RegisteredTraveler: July 2006

[Federal Register: July 14, 2006 (Volume 71, Number 135)]
[Proposed Rules]
[Page 40035-40048]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jy06-17]

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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

19 CFR Parts 4 and 122

[USCBP-2005-0003]
RIN 1651-AA62

Passenger Manifests for Commercial Aircraft Arriving in and
Departing From the United States; Passenger and Crew Manifests for
Commercial Vessels Departing From the United States

AGENCY: Customs and Border Protection, Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This rule proposes to amend existing Bureau of Customs and
Border Protection regulations concerning electronic manifest
transmission requirements relative to passengers, crew members, and
non-crew members traveling onboard international commercial flights and
voyages. Under current regulations, air carriers must transmit to the
Bureau of Customs and Border Protection (CBP), Department of Homeland
Security (DHS), passenger manifest information for aircraft en route to
the United States no later than 15 minutes after the departure of the
aircraft. This proposed rule implements the Intelligence Reform and
Terrorism Prevention Act of 2004 requirement that such information be
provided to the government before departure of the aircraft. This
proposed rule provides air carriers a choice between transmitting
complete manifests no later than 60-minutes prior to departure of the
aircraft or transmitting manifest information on passengers as each
passenger checks in for the flight, up to but no later than 15 minutes
prior to departure. The rule also proposes to amend the definition of
``departure'' for aircraft to mean the moment the aircraft is pushed
back from the gate. For vessel departures from the United States, the
rule proposes transmission of passenger and crew manifests no later
than 60 minutes prior to departure of the vessel.

DATES: Written comments must be received on or before August 14, 2006.

ADDRESSES: You may submit comments, identified by docket number USCBP-
2005-0003, by one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov. Follow

the instructions for submitting comments.
(2) Mail: Comments by mail are to be addressed to the Bureau of
Customs and Border Protection, Office of Regulations and Rulings,
Regulations Branch, 1300 Pennsylvania Ave., NW. (Mint Annex),
Washington, DC 20229.
(3) Hand delivery/courier: 799 9th Street, NW., Washington, DC
20220.

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

SUPPLEMENTARY INFORMATION: The Supplementary Information section is
organized as follows:

I. Public Participation
II. Background and Purpose
III. Proposed Rule
A. Change Regarding Definition of ``Departure'' for Aircraft
B. Proposed Options for Transmission of Manifest Data by Air
Carriers
1. APIS 60 (Interactive Batch Transmission) Option
2. APIS Quick Query (Interactive Real-Time Transmission) Option
3. System Certification; Delayed Effective Date
4. Carriers Opting Out; Non-Interactive Batch Transmission
Process
C. Proposed Change for Transmission of Manifests by Departing
Vessels
IV. Rationale for Change
A. Terrorist Threat
B. IRTPA
V. Impact on Parties Affected by the Proposed Rule
VI. Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review)
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. Executive Order 13132 (Federalism)
E. Executive Order 12988 (Civil Justice Reform)
F. National Environmental Policy Act
G. Paperwork Reduction Act
H. Signing Authority
I. Privacy Statement

I. Public Participation

Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule. CBP also invites comments that relate to the economic,
environmental, or federalism effects that might result from this
proposed rule. Comments that will provide the most assistance to CBP in
developing these procedures will reference a specific portion of the
proposed rule, explain the reason for any recommended change, and
include data, information, or authority that support such recommended
change.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking (USCBP-2005-0003). All comments
received will be posted without change to http://www.regulations.gov,

including any personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Submitted comments

may also be inspected at the Bureau of Customs and Border Protection,
799 9th Street, NW., Washington, DC 20220. To inspect comments, please
call (202) 572-8768 to arrange for an appointment.

II. Background and Purpose

The Advance Passenger Information System (APIS) is a widely
utilized electronic data interchange system approved by DHS for use by
international commercial air and vessel carriers to transmit
electronically to CBP certain data on passengers, crew members, and
non-crew members, as required under CBP regulations. APIS was developed
by the former U.S. Customs Service (Customs) in 1988, in cooperation
with the former Immigration and Naturalization Service

[[Page 40036]]

(INS) and the airline industry. Although initially voluntary, APIS
participation grew, making it nearly an industry standard. Requirements
governing the electronic transmission of passenger, crew member, and
non-crew member (cargo flights only) manifests for commercial aircraft
and/or vessels involved in international travel operations were
established in accordance with several statutory mandates, including,
but not limited to: section 115 of the Aviation and Transportation
Security Act (ATSA; Public Law 107-71, 115 Stat. 623; 49 U.S.C. 44909),
section 402 of the Enhanced Border Security and Visa Entry Reform Act
of 2002 (abbreviated here to Enhanced Border Security Act or EBSA;
Public Law 107-173, 116 Stat. 557; 8 U.S.C. 1221), and certain
Transportation Security Administration (TSA) laws and regulations (49
U.S.C. 114; 49 CFR 1544, 1546, 1550). A more detailed description of
the histories of electronic manifest information requirements, and of
these authorities, is set forth in a final rule published by CBP on
April 7, 2005 at 70 FR 17820.
The information transmitted by carriers using APIS consists, in
part, 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) have
been collected routinely over the years by governments of countries
into which a traveler seeks entry (by requiring the traveler to present
a government-issued travel document). 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 flights to, from, continuing within, and
overflying the United States and international voyages to and from the
United States.
Current CBP regulations require air carriers to electronically
transmit passenger arrival manifests to CBP no later than 15 minutes
after the departure of the aircraft from any place outside the United
States (19 CFR 122.49a(b)(2)) and passenger departure manifests no
later than 15 minutes prior to departure of the aircraft from the
United States (19 CFR 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 (19 CFR 122.49b(b)(2)) and no
later than 60 minutes prior to the departure of any covered flight from
the United States (19 CFR 122.75b(b)(2)) (a covered flight being one
covered by these regulations).
Current CBP regulations require vessel carriers to electronically
transmit arrival passenger and crew member manifests at least 24 hours
and up to 96 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) (19 CFR
4.7b(b)(2)). Also, a vessel carrier 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 (19 CFR
4.64(b)(2)).
These CBP regulations, referred to as the ``APIS regulations'' (19
CFR 4.7b, 4.64, 122.49a-122.49c, 122.75a, and 122.75b), established a
framework for requiring that manifest information for passengers, crew
members, and non-crew members, as appropriate, be electronically
transmitted for these arrivals and departures, and for requiring 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, additional security from the threat of terrorism and enhance
CBP's ability to carry out its border enforcement mission.
The Intelligence Reform and Terrorism Prevention Act of 2004
(IRTPA); Public Law 108-458, was enacted on December 17, 2004. Sections
4012 and 4071 of the IRTPA require DHS to issue regulations and
procedures to allow for pre-departure vetting of passengers onboard
aircraft arriving in and departing from the United States and of
passengers and crew onboard vessels arriving in and departing from the
United States. This proposed rule is designed to implement these
important IRTPA requirements and to further enhance national security
and the security of the air and vessel travel industries in accordance
with the ATSA and EBSA (both of which formed the statutory basis for
the APIS regulations).
This proposed rule would require transmission of, as appropriate,
passenger and/or crew member information early enough in the process to
prevent a high-risk passenger from boarding an aircraft and to prevent
the departure of a vessel with such a passenger or crew member onboard.
CBP's purpose in proposing this change is to place itself in a better
position to: (1) Fully vet passenger and crew member information with
sufficient time to effectively secure the aircraft or vessel, including
time to coordinate with carrier personnel and domestic or foreign
government authorities in order to take appropriate action warranted by
the threat; (2) identify high-risk passengers and prevent them from
boarding aircraft bound for or departing from the United States; and
(3) identify high-risk passengers and crew members to prevent the
departure of vessels from the United States with a high-risk passenger
or crew member onboard. Achieving these goals would permit CBP to more
effectively prevent an identified high-risk traveler from becoming a
threat to passengers, crew, aircraft, vessels, or the public and would
ensure that the electronic data transmission and screening process
required under CBP regulations comports with the purposes of ATSA,
EBSA, and IRTPA.

III. Proposed Rule

Under the manifest transmission time requirements of the existing
APIS regulations, which mandate transmission of passenger manifests no
later than 15 minutes after departure of an aircraft en route to the
United States, CBP has the ability to fully vet commercial aircraft
passenger information after the aircraft has departed. The
identification of a high-risk passenger soon after the aircraft becomes
airborne may result in the diversion of the aircraft to a U.S. port
other than the original destination or the return of the aircraft to
the port of departure (referred to as a ``turnback''). This action
could prevent the hijacking of the aircraft and the potential use of
the plane as a weapon of mass destruction against U.S. or other
targets, and would enable CBP to detain, or arrange for the detention
of, the high-risk passenger. The same results could be obtained with
respect to aircraft departing from the United States when
identification of a high-risk passenger occurs after the aircraft is
airborne. This post-departure identification could occur since the APIS
regulations require the transmission of manifests only 15 minutes prior
to departure.
However, high-risk passengers allowed to board before they have
been fully vetted may pose a security risk for aircraft en route to or
departing from the United States. A boarded high-risk passenger would
have the opportunity to plant or retrieve a disassembled improvised
explosive device or other weapon. The detonation of an explosive device
could have devastating

[[Page 40037]]

consequences, both in terms of human life and from an economic
perspective (damage to aircraft and airport infrastructure and any
ripple effects on the airport's and the carrier's business and across
the U.S. economy). Thus, requiring the collection and vetting of
passenger information before the boarding of passengers on flights en
route to or departing from the United States would allow CBP to
identify high risk passengers before such passengers could pose a
threat to fellow passengers or to the aircraft and airport.
Therefore, CBP has concluded that the prevention of a high-risk
passenger from boarding an aircraft is the appropriate level of
security in the commercial air travel environment. Manifest data
received and vetted prior to passenger boarding will enable CBP to
attain this level of security. Further, this vetting of passengers on
international flights should eliminate the need for passenger carriers
to conduct watch list screening of these passengers, upon publication
and implementation of a final rule. Accordingly, with this proposed
rule, CBP is proposing two transmission options for air carriers to
select from at their discretion: (i) the submission of complete
manifests no later than 60 minutes prior to departure or (ii)
transmitting passenger data as individual, real-time transactions,
i.e., as each passenger checks in, up to but no later than 15 minutes
prior to departure. Under both options, the carrier will not permit the
boarding of a passenger unless the passenger has been cleared by CBP.
With respect to the commercial vessel travel environment, CBP has
determined that the appropriate level of security for departing vessels
is to prevent vessel departures with a high-risk passenger or crew
member onboard. Thus, the proposed rule requires vessel carriers to
transmit complete manifests no later than 60 minutes prior to
departure. An alternative procedure based on individual passenger/crew
transactions, as is provided in the air travel environment to address a
need for flexibility, is not offered given the generally less time-
critical nature of the commercial vessel travel environment.
Finally, with this rule, CBP also is proposing to change the
definition of ``departure,'' as discussed immediately below.

A. Change Regarding Definition of ``Departure'' for Aircraft

Under the existing APIS regulations, the departure of an aircraft
occurs at the moment an aircraft is ``wheels-up,'' meaning that the
landing gear is retracted into the aircraft after liftoff and the
aircraft is en route to its destination (19 CFR 122.49a(a)). In
practice, wheels-up can occur as much as 15 to 25 or more minutes after
an aircraft leaves the gate (which is referred to as ``push-back'').
This meaning of ``departure,'' applied under either the existing
regulations or the proposed regulations, would result in CBP receiving
manifest data later in the process than is sufficient to perform full
vetting and prevent high-risk boardings. CBP believes that departure
for aircraft, as applied to manifests for passengers, crew members, and
non-crew members under the APIS regulations, should mean the moment
when an aircraft pushes-back from the gate. This change would assist in
providing CBP with sufficient time to complete the full vetting
process. Therefore, this rule proposes to revise the definition of
``departure'' in 19 CFR 122.49a(a) accordingly (which will be
applicable to other APIS aircraft provisions as well: 19 CFR 122.49b,
122.75a, 122.75b).

B. Proposed Options for Transmission of Manifest Data by Air Carriers

To provide maximum flexibility for the air travel industry and
aircraft passengers while improving the ability of DHS to safeguard air
travel, CBP is proposing two options for the electronic transmission of
manifest information by air carriers. The two transmission options
proposed in this rule differ to some degree in timing, programming, and
procedures. Nevertheless, both are equally effective in obtaining the
advance information needed to achieve the appropriate level of security
necessary for aircraft (prevent a high-risk boarding) and thereby to
ensure that the purposes of the governing statutes are met. An air
carrier's election of either option would depend on the individual
carrier's particular operations and its capability to electronically
transmit the manifest data to CBP. CBP also notes that the current APIS
regulations providing for electronic transmission of manifest data 60
minutes prior to departure for crew and non-crew on flights to, from,
continuing within, and overflying the United States are unchanged (19
CFR 122.49b and 122.75b).
Under one option, air carriers would transmit all required
passenger data to CBP in batch form (all passenger names and associated
data at once) no later than 60 minutes prior to departure of the
aircraft. This option, known as APIS 60, is similar to the current
electronic transmission process to the extent that manifest data would
be transmitted in batch form and CBP would perform security vetting
against all data at once. Under the other option, known as APIS Quick
Query (AQQ), air carriers would transmit required passenger data to CBP
individually as each passenger checks in for the flight, from the
beginning of the check-in process up to 15 minutes prior to departure.
CBP would perform its security vetting as it receives the data.
The electronic transmission system employed under these options
would be ``interactive,'' allowing the carrier to electronically
receive return messages from CBP that can be sent within seconds or
minutes, as opposed to the capability of the APIS manifest transmission
process as implemented under the current regulation where any
communication by CBP with the carrier is performed by telephone. Thus,
the term ``interactive'' is used in this document to refer to or
describe the electronic communication system employed under the APIS 60
option and the AQQ option described further below.
CBP believes that both APIS 60 and AQQ provide sufficient time to
achieve the appropriate level of security sought in the commercial air
travel environment, i.e., to prevent a high-risk boarding. These
options are offered because the unique ``just in time'' nature of the
commercial air travel environment, characterized by busy airports,
tight arrival and departure schedules, the carriers' need to minimize
time aircraft spend at the gate, and the immense focus on timeliness as
a performance measure, justifies flexibility in this environment.
CBP anticipates that both options will be well-utilized, and the
comment period is expected to provide an indication of which option the
carriers are likely to select. However, CBP expects that the AQQ option
would be selected by those carriers that have pre-existing reservations
control systems, whereas smaller or charter carriers may be more likely
to use the APIS 60 option. A subset of air carriers would not be able
to adopt either option; this is discussed further below.
Throughout the period that these proposed amendments were in
development, CBP consulted with various industry associations and
considered their comments concerning the impact various manifest
transmission alternatives would have on business processes, operating
costs, and legitimate passengers who might experience travel delays and
miss connecting flights. The dual-option approach for air carriers
described above is responsive to those comments and is designed to
balance the security

[[Page 40038]]

and facilitation goals of government with the needs of the industry.
CBP submits that these options, if adopted in a final rule, will
result in CBP and the air carriers achieving a far higher success rate
in keeping high-risk passengers from boarding aircraft than is possible
under the current regulations. With this change, instances of
diversions and turnbacks will be greatly reduced, if not eliminated,
due to the increased effectiveness of the process. Further, the impact
on the industry will be substantially less than would be the case with
other alternatives due to the greater flexibility provided by the dual-
option approach.
CBP notes that there is a subcategory of air carriers that would be
unable to adopt either the APIS 60 option or the AQQ option as
described in this document. These carriers, typically unscheduled air
carrier operators that employ eAPIS (Internet method) for manifest data
transmission, such as seasonal charters, air taxis, and air ambulances,
would not be able to adopt the interactive communication functionality
that the APIS 60 and AQQ options employ. Consequently, CBP would
manually (i.e., by e-mail or telephone) communicate vetting results to
these carriers. These carriers, however, would be bound by the
requirement proposed in this rule to transmit passenger manifest data
no later than 60 minutes prior to departure. The proposed regulation
treats these carriers as a subset of air carriers that will transmit
complete manifests, as opposed to carriers that will transmit manifest
data per individual passenger as passengers check in for the flight.
This document discusses primarily the two major options that will be
available to the air carriers that will employ an interactive
communication system for manifest data transmission, as set forth in
this section (Section B of Part III) (but see subsection (4) of this
section further below).
1. APIS 60 (Interactive Batch Transmission) Option
APIS 60 would apply as one option to transmit passenger manifests
prior to departure for aircraft arriving in and departing from the
United States, and as the sole requirement for transmitting passenger
and crew manifests for vessels departing from the United States (see
Section C of this part for these vessels). The APIS 60 procedure is,
with some exception relating to transmission time requirements and
interactive communication between carriers and CBP, similar to the APIS
procedure currently employed to implement the current APIS regulations.
For arriving and departing aircraft, air carriers would be required to
transmit passenger manifests in batch form (all names and associated
data at once) to CBP no later than 60 minutes prior to departure of the
aircraft (as defined under this proposed rule) at which time the
vetting process would begin.
Under APIS 60, the vetting of aircraft passenger data would be
performed in two stages. The first would be an initial automated
vetting of passenger data against appropriate law enforcement
(including terrorist) databases. The second would be the further
vetting of names identified as a match or possible match during the
initial automated vetting stage, as well as names associated with
incomplete or inadequate transmitted data.
When the initial automated vetting process identifies a match
between an individual passenger's data and data on a terrorist watch
list, a close possible match, or an incomplete or inadequate passenger
record, CBP would send by electronic return message a ``not-cleared''
instruction to the carrier within minutes of CBP's receipt of the
manifest data (CBP return messages relative to not-cleared instructions
based on an inadequate record would also instruct the carrier to
retransmit complete/corrected data). Since boarding usually commences
30 to 45 minutes prior to departure (as defined in this proposed rule),
a not-cleared instruction relative to a match or possible match, or an
inadequate record, would ensure, in most cases, that the associated
passenger will not be allowed to board the aircraft (subject to the
occasional instance of unexpected results due to error, technical
anomaly, etc., or a carrier beginning the boarding process outside the
60-minute vetting window.) The manifest transmission requirements under
the current regulations--no later than 15 minutes after departure for
flights en route to the United States and no later than 15 minutes
prior to departure for flights departing from the United States--do not
achieve this critical result (even if departure were defined as push-
back). An aircraft en route to the United States is already airborne
before CBP even receives the manifest. For flights departing from the
United States, no manifest information is received by CBP until--at the
earliest--15 minutes, and often 30 minutes or more, after boarding
begins (CBP notes that under the current procedure, only a passenger
who is a match or possible match would be subject to further vetting).
The further vetting of passengers who generate a not-cleared
instruction during the initial vetting stage would be handled by an
analyst with access to additional data resources. During this stage,
CBP would be able to confirm or correct matches and resolve possible
matches and incomplete or inadequate passenger records, enabling most
passengers who are eventually cleared to make their flights. CBP would
notify a carrier by return message where the results of further vetting
clear a passenger for boarding.
When the initial automated vetting procedure results in CBP's
returning not-cleared instructions to the air carrier, the carrier's
personnel would have to ensure that the identified passenger is not
permitted to board with other passengers and that the passenger's
baggage is not loaded onto, or is removed from, the aircraft. In rare
instances, the carrier may have to remove the passenger from the
aircraft (which may occur in the case of an oversight or other error in
the boarding process or should a carrier begin the boarding process
outside the 60-minute vetting window). When further vetting confirms a
not-cleared passenger as high-risk, the next step in the process would
include CBP communicating to the appropriate authorities the results of
the vetting and any action to be taken to secure the confirmed high-
risk passenger. In some circumstances, during the further vetting
process, either the carrier, CBP, or other appropriate domestic or
foreign government official would have to interview the passenger to
complete the confirmation (or further vetting) process, a step that
would take additional time.
The further vetting process, the communication step that follows,
and the taking of appropriate action are the steps that, together,
would consume the most time under the APIS 60 procedure. With passenger
data being transmitted in a batch, CBP could have several names that
require further vetting. Each query pursued in further vetting is
unique and some queries will take more time than others. Further, the
communication and appropriate action steps of the process are subject
to additional complexities, especially when foreign carriers or
government personnel are involved or an interview is required. Thus,
the full process and related steps described above require more time
than the current regulation provides to meet the appropriate level of
security sought.
While the not-cleared instruction after the initial automated
vetting stage would prevent a high-risk or potential high-risk
passenger from boarding the aircraft when the carrier begins the
boarding process, thereby achieving CBP's security goal, completion of
the

[[Page 40039]]

further vetting process is necessary to make a final determination
regarding the passenger subject to the not-cleared instruction. This
final resolution is especially critical with respect to possible
matches and incomplete or inadequate passenger records. A required
transmission time frame of 60-minutes prior to departure would provide
the time necessary to accommodate this process and thereby effectively
achieve the appropriate level of security. CBP notes that further
vetting, in most cases, would be completed in time for the passenger to
make his intended flight; however, in some circumstances, further
vetting could take longer than normally expected, resulting in the
passenger having to be rebooked on a later flight (if ultimately
cleared for flight by CBP).
As a final step in the process, the air carrier would have to
transmit to CBP a list, referred to as a close-out message, consisting
of a unique passenger identifier for each passenger who checked in for
the flight but was not boarded for any reason. The close-out message
must be transmitted as soon as possible after departure and in no
instance later than 30 minutes after departure.
CBP is committed to having the APIS 60 option for pre-departure
interactive electronic transmission fully available for industry use
prior to publication of a final rule.
2. APIS Quick Query (Interactive Real-time Transmission) Option
Under the AQQ option, which is applicable only to aircraft arrival
and departure passenger manifests, air carriers would transmit
passenger data to CBP in real time, i.e., as individual passengers
check in, up to but no later than 15 minutes prior to departure of the
aircraft; data received by CBP less than 15 minutes prior to departure
would not meet the requirement.
Under the AQQ procedure, the carrier would be able to transmit data
relative to a passenger as soon as passengers begin checking in for the
flight, as early as 2 hours or more prior to departure (as defined in
this document). Since passengers on international flights are routinely
advised to arrive as much as 2 hours before departure for check-in,
manifest data for most passengers would be transmitted to CBP well
before departure of the flight. Moreover, fewer names and associated
data would be transmitted to CBP at one time than would be the case
with the batch transmissions made under the APIS 60 procedure. Under
APIS 60, over 200 passenger records may be included in one batch
transmission, while under AQQ, a transmission would contain the name
and data for one passenger (or up to 10 passengers traveling on one
itinerary).
Also, under AQQ, the messaging for CBP vetting results could be
returned directly to the carrier's reservation system, reducing the
time needed for human intervention. Thus, CBP would be able to respond
within seconds of the carrier's transmission of data. Carriers then
would have to return a message to CBP confirming receipt of any not-
cleared instructions and would not issue a boarding pass to any
passenger unless cleared by CBP. As with the APIS 60 option, any
passenger data generating a match, possible match, or inadequate record
would be forwarded to an analyst for further vetting. CBP would
electronically notify the carrier as soon as possible if, upon
additional analysis, a change to the not-cleared instruction is
warranted (such as would be the case if a match or possible match was
determined during further vetting to be cleared for boarding).
At its discretion, a carrier would be able to use a dedicated
telephone number provided by CBP to seek a resolution of a not-cleared
instruction by providing additional information relative to the not-
cleared passenger if available, such as a physical description. CBP
would consider the additional information as it proceeds with the
further vetting of the passenger already in progress. In some
instances, CBP would instruct the carrier to retransmit data (as in the
case of inadequate data). In any case, CBP would return a message to
the carrier to clear a passenger for boarding if warranted by the
results of additional analysis.
Where CBP is unable to complete its additional analysis prior to
departure, the carrier would be bound by the not-cleared instruction
and would not be permitted to issue a boarding pass for that passenger.
This could result in a passenger not making his flight and having to be
rebooked should the not-cleared instruction eventually be corrected and
the passenger be cleared for flight. Alternatively, and at its sole
discretion, the carrier could delay the flight until CBP could clear
the passenger for boarding. Finally, as with the APIS 60 option, the
carrier would have to transmit to CBP, no later than 30 minutes after
departure, a close-out message consisting of a unique passenger
identifier for each passenger who checked in for the flight but was not
boarded for any reason.
Under the AQQ procedure, carrier real-time manifest data
transmission would provide sufficient time for CBP to perform an
effective vetting of the passengers. Most passengers check in well
before departure of international flights, so very late arrivals are
likely to be comparatively few. These facts enable CBP to propose a
transmission time frame that some carriers will find more compatible
with their business operations.
For passengers checking in early, there generally would be ample
time for completion of the vetting process. For the few passengers
checking in late, CBP would be able to quickly vet the data in most
instances. Thus, CBP expects that no identified high-risk passenger
will receive a boarding pass and, for most flights, any passengers
subject to further vetting and cleared for flight will make the flight.
Also, more connecting passengers would be able to check in, be vetted,
and make their flights than is anticipated under the APIS 60 procedure.
This is a major advantage over the APIS 60 procedure for air carriers
with connecting flight operations.
Accordingly, AQQ would achieve the appropriate level of security
sought in a way that some airlines may prefer to the APIS 60 method. In
addition, this procedure would prevent a high-risk passenger from
gaining access to the security area, since access for domestic and most
international airports is restricted to those with boarding passes.
Also, a high-risk passenger's baggage would not be loaded onto the
aircraft which avoids the necessity of having it removed, as may
sometimes be necessary under the APIS 60 procedure.
There is, however, one exception to the foregoing: connecting
passengers arriving by aircraft at the departure airport, for a flight
en route to or departing from the United States, who were issued
boarding passes (for the flight to or from the United States) prior to
arrival at that departure airport and whose data was not previously
transmitted to CBP for vetting. These passengers will already be within
the security area as they transit the airport from the gate they
arrived at to the gate of the connecting flight. For this unique group
of passengers, CBP, in implementing AQQ, would consider the boarding
passes they possess as provisional and would require that carriers
obtain required data from these passengers in a manner compatible with
their procedures and transmit such data to CBP as required. The carrier
would be required to wait for CBP to clear any such passengers before
validating the boarding passes or permitting the passengers to board
the aircraft.
CBP currently is developing user requirements for the programming

[[Page 40040]]

necessary to implement the AQQ transmission procedure. CBP will have to
make adjustments to its automated systems to offer this data
transmission option to the carriers, as will carriers who elect to use
this option. CBP will consider these factors, as well as others
identified during the comment period, in structuring an implementation
plan and schedule that coincides with the readiness of CBP's IT
infrastructure to support the AQQ option. CBP is committed to having
the AQQ option for pre-departure interactive electronic transmission
fully available for industry use prior to publication of a final rule.
3. System Certification and Delayed Effective Date
Prior to a carrier's commencement of manifest transmission using
either of the above-described APIS 60 or AQQ options, the carrier would
receive a ``system certification'' from CBP indicating that its
electronic transmission system is capable of interactively
communicating with CBP's APIS system as configured for these options.
Carriers already operating under the APIS procedure (under the current
APIS regulation which requires batch manifest transmission but under
different time requirements and a less interactive process) who opt to
employ the APIS 60 option for their manifest transmissions would obtain
certification only for new functionalities (relating to system
interactivity) and would not undergo a full system certification.
To accommodate carriers who choose the interactive system for
manifest transmission under either the APIS 60 option or the AQQ
option, CBP, in this rule, is proposing that the effective date of a
final rule be delayed for 180 days from the date of its publication.
This should provide all such carriers sufficient time to make any
necessary program changes or system modifications and to obtain system
certification and implementation. CBP strongly encourages carriers to
begin efforts to obtain system interactivity and certification by
contacting CBP as soon as possible.
4. Carriers Opting Out; Non-Interactive Batch Transmission Process
As stated previously, some carriers, notably those currently using
the eAPIS Internet method of transmitting required manifest data
(typically, small, unscheduled air carrier operators, such as seasonal
charters, air taxis, and air ambulances), may not be able to adopt
either the APIS 60 option or the AQQ option. These carriers do not seek
an interactive electronic communication method to make transmissions,
as such a system does not fit their operations, technical capabilities,
or budgets. Nonetheless, these carriers would be bound by a requirement
to transmit manifest data no later than 60 minutes prior to departure,
as proposed in this rule. The proposed rule contains a subparagraph
that accommodates these carriers as transmitters of batch manifest data
without interactive electronic communication capability. These carriers
would not have to seek system certification. CBP will employ a manual
process using email or telephone communication (by which CBP would send
not-cleared messages) to accommodate these carriers. This manual
procedure may slow the vetting process to some extent, but CBP believes
that the goal of preventing a high-risk boarding would be achieved, as
carriers would not board passengers subject to a not-cleared
instruction unless cleared by CBP.

C. Proposed Change for Transmission of Manifests by Departing Vessels

Typically, vessel carriers allow boarding several hours (typically
3 to 6 hours) prior to departure. Thus, a manifest transmission
requirement designed to prevent the possibility of a high-risk vessel-
boarding likely would require substantial adjustments to the carriers'
operations. 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.
CBP believes that, under this circumstance, the appropriate level
of security sought in this scenario is to prevent the departure of a
vessel with a high-risk passenger or crew member onboard. The change
proposed in this rule is designed to achieve this level of security for
vessels departing from the United States and to thereby meet the
purposes of the governing statutes. Thus, for vessels departing from
the United States, the proposed amendment provides for transmission of
passenger and crew manifests 60 minutes prior to departure. CBP notes
that the electronic system for transmission of required vessel manifest
data (arrival and departure) is the U.S. Coast Guard's (Internet based)
eNOA/D system. This is not an interactive system, and, unlike air
carriers operating under the APIS 60 or AQQ options described above,
vessel carriers would not have to obtain system certification.
After transmission of the manifest data, the initial automated
vetting would result in a not-cleared instruction for matches, possible
matches, and incomplete/inadequate passenger records or crew data.
Carriers would attempt to prevent the boarding of such persons if it
had not already occurred 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.
During further vetting, passengers and crew for whom not-cleared
instructions were sent during the initial automated vetting procedure
would be either confirmed as high-risks or resolved and cleared. CBP
would communicate with the carrier where further vetting resulted in
the clearing of a passenger. In some instances, CBP would communicate
with the carrier and other CBP personnel to take necessary action to
verify (by conducting an interview if necessary) the high-risk status
of passengers or crew and, as needed, secure a confirmed high-risk
passenger or crew member. In this process, a confirmed high-risk
passenger or crew member likely would have to be located and removed
from the vessel before departure, in which case his baggage would be
removed as well. Whether a further search of the vessel is warranted
would be determined by CBP on a case-by-case basis. (The carrier would
be free to undertake a further search at its discretion.)
The current requirement for batch manifest transmission no later
than 15 minutes prior to a vessel's departure 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. In contrast, the proposed APIS 60
procedure is expected to provide CBP the time it needs to fully vet
not-cleared passengers and crew members and to remove those confirmed
as a high-risk from the vessel prior to departure. The APIS 60
procedure therefore would achieve the appropriate level of security
sought by CBP.
In addition to preventing a high-risk departure, this procedure
would enhance CBP's capability, in some circumstances (where carriers
allow already checked-in passengers to board within 60 minutes of
departure), to prevent high-risk vessel boardings, as compared to what
is achievable under the current regulation. An alternative option (such
as AQQ or something similar) is not as necessary, given the less time-
critical nature of the commercial vessel travel environment.
For vessels departing from foreign ports destined to arrive at a
U.S. port,

[[Page 40041]]

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's
entering the U.S. port of arrival. This requirement is consistent with
the U.S. Coast Guard's ``Notice of Arrival'' (NOA) requirements. (Under
33 CFR 160.212, arriving vessel carriers transmit manifest data to the
U.S. Coast Guard (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 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.

IV. Rationale for Change

A. Terrorist Threat

In proposing this rule, as discussed above, CBP points to the
primary impetus for this entire rulemaking initiative (including the
April 7, 2005 final rule and previous rulemaking efforts as explained
in the final rule): to respond to the continuing terrorist threat
facing the United States, the international trade and transportation
industries, and the international traveling public since the terrorist
attacks of September 11, 2001. Under the governing statutes and
regulations, DHS and the air and vessel carrier industries must take
steps to alleviate the risk to these vital industries and the public
posed by the threat of terrorism, while also increasing national
security. Ensuring security is an ongoing process, and CBP is
endeavoring to put in place a regulatory scheme that includes
electronic information transmission and pre-departure transmission time
requirements. Together, these requirements are intended to serve as a
layer of protection against high-risk travelers while facilitating
lawful travel. While progress has been made, CBP continues its efforts
to achieve the level of security mandated by Congress (under ATSA,
EBSA, and IRTPA). CBP notes that this rulemaking initiative also would
enhance CBP's ability to carry out its more traditional, but equally
important, border enforcement mission.
With regard to commercial aviation, the terrorist threat has been a
constant presence on the international stage since the hijackings of
the 1970s. More recently, Al Qaeda and other terrorist groups have
shown a consistent interest in exploiting civil aviation both as a
potential target and as a means of attack. This interest has been
highlighted in advanced planning, such as the thwarted plot of former
Al Qaeda leader Khalid Shaikh Mohammed to explode 12 commercial
airliners over a 48-hour period in 1996, as well as other attempted and
successful attacks. Al Qaeda's interest in attacking civil aviation
came to grim fruition in the attacks of September 11, 2001--the most
costly terrorist attack in U.S. history. Even after September 11, 2001,
terrorists continue to demonstrate an interest in attacking civil
aviation. In August 2003, specific credible intelligence led DHS to
suspend the Transit Without Visa (TWOV) program due to concerns that it
might be exploited to conduct a terrorist attack. See 68 FR 46926 (Aug.
7, 2003); 68 FR 46948 (Aug. 7, 2003). About four months later, during
the 2003 holiday period, international flights destined for the United
States faced cancellations and delays based on threat information. The
necessity of this rule is underscored further by repeated instances of
higher threat levels over time, such as the higher alerts announced
during the summer of 2004 for financial centers in New York City and
Washington DC, and during the period prior to the 2004 U.S.
Presidential election. It is noted also that terrorists seek targets of
opportunity and, as such, the terrorist threat extends beyond civil
aviation, as evidenced by past terrorist acts against passenger
vessels. Therefore, efforts made to increase security for commercial
vessels also would contribute to foreclosing an opportunity for
terrorist exploitation.
It is important to note that the threat from terrorist activity is
not just to human life, but also to the economic well-being of the
commercial air and vessel carrier industries--two industries of great
importance to the U.S. and world economies. Since the Fall of 2004,
there have been several instances when the identification of a high-
risk passenger by CBP or the Transportation Security Administration
(TSA) after departure of an aircraft en route to the United States
resulted in the diversion of the aircraft to a different U.S. port or a
turnback (the return of the aircraft to the foreign port of departure).
Those security measures, while necessary to safeguard the passengers on
the aircraft as well as national security, are costly to the affected
carriers. Accordingly, CBP proposes to collect and vet required APIS
passenger data before passengers board aircraft bound for or departing
from the United States, and to collect and vet earlier than is
permitted under existing regulations required passenger and crew APIS
data in order to achieve the maximum ability reasonably attainable for
detecting high-risk persons before they can perpetrate a terrorist act.

B. IRTPA

With the passage of IRTPA, Congress 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 proposed
rule providing for the collection of passenger information from
international flights to or from the United States and comparison of
such information with the 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 database
before departure of a vessel bound for or departing from the United
States. Section 4071(2) permits DHS to waive (based on
impracticability) the requirement of section 4071(1) for vessels bound
for the United States from foreign ports. CBP has determined that
requiring the data comparison before departure of such vessels is
impracticable because the requirement would conflict, in some
instances, with the current APIS manifest data transmission
requirements for vessel arrivals (which are to be retained in the
regulations)(cited previously) and the current USCG NOA requirements
(cited previously). Accordingly, DHS has elected to implement the
waiver provided for in this section for arriving vessels.
The Terrorist Screening Center (TSC) and use of the consolidated
terrorist watch list required by IRTPA provide the means to vet
passenger and crew manifest data for known and suspected terrorists,
including for flights to and from the United States and for cruise
vessels subject to this regulation.

V. Impact on Parties Affected by the Proposed Rule

Should the proposed rule become final and effective, large air
carriers (i.e., those with over 1,500 employees) will bear the greatest
percentage of the regulatory burden of the proposed rule due to the
number of international travelers these entities carry and their method
of transmitting APIS data.
If carriers exercise the APIS 60 option, it is anticipated that any
adverse impact on passengers would fall

[[Page 40042]]

disproportionately on connecting passengers (those arriving from a
foreign airport and continuing on to a foreign destination and those
making a connecting foreign flight en route to the U.S.), rather than
on originating passengers.
Passengers conducting foreign travel, either coming to or leaving
the United States, are instructed to check in for international flights
well in advance, usually at least 2 hours prior to departure. Thus, 60
minutes prior to departure, most originating passengers' APIS data will
have been collected and verified by the carriers and could thus be
transmitted. Connecting passengers, however, may not have a full 2
hours between flights. Partnering airlines will likely share APIS
information for an entire trip, but non-partner airlines may not. We
believe, therefore, that under the APIS 60 option, a small number of
connecting passengers may not make their flights, will be delayed, and
will have to be rerouted. Alternatively, if large carriers use the AQQ
option, delays to travelers will be minimized, but carriers will need
to develop and implement their systems to support AQQ.
Under the proposed rule, small carriers may still use ``eAPIS,'' a
web-based application designed to electronically transmit manifests
between small carriers and CBP. CBP does not believe that small
carriers will develop and implement AQQ because they will not find it
cost effective given their operations and their current utilization of
eAPIS. Thus, small carriers will probably choose the APIS 60 option
rather than the AQQ option.
While large 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. Accordingly, very few passengers traveling
on small carriers will be delayed or rerouted as a result of this
proposed rulemaking.
CBP does not know which carriers will choose which regulatory
option. The Regulatory Assessment, summarized below in the ``Executive
Order 12866'' section, presents two endpoints of the likely range of
costs. For the ``high cost estimate,'' CBP assumes that all carriers
will employ the APIS 60 regulatory option (the 60-minute transmission
requirement). For the ``low cost estimate,'' CBP assumes that large
carriers will employ the AQQ regulatory option.
The impacts on carriers, travelers, and others potentially affected
by this rule are examined in detail in the ``Regulatory Assessment''
which is available in the docket for this rulemaking (http://www.eparegulations.gov; see also http://www.cbp.gov). CBP is soliciting

comments on the assumptions and estimates made in the economic
analysis.

VI. 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
proposed rule has been reviewed by the Office of Management and Budget
(OMB). The following summary presents the costs and benefits of the
proposed 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).
Comments regarding the analysis may be submitted by any of the methods
described under the ADDRESSES section of this document.
Summary
Should the proposed rule become final and effective, air carriers
and air passengers will be the parties primarily affected by the
proposed rule. For APIS 60, 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 (i.e., under the APIS 60 procedure), CBP anticipates 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 60 minutes prior to departure of the
aircraft. CBP estimates that this will result in 2 percent of
passengers on large carriers and 0.25 percent of passengers on small
carriers missing connecting flights and needing to be rerouted, with an
average delay of 4 hours. Additionally, we estimate that 15 percent of
passengers will need to arrive at the airport an average of 15 minutes
earlier in order to make their flights. For the low end of the range
(under the AQQ procedure), we assume that all large air carriers will
implement AQQ to transmit information on individual passengers as each
checks in. CBP estimates that this will significantly drive down even
further the percentage of passengers requiring rerouting on large
carriers to 0.5 percent. Travelers will not need to modify their
behavior to arrive at the airport earlier. The percentage on small
carriers remains 0.25 percent because we assume that small carriers
will not implement AQQ; rather, they will continue to submit manifests
at least 60 minutes prior to departure 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 this range are presented below. As shown, the
present value (PV) costs of the proposed rule are estimated to range
from $612 million to $1.9 billion over the next 10 years (2006-2015,
2005 dollars, 7 percent discount rate).

Costs of the Proposed Rule
[$Millions, 2006-2015, 2005 dollars]
----------------------------------------------------------------------------------------------------------------
High Estimate (60-minute option) Low esimate (AQQ option)
-----------------------------------------------------------------------------
Large Small Large Small
carriers carriers Total carriers carriers Total
----------------------------------------------------------------------------------------------------------------
First-Year Costs.................. $245 $5 $250 $184 $5 $189
Average Recurring Costs........... 268 6 274 66 6 72
10-Year PV Costs (7%)............. 1,865 39 1,904 573 39 612
10-Year PV Costs (3%)............. 2,279 48 2,327 677 48 726
----------------------------------------------------------------------------------------------------------------

[[Page 40043]]

We estimate four categories of benefits, or costs that could be
avoided, under the APIS 60 procedure: (1) Costs for conducting
interviews with identified high-risk individuals upon arrival in the
United States; (2) costs for deporting a percentage of these
individuals; (3) costs of delaying a high-risk aircraft at an airport;
and (4) costs of rerouting aircraft if high-risk individuals are
identified after takeoff. Monetizing the benefits of avoiding an actual
terrorist incident has proven difficult because the damages caused by
terrorism are a function of where the attack takes place, the nature of
the attack, the number of people affected, the casualty rates, the
psychological impacts of the attack, and, perhaps most importantly, the
``ripple effects'' as damages permeate throughout our society and
economy far beyond the initial target. One limited scenario is
presented below.
The average recurring benefits of the proposed rule are an
estimated $15 million per year. This is in addition to the non-
quantified security benefits, which are the primary impetus for this
rule. 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).
Given the quantified costs and benefits of the proposed rule, we
can determine how much non-quantified security benefits would have to
be for this rule to be cost-beneficial. The 10-year costs range from
$612 million to $1.9 billion, and the benefits are an estimated $103
million (all at the 7 percent discount rate). Thus, the non-quantified
security benefits would have to be $509 million to $1.8 billion over
the 10-year period in order for this proposed rule to be cost-
beneficial. In one hypothetical security scenario involving only one
aircraft and the people aboard, estimated costs of an incident could
exceed $790 million. This rule may not prevent such an incident, but if
it did, the value of preventing such a limited incident would outweigh
the costs at the low end of the range. 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 proposed
rule. Complete details regarding the costs and benefits of these
alternatives can be found in the ``Regulatory Assessment'' available in
the docket for this rulemaking (http://www.regulations.gov; see also

http://www.cbp.gov). The following is a summary of these alternatives:

(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 of ATSA, EBSA, and IRTPA. Because this is the status quo,
and therefore has no additional costs or benefits, it is not analyzed
further.
(2) A pre-departure transmission requirement--this would require
carriers to submit manifests earlier than is required under the status
quo requirements for flights to and from the United States.
Transmission of manifest information would be made at least 30 minutes
prior to departure. CBP concludes that 1 percent of passengers on large
carriers would be delayed while no passengers on small carriers would
be affected. We assume small carriers would not need to reroute any
passengers under a pre-departure transmission requirement; accordingly,
this alternative is a no-cost option for small carriers. We assume that
5 percent of travelers would need to arrive at the airport 15 minutes
earlier than normal in order to make their flights.
For large carriers, transmission of manifest data at this time
would not provide enough of a window for CBP to respond to a hit on the
watch lists, regardless of the boarding time. Benefits of this
alternative would be largely negated when compared to the proposed rule
because the ability to intercept a high-risk individual before the
boarding process begins would be severely limited. Because in many
instances the high-risk passenger is likely to board under this
alternative, the individual and his bags would have to be removed from
the plane; in some circumstances, depending on the level of the threat,
all remaining passengers and bags would have to be removed and re-
screened and, in particularly urgent circumstances, the aircraft would
have to be ``re-sterilized'' prior to re-boarding.
First-year costs are $111 million, average recurring costs are $122
million per year, and 10-year present value costs are $845 million (7
percent discount rate) and $1.0 billion (3 percent discount rate).
Benefits are slightly higher than the No Action alternative because
while the boarding of a high-risk passenger would not be prevented, a
high-risk individual would be identified prior to the departure of a
flight to or from the United States in most instances. Benefits are
lower than under the proposed rule because CBP would be unable to plan
and coordinate a response before boarding begins, and thus the high-
risk passenger could still board the aircraft. As explained previously
in this document, these results would be inconsistent with the
protective security objectives of ATSA, EBSA, and IRTPA.
(3) A 60-minute transmission requirement only during periods of
heightened threat conditions--this rule would require carriers to
submit manifest data 60 minutes prior to departure only during periods
of heightened threat conditions. For this analysis, CBP assumes that
the threat level could be elevated twice a year for 3 weeks per
instance. Because foreign travelers coming to the United States may not
be aware of the threat level prior to entering the country, CBP further
assumes that the impacts of the alert would extend beyond the return to
the lower threat level. Thus, the effects would last a total of 2
months a year. This alternative would probably cause a great deal of
disruption due to the unanticipated need to provide information earlier
at irregular intervals. Additionally, the threat of terrorism is
continuous, and specific threat information on flights may not emerge.
Thus, the risks would not likely be diminished sufficiently to justify
the costs. Finally, an alternating system of manifest transmission
timing would likely affect carrier performance, with performance
ratings suffering during the infrequent, non-routine elevations in
threat level, the more critical period.
In this scenario, the percentage of passengers delayed on large
carriers is an estimated 10 percent and on small carriers is 2.5
percent. The average length of delay is 6 hours. We estimate that 15
percent of passengers would need to arrive at the airport 15 minutes
early in order to make their flights. First-year costs are $225
million, average recurring costs are $246 million per year, and 10-year
present value costs are $1.7 billion (7 percent discount rate) and $2.1
billion (3 percent discount rate).
Benefits are potentially the same as the ``No Action'' alternative
most of the time because a high-risk individual

[[Page 40044]]

could be identified prior to boarding only during those very limited
periods when the threat level is elevated and the 60-minute requirement
is in effect. Benefits are potentially lower than under the proposed
rule most of the time because high-risk passengers would be able to
board the aircraft, and aircraft would depart with a high-risk
passenger onboard, under the status quo procedure in effect during most
of the year. Again, these results would be inconsistent with the
protective security objectives of ATSA, EBSA, and IRTPA.
(4) A 60-minute transmission requirement or implementation of AQQ--
this is the proposed rule, which requires carriers to elect to
transmit, via an interactive communication system, passenger data under
one of the two proposed options: by submitting manifests no later than
60 minutes prior to departure or, alternatively, by implementing APIS
Quick Query. As explained previously in this document, the proposed
rule provides sufficient time for fully vetting travelers, and
achieving the appropriate levels of security desired, to be consistent
with the protective security objectives of ATSA, EBSA, and IRTPA.
(5) A 120-minute transmission requirement--this rule would require
carriers to submit manifests 120 minutes prior to departure. The costs
would be higher than under the proposed 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 $3.2 billion, average recurring costs
are $3.5 billion per year, and 10-year present value costs are $24.2
billion (7 percent discount rate) and $29.5 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 proposed 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, EBSA, and IRTPA.
The following table summarizes the costs and benefits of the
regulatory alternatives:

Comparison of Costs and Benefits of the Proposed Rule and Regulatory Alternatives
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed rule
Pre-departure 60-minute requirement --------------------------------------------------------------------
requirement only at elevated alert 60-minute 120-minute
requirement AQQ requirement
--------------------------------------------------------------------------------------------------------------------------------------------------------
First-Year Costs................... $111 million.......... $225 million.......... $250 million......... $189 million......... $3.2 billion.
Average Recurring Costs............ $122 million.......... $246 million.......... $274 million......... $72 million.......... $3.5 billion.
10-Year PV Costs (7%).............. $845 million.......... $1.7 billion.......... $1.9 billion......... $612 million......... $24.2 billion.
10-Year PV Costs (3%).............. $1.0 billion.......... $2.1 billion.......... $2.3 billion......... $726 million......... $29.5 billion.
Average Cost per Passenger......... $0.36-$1.55........... $0.91-$3.11........... $1.37-$3.45.......... $1.01-1.37........... $17.39-$43.81
Benefits Comparison to ``No Slightly higher (risk Comparable (risk may Higher (risk Higher (risk Higher (risk
Action''. identified prior to be identified prior identified prior to identified prior to identified prior to
take-off). to boarding and take- boarding). boarding). boarding) .
off if under elevated
alert).
Benefits Comparison to Pre-Boarding Lower (high-risk Lower (high-risk Security benefits + Risk identified prior Comparable (security
APIS Rule. passenger may still passenger may still $15 million in costs to check-in (higher benefits + $15
board aircraft); CBP board aircraft). avoided annually. benefits than 60- million in costs
cannot coordinate or minute option). avoided annually).
plan response.
--------------------------------------------------------------------------------------------------------------------------------------------------------

CBP requests comments on the above analysis of the regulatory
alternatives.
Accounting Statement
As required by OMB Circular A-4 (available at http://www.whitehouse.gov/omb/circulars/index.html
, 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 million annualized (7 percent
discount rate) and approximately $166.0 million annualized (3 percent
discount rate). Quantified benefits are $15.0 million annualized. The
non-quantified benefits are enhanced security.

[[Page 40045]]

Accounting Statement: Classification of Expenditures, 2006 through 2015
(2005 Dollars)
[Three Percent Annual Discount Rate]
------------------------------------------------------------------------

------------------------------------------------------------------------
BENEFITS:
Annualized monetized benefits $15.0 million.
(Un-quantified) benefits..... Enhanced security.
COSTS:
Annualized monetized costs... $179.1 million.
Annualized quantified, but un-
monetized costs.
Qualitative (un-quantified)
costs.
Seven Percent Annual Discount
Rate.
BENEFITS:
Annualized monetized benefits $15.0 million.
(Un-quantified) benefits..... Enhanced security.
COSTS:
Annualized monetized costs... $178.9 million.
Annualized quantified, but un-
monetized costs.
Qualitative (un-quantified)
costs.
------------------------------------------------------------------------

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

B. Regulatory Flexibility Act

We have examined the impacts of this proposed rulemaking 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 proposed rule. We do not expect these carriers to
experience great economic impacts as a result of the proposed rule.
Small carriers do not need to modify their reservation systems nor do
they have many connecting passengers who may miss their flights and
require rerouting. We estimate that 0.25 percent of passengers on small
carriers will be affected by this rule annually. In the April 2005
final rule (70 FR at 17846), CBP estimated that small carriers each
transport an average of 300 passengers annually. Thus, less than 1
passenger per carrier per year will be affected by the proposed APIS 60
option. We calculate that the total cost of delay per passenger is
$61.77, and only $4.57 of this is incurred by the air carrier. The
aggregate costs of this rule's APIS option would not exceed $3,500
annually for each of the 773 small US-based carriers.
We conclude, therefore, that this rule will not have a significant
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.
Comments regarding the analysis may be submitted by any of
the methods described under the ADDRESSES section of this document.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA),
enacted as Pub. L. 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 proposed rule, if adopted as a 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 proposed 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. CBP
is requesting information from the public and the carriers regarding
the costs this rule would impose on the private sector.

D. Executive Order 13132 (Federalism)

This proposed rule, if adopted as a 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.

E. Executive Order 12988 (Civil Justice Reform)

This proposed 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

[[Page 40046]]

agencies make reasonable efforts to ensure the regulation clearly
identifies preemptive effects, effects on existing federal laws and
regulations, identifies any retroactive effects of the proposal, and
other matters. DHS 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 proposed 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 recently published by CBP in
April 2005, and discussed in this proposed rule, a Paperwork Reduction
Act (PRA) analysis was set forth concerning the information collection
involved under that rule (see OMB No. 1651-0088). This proposed rule,
which proposes to amend the regulation as amended by the April 2005
final rule, has no effect on that analysis, as it does not impose an
additional information collection burden or affect the information
collected under the regulation in any relevant manner. This proposed
rule affects only the timing and manner of the submission of the
information already required under the regulation.
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. The collection of
information relative to the provisions of the regulation proposed to be
amended in this proposed rule, under 19 CFR 4.64, 122.49a, and 122.75a,
is recorded with the Office of Management and Budget (OMB) under OMB
No. 1651-0088.

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). As the changes proposed in this rule do not
impact the data collected or the use and storage of the data, and only
affect the timing of data transmission, the existing System of Records
Notice (SORN) (the Treasury Enforcement Communications System (TECS)
published at 66 FR 53029) and the PIA continue to cover the collection,
maintenance, and use of APIS data. CBP is preparing a separate SORN for
APIS which will be published before a final rule is implemented
following this proposed 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.

Proposed Amendments to the Regulations

For the reasons stated in the preamble, parts 4 and 122 of the CBP
Regulations (19 CFR parts 4 and 122) are proposed to be amended as
follows:

PART 4--VESSELS IN FOREIGN AND DOMESTIC TRADES

1. The general authority citation for part 4 and the specific
authority citation for Sec. 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. App. 3, 91.
* * * * *
Section 4.64 also issued under 8 U.S.C. 1221;
* * * * *
2. Section 4.64 is amended in paragraph (b)(2)(i) by removing the
words ``no later than 15 minutes'' and replacing them with the words
``no later than 60 minutes''.

PART 122--AIR COMMERCE REGULATIONS

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

Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 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.
* * * * *
4. Section 122.49a is amended by:
a. Revising the definition of ``departure'' in paragraph (a), and
b. Revising paragraphs (b)(1) and (b)(2) to read as follows:

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

(a) * * *
Departure. ``Departure'' means the moment at which the aircraft is
pushed back from the gate for the purpose of commencing its approach to
the point of take off.
* * * * *
(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 Customs and Border Protection (CBP), by means of an
electronic data interchange system approved by CBP, 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 CBP at
the place and time specified in paragraph (b)(2) of this section, in
the manner set forth under either paragraph (b)(1)(ii)(A),
(b)(1)(ii)(B), or (b)(1)(iii) of this section.
(ii) Complete manifest option--(A) Interactive process. A carrier
operating under this paragraph (b)(1)(ii)(A) must transmit a complete
manifest setting forth the information specified in paragraph (b)(3) of
this section for all passengers checked in for the flight. After
receipt of the manifest information, CBP will electronically send to
the carrier a ``not-cleared'' instruction for passengers identified
during security vetting as requiring additional security analysis. A
carrier must not board any passenger subject to a ``not-cleared''
instruction, or any other passenger, or their baggage, unless cleared
by CBP. Upon completion of the additional security analysis, CBP will
electronically contact the carrier to clear a passenger for boarding
should clearance be warranted by the results of that analysis. Where
CBP is unable to complete the additional security analysis or respond
to the carrier prior to departure of the aircraft, the carrier is bound
by the ``not-cleared'' instruction. No later than 30 minutes after

[[Page 40047]]

departure, the carrier must transmit to CBP a unique identifier for
each passenger that checked in but did not board the flight. Before
operating under this paragraph, a carrier must receive a system
certification from CBP indicating that its electronic system is capable
of interactively communicating with CBP's system for effective
transmission of manifest data and receipt of appropriate messages.
(B) Manual (non-interactive) process. A carrier operating under
this paragraph (b)(1)(ii)(B) must transmit a complete manifest setting
forth the information specified in paragraph (b)(3) of this section for
all passengers checked in for the flight. After receipt of the manifest
information, CBP will send to the carrier by a non-interactive manual
transmission method a ``not-cleared'' instruction for passengers
identified during security vetting as requiring additional security
analysis. A carrier must not board any passenger subject to a ``not-
cleared'' instruction, or any other passenger, or their baggage, unless
cleared by CBP. Upon completion of the additional security analysis,
CBP will contact the carrier to clear a passenger for boarding should
clearance be warranted by the results of that analysis. Where CBP is
unable to complete the additional security analysis or respond to the
carrier prior to departure of the aircraft, the carrier is bound by the
``not-cleared'' instruction. No later than 30 minutes after departure,
the carrier must transmit to CBP a unique identifier for each passenger
who checked in but did not board the flight.
(iii) Individual passenger information option. A carrier operating
under this paragraph (b)(1)(iii) must transmit the manifest data
specified in paragraph (b)(3) of this section for each individual
passenger as passengers check in for the flight. With each transmission
of manifest information by the carrier, CBP will electronically send a
``cleared'' or ``not-cleared'' instruction, as appropriate, depending
on the results of security vetting. A ``not-cleared'' instruction will
be issued for passengers identified during the initial security vetting
as requiring additional security analysis. The carrier must acknowledge
receipt of a ``not-cleared'' instruction by electronic return message
and must not issue a boarding pass to--or load the baggage of--any
passenger subject to a ``not-cleared'' instruction or to any passenger
not cleared by CBP. The carrier, at its discretion, may seek resolution
of a ``not-cleared'' instruction by providing additional information
relative to the passenger if available. Upon completion of the
additional security analysis, CBP will electronically contact the
carrier to clear a passenger for boarding should clearance be warranted
by the results of that analysis. Where CBP is unable to complete the
additional analysis or respond to the carrier before departure of the
aircraft, the carrier will be bound by the ``not-cleared'' instruction.
No later than 30 minutes after departure, the carrier must transmit to
CBP a unique identifier for each passenger who checked in but did not
board the flight. Before operating under this paragraph, a carrier must
receive a system certification from CBP indicating that its electronic
system is capable of interactively communicating with CBP's system for
effective transmission of manifest data and receipt of appropriate
messages.
(2) Place and time for submission--(i) Complete manifests. The
appropriate official specified in paragraph (b)(1)(i) of this section
(carrier) must transmit the complete electronic passenger arrival
manifest as required under paragraph (b)(1)(ii) of this section to the
CBP Data Center, CBP Headquarters:
(A) 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;
(B) For an aircraft operating as an air ambulance in service of a
medical emergency, no later than 30 minutes prior to arrival; and
(C) For all flights not covered under paragraphs (b)(2)(i)(A) or
(B) of this section, no later than 60 minutes prior to departure of the
aircraft.
(ii) Individual passenger information. A carrier must transmit
electronic passenger arrival manifest information as required under
paragraph (b)(1)(iii) of this section as each passenger checks in for
the flight, up to but no later than 15 minutes prior to departure of
the aircraft.
* * * * *
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 Customs and Border Protection (CBP), by means
of an electronic data interchange system approved by CBP, 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 CBP, at
the place and time specified in paragraph (b)(2) of this section, in
the manner set forth under either paragraph (b)(1)(ii)(A),
(b)(1)(ii)(B), or (b)(1)(iii) of this section.
(ii) Complete manifest option--(A) Interactive process. A carrier
operating under this paragraph (b)(1)(ii)(A) must transmit a complete
manifest setting forth the information specified in paragraph (b)(3) of
this section for all passengers checked-in for the flight. After
receipt of the manifest information, CBP will electronically send to
the carrier a ``not-cleared'' instruction for passengers identified
during security vetting as requiring additional security analysis. A
carrier must not board any passenger subject to a ``not-cleared''
instruction, or any other passenger, or their baggage, unless cleared
by CBP. Upon completion of the additional security analysis, CBP will
electronically contact the carrier to clear a passenger for boarding
should clearance be warranted by the results of that analysis. Where
CBP is unable to complete the additional security analysis or respond
to the carrier prior to departure of the aircraft, the carrier is bound
by the ``not-cleared'' instruction. No later than 30 minutes after
departure, the carrier must transmit to CBP a unique identifier for
each passenger who checked in but did not board the flight. Before
operating under this paragraph, a carrier must receive a system
certification from CBP indicating that its electronic system is capable
of interactively communicating with CBP's system for effective
transmission of manifest data and receipt of appropriate messages.
(B) Manual (non-interactive) process. A carrier operating under
this paragraph (b)(1)(ii)(B) must transmit a complete manifest setting
forth the information specified in paragraph (b)(3) of this section for
all passengers checked in for the flight. After receipt of the manifest
information, CBP will send to the carrier by a non-interactive manual
transmission method a ``not-cleared'' instruction for passengers
identified during security vetting as requiring additional security
analysis. A carrier

[[Page 40048]]

must not board any passenger subject to a ``not-cleared'' instruction,
or any other passenger, or their baggage, unless cleared by CBP. Upon
completion of the additional security analysis, CBP will contact the
carrier to clear a passenger for boarding should clearance be warranted
by the results of that analysis. Where CBP is unable to complete the
additional security analysis or respond to the carrier prior to
departure of the aircraft, the carrier is bound by the ``not-cleared''
instruction. No later than 30 minutes after departure, the carrier must
transmit to CBP a unique identifier for each passenger who checked in
but did not board the flight.
(iii) Individual passenger information option. A carrier operating
under this paragraph (b)(1)(iii) must transmit the manifest data
specified in paragraph (b)(3) of this section for each individual
passenger as passengers check in for the flight. With each transmission
of manifest information by the carrier, CBP will electronically send a
``cleared'' or ``not-cleared'' instruction, as appropriate, depending
on the results of security vetting. A ``not-cleared'' instruction will
be issued for passengers identified during the initial security vetting
as requiring additional security analysis. The carrier must acknowledge
receipt of a ``not-cleared'' instruction by electronic return message
and must not issue a boarding pass to--or load the baggage of--any
passenger subject to a ``not-cleared'' instruction or to any passenger
not cleared by CBP. The carrier, at its discretion, may seek resolution
of a ``not-cleared'' instruction by providing additional information
about the passenger, if available. Upon completion of the additional
security analysis, CBP will electronically contact the carrier to clear
a passenger for boarding should clearance be warranted by the results
of that analysis. Where CBP is unable to complete the additional
analysis or respond to the carrier before departure of the aircraft,
the carrier will be bound by the ``not-cleared'' instruction. No later
than 30 minutes after departure, the carrier must transmit to CBP a
unique identifier for each passenger who checked in but did not board
the flight. Before operating under this paragraph, a carrier must
receive a system certification from CBP indicating that its electronic
system is capable of interactively communicating with CBP's system for
effective transmission of manifest data and receipt of appropriate
messages.
(2) Place and time for submission--(i) Complete manifests. The
appropriate official specified in paragraph (b)(1)(i) of this section
(carrier) must transmit the complete electronic passenger departure
manifest as required under paragraph (b)(1)(ii) of this section to the
CBP Data Center, CBP Headquarters, no later than 60 minutes prior to
departure of the aircraft from the United States, except that for an
air ambulance in service of a medical emergency, the manifest must be
transmitted to CBP no later than 30 minutes after departure.
(ii) Individual passenger information. The carrier must transmit
electronic passenger departure manifest information as required under
paragraph (b)(1)(iii) of this section as each passenger checks in for
the flight, up to but no later than 15 minutes prior to departure of
the aircraft.
* * * * *

Deborah J. Spero,
Acting Commissioner, Customs and Border Protection.
Approved: July 11, 2006.
Michael Chertoff,
Secretary.
[FR Doc. 06-6237 Filed 7-11-06; 3:00 pm]

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