciates the information provided by the 
commenters. CBP notes that under the final rule, carriers will be able 
to transmit APIS data using the AQQ option up to the time when the 
carrier secures the aircraft, rather than 15 minutes prior to 
departure. This modification should help connecting passengers make 
their intended flights and minimize delay. Thus, CBP has retained the 
0.5 percent estimate to account for those few passengers that may still 
miss their connecting flights under the revised AQQ transmission 
requirements in the final rule.
    Comment: One commenter stated that the ``Regulatory Assessment'' 
does not account for investments that airports will have to make to 
cope with earlier arrivals and extended checking delays.
    Response: This comment is accurate. However, it is virtually 
impossible to estimate the changes that would occur in airports 
throughout the world as a result of this final rule. This is because 
CBP does not know how many airports, if any, may reconfigure ticketing 
and waiting areas, the number of carriers that will use the batch APIS 
transmission method versus the AQQ transmission method (which should 
result in fewer delays to passengers), the number of international 
passengers that would be affected in each airport, and daily peaks in 
passenger volume that may affect possible ``crowding'' in the ticketing 
area and other areas of the airport. While CBP cannot quantify these 
potential impacts on airports, they are important to note, and a 
qualitative discussion of these impacts is included in the final 
``Regulatory Assessment.''
    Comment: One commenter stated that the ``Regulatory Assessment'' 
does not account for international passengers who are making connecting 
flights in the United States.
    Response: CBP disagrees with this comment. The percentage estimated 
in the ``Regulatory Assessment'' reflects international passengers 
connecting on flights made in both foreign and U.S. airports.
    Comment: Two commenters stated that the hourly cost for a delay is 
closer to $10,000 than to the $3,400 estimated in the ``Regulatory 
Assessment.'' Another commenter stated that the hourly cost for a delay 
is closer to $17,000.
    Response: CBP appreciates these comments and has revised the hourly 
cost of delay using an estimate of $15,000.
    Comment: One commenter stated that the offshore industry would 
experience hours of delay as a result of the rule and this was not 
accounted for in the ``Regulatory Assessment.''
    Response: CBP acknowledges that costs to the offshore industry of 
delay were not included in the ``Regulatory Assessment.'' This is 
because vessel operators do not board passengers and crew as air 
carriers do and should not experience delays as a result of this rule. 
As stated elsewhere, if the confirmation message received from CBP 
clears all crewmembers and passengers on board, the vessel can depart 
regardless of whether the full 60-minute window has elapsed. 
Furthermore, nothing in the regulation as proposed or finalized 
precludes a carrier from transmitting available APIS data well in 
advance of the 60-minute manifest transmission deadline.
    Comment: One commenter stated that small carriers were much more 
likely to experience delays than large carriers.
    Response: CBP disagrees with this comment. As stated in the 
``Regulatory Assessment,'' while large air carriers have connecting 
flights where affected passengers could face short layover times, small 
air carriers operate predominantly on charter schedules and make point-
to-point trips without connecting flights. With respect to originating 
passengers, CBP expects that some of them will need to modify their 
behavior by arriving at the airport earlier than they customarily do. 
Occasionally, a passenger may not make a flight as a result of the 
rule, but the percentage is expected to be much lower than for 
passengers on large carriers. Furthermore, as discussed elsewhere, the 
transmission time for small carriers has been modified from 60 minutes 
prior to departure (meaning push-back from the gate) to 30 minutes 
prior to securing the aircraft. Should a ``cleared'' response be 
received within that 30-minute window, the carrier may board the 
cleared passengers and depart.
    Comment: Two commenters stated that the cost estimated for ticket-
agent time due to delay is too low because it does not include the 
costs for rerouting a passenger and arranging compensation for the 
passenger (hotel, meals).
    Response: CBP did include the agent time required to reroute a 
passenger on either the same carrier or another carrier in estimating 
this cost. However, the 15-minute time estimated does not account for 
the agent arranging compensatory accommodations for a passenger in the 
event of a lengthy delay. CBP has included a sensitivity analysis in 
the final ``Regulatory Assessment'' that estimates the cost of 1 hour 
of combined ticket-agent time to accommodate a passenger's delay.
    Comment: One commenter stated that under the ``No Action'' 
alternative, the statement that this allowed high-risk passengers to 
board aircraft is misleading, arguing that their carrier has never had 
an aircraft turned back or diverted.
    Response: While CBP commends the commenter's record, it is clear 
that under the status quo, high-risk passengers are able to board 
aircraft bound for the United States. Many such instances were 
described in the preamble to the proposed rule and in the ``Regulatory 
Assessment.''
    Comment: One commenter stated that privacy issues must be studied 
in depth and be transparent. One commenter stated that the current 
Privacy Impact Assessment (PIA) is no longer valid because the rule 
presents an entirely new use of data.
    Response: The privacy impacts of collecting APIS data have been 
studied in depth, and both a PIA and a System of Records Notice (SORN) 
will be published in conjunction with this final rule. Both the SORN 
and PIA have been reviewed and approved by the Office of Management and 
Budget (OMB) in concurrence with this final rule.
    Comment: One commenter stated that the Regulatory Flexibility Act 
(RFA) analysis erroneously omitted costs to passengers.
    Response: CBP disagrees with this comment. An individual is not a 
small entity under the Regulatory Flexibility Act.

IV. Conclusion and Summary of Changes Made to the APIS Regulations by 
This Final Rule

    Based on the comments received, and CBP's further consideration of 
the matter, CBP concludes that the proposed amendments, with the 
modifications discussed in the comment reponses above (and included in 
Section VI of this document), should be adopted as final to enhance 
national security by providing a heightened level of security for the 
commercial air and vessel travel industries. Achieving the level of 
security ensured under the regulatory amendments set forth in this rule 
(see ``Changes Made to the APIS Regulation by this Final Rule'' section 
below) places DHS in a better position to: (1) Fully vet, as 
appropriate, passenger and crew member information prior to departure 
as required by IRTPA; (2) effectively coordinate with carrier personnel 
and domestic or, where appropriate, foreign government authorities in 
order to take appropriate action warranted by the threat; (3) more

[[Page 48337]]

effectively prevent an identified high-risk traveler (known or 
suspected terrorist) from becoming a threat to passengers, crew, 
aircraft, vessels, or the public; and (4) thereby ensure that the 
electronic data transmission and vetting process required under the CBP 
APIS regulations comports to a greater extent with the purposes of 
ATSA, EBSVERA, and IRTPA.
    This final rule amends certain sections of the CBP APIS regulations 
to provide the following changes to the electronic passenger manifest 
transmission process applicable to arriving and departing commercial 
aircraft (see Sec. Sec.  122.49a and 122.75a, respectively) and to the 
passenger and crew member manifest transmission process for departing 
commercial vessels (see Sec.  4.64):
    1. The NPRM proposed that the current APIS regulation's definition 
of ``departure'' for aircraft en route to, departing from, continuing 
within, and overflying the United States (for purposes of Sec. Sec.  
122.49a, 122.49b, 122.49c, 122.75a, and 122.75b) be amended to provide 
that departure occurs at the moment the aircraft is pushed back from 
the gate. As explained in the ``Comments'' section, CBP is not pursuing 
this proposed change, and the final rule retains the current 
regulation's definition of ``departure'' as ``wheels-up.'' See Sec.  
122.49a(a). However, for purposes of establishing a (relatively) fixed 
moment for calibrating the timing of manifest transmissions, CBP has 
determined to use the moment at which the aircraft's doors are closed 
and secured for flight (referred to as ``the securing of the 
aircraft''). This action (securing of the aircraft) occurs for all 
flights and applies to all aircraft, including those that do not push 
back from a gate. Consequently, the final rule amends Sec.  122.49a(a) 
by adding the definition for ``securing the aircraft.'' The current 
regulation's definition of ``departure'' (wheels-up) will continue to 
apply to manifest transmissions for crew and non-crew, and the 
definition of ``securing the aircraft'' will not apply to these 
provisions.
    2. For flights en route to and departing from the United States, 
air carriers will have discretion to choose one of three options for 
transmitting passenger manifests to the CBP system, as follows: (a) 
Transmitting batch passenger manifests to the CBP system by means of a 
non-interactive transmission system no later than 30 minutes prior to 
the securing of the aircraft (the APIS-30 non-interactive option); (b) 
transmitting batch passenger manifests via a CBP-certified electronic 
data interchange system with interactive communication capability no 
later than 30 minutes prior to the securing of the aircraft (the APIS-
30 interactive option); and (c) transmitting, via a CBP-certified 
electronic data interchange system with interactive communication 
capability, passenger manifest data relative to each passenger in real 
time, i.e., as each passenger checks in for the flight, up to the 
moment of the securing of the aircraft (the AQQ option). See Sec. Sec.  
122.49a(b)(1) (ii)(A), (B), and (C); 122.49a(b)(2)(i)(A) and (B); 
122.75a(b)(1)(ii)(A), (B), and (C); and 122.75a(b)(2)(i)(A) and (B).
    Though not explicit in the texts, DHS is taking over, from the 
carriers, the responsibility to perform watch list vetting. Under the 
process implemented with this final rule, DHS (i.e., CBP and TSA, as 
explained in this document) will perform the pre-departure vetting of 
passenger and crew manifest data for APIS purposes. The air carriers 
will no longer perform this function with respect to flights subject to 
the APIS regulations.
    3. An air carrier opting to employ one of the interactive 
electronic transmission options (see 2(b) and (c) above) must obtain 
CBP certification of its interactive system. Certification is conferred 
by CBP upon testing of the carrier's system and confirmation that it is 
capable of functioning as configured for the interactive option chosen 
(or both options if both chosen). These air carriers may not transmit 
manifests interactively until certified. See Sec. Sec.  
122.49a(b)(1)(ii)(E) and 122.75a(b)(1)(ii)(E).
    4. The final rule makes clear that a carrier may be certified to 
make both interactive batch and AQQ transmissions, for the same or 
different flights. See Sec. Sec.  122.49a(b)(1)(ii)(D) and 
122.75a(b)(1)(ii)(D).
    5. Air carriers that do not choose an interactive option for 
transmitting passenger manifests (see 2(a) above) will continue to make 
transmissions via a non-interactive system. Certification is not 
required, and CBP will communicate with these carriers by a non-
interactive means. See Sec. Sec.  122.49a(b)(1)(ii)(A) and 
122.75a(b)(1)(ii)(A).
    6. The final rule makes clear that a carrier, at its discretion, 
may make more than one batch transmission. See Sec. Sec.  
122.49a(b)(1)(ii)(A) and (B) and 122.75a(b)(1)(ii)(A) and (B). The 
current regulation does not preclude this practice, but appears to 
contemplate that only one manifest is transmitted. Any single batch 
transmission covering all passengers checked in for the flight must be 
transmitted by the required time (no later than 30 minutes prior to the 
securing of the aircraft) and must contain all required data elements 
for the passengers it covers. Multiple batch transmissions must, 
together, cover all passengers checked in for the flight and 
individually contain all required data elements. Carriers employing 
this practice are not precluded from transmitting a batch manifest that 
covers passengers included on a previously transmitted manifest.
    7. Upon the effective date of this final rule, any carrier 
certified by CBP will be cleared to transmit manifests via one or both 
of the interactive transmission options. CBP will allow a certified 
carrier to transmit manifests or manifest data by interactive means 
prior to the effective date of this rule. Upon the effective date, 
carriers not certified by CBP will be required to transmit batch 
passenger manifests no later than 30 minutes prior to the securing of 
the aircraft via a non-interactive transmission method. Once any of 
these latter carriers subsequently obtains certification, they may 
commence transmissions via the interactive transmission option chosen. 
(See the DATES section of this final rule document.)
    8. Upon receipt of a batch passenger manifest from a carrier using 
the interactive batch transmission option or an individual passenger's 
manifest data from a carrier employing AQQ, the CBP system will conduct 
an automated vetting procedure and will send to the carrier, by 
interactive means, a ``cleared,'' ``not-cleared,'' or ``selectee'' 
message (instruction or response). A ``not-cleared'' response will be 
sent relative to any passenger warranting further security analysis (as 
an exact match to data contained in the No-Fly terrorist watch list, a 
possible match, or an inadequate record that cannot be vetted). A 
passenger identified as a ``selectee'' will be so designated by the 
carrier and subject to secondary screening, in accordance with 
applicable TSA requirements. See Sec. Sec.  122.49a(b)(1)(ii) and 
122.75a(b)(1)(ii).
    The same procedure applies to carriers using the non-interactive 
batch transmission option, except that the CBP system does not send 
``cleared'' messages to these carriers; CBP sends a confirmation 
message with any ``not-cleared'' and ``selectee'' vetting results 
indicated. Where all passengers are cleared, the confirmation message 
will be without vetting results, thereby indicating that the carrier 
can issue boarding passes and the passengers are cleared for departure.
    9. Regardless of the manifest transmission option employed (APIS-30 
non-interactive, APIS-30 interactive, or

[[Page 48338]]

AQQ), a carrier will not issue a boarding pass to any passenger subject 
to a ``not-cleared'' instruction issued by the CBP system during 
initial vetting, will not load onto the aircraft such passenger's 
baggage, and will remove such passenger's baggage if already loaded. 
See Sec. Sec.  122.49a(b)(1)(ii)(A), (B), and (C) and 
122.75a(b)(1)(ii)(A), (B), and (C). The carrier must not transport the 
baggage of a ``not-cleared'' passenger unless he is later (during 
further vetting) cleared and boarded. The carrier will issue a boarding 
pass to a ``selectee'' passenger with an instruction that secondary 
screening is required.
    10. Regardless of the transmission option employed, a carrier must, 
in accordance with TSA requirements, contact TSA for the purpose of 
resolving a ``not-cleared'' instruction by providing, if necessary, any 
available relevant information, such as a physical description. See 
Sec. Sec.  122.49a(b)(1)(ii)(A), (B), and (C) and 122.75a(b)(1)(ii)(A), 
(B), and (C).
    11. Regardless of the transmission option employed by a carrier, 
any passenger subject to a ``not-cleared'' initial vetting response 
will be subject to further vetting, and TSA will notify the carrier 
that the passenger has been cleared or downgraded to ``selectee'' 
status if warranted by the results of the additional security analysis. 
Carriers will not be notified by CBP messaging where further vetting 
confirms a ``not-cleared'' instruction (see Sec. Sec.  
122.49a(b)(1)(ii)(A), (B), and (C) and 122.75a(b)(1)(ii)(A), (B), and 
(C)), but CBP will inform the carrier in accordance with the resolution 
process mentioned immediately above.
    12. A carrier employing one or both of the interactive transmission 
options (batch or AQQ) will transmit to the CBP system, no later than 
30 minutes after the securing of the aircraft, a unique identifier or 
specific passenger data (typically a name) for any passenger that 
checked in for the flight but was not boarded for any reason. See 
Sec. Sec.  122.49a(b)(1)(ii)(B) and (C) and 122.75a(b)(1)(ii)(B) and 
(C). These carriers may so identify only those passengers who checked 
in but did not board the flight or all passengers that were checked in 
and boarded the flight. A carrier using the non-interactive 
transmission option (eAPIS normally) is not required to send a close-
out message.
    13. Vessel carriers must transmit passenger and crew manifests for 
vessels departing from the United States no later than 60 minutes prior 
to departure. See Sec.  4.64(b)(2)(i). While the APIS regulation 
concerning vessels departing from the United States is not further 
amended, the APIS manifest transmission and vetting process for these 
vessels is similar to that for aircraft to the following extent: the 
vessel carrier may transmit multiple batch manifests; the CBP system 
will conduct the vetting of manifest data in a two-stage process; the 
CBP system will send to the carrier ``cleared'' and ``not-cleared'' 
instructions to the carrier after initial automated vetting; the data 
for all ``not-cleared'' passengers and crew members is subject to the 
further vetting process; CBP will contact the carrier where the results 
of further vetting clear an initially ``not-cleared'' passenger or crew 
member for boarding. A carrier also must not allow a vessel to depart 
with a ``not-cleared'' passenger or crew member, or his baggage or 
belongings, on board.

V. Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review)

    This rule is considered to be an economically significant 
regulatory action under Executive Order 12866 because it may result in 
the expenditure of over $100 million in any one year. Accordingly, this 
rule has been reviewed by the Office of Management and Budget (OMB). 
The following summary presents the costs and benefits of the rule plus 
a range of alternatives considered. The complete ``Regulatory 
Assessment'' can be found in the docket for this rulemaking (http://www.regulations.gov; see also http://www.cbp.gov).
Summary
    Air carriers and air passengers will be the parties primarily 
affected by the rule. For the 30-minute option, costs will be driven by 
the number of air travelers that will need to arrive at their 
originating airports earlier and the number of air travelers who miss 
connecting flights and require rerouting as a result. For AQQ, costs 
will be driven by implementation expenses, data transmission costs, and 
a small number of air travelers who miss connecting flights.
    CBP estimates a range of costs in this analysis. For the high end 
of the range, we assume that passengers will provide APIS data upon 
check-in for their flights and that all carriers will transmit that 
data, as an entire passenger and crew manifest, to CBP at least 30 
minutes prior to the securing of the aircraft. We estimate that this 
will result in 1 percent of passengers on large carriers and 0 percent 
of passengers on small carriers missing connecting flights and needing 
to be rerouted, with an average delay of 4 hours. We also estimate that 
5 percent of originating passengers will need to arrive 15 minutes 
earlier than usual in order to make their flights. For the low end of 
the range, we assume that all large air carriers will implement AQQ to 
transmit information on individual passengers as each check in. We 
estimate that this will drive down the percentage of passengers 
requiring rerouting on large carriers, attributable to this rulemaking, 
to 0.5 percent. The percentage on small carriers remains 0 percent 
because we assume that small carriers will not implement AQQ; rather, 
they will continue to submit manifests at least 30 minutes prior to the 
securing of the aircraft through eAPIS, CBP's web-based application for 
small carriers. Thus, costs for small air carriers are the same 
regardless of the regulatory option considered.
    The endpoints of our range are presented below. As shown, the 
present value (PV) costs of the rule are estimated to range from $827 
million to $1.2 billion over the 10 years of the analysis (2006-2016, 
2005 dollars, 7 percent discount rate).

                                             Costs of the Final Rule
                                      [$millions, 2006-2016, 2005 dollars]
----------------------------------------------------------------------------------------------------------------
                                      High estimate  (30-minute option)       Low estimate  (APIS quick query
                                   ---------------------------------------                option)
                                                                          --------------------------------------
                                       Large        Small        Total        Large        Small
                                      carriers     carriers                  carriers     carriers      Total
----------------------------------------------------------------------------------------------------------------
First-Year Costs (2006)...........         $116           $1         $117         $184           $1         $185
Average Recurring Costs...........          150            2          152           92            2           94
10-Year PV Costs (7%).............        1,168           14        1,182          813           14          827

[[Page 48339]]

 
10-Year PV Costs (3%).............        1,413           17        1,430          959           17          976
----------------------------------------------------------------------------------------------------------------

    We quantify four categories of benefits, or costs that could be 
avoided, under the final rule: costs for conducting interviews with 
identified high-risk individuals, costs for deporting a percentage of 
these individuals, costs of delaying a high-risk aircraft at an airport 
(either at the origination or destination airport), and costs of 
rerouting aircraft if high-risk individuals are identified after 
takeoff. The average recurring benefits of the rule are an estimated 
$14 million per year. Over the 10-year period of analysis, PV benefits 
are an estimated $105 million at a 7 percent discount rate ($128 
million at a 3 percent discount rate).
    The primary impetus of this rule, however, is the security benefit 
afforded by a more timely submission of APIS information. Ideally, the 
quantification and monetization of the beneficial security effects of 
this regulation would involve two steps. First, we would estimate the 
reduction in the probability of a successful terrorist attack resulting 
from implementation of the regulation and the consequences of the 
avoided event (collectively, the risk associated with a potential 
terrorist attack). Then we would identify individuals' willingness to 
pay for this incremental risk reduction and multiply it by the 
population experiencing the benefit. Both of these steps, however, rely 
on key data that are not available for this rule.
    In light of these limitations, we conduct a ``breakeven'' analysis 
to determine what change in the reduction of risk would be necessary in 
order for the benefits of the rule to exceed the costs. Because the 
types of attack that would be prevented by this regulation are not 
entirely understood, we present a range of potential losses that are 
driven by casualty estimates and asset destruction. We use two 
estimates of a Value of a Statistical Life (VSL) to represent an 
individual's willingness to pay to avoid a fatality onboard an 
aircraft, based on economic studies of the value individuals place on 
small changes in risk: $3 million per VSL and $6 million per VSL. 
Additionally, we present three attack scenarios. Scenario 1 explores a 
situation where only individuals are lost (no destruction of physical 
property). Scenario 2 explores a situation where individuals are lost 
and the aircraft is destroyed. Scenario 3 explores a situation where 
individuals are lost and substantial destruction of physical capital is 
incurred.
    We subtract the annualized benefits of the rule (7 percent discount 
rate over 10 years) from the annualized costs (high and low estimates) 
and divide these net costs by the value of casualty and property losses 
avoided to calculate an annual risk reduction range that would be 
required for the benefits of the rule to at least equal the costs.
    The annual risk reductions required for the rule to breakeven are 
presented below for the three attack scenarios, the two estimates of 
VSL, and a range of casualties. As shown, depending on the attack 
scenario, the VSL, and the casualty level, risk would have to be 
reduced 0.2 (Scenario 3, 3,000 casualties avoided) to 44.2 percent 
(Scenario 1, 100 casualties avoided) in order for the rule to 
breakeven.

                       Annual Risk Reduction Required (%) for Net Costs to Equal Benefits
                                     [Annualized at 7 percent over 10 years]
----------------------------------------------------------------------------------------------------------------
                                                                                                    Scenario 3:
                                                                                                   loss of life
                                                                    Scenario 1:     Scenario 2:         and
                       Casualties avoided                          loss of life    loss of life    catastrophic
                                                                       only        and aircraft       loss of
                                                                                                     property
----------------------------------------------------------------------------------------------------------------
$3M VSL:
    100.........................................................       30.4-44.2       29.2-42.5         0.4-0.6
    250.........................................................       12.2-17.7       12.0-17.4         0.4-0.6
    500.........................................................         6.1-8.8         6.0-8.8         0.4-0.6
    1,000.......................................................         3.0-4.4         3.0-4.4         0.4-0.5
    3,000.......................................................         1.0-1.5         1.0-1.5         0.3-0.4
$6M VSL:
    100.........................................................       15.2-22.1       14.9-21.7         0.4-0.6
    250.........................................................         6.1-8.8         6.0-8.8         0.4-0.6
    500.........................................................         3.0-4.4         3.0-4.4         0.4-0.5
    1,000.......................................................         1.5-2.2         1.5-2.2         0.3-0.5
    3,000.......................................................         0.5-0.7         0.5-0.7         0.2-0.3
----------------------------------------------------------------------------------------------------------------

See the ``Regulatory Assessment'' at http://www.regulations.gov or 
http://www.cbp.gov for details of these calculations.
Regulatory Alternatives
    CBP considered a number of regulatory alternatives to the rule. 
Complete details regarding the costs and benefits of these alternatives 
can be found in the ``Regulatory Assessment'' available in the docket 
for this rule (http://www.regulations.gov; see also http://www.cbp.gov). The following is a summary of these alternatives:

[[Page 48340]]

    (1) Do not promulgate any further manifest transmission 
requirements (No Action)--the baseline case where carriers would 
continue to submit APIS manifests for arriving aircraft passengers 15 
minutes after departure and, for departing aircraft passengers, 15 
minutes prior to departure. There are no additional costs or benefits 
associated with this alternative. High-risk passengers would continue 
to board aircraft both destined to and departing from the United 
States, and instances of such aircraft departing with a high-risk 
passenger onboard would continue. As explained previously in this 
document, these results are inconsistent with the protective security 
objectives and/or mandates of ATSA, EBSVERA, and IRTPA. Because this is 
the status quo, and therefore has no additional costs or benefits, it 
is not analyzed further.
    (2) A 30-minute transmission requirement and implementation of 
AQQ--this is the final rule, discussed earlier in this document, which 
generally requires carriers to either submit batch manifests 30 minutes 
prior to the securing of the aircraft or, if implementing AQQ, transmit 
manifest data for each passenger as he checks in for the flight, up to 
the securing of the aircraft. If flying on a carrier using AQQ, 
individuals would be queried while they checked in and would be 
prevented (denied a boarding pass) from continuing to check in or 
having their bags checked if not cleared by CBP. If flying on a carrier 
using the APIS 30 batch manifest transmission option, individuals not 
cleared by CBP would not be issued a boarding pass. High-risk 
individuals would thus not enter passenger screening or the departure 
gate area.
    First-year costs are $118-185 million, average recurring costs are 
$94-152 million per year, and 10-year present value costs are $827 
million-1.2 billion (7 percent discount rate) and $976 million-1.4 
billion (3 percent discount rate).
    (3) A 60-minute transmission requirement--this is the rule as 
proposed, without the AQQ option. Carriers would submit their manifests 
in their entirety at least 60 minutes prior to departure. CBP assumes 
that 2 percent of passengers on large carriers and 0.25 percent of 
passengers on small carriers will be delayed an average of 4 hours and 
will need to be rerouted. CBP also assumes that 15 percent of 
passengers would need to arrive at their originating airport an average 
of 15 minutes earlier than normal to make their flights. Benefits will 
include interview costs avoided, deportation costs avoided, delay costs 
avoided, and diversion costs avoided, as well as the non-quantified 
security benefits that are the impetus for this rule.
    Based on comments to the proposed rule, and reconsideration of the 
matter by CBP in light of lessons learned during the manifest 
transmission and security vetting process developed after the exposed 
bomb plot in the United Kingdom last summer, this alternative was 
rejected as unnecessarily burdensome for air carriers. CBP now believes 
that a 30-minute transmission requirement provides greater flexibility 
for air carriers while still providing the level of security sought for 
this rule.
    First-year costs are $265 million, average recurring costs are $343 
million per year, and 10-year present value costs are $2.7 billion (7 
percent discount rate) and $3.2 billion (3 percent discount rate).
    Benefits are higher than the No Action alternative because the 
high-risk individual will be identified prior to boarding. In addition 
to this security benefit, there is an estimated $14 million in costs 
avoided annually.
    (4) A 120-minute transmission requirement--his rule would require 
carriers to submit manifests 120 minutes prior to departure. The costs 
would be higher than under the final rule because originating 
passengers, not just connecting passengers, would now be affected. 
High-risk passengers would be prevented from boarding aircraft. CBP 
would be able to more easily coordinate and plan a response to a hit on 
the watch lists well before the boarding process began.
    This alternative would be quite disruptive because even though 
passengers and carriers would have the predictability of a pre-
determined transmission time, passenger check-in at the original 
departure airport would be greatly affected. Instead of passengers 
checking in 2 hours prior to departure, carriers would have to advise 
passengers to arrive even earlier to assure timely manifest 
transmission.
    We assume that 20 percent of passengers on large carriers and 5 
percent of passengers on small carriers will be delayed an average of 6 
hours and will need to be rerouted. We assume that 30 percent of 
passengers would need to arrive at the airport 1 hour earlier than 
previously. First-year costs are $3.4 billion, average recurring costs 
are $4.3 billion per year, and 10-year present value costs are $33.8 
billion (7 percent discount rate) and $40.8 billion (3 percent discount 
rate).
    Benefits are higher than the No Action alternative because a high-
risk individual would be prevented from boarding or departing on an 
aircraft destined to or departing from the United States. Benefits are 
slightly higher than under the final rule because in some instances, 
the high-risk passenger's baggage would not reach the aircraft. 
Otherwise, the results achieved do not change appreciably given the 
extra time. Nonetheless, this procedure would be consistent with the 
protective security purposes of ATSA, EBSVERA, and IRTPA.
    The following table summarizes the costs and benefits of the 
regulatory alternatives:

                    Comparison of Costs and Benefits of the Rule and Regulatory Alternatives
----------------------------------------------------------------------------------------------------------------
                                                Final rule
                                 ----------------------------------------   60-minute APIS      120-minute APIS
                                   30-minute option       AQQ option
----------------------------------------------------------------------------------------------------------------
First-year costs................  $118 million......  $185 million......  $265 million......  $3.4 billion.
Average recurring costs.........  $152 million......  $94 million.......  $343 million......  $4.3 billion.
10-year PV costs (7%)...........  $1.2 billion......  $827 million......  $2.7 billion......  $33.8 billion.
10-year PV costs (3%)...........  $1.4 billion......  $976 million......  $3.2 billion......  $40.8 billion.
Average cost per passenger......  $0.36-$1.55.......  $0.36-$1.03.......  $1.37-$3.45.......  $17.39-$43.81.
Benefits comparison to No Action  Higher (risk        Higher (risk        Higher (risk        Higher (risk
                                   identified prior    identified prior    identified prior    identified prior
                                   to boarding).       to boarding).       to boarding).       to boarding).
Benefits comparison to Final      ..................  ..................  Comparable          Comparable
 Rule.                                                                     (security           (security
                                                                           benefits + $14      benefits + $14
                                                                           million in costs    million in costs
                                                                           avoided annually).  avoided
                                                                                               annually).
----------------------------------------------------------------------------------------------------------------


[[Page 48341]]

Accounting Statement
    As required by OMB Circular A-4 (available at http://www.whitehouse.gov/omb/circulars/index.html), DHS (through CBP) has 
prepared an accounting statement showing the classification of the 
expenditures associated with this rule. The table provides our best 
estimate of the dollar amount of these costs and benefits, expressed in 
2005 dollars, at three percent and seven percent discount rates. We 
estimate that the cost of this rule will be approximately $126.8 
million annualized (7 percent discount rate) and approximately $126.2 
million annualized (3 percent discount rate). Quantified benefits are 
$14.9 million annualized (7 percent discount rate) and $15.0 million 
annualized (3 percent discount rate). The non-quantified benefits are 
enhanced security.

 Accounting Statement: Classification of Expenditures, 2006 Through 2016
                             (2005 Dollars)
------------------------------------------------------------------------
                                   3% discount rate    7% discount rate
------------------------------------------------------------------------
                                  COSTS
------------------------------------------------------------------------
Annualized monetized costs......  $126.2 million....  $126.8 million.
Annualized quantified, but un-    None..............  None.
 monetized costs.
Qualitative (un-quantified)       None..............  None.
 costs.
------------------------------------------------------------------------
                                BENEFITS
------------------------------------------------------------------------
Annualized monetized benefits...  $15.0 million.....  $14.9 million.
Annualized quantified, but un-    None..............  None.
 monetized costs.
Qualitative (un-quantified)       Enhanced security.  Enhanced security.
 costs.
------------------------------------------------------------------------

    In accordance with the provisions of Executive Order 12866, this 
regulation was reviewed by the Office of Management and Budget.

B. Regulatory Flexibility Act

    We have examined the impacts of this rule on small entities as 
required by the Regulatory Flexibility Act. A small entity may be a 
small business (defined as any independently owned and operated 
business not dominant in its field that qualifies as a small business 
per the Small Business Act); a small not-for-profit organization; or a 
small governmental jurisdiction (locality with fewer than 50,000 
people).
    CBP has identified 773 small U.S. air carriers that could be 
affected by the rule. CBP does not expect these carriers to experience 
great economic impacts as a result of the rule. Small carriers do not 
need to modify their reservation systems, their transmission methods, 
nor do they have many connecting passengers that may miss their flights 
and require rerouting. CBP estimates that, at most, 5 percent of 
passengers on small carriers will be affected by this rule annually. In 
the 2005 APIS Rule, we estimated that small carriers transport an 
average of 300 passengers annually. As calculated in the ``Regulatory 
Assessment,'' the total cost of delay per passenger is $118.97, and 
only $4.57 of this is incurred by the air carrier. Initial analysis for 
the proposed rule estimated the impacts of a 60-minute prior to 
departure transmission requirement. Now that the transmission 
requirement has changed for this final rule to 30-minutes prior to the 
securing of the aircraft, we estimate there will be no direct impacts 
to small carriers. The costs of arriving earlier than customary are 
incurred only by the passenger.
    We conclude, therefore, that this rule will not have a significant 
economic impact on a substantial number of small entities.
    The complete analysis of impacts to small entities is available on 
the CBP Web site at: http://www.regulations.gov; see also http://www.cbp.gov.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 
enacted as Public Law 104-4 on March 22, 1995, requires each Federal 
agency, to the extent permitted by law, to prepare a written assessment 
of the effects of any Federal mandate in a proposed or final agency 
rule that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any one year. 
Section 204(a) of the UMRA, 2 U.S.C. 1534(a), requires the Federal 
agency to develop an effective process to permit timely input by 
elected officers (or their designees) of State, local, and tribal 
governments on a ``significant intergovernmental mandate.'' A 
``significant intergovernmental mandate'' under the UMRA is any 
provision in a Federal agency regulation that will impose an 
enforceable duty upon State, local, and tribal governments, in the 
aggregate, of $100 million (adjusted annually for inflation) in any one 
year. Section 203 of the UMRA, 2 U.S.C. 1533, which supplements section 
204(a), provides that, before establishing any regulatory requirements 
that might significantly or uniquely affect small governments, the 
agency shall have developed a plan that, among other things, provides 
for notice to potentially affected small governments, if any, and for 
meaningful and timely opportunity to provide input in the development 
of regulatory proposals.
    This final rule would not impose any cost on small governments or 
significantly or uniquely affect small governments. However, as stated 
in the ``Executive Order 12866'' section of this document, CBP has 
determined that the rule would result in the expenditure by the private 
sector of $100 million or more (adjusted annually for inflation) in any 
one year and thus would constitute a significant regulatory action. 
Consequently, the provisions of this rule constitute a private sector 
mandate under the UMRA. CBP's analysis of the cost impact on affected 
businesses, summarized in the ``Executive Order 12866'' section of this 
document and available for review by accessing http://www.regulations.gov; see also http://www.cbp.gov, is incorporated here 
by reference as the assessment required under Title II of the UMRA.

D. Executive Order 13132 (Federalism)

    This final rule would 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.

[[Page 48342]]

E. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988. That Executive Order requires 
agencies to conduct reviews, before proposing legislation or 
promulgating regulations, to determine the impact of those proposals on 
civil justice and potential issues for litigation. The Order requires 
that agencies make reasonable efforts to ensure that a regulation 
clearly identifies preemptive effects, effects on existing Federal laws 
and regulations, any retroactive effects of the proposal, and other 
matters. CBP has determined that this regulation meets the requirements 
of Executive Order 12988 because it does not involve retroactive 
effects, preemptive effects, or other matters addressed in the Order.

F. National Environmental Policy Act

    CBP has evaluated this rule for purposes of the National 
Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.). CBP 
has determined that an environmental statement is not required, since 
this action is non-invasive and there is no potential impact of any 
kind. Record of this determination has been placed in the rulemaking 
docket.

G. Paperwork Reduction Act

    In connection with the final rule published by DHS/CBP in April 
2005, and discussed in this rule, a Paperwork Reduction Act (PRA) 
analysis was set forth concerning the information collection involved 
under that rule (see OMB No. 1651-0088). The analysis pertained to the 
information collection contained in 19 CFR 4.7b, 4.64, 122.49a, 
122.49b, 122.49c, 122.75a, and 122.75b. The final rule published today, 
which amends the regulation as amended by the April 2005 final rule, 
affects only the timing and manner of the submission of the information 
already required under the regulation. The collection of information in 
this document is contained in 19 CFR 4.64, 122.49a, and 122.75a. An 
Information Collection Report reflecting a change in the collection 
burden due to this final rule has been submitted to OMB for review, in 
accordance with the PRA, under OMB 1651-0088.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless the collection of 
information displays a valid control number.
    Estimated annual reporting and/or recordkeeping burden: 30,669 
hours.
    Estimated average annual burden per respondent/recordkeeper: 129 
minutes.
    Estimated number of respondents and/or recordkeepers: 14,265.
    Estimated annual frequency of responses: 129.

H. Signing Authority

    This amendment to the regulations is being issued in accordance 
with 19 CFR 0.2(a) pertaining to the authority of the Secretary of 
Homeland Security (or his delegate) to prescribe regulations not 
related to customs revenue functions.

I. Privacy Statement

    A Privacy Impact Assessment (PIA) was published in the Federal 
Register (70 FR 17857) in conjunction with the April 7, 2005, APIS 
Final Rule (70 FR 17820). To address the changes made in this final 
rule, DHS is publishing an update to the APIS PIA on its Web site. DHS 
is preparing a separate SORN for APIS for publication in conjunction 
with this final rule.

List of Subjects

19 CFR Part 4

    Aliens, Customs duties and inspection, Immigration, Maritime 
carriers, Passenger vessels, Reporting and recordkeeping requirements, 
Vessels.

19 CFR Part 122

    Air carriers, Aircraft, Airports, Air transportation, Commercial 
aircraft, Customs duties and inspection, Entry procedure, Reporting and 
recordkeeping requirements, Security measures.

Amendments to the Regulations

0
For the reasons stated in the preamble, parts 4 and 122 of the CBP 
regulations (19 CFR parts 4 and 122) are amended as follows:

PART 4--VESSELS IN FOREIGN AND DOMESTIC TRADES

0
1. The general authority citation for part 4 and the specific authority 
citation for section 4.64 continue to read as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624; 
2071 note; 46 U.S.C. 6015.
* * * * *

    Section 4.64 also issued under 8 U.S.C. 1221;
* * * * *

Sec.  4.64  [Amended]

0
2. Section 4.64 is amended by, in paragraph (b)(2)(i), removing the 
words ``no later than 15 minutes'' and replacing them with the words 
``no later than 60 minutes''.

PART 122--AIR COMMERCE REGULATIONS

0
3. The general authority citation for part 122 and the specific 
authority citations for sections 122.49a and 122.75a continue to read 
as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 1431, 1433, 1436, 
1448, 1459, 1590, 1594, 1623, 1624, 1644, 1644a, 2071 note.

    Section 122.49a also issued under 8 U.S.C. 1221, 19 U.S.C. 1431, 
49 U.S.C. 44909.
* * * * *
    Section 122.75a also issued under 8 U.S.C. 1221, 19 U.S.C. 1431.
* * * * *

0
4. Section 122.49a is amended by, in paragraph (a), adding in 
appropriate alphabetical order the definition of ``securing the 
aircraft'' and by revising paragraphs (b)(1) and (b)(2), such addition 
and revisions to read as follows:


Sec.  122.49a  Electronic manifest requirement for passengers onboard 
commercial aircraft arriving in the United States.

    (a) * * *
    Securing the aircraft. ``Securing the aircraft'' means the moment 
the aircraft's doors are closed and secured for flight.
* * * * *
    (b) Electronic arrival manifest. (1) General. (i) Basic 
requirement. Except as provided in paragraph (c) of this section, an 
appropriate official of each commercial aircraft (carrier) arriving in 
the United States from any place outside the United States must 
transmit to the Advance Passenger Information System (APIS; referred to 
in this section as the Customs and Border Protection (CBP) system), the 
electronic data interchange system approved by CBP for such 
transmissions, an electronic passenger arrival manifest covering all 
passengers checked in for the flight. A passenger manifest must be 
transmitted separately from a crew member manifest required under Sec.  
122.49b if transmission is in U.S. EDIFACT format. The passenger 
manifest must be transmitted to the CBP system at the place and time 
specified in paragraph (b)(2) of this section, in the manner set forth 
under paragraph (b)(1)(ii) of this section.
    (ii) Transmission of manifests. A carrier required to make 
passenger arrival manifest transmissions to the CBP system under 
paragraph (b)(1)(i) of this section must make the required 
transmissions, covering all passengers checked in for the flight, in 
accordance with either paragraph (b)(1)(ii)(A), (B), (C), or (D) of 
this section, as follows:
    (A) Non-interactive batch transmission option. A carrier that

[[Page 48343]]

chooses not to transmit required passenger manifests by means of a CBP-
certified interactive electronic transmission system under paragraph 
(b)(1)(ii)(B), (C), or (D) of this section must make batch manifest 
transmissions in accordance with this paragraph (b)(1)(ii)(A) by means 
of a non-interactive electronic transmission system approved by CBP. 
The carrier may make a single, complete batch manifest transmission 
containing the data required under paragraph (b)(3) of this section for 
all passengers checked in for the flight or two or more partial batch 
manifest transmissions, each containing the required data for the 
identified passengers and which together cover all passengers checked 
in for the flight. After receipt of the manifest information, the CBP 
system will perform an initial security vetting of the data and send to 
the carrier by a non-interactive transmission method a ``not-cleared'' 
instruction for passengers identified as requiring additional security 
analysis and a ``selectee'' instruction for passengers requiring 
secondary screening (e.g., additional examination of the person and/or 
his baggage) under applicable Transportation Security Administration 
(TSA) requirements. The carrier must designate as a ``selectee'' any 
passenger so identified during initial security vetting, in accordance 
with applicable TSA requirements. The carrier must not issue a boarding 
pass to, or load the baggage of, any passenger subject to a ``not-
cleared'' instruction and must contact TSA to seek resolution of the 
``not-cleared'' instruction by providing, if necessary, additional 
relevant information relative to the ``not-cleared'' passenger. TSA 
will notify the carrier if the ``not-cleared'' passenger is cleared for 
boarding or downgraded to ``selectee'' status based on the additional 
security analysis.
    (B) Interactive batch transmission option. A carrier, upon 
obtaining CBP certification, in accordance with paragraph (b)(1)(ii)(E) 
of this section, may make manifest transmissions by means of an 
interactive electronic transmission system configured for batch 
transmission of data and receipt from the CBP system of appropriate 
messages. A carrier operating under this paragraph must make 
transmissions by transmitting a single, complete batch manifest 
containing the data required under paragraph (b)(3) of this section for 
all passengers checked in for the flight or two or more partial batch 
manifests, each containing the required data for the identified 
passengers and which together cover all passengers checked in for the 
flight. In the case of connecting passengers arriving at the connecting 
airport already in possession of boarding passes for a U.S.-bound 
flight whose data have not been collected by the carrier, the carrier 
must transmit all required manifest data for these passengers when they 
arrive at the gate, or some other suitable place designated by the 
carrier, for the flight. After receipt of the manifest information, the 
CBP system will perform an initial security vetting of the data and 
send to the carrier by interactive electronic transmission, as 
appropriate, a ``cleared'' instruction for passengers not matching 
against the watch list, a ``not-cleared'' instruction for passengers 
identified as requiring additional security analysis, and a 
``selectee'' instruction for passengers who require secondary screening 
(e.g., additional examination of the person and/or his baggage) under 
applicable TSA requirements. The carrier must designate as a 
``selectee'' any passenger so identified during initial security 
vetting, in accordance with applicable TSA requirements. The carrier 
must not issue a boarding pass to, or load the baggage of, any 
passenger subject to a ``not-cleared'' instruction and, in the case of 
connecting passengers (as described in this paragraph), the carrier 
must not board or load the baggage of any such passenger until the CBP 
system returns a ``cleared'' or ``selectee'' response for that 
passenger. Where a ``selectee'' instruction is received for a 
connecting passenger, the carrier must ensure that such passenger 
undergoes secondary screening before boarding. The carrier must seek 
resolution of a ``not-cleared'' instruction by contacting TSA and 
providing, if necessary, additional relevant information relative to 
the ``not-cleared'' passenger. Upon completion of the additional 
security analysis, TSA will notify the carrier if a ``not-cleared'' 
passenger is cleared for boarding or downgraded to ``selectee'' status 
based on the additional security analysis. No later than 30 minutes 
after the securing of the aircraft, the carrier must transmit to the 
CBP system a message reporting any passengers who checked in but were 
not onboard the flight. The message must identify the passengers by a 
unique identifier selected or devised by the carrier or by specific 
passenger data (e.g., name) and may contain the unique identifiers or 
data for all passengers onboard the flight or for only those passengers 
who checked in but were not onboard the flight.
    (C) Interactive individual passenger information transmission 
option. A carrier, upon obtaining CBP certification, in accordance with 
paragraph (b)(1)(ii)(E) of this section, may make manifest 
transmissions by means of an interactive electronic transmission system 
configured for transmitting individual passenger data for each 
passenger and for receiving from the CBP system appropriate messages. A 
carrier operating under this paragraph must make such transmissions as 
individual passengers check in for the flight or, in the case of 
connecting passengers arriving at the connecting airport already in 
possession of boarding passes for a U.S.-bound flight whose data have 
not been collected by the carrier, as these connecting passengers 
arrive at the gate, or some other suitable place designated by the 
carrier, for the flight. With each transmission of manifest information 
by the carrier, the CBP system will perform an initial security vetting 
of the data and send to the carrier by interactive electronic 
transmission, as appropriate, a ``cleared'' instruction for passengers 
not matching against the watch list, a ``not-cleared'' instruction for 
passengers identified as requiring additional security analysis, and a 
``selectee'' instruction for passengers requiring secondary screening 
(e.g., additional examination of the person and/or his baggage) under 
applicable TSA requirements. The carrier must designate as a 
``selectee'' any passenger so identified during initial security 
vetting, in accordance with applicable TSA requirements. The carrier 
must not issue a boarding pass to, or load the baggage of, any 
passenger subject to a ``not-cleared'' instruction and, in the case of 
connecting passengers (as described in this paragraph), must not board 
or load the baggage of any such passenger until the CBP system returns 
a ``cleared'' or ``selectee'' response for that passenger. Where a 
``selectee'' instruction is received by the carrier for a connecting 
passenger, the carrier must ensure that secondary screening of the 
passenger is conducted before boarding. The carrier must seek 
resolution of a ``not-cleared'' instruction by contacting TSA and 
providing, if necessary, additional relevant information relative to 
the ``not-cleared'' passenger. Upon completion of the additional 
security analysis, TSA will notify the carrier if a ``not-cleared'' 
passenger is cleared for boarding or downgraded to ``selectee'' status 
based on the additional security analysis. No later than 30 minutes 
after the securing of the aircraft, the carrier must transmit to the 
CBP system a message reporting any passengers who checked in but were 
not onboard the

[[Page 48344]]

flight. The message must identify the passengers by a unique identifier 
selected or devised by the carrier or by specific passenger data (name) 
and may contain the unique identifiers or data for all passengers 
onboard the flight or for only those passengers who checked in but were 
not onboard the flight.
    (D) Combined use of interactive methods. If certified to do so, a 
carrier may make transmissions under both paragraphs (b)(1)(ii)(B) and 
(C) of this section for a particular flight or for different flights.
    (E) Certification. Before making any required manifest 
transmissions under paragraph (b)(1)(ii)(B) or (C) of this section, a 
carrier must subject its electronic transmission system to CBP testing, 
and CBP must certify that the carrier's system is then presently 
capable of interactively communicating with the CBP system for 
effective transmission of manifest data and receipt of appropriate 
messages in accordance with those paragraphs.
    (2) Place and time for submission. The appropriate official 
specified in paragraph (b)(1)(i) of this section (carrier) must 
transmit the arrival manifest or manifest data as required under 
paragraphs (b)(1)(i) and (ii) of this section to the CBP system (CBP 
Data Center, CBP Headquarters), in accordance with the following:
    (i) For manifests transmitted under paragraph (b)(1)(ii)(A) or (B) 
of this section, no later than 30 minutes prior to the securing of the 
aircraft;
    (ii) For manifest information transmitted under paragraph 
(b)(1)(ii)(C) of this section, no later than the securing of the 
aircraft;
    (iii) For flights not originally destined to the United States but 
diverted to a U.S. port due to an emergency, no later than 30 minutes 
prior to arrival; in cases of non-compliance, CBP will take into 
consideration whether the carrier was equipped to make the transmission 
and the circumstances of the emergency situation; and
    (iv) For an aircraft operating as an air ambulance in service of a 
medical emergency, no later than 30 minutes prior to arrival; in cases 
of non-compliance, CBP will take into consideration whether the carrier 
was equipped to make the transmission and the circumstances of the 
emergency situation.
* * * * *

0
5. Section 122.75a is amended by revising paragraphs (b)(1) and (b)(2), 
to read as follows:


Sec.  122.75a  Electronic manifest requirements for passengers onboard 
commercial aircraft departing from the United States.

* * * * *
    (b) Electronic departure manifest. (1) General. (i) Basic 
requirement. Except as provided in paragraph (c) of this section, an 
appropriate official of each commercial aircraft (carrier) departing 
from the United States en route to any port or place outside the United 
States must transmit to the Advance Passenger Information System (APIS; 
referred to in this section as the Customs and Border Protection (CBP) 
system), the electronic data interchange system approved by CBP for 
such transmissions, an electronic passenger departure manifest covering 
all passengers checked in for the flight. A passenger manifest must be 
transmitted separately from a crew member manifest required under Sec.  
122.75b if transmission is in U.S. EDIFACT format. The passenger 
manifest must be transmitted to the CBP system at the place and time 
specified in paragraph (b)(2) of this section, in the manner set forth 
under paragraph (b)(1)(ii) of this section.
    (ii) Transmission of manifests. A carrier required to make 
passenger departure manifest transmissions to the CBP system under 
paragraph (b)(1)(i) of this section must make the required 
transmissions covering all passengers checked in for the flight in 
accordance with either paragraph (b)(1)(ii)(A), (B), (C), or (D) of 
this section, as follows:
    (A) Non-interactive batch transmission option. A carrier that 
chooses not to transmit required passenger manifests by means of a CBP-
certified interactive electronic transmission system under paragraph 
(b)(1)(ii)(B), (C), or (D) of this section must make batch manifest 
transmissions in accordance with this paragraph (b)(1)(ii)(A) by means 
of a non-interactive electronic transmission system approved by CBP. 
The carrier may make a single, complete batch manifest transmission 
containing the data required under paragraph (b)(3) of this section for 
all passengers checked in for the flight or two or more partial batch 
manifest transmissions, each containing the required data for the 
identified passengers and which together cover all passengers checked 
in for the flight. After receipt of the manifest information, the CBP 
system will perform an initial security vetting of the data and send to 
the carrier by a non-interactive transmission method a ``not-cleared'' 
instruction for passengers identified as requiring additional security 
analysis and a ``selectee'' instruction for passengers requiring 
secondary screening (e.g., additional examination of the person and/or 
his baggage) under applicable Transportation Security Administration 
(TSA) requirements. The carrier must designate as a ``selectee'' any 
passenger so identified during initial security vetting, in accordance 
with applicable TSA requirements. The carrier must not issue a boarding 
pass to, or load the baggage of, any passenger subject to the ``not-
cleared'' instruction and must contact the Transportation Security 
Administration (TSA) to seek resolution of the ``not-cleared'' 
instruction by providing, if necessary, additional relevant information 
relative to the ``not-cleared'' passenger. TSA will notify the carrier 
if a ``not-cleared'' passenger is cleared for boarding or downgraded to 
``selectee'' status based on the additional security analysis.
    (B) Interactive batch transmission option. A carrier, upon 
obtaining CBP certification, in accordance with paragraph (b)(1)(ii)(E) 
of this section, may make manifest transmissions by means of an 
interactive electronic transmission system configured for batch 
transmission of data and receipt from the CBP system of appropriate 
messages. A carrier operating under this paragraph must make manifest 
transmissions by transmitting a single, complete batch manifest 
containing the data required under paragraph (b)(3) of this section for 
all passengers checked in for the flight or two or more partial batch 
manifests, each containing the required data for the identified 
passengers and which together cover all passengers checked in for the 
flight. In the case of connecting passengers arriving at the connecting 
airport already in possession of boarding passes for a flight departing 
from the United States whose data have not been collected by the 
carrier, the carrier must transmit required manifest data for these 
passengers when they arrive at the gate, or some other suitable place 
designated by the carrier, for the flight. After receipt of the 
manifest information, the CBP system will perform an initial security 
vetting of the data and send to the carrier by interactive electronic 
transmission, as appropriate, a ``cleared'' instruction for passengers 
not matching against the watch list, a ``not-cleared'' instruction for 
passengers identified as requiring additional security analysis, and a 
``selectee'' instruction for passengers who require secondary screening 
(e.g., additional examination of the person and/or his baggage) under 
applicable TSA requirements. The carrier must designate as a 
``selectee'' any passenger

[[Page 48345]]

so identified during initial security vetting, in accordance with 
applicable TSA requirements. The carrier must not issue a boarding pass 
to, or load the baggage of, any passenger subject to a ``not-cleared'' 
instruction and, in the case of connecting passengers (as described in 
this paragraph), the carrier must not board or load the baggage of any 
such passenger until the CBP system returns a ``cleared'' or 
``selectee'' response for that passenger. Where a ``selectee'' 
instruction is received for a connecting passenger, the carrier must 
ensure that such passenger undergoes secondary screening before 
boarding. The carrier must seek resolution of a ``not-cleared'' 
instruction by contacting TSA and providing, if necessary, additional 
relevant information relative to the ``not-cleared'' passenger. Upon 
completion of the additional security analysis, TSA will notify the 
carrier if a ``not-cleared'' passenger is cleared for boarding or 
downgraded to ``selectee'' status based on the additional security 
analysis. No later than 30 minutes after the securing of the aircraft, 
the carrier must transmit to the CBP system a message reporting any 
passengers who checked in but were not onboard the flight. The message 
must identify the passengers by a unique identifier selected or devised 
by the carrier or by specific passenger data (name) and may contain the 
unique identifiers or data for all passengers onboard the flight or for 
only those passengers who checked in but were not onboard the flight.
    (C) Interactive individual passenger information transmission 
option. A carrier, upon obtaining CBP certification, in accordance with 
paragraph (b)(1)(ii)(E) of this section, may make manifest 
transmissions by means of an interactive electronic transmission system 
configured for transmitting individual passenger data for each 
passenger and for receiving from the CBP system appropriate messages. A 
carrier operating under this paragraph must make such transmissions as 
individual passengers check in for the flight or, in the case of 
connecting passengers arriving at the connecting airport already in 
possession of boarding passes for a flight departing from the United 
States whose data have not been collected by the carrier, as these 
connecting passengers arrive at the gate, or some other suitable place 
designated by the carrier for the flight. With each transmission of 
manifest information by the carrier, the CBP system will perform an 
initial security vetting of the data and send to the carrier by 
interactive electronic transmission, as appropriate, a ``cleared'' 
instruction for passengers not matching against the watch list, a 
``not-cleared'' instruction for passengers identified during initial 
security vetting as requiring additional security analysis, and a 
``selectee'' instruction for passengers requiring secondary screening 
(e.g., additional examination of the person and/or his baggage) under 
applicable TSA requirements. The carrier must designate as a 
``selectee'' any passenger so identified during initial security 
vetting, in accordance with applicable TSA requirements. The carrier 
must not issue a boarding pass to, or load the baggage of, any 
passenger subject to a ``not-cleared'' instruction and, in the case of 
connecting passengers (as described in this paragraph), must not board 
or load the baggage of any such passenger until the CBP system returns 
a ``cleared'' or ``selectee'' response for that passenger. Where a 
``selectee'' instruction is received for a connecting passenger, the 
carrier must ensure that such passenger undergoes secondary screening 
before boarding. The carrier must seek resolution of a ``not-cleared'' 
instruction by contacting TSA and providing, if necessary, additional 
relevant information relative to the ``not-cleared'' passenger. Upon 
completion of the additional security analysis, TSA will notify the 
carrier if a ``not-cleared'' passenger is cleared for boarding or 
downgraded to ``selectee'' status based on the additional security 
analysis. No later than 30 minutes after the securing of the aircraft, 
the carrier must transmit to the CBP system a message reporting any 
passengers who checked in but were not onboard the flight. The message 
must identify the passengers by a unique identifier selected or devised 
by the carrier or by specific passenger data (name) and may contain the 
unique identifiers or data for all passengers onboard the flight or for 
only those passengers who checked in but were not onboard the flight.
    (D) Combined use of interactive methods. If certified to do so, a 
carrier may make transmissions under both paragraphs (b)(1)(ii)(B) and 
(C) of this section for a particular flight or for different flights.
    (E) Certification. Before making any required manifest 
transmissions under paragraph (b)(1)(ii)(B) or (C) of this section, a 
carrier must subject its electronic transmission system to CBP testing, 
and CBP must certify that the carrier's system is then presently 
capable of interactively communicating with the CBP system for 
effective transmission of manifest data and receipt of appropriate 
messages under those paragraphs.
    (2) Place and time for submission. The appropriate official 
specified in paragraph (b)(1)(i) of this section (carrier) must 
transmit the departure manifest or manifest data as required under 
paragraphs (b)(1)(i) and (ii) of this section to the CBP system (CBP 
Data Center, CBP Headquarters), in accordance with the following:
    (i) For manifests transmitted under paragraph (b)(1)(ii)(A) and (B) 
of this section, no later than 30 minutes prior to the securing of the 
aircraft;
    (ii) For manifest information transmitted under paragraph 
(b)(1)(ii)(C) of this section, no later than the securing of the 
aircraft; and
    (iii) For an aircraft operating as an air ambulance in service of a 
medical emergency, no later than 30 minutes after departure.
* * * * *

W. Ralph Basham,
Commissioner, Customs and Border Protection.
    Approved:
Michael Chertoff,
Secretary.
 [FR Doc. E7-15985 Filed 8-22-07; 8:45 am]
BILLING CODE 9111-14-P