Cite as "Posted on
AILA InfoNet at Doc. No. 03010340 (Jan. 3, 2003) ."
(68 FR 292, 1/3/03)
[Federal Register: January 3, 2003 (Volume 68, Number 2)]
[Proposed Rules]
[Page 292-302]
From the Federal Register Online via GPO Access[wais.access.gpo.gov]
[DOCID:fr03ja03-16]
===============================================
Proposed Rules
Federal Register
____________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public
of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate
in
the rule making prior to the adoption of the final rules.
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[[Page 292]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 217, 231 and 251
[INS No. 2182-01]
RIN 1115-AG57
Manifest Requirements Under Section 231 of the Act
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to implement section 402 of the Enhanced
Border Security and Visa Entry Reform Act of 2002 (Pub. L. 107-173),
which requires the submission of arrival and departure manifests
electronically in advance of an aircraft or vessel's arrival in or
departure from the United States. This rule also proposes to require
manifest data on certain passengers and voyages previously exempt from
this requirement. This rule is necessary to provide the U.S.
Immigration and Naturalization Service (Service) with advance
notification of information necessary for the identification of
passengers, crewmembers and any other occupant transported. This
information will assist in the efficient inspection of passengers and
crewmembers, and is necessary for the effective enforcement of the
immigration laws.
DATES: Written comments must be submitted on or before February 3,
2003.
ADDRESSES: Please submit written comments to the Director, Regulations
and Forms Services Division, Immigration and Naturalization Service,
425 I Street NW., Room 4034, Washington, DC 20536. To ensure proper
handling, please reference INS No. 2182-01 on your correspondence.
Comments may be submitted electronically to the Service at
insregs@usdoj.gov. Comments submitted electronically must include INS
No. 2182-01 in the subject heading so that the comments can be
electronically transmitted to the appropriate program office for
review. Comments are available for public inspection at the above
address by calling (202) 514-3291 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Michael J. Flemmi, Assistant Chief
Inspector, Office of Inspections, Immigration and Naturalization
Service, 425 I Street NW., Room 5237, Washington, DC 20536, telephone
number (202) 305-9247.
SUPPLEMENTARY INFORMATION:
What Manifest Requirements Are Imposed By Section 231 of the
Immigration and Nationality Act (Act)?
On November 28, 2001, Congress passed section 115 of the Department
of Justice Appropriations Act of 2002 (Title I of Pub. L. 107-77),
which authorized the Attorney General to impose by regulation
requirements for submitting electronic arrival and departure lists or
manifests by any public or private carrier transporting persons to and
from the United States. Prior to the passage of section 115 of Public
Law 107-77, section 231 of the Act did not explicitly address the
electronic submission of such information. On May 14, 2002, section
115
of Public Law 107-77 was superseded when Congress enacted section 402
of the Enhanced Border Security and Visa Entry Reform Act of 2002 (Pub.
L. 107-173).
Section 402 of Public law 107-173 amended section 231 of the Act by
requiring that commercial carriers transporting passengers to or from
the United States deliver arrival and departure manifest information
electronically to the Service, beginning no later than January 1, 2003.
The carrier must submit an arrival manifest prior to the commercial
vessel or aircraft's arrival at a port-of-entry in the United States.
In addition, with certain exceptions, carriers must provide departure
manifest information before the departure of a commercial vessel or
aircraft from the United States.
Section 231(c) of the Act, as amended by section 402, provides
specific elements that must be included in arrival and departure
manifests. Section 402 also eliminated prior statutory exemptions from
the manifest requirements of section 231 of the Act previously
applicable to alien crewmembers and persons arriving from or departing
to foreign contiguous territory by air.
Finally, section 402 raised the penalty for failure to comply with
manifest requirements to $1,000 per violation. Under section 231(f)
of
the Act, as amended, the Service may impose a fine on a carrier for
each person for whom an accurate and full manifest is not submitted.
How Are Arrival and Departure Manifests and Lists Currently Collected
for Passengers?
Arrival and departure manifests are currently submitted as follows:
in the form of a separate Form I-94, Arrival-Departure Record, or as
a
Form I-94W, Nonimmigrant Visa Waiver Arrival-Departure Record, or as
a
Form I-94T, Arrival-Departure Record (Transit Without Visa)
(collectively Form I-94) for each passenger not exempt from the
manifest requirements. The Form I-94 is a perforated numbered card and
is composed of an arrival portion collected by the Service at the time
of arrival and a departure portion that is returned to the alien
passenger. Upon departure, the reverse-side of the departure portion
must be completed by the departure carrier at the time of the alien's
departure and submitted to the Service at the port-of-departure. In
accordance with 8 CFR 231.2, the outbound carrier currently has 48
hours to submit the departure Form I-94 to the Service. The Service
enters Form I-94 data into the Nonimmigrant Information System (NIIS),
thus recording the alien's arrival and departure into and out of the
United States.
Which Passengers Are Currently Exempt From the Passenger Manifest
Requirements?
Service regulations at 8 CFR part 231 currently provide that
manifests in the form of a Form I-94 do not have to be submitted for
the following passengers: United States citizens, lawful permanent
resident aliens of the United States, immigrants to the United States,
and certain in-transit passengers. Service regulations also exempt the
manifest requirements for aircraft and vessels arriving in the United
States directly from Canada, or departing to Canada. Vessels or
aircraft arriving in the U.S. Virgin Islands directly from the British
Virgin Islands, or departing the U.S. Virgin Islands directly to the
[[Page 293]]
British Virgin Islands, are similarly exempt from the manifest
requirements.
What Are the Current Arrival and Departure Manifest Requirements for
Crewmembers?
Currently, crew arrival and departure manifest requirements are
governed solely by section 251 of the Act and Service regulations at
8
CFR part 251. Arrival and departure manifests for vessels may be
submitted on Form I-418, Passenger List-Crew List, while aircraft may
satisfy this requirement by submission of a United States Customs
Service Form 7507 or on the International Civil Aviation Organization's
General Declaration. Pursuant to section 251(d) of the Act, the Service
may impose a fine of $220 (as adjusted for inflation) for each
crewmember for whom an accurate and full manifest is not submitted
How Does the New Law Change the Requirements for Crewmembers?
Prior to the enactment of section 115 of the Department of Justice
Appropriations Act of 2002, and later, section 402 of the Enhanced
Border Security and Visa Entry Reform Act of 2002, the scope of section
231 of the Act was limited to alien and U.S. citizen passengers.
Section 231 of the Act, as amended by section 402, no longer contains
such restrictions. Section 402 authorizes the collection of information
not only on passengers being transported to or from the United States
on commercial aircraft or vessels but on crewmembers and other
occupants transported on such conveyances. Accordingly, the Service
is
using its authority under section 231 of the Act, as amended, to
require electronic arrival and departure manifest information on
crewmembers of commercial aircraft or vessels that are transporting
passengers to or from the United States.
Will Carriers Be Required To Submit Electronic Manifest Information
for
Other Classes of Individuals Who Are Not Currently Included in the
Manifest Requirement?
Yes. This rule proposes to require that electronically transmitted
arrival and departure manifests be submitted for all passengers and
crewmembers transported on commercial aircraft or vessels, including
passengers who are United States citizens, Canadian citizens, lawful
permanent resident aliens of the United States, immigrants to the
United States, in-transit passengers, and persons on vessels or
aircraft arriving in the United States directly from Canada or
departing the United States directly to Canada as well as persons
arriving in the U.S. Virgin Islands directly from the British Virgin
Islands or departing the U.S. Virgin Islands directly to the British
Virgin Islands.
What Is the Advance Passenger Information System (APIS)?
The APIS is a system where commercial air carriers collect and
submit biographical data from a passport, visa or other travel document
at a foreign port and transmit this information electronically to the
Service and the United States Customs Service (USCS) in advance of the
commercial aircraft's arrival in the United States. The Service began
implementing APIS in conjunction with the USCS in 1989 as an effort
to
meet airport inspection challenges which included increased passenger
volumes, especially during peak hours and seasons, combined with
staffing and facilities limitations.
A Memorandum of Understanding (MOU) governs the administration of
the APIS program and is a formal agreement between the three U.S.
Federal Inspection Services (FIS) agencies (USCS, the Service, and the
U.S. Department of Agriculture, Animal and Plant Health Inspection
Service (USDA-APHIS)) and participating air carriers. The APIS MOU
specifies national performance standards for all parties. Under this
MOU, the airlines agreed to send advance passenger information to the
Government agencies and in return, the FIS agencies agreed to expedite
the processing of APIS flights. Pursuant to the MOU, as carriers
provided additional and more accurate passenger information, the FIS
agencies would improve their processing times.
Currently, over 140 carriers are signatories to the APIS MOU, and
two Governments (Australia and New Zealand) electronically transmit
APIS data to the USCS Data Center in Newington, Virginia. Once this
rule becomes effective, the need for this MOU will be superceded.
Prior to the enactment of section 115 of the Aviation and
Transportation Security Act, Public Law 107-71, 115 Stat. 597 (2001),
the electronic transmission of such manifest data was voluntary.
What Data Elements Must Be Submitted by a Carrier?
Section 231(c) of the Act, as amended, provides that the following
information must be provided for each person listed on a manifest
required to be submitted in accordance with section 231 (a) or (b):
Complete name; date of birth; citizenship; sex; passport number and
country of issuance; country of residence; United States visa number,
date, and place of visa issuance, where applicable; alien registration
number, where applicable; United States address while in the United
States; and such other information as the Attorney General, in
consultation with the Secretaries of State and the Treasury, determines
is necessary for the identification of the persons transported, for
the
enforcement of the immigration laws, and to protect public safety and
national security.
Under some circumstances, however, not all of this information must
be submitted. For example, a passport number and visa information may
be omitted in the event a Canadian national is exempt from the passport
and visa requirement under 8 CFR 212.1. The visa information may be
omitted in the event a passenger under the Visa Waiver Program is
exempt from the visa requirement under 8 CFR part 217. A passport
number and visa information may be omitted in the event a U.S. citizen
is exempt from the passport and visa requirement under 22 CFR part 53.
All of the other data elements, however, will be required. The Service
will notify the carrier industry of any policy or operational issues
that affect the APIS program.
Will the Transmission of Data in Accordance With the Current APIS
Program Satisfy the Proposed Rule's Electronic Manifest Requirement?
As noted previously, section 231(c) of the Act, as amended by the
Enhanced Border Security and Visa Entry Reform Act of 2002 (Pub. L.
107-173), prescribes specific information that must be included in
arrival and departure manifests. The current data elements transmitted
via APIS do not contain all of the elements that are statutorily
required by section 231(c) of the Act, as amended.
The proposed rule includes the following statutorily-mandated
manifest information that is not currently collected under the APIS
system:
(1) Place of visa issuance;
(2) The United States address while in the United States; and
(3) The country of residence.
It is important to note, however, that all items listed above are
currently required on the paper Form I-94, which has legally sufficed
for this arrival manifest. This rule proposes to amend only the format
and time frame by which this information must be provided. The proposed
rule requires that this information be submitted by the air and sea
carriers to the Service via the USCS APIS system.
[[Page 294]]
What Is EDIFACT?
The Electronic Data Interchange for Administration, Commerce, and
Trade (EDIFACT) is the technical message format that allows for the
transmission of the APIS data elements to the U.S. government in a
standardized way. There are two EDIFACT versions, (1) The United States
EDIFACT format (US EDIFACT); and (2) the United Nations EDIFACT (UN
EDIFACT) format. The USCS developed the US EDIFACT message format
between 1989 and 1992 in cooperation with the governments of Australia
and New Zealand during the initial implementation of the Advance
Passenger Information System. The US EDIFACT standard is being used
to
transmit the current APIS information. The following US EDIFACT
technical documentation and guidelines are available from the USCS:
(1)
Advanced Passenger Information for Airlines; (2) Advance Passenger
Information (API) Guidelines for Customs and Air Carriers, and (3) US
EDIFACT Overview. Carriers currently transmit APIS information using
the US EDIFACT format. The amount of information that can be
transmitted through the APIS system, via the US EDIFACT for now is
limited. This format cannot accommodate the new data elements such as
US address, visa number, date, and place of issuance, and country of
issuance that are required by section 402 of Public Law 107-173. Given
these limitations in the US EDIFACT format, the Service anticipates
the
carriers will convert their reservation or computer systems to the UN
EDIFACT format which can accommodate the required additional data
elements. Additional information on UN EDIFACT can be located at the
following Web site: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.unece.org/trade/untdid/welcome.htm.
Converting to the UN EDIFACT format will improve the accuracy and
efficiency of data, and comply with the new additional data element
requirements. The USCS expects to upgrade the APIS system to accept
the
UN EDIFACT format in January 2003. The USCS will provide UN EDIFACT
documentation and guidelines in the near future.
The Air Transport Association (ATA), International Air Transport
Association (IATA), and the governments of Canada, Mexico, New Zealand,
Australia, and United Kingdom all support the conversion to APIS UN
EDIFACT format in an effort to establish a worldwide format standard
for the electronic transmission of arrival and departure manifests.
In 2003, the Service anticipates the carriers will convert their
systems from the US EDIFACT format to the UN EDIFACT format to
facilitate their transmission of the new data element requirements.
Until carriers convert their systems to the UN EDIFACT format, the APIS
system will be able to accommodate both the US EDIFACT and the UN
EDIFACT format transmissions. This conversion is not expected to affect
small entities since the USCS is developing a Web-based APIS UN EDIFACT
system, that is expected to be complete in April 2003.
Will the Service Impose Any Fines on the Carriers for Not Submitting
the New Data Elements on January 1, 2003?
No. The Service will not impose any fines until the regulation is
published as a final rule. The Service may impose fines under section
231 of the Act in cases where the carrier fails to transmit an
electronic record after the final rule becomes effective. However,
before issuing any fines during the conversion period (from the
effective date of the final rule through December 31, 2003), the
Service will evaluate a carrier's performance to determine whether it
has made a good faith effort to comply with the electronic transmission
requirement. The Service will consider the following factors: (1)
Whether the carrier notified the Service of any problems it was
experiencing in submitting the information; (2) whether the carrier
has
a backorder for the purchase of additional equipment, such as document
readers; (3) the completion of the APIS UN EDIFACT format by the
Service and the USCS; and (4) the totality of circumstances of each
carrier's attempt to comply with this regulation. The Service has the
authority to mitigate or remit fines under 8 CFR 280.5.
The Service will continue to accept the current APIS arrival and
departure data elements in the US EDIFACT format until carriers can
convert to the UN EDIFACT format, through at least the end of 2003.
The
Service will require that the carriers notify the Service of when they
will be able to comply with the UN EDIFACT format.
Does the Service Propose To Require Any Other Additional Electronic
Information?
Yes. The Attorney General, in consultation with the Secretaries of
State and the Treasury, may also require additional manifest
information if the information is deemed necessary for the
identification of the persons transported and for the enforcement of
the immigration laws and to protect safety and national security.
Pursuant to that authority, the proposed rule prescribes adding a
Passenger Name Record (PNR) locator or a unique identifier or
reservation number. The PNR locator is a unique passenger identifier
that is specific to the airline industry in their reservation systems.
This does not require carriers to create new identifying systems. In
any database system a unique identifier is not difficult to create.
This identifier is very important to the Service because this will
assist the Service in matching an arrival record with a departure
record. The Service is particularly interested in comments by the
carrier industry to the proposal that carriers submit the PNR locator
number or unique identifier electronically as part of the manifest
requirement.
The Service has consulted with the USCS, the U.S. Coast Guard
(USCG), and the U.S. Department of State on this proposed additional
data element.
When Are Carriers Required To Submit the Electronic Arrival and
Departure Manifests?
This rule proposes to require commercial carriers transporting any
person by air to any port within the United States from any place
outside the United States to submit electronic arrival passenger
manifests to the Service no later than 15 minutes after the flight
departs from the last foreign port or place. This will allow the
Service to check the manifest information against appropriate security
databases prior to arrival. This rule further proposes that air
carriers be required to submit the arrival crew manifest electronically
to the Service in advance of departure from the last foreign port or
place. This is the current transmission requirement for air carriers
submitting electronic arrival information under the APIS program, and
this requirement will also conform to the USCS' rule published at 66
FR
67482 (December 31, 2001).
In consultation with the USCG and the cargo and cruise line
industry, the Service proposes to require that a vessel on a voyage
of:
(1) 96 hours or more must submit the information required in the
crewmember and passenger manifests at least 96 hours before entering
the port or place of destination; (2) less than 96 hours but not less
than 24 hours must submit the crewmember and passenger manifests not
less than 24 hours before entering the port or place of destination;
or
(3) less than 24 hours must submit the crewmember and passenger
manifests prior to departing the port or place of departure. These
requirements will conform to 33 CFR
[[Page 295]]
160.207(a) in the USCG's Notice of Proposed Rule Making (NPRM)
published at 67 FR 41659 (June 19, 2002). These timeframes will provide
the Service and USCG with adequate time to review the electronic
arrival manifests for arriving vessels. In addition, these requirements
are more in accord with commercial maritime operations, which differ
greatly from those of the airline industry. This alignment of
submission time requirements will facilitate the Government's ongoing
efforts to develop a system that eliminates multiple transmissions of
manifest information to both the Service and the USCG.
The proposed rule requires that carriers transporting persons to
points outside of the United States submit electronic departure
passenger and crewmember data lists or manifests to the Service no
later than 15 minutes before the flight or vessel has departed from
the
United States. This will allow the Service to check the manifest
information against the appropriate security databases prior to
departure. If additional passengers or crewmembers board after the
original manifest has been submitted, or if passengers or crewmembers
exit after boarding but prior to departure, carriers will also be
required to submit amended or updated passenger and crewmember manifest
information electronically to the Service no later than 15 minutes
after the flight or vessel has departed from the United States. This
will allow the Service to continue to check any new information against
the appropriate security databases. Although the number of last minute
passengers will vary, the Service believes that carriers will be able
to provide electronic departure passenger and crewmember data lists
or
manifests on approximately 80 to 95 percent of their total number of
passengers when submitting the required information 15 minutes prior
to
departure. Failure to submit an amended manifest 15 minutes after
departure, if necessary, may result in a fine.
For purposes of determining the time of departure for purposes of
submitting electronic manifest information under this rule, the Service
will use the same definitions already used by other agencies. For air
carriers, the time of departure is the point at which the wheels are
up
on the aircraft and the aircraft is directly en route to or from the
United States. For vessels, the time of departure is that time when
the
vessel gets under way on its outward voyage and proceeds on the voyage
without, thereafter, coming to rest in the harbor from which it is
going. See 19 CFR chapter I, part 4 (August 30, 2002).
Will Transmission of Data in Accordance With the Proposed Rule Satisfy
the Electronic Transmission Requirements Prescribed Under Section
217(h)(2)(B) of the Act?
Yes. Section 217 of the Act, relating to the Visa Waiver Program,
contains similar requirements for the electronic submission of arrival
and departure information pertaining to visa waiver program passengers.
This rule proposes to amend 8 CFR part 217 to provide that an alien
who
applies for admission under the provisions of section 217 of the Act
after arriving via sea or air at a port-of-entry, will not be admitted
under the Visa Waiver Program unless the carrier transporting such an
alien electronically transmits passenger arrival and departure data
in
accordance with 8 CFR 231.1, for each Visa Waiver Program passenger
being transported.
What Manifest Information Will Carriers Be Responsible for Submitting
Between January 1, 2003, and the Publication of a Final Rule?
In accordance with section 402 of Public Law 107-173, not later
than January 1, 2003, the master or commanding officer, or authorized
agent, owner, or consignee of a commercial aircraft or vessel to
transmit electronically arrival and departure manifests to the Service
for each passenger not currently exempt from the manifest requirements
pursuant to 8 CFR 231.1, or 231.2. These manifests must contain the
data elements specified in section 231(c) of the Act as amended, for
each passenger listed on the manifest. In accordance with section
231(a) of the Act, arrival manifests must be electronically submitted
to the Service prior to the arrival of the commercial aircraft or
vessel. In addition, carriers may electronically submit departure data
up to 48 hours after departure, exclusive of Saturdays, Sundays and
legal holidays in accordance with 8 CFR 231.2
Until a final regulation is published, however, the Service will
not require the electronic transmission of arrival or departure
manifests for crewmembers because the submission of manifests
containing crewmember information was not contemplated by the current
regulations promulgated under section 231 of the Act.
Will Manifests in Paper Form Still Be Required on January 1, 2003?
As of January 1, 2003, carriers will no longer be required to
submit Forms I-94 to the Service for the passengers they transport to
or from the United States if they are electronically submitting arrival
and departure manifests that include all of the data elements mandated
by Section 231(c) of the Act. The carriers in full compliance with
their obligations to transmit the prescribed manifest information
electronically should still distribute Forms I-94 to their passengers
who will be responsible for completing and submitting the Form I-94
to
the Service to facilitate the inspections process. The Service will
then compare and analyze the accuracy and efficiency of matching the
electronic arrival and departure information with the paper arrival
and
departure information. In addition, not all travelers enter and exit
the United States at the same location. A traveler may enter the United
States at an air port-of-entry and leave at a land border port-of-
entry. In this scenario, the Service will not be able to match the
record of arrival with the record of departure electronically. A
traveler who enters the United States via the air or sea port-of-entry
may exit at a land border port-of-entry; therefore, this traveler will
need a copy of the Form I-94. The traveler is required to return the
departure Form I-94 at the land border port-of-entry; otherwise the
Service would not know that they had exited the United States.
Until those provisions of the Service's regulations in 8 CFR part
251 requiring the submission of crew manifests in paper format are
rescinded, commercial air and sea carriers transporting passengers to
or from the United States shall continue to submit the Form I-418.
Carriers also should continue to submit USCS Form 7507 and/or the
International Civil Aviation Organization's (ICOA) General Declaration,
as appropriate. Any determinations to eliminate these forms will be
made by the proper agency.
The Service is requiring both an electronic and paper format to
compare and analyze the accuracy and completeness of the electronic
passenger manifest with the current paper process. The Service will
randomly select data from the paper I-94 input manually into the Non-
Immigrant Information System (NIIS) and compare that data to the same
record that was input electronically and received from the airlines.
The Service will compare the accuracy, time of availability of the
data, and completeness of the data. If the data received through the
electronic manifest is superior to that of the manually input data,
then a policy decision will be made as to whether or not to continue
the use of the paper Form I-94 as a manifest.
[[Page 296]]
In addition, the paper Form I-418 is currently used when vessels
arrive in the United States and continue coastwise to other ports
within the United States (for example, from Baltimore, Maryland to
Newark, New Jersey to Boston, Massachusetts). The paper Form I-418 is
still required because the Service and USCS have not developed an APIS-
like system for carriers that continue coastwise to other ports within
the United States. Therefore, an electronic manifest is required when
a
commercial carrier arrives in and departs from the United States, but
an electronic manifest is not required when vessels are traveling
between the ports-of-entry in the United States. The Service currently
is assessing the continued value of the paper Form I-418. Carriers,
however, will have to continue to submit this form, when required under
8 CFR 251.1(a), until such time that the technical infrastructure is
in
place between ports-of-entry.
Are There Any Penalties for Submitting an Incomplete or Inaccurate
Electronic Arrival or Departure Manifest?
Yes. Section 231(g) of the Act, as amended, provides that if any
public or private carrier, or the agent of any transportation line,
has
refused or failed to provide manifest information as required, or the
manifest information provided is not accurate and full, such carrier,
or agent shall pay the Commissioner the sum of $1,000 for each person
with respect to whom accurate and full manifest information is not
provided, or with respect to whom the manifest information is not
prepared as prescribed. Fines for violations of section 231 and 251
of
the Act may be imposed and collected in accordance with 8 CFR part 280.
However, the Service, as a matter of discretion, does not intend to
impose fines against carriers for violations of section 231 of the Act
until a final regulation is published.
Are Ferries Required To Submit Electronic Arrival and Departure
Manifests?
No. This proposed rule adds a definition of the term ``ferry''
based on the existing USCG maritime safety regulations at 46 CFR 70.10-
15. The determination of whether a particular service is ``ferry''
service is a case-by-case determination in which, should the question
arise, the Service will refer to the USCG classification of the vessel
or vessels providing the service.
The Service will also refer to other relevant definitions from the
USCG regulations that are applicable to the definition of ``ferry.''
In
particular, the USCG regulations define ``coastwise'' service as
navigation in the ocean or Gulf of Mexico 20 nautical miles or less
offshore (46 CFR 70.10-13), and ``ocean'' service as navigation in the
ocean or the Gulf of Mexico more than 20 nautical miles offshore (46
CFR 70.10-31). Vessels in ocean or coastwise service are not ferries
and, therefore, the Service proposes that sea carriers must submit
electronic arrival and departure manifests for those vessels. This
includes all vessels that travel between the United States and foreign
adjacent islands.
However, otherwise qualifying services in ``lakes, bays, and
sounds'' such as Puget Sound or the Great Lakes will be considered
ferries (see 46 CFR 70.10-23) and therefore are not required to submit
electronic arrival and departure manifests.
In order to qualify as a ferry, a vessel's service must be over the
most direct water route and only make provisions for deck passengers
and vehicles. The Service is aware that some vessels may offer extended
dining services, even overnight accommodations or gambling, that are
commonly associated with the operation of a cruise ship rather than
a
ferry. The Service will not extend this exemption to such vessels.
Regulatory Flexibility Act
The Service drafted this rule in consideration of the need to
minimize its impact on small businesses. Based upon preliminary
information available, the Service is unable to state with certainty
that this rule, if promulgated, will not have the effect on small
businesses of the type described at 5 U.S.C. 605. Accordingly, the
Service has prepared the following Regulatory Flexibility Act (RFA)
analysis in accordance with 5 U.S.C. 603.
A. Need for and Objectives of This Proposed Rule
This proposed rule will implement section 231 of the Act as amended
by section 402 of Public Law 107-73. Section 231 of the Act provides,
among other things, that commercial vessels or aircraft transporting
passengers to and from the United States must electronically transmit
to the appropriate immigration officer not later than January 1, 2003,
arrival and departure manifests containing such information and
delivered in such a manner and timeframe as may be prescribed in
accordance with section 231.
The enactment of section 402 of Public Law 107-173 reflects
Congress' desire to ensure that commercial air and sea carriers submit
to immigration officials passenger and crewmember information within
a
timeframe and in a particular format in order to maximize the
Government's efforts to (1) identify persons being transported to and
from the United States, (2) enforce the immigration laws, and (3)
protect public safety and national security.
B. Description and Estimates of the Number of Small Entities Affected
By This Proposed Rule
A ``small business'' is defined by the RFA to be the same as a
``small business concern'' under the Small Business Act (SBA), 15
U.S.C. 632. Under the SBA, a ``small business concern'' is one that:
(1) Is independently owned and operated; (2) is not dominant in its
field of operation; and (3) meets any additional criteria established
by the SBA. It will be the duty of the appropriate officer of any
commercial aircraft or vessel regardless of ownership, size or
dominance in the field to provide the information prescribed in the
proposed rule in the timeframe and format proposed therein.
Based upon the information available to the Service, there appear
to be two distinct groups of businesses that will be affected by this
proposed rule: (1) Larger commercial air and sea carriers, and (2)
smaller commercial air and sea carriers (e.g., air carriers that employ
not more than 1,500 employees and sea carriers that employ not more
than 500 employees) as defined by the United States Small Business
Administration.
The Service estimates that there are approximately 108 large
commercial carriers. Data provided by the United States Small Business
Administration suggests that at least 446 small carriers will be
affected by this rule. In addition, data provided by the USCG suggests
that as many as 14,000 small commercial carriers potentially could be
affected. Although the Service consulted with a number of the affected
entities, including ATA, IATA, and the International Council of Cruise
Lines (ICCL), the Service realizes that not all interested persons and
entities may have been fully represented prior to the publication of
this proposal. Therefore, the Service is requesting that comments be
submitted to help ensure that the concerns of all interested parties
are considered. Commenters may wish to identify the type of industry;
including the number of companies/individuals involved and the annual
income conducted; how the proposed regulatory requirements would impact
that industry; and any suggestions on how the final regulations might
be better tailored to the industry without
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compromising the intent of the statute which is to enhance national
security, public safety, and the enforcement of the immigration laws
through timely identification of persons being transported to and from
the United States.
Commenters should note that the submission of any comments or
information on these or other matters addressed by this proposed rule
is entirely voluntary and the Service is not prescribing the use of
any
form for this information.
Pursuant to the RFA and public policy concerns, the Service
encourages all affected entities to provide specific estimates,
wherever possible, of the economic costs that this rule will impose
and
the benefits that it will bring. The Service asks affected small
businesses to estimate what these regulations will cost as a percentage
of their total revenues, to enable the Service to ensure that small
businesses are not unduly burdened.
1. Large Commercial Carriers
The Service has drafted this proposed rule to ensure the minimum
possible impact on these businesses while complying with the statutory
requirements. To ensure flexibility, the regulation does not mandate
a
specific electronic data interchange system that must be used. The
regulation provides only that the transportation provider use a system
that is approved by the Service.
The carriers must contact the USCS for additional technical
information. The USCS and Service have APIS account managers to work
with the carriers at the San Francisco, California, Houston, Texas,
and
Newark, New Jersey ports-of-entry. The APIS account managers have
informed and notified the carriers of the new requirements, and will
respond to any APIS issues, and act as a liaison between the carriers
and the Service/USCS Headquarters. The USCS also provides APIS
guidelines and documentation for the air carriers' technical staff.
The
USCS is currently updating a guideline for the sea carriers.
The Service and USCS have been working with the carrier industry
for the past 10 years developing, implementing, and improving the
arrival APIS information. The Service does not know how many systems
are incompatible with APIS. However, EDIFACT is an international
standard with which most carriers will be able to comply. For carriers
that cannot comply with this requirement, alternatives are available.
The Service believes that the EDIFACT system is flexible because it
is
an international standard with which all carriers and other governments
can comply.
Because the information must be transmitted via the USCS Data
Center, it is anticipated that carriers will transmit this data via
the
EDIFACT message format that was developed by the USCS in connection
with the initial implementation of the APIS. The USCS has specified
the
data elements and codes to be used. The Service and USCS are currently
working with the World Customs Organizations (WCO) to inform, update,
and develop international electronic arrival and departure manifest
standards for all carriers. The USCS is currently in the process of
converting from the US EDIFACT message format to the UN EDIFACT format.
Moreover, commercial air carriers operating passenger flights have
been required to electronically submit many of the data elements
prescribed in the proposed rule to the USCS in advance of arrival since
December 21, 2001. Other data elements in this proposed rule are
statutorily mandated and, in accordance with statute, must be provided
both upon arrival and departure. The Service and USCS have consulted
with ATA, IATA, and ICCL on the current and additional data elements
for the arrival and departure manifests. Where the proposed rule
requires data elements that are not mandated by statute, the opinions
of the industry representatives were taken into consideration so as
to
impose no greater burden than is necessary.
The requirement in this proposed rule that carriers submit specific
manifest information electronically may require large commercial
carriers to purchase equipment or develop integrated systems for that
purpose. As discussed below in the section on Executive Order 12866,
the Service estimates that larger commercial carriers may incur
programming costs of $400,000 to implement these requirements, with
an
ongoing operational cost of $1 per passenger.
2. Small Commercial Carriers
In addition to large commercial carriers, the Service believes that
there may be a large number of smaller commercial aircraft and vessel
operators that will be affected by the proposed rule. The Service does
not have specific information about how much of an economic impact this
rule might have on smaller commercial carriers. According to the United
States Small Business Administration, there are 383 scheduled air
passenger transportation companies with less than 1,500 employees and
63 deep sea passenger transportation companies with less than 500
employees. The information provided by the United States Small Business
Administration suggests that these 446 companies have average annual
receipts of approximately $16 million. The Service believes that this
rule will have a proportionally smaller economic impact upon smaller
rather than larger carriers because of the volume of passengers they
carry. In addition, smaller commercial carriers should not have to
incur substantial initial programming costs. As discussed in the
Executive Order 12866 section below, the Service estimates that the
average reprogramming costs are approximately $400,000 per carrier for
large carriers. A comparable conversion for a small carrier would be
much less. Some vendors currently are providing equipment and software
utilizing the US EDIFACT standard for small commercial carriers in the
range of $6,800 to $7,200 per machine. One vendor has estimated that
his conversion costs would be approximately $1,200 for his customers.
This equipment automates much of the data submission process and
performs functions comparable to equipment used by large commercial
carriers, albeit on a much smaller scale. The Service estimates that
new equipment and software that utilizes the UN EDIFACT standard should
cost approximately as much as the current equipment and software.
The USCS also has an e-mail system that allows small entities to
submit arrival and departure data electronically. In addition, the USCS
is in the process of developing a Web-based APIS specifically for small
entities, with an estimated completion date in April 2003. For either
system, all that is required is a computer, e-mail, or access to the
internet by the small entities to transmit the electronic arrival and
departure manifests. This cost is minimal to the small entities.
Indeed, the Service believes that most small carriers already will
possess the necessary equipment and will not have to incur any
additional costs. A carrier that decided to purchase a new personal
computer should be able to do so for under $1,000. Access to the
internet is estimated to cost approximately $20 per month.
While small entities will be required to submit new additional data
(such as the United States address while in the United States, visa
number, and place of issuance, where applicable, and country of
residence), the collection of this information should not impose a
significant burden on small entities. Therefore, the economic impact
on
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small entities by this rule will be minimal.
The ongoing costs to small carriers of submitting this information
to the Service is difficult for the Service to quantify. The Service
believes that the number of passengers that small commercial carriers
transport in a given year may vary greatly. The IATA, however,
estimates this rule will cost large commercial carriers approximately
$1 per transaction per passenger for additional time costs. The Service
believes that this estimate also may be applicable to small commercial
carriers.
The Service is requesting comment on the impact that this proposed
rule would have on small commercial carriers. The Service is
particularly interested in comments concerning the number of these
smaller entities transporting passengers, the number of passengers they
transport each year, the ongoing costs this rule would impose
(including any incremental cost per passenger), and their estimates
on
the economic impact of this rule.
C. Recordkeeping and Reporting Requirements
The purpose of this rule is to implement an ongoing reporting
requirement for carriers. All small entities that transport passengers
and crew to any seaport or airport of the United States from outside
the United States will be required to comply with the arrival and
departure manifest requirements. The submission of the required data
elements will not require any unusual professional skills. The data
that must be collected are basic and its submission should not be
difficult. For purposes of complying with its Paperwork Reduction Act,
the Service has estimated that 600 respondents will spend approximately
10 minutes a day in order to provide the required data. The Service
based its estimate of 10 minutes on its experience in connection with
the transmission of data elements under the Visa Waiver Program. See
67
FR 63246 (October 11, 2002).
D. Other Federal Regulations
This proposed rule does not duplicate, overlap, or conflict with
other federal regulations. The rule was drafted after consultation with
the USCS and the USCG and designed to work in coordination with their
regulations. The Service, USCG, and USCS are currently coordinating
their efforts to develop an electronic arrival and departure manifest
system that meets the requirements of all three agencies. Submitting
APIS meets the requirements of both the Service and USCS. The marine
industry will have to continue to forward a separate Notice of Arrival
(NOA) submission to the USCG, until such time that the technical
infrastructure is in place to ensure that the USCG can obtain
electronic data from APIS and import this data into a Coast Guard
database.
As discussed above, the Service will require the continued
submission of the paper Form I-94 in order to compare and analyze the
accuracy and completeness of the electronic passenger manifest with
the
current paper process. The paper Form I-418 also is still required
because the Service and USCS have not developed an APIS-like system
for
carriers that continue coastwise to other ports within the United
States.
E. Issues Raised and Alternatives Suggested
The Service has little discretion regarding the scope of this rule
and its impact on small entities because of explicit requirements in
section 402 of Public Law 107-173. While consulting with ATA, IATA,
and
ICCL, a number of issues were raised concerning the impact on passenger
check-in times resulting from the collection of the data required by
this proposed rule. These requirements are, with only one exception
(PNR locator or unique number), statutorily required. The Service
considered the need for the inclusion of the PNR, and determined that
it was necessary to simplify the data submission process. The use of
an
unique identifier is a standard data processing tool and is extremely
useful both to the Service and to commercial carriers. Its elimination
would only serve to make the submission and tracking of manifests more
difficult.
The Service also considered different electronic data submission
requirements. The Service could not continue with the US EDIFACT
standard because it will not support the data elements called for by
section 402 of Public Law 107-173. The UN EDIFACT standard was selected
because it will be the dominant standard throughout the world and its
use will simplify the data submission process for commercial carriers.
The use of another standard would only serve to balkanize the data
submission process.
The Service, however, has decided to allow commercial carriers to
utilize alternative methods for the electronic submission of the
manifests, as long as they are approved by the Service. For example,
small carriers may use a USCS e-mail system. In addition, the USCS also
is in the process of developing a Web-based APIS specifically for small
entities which can be used for data submission when it is available.
The purpose of these options is to reduce the possible economic impact
the manifest reporting requirements will have on small commercial
carriers. The use of these alternatives will benefit small commercial
carriers who may not have access to the resources available to large
carriers. The Web-based APIS and e-mail options eliminate the need for
small commercial carriers to adopt data submission processes similar
to
those utilized by large commercial carriers.
Large commercial carriers also may utilize these options, but
because of the volume of passengers whose arrival and departure data
they may be submitting, the Service does not anticipate that these
options will be used frequently by large carriers. The Service
continues to entertain carrier proposals for pilot projects involving
the collection of the required information electronically.
F. Conclusion
The Service believes that, given the statutory mandate in section
231 of the Act requiring that manifests containing certain prescribed
data elements be electronically transmitted to the Service no later
than January 1, 2003, this proposed rule meets the stated objectives
while reducing as much as possible the burden imposed on affected
transportation providers. The Service consulted with the air and sea
carrier industries in developing this rule. The Service took into
account their concerns in drafting the proposed rule. The Service
intends to maintain an on-going dialogue with the affected industries.
The Service welcomes comments on its analysis under the RFA.
Unfunded Mandates Reform Act of 1995
This rule may result in approximately $124 million in operational
costs and one-time programming costs of approximately $42 million on
the private sector. Therefore, under the Unfunded Mandates Reform Act
of 1995, this is a private sector mandate. Accordingly, the Service
has
conducted a cost/benefit assessment which is set forth in the Executive
Order 12866 section below. This discussion assesses the costs and
benefits resulting from the implementation of section 402 of the
Enhanced Border Security and Visa Entry Reform Act of 2002 (Pub. L.
107-173). This rule, however, will not result in the expenditure by
state, local and tribal governments, in the aggregate, of $100 million
or more in any one year, and it will not significantly or uniquely
affect small governments. The Service is requesting that comments be
submitted
[[Page 299]]
to help ensure that the concerns of all interested parties are
considered.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule may result in an annual effect on the economy of $100
million or more and is therefore considered a major rule as defined
by
section 804 of the Small Business Regulatory Enforcement Act of 1996.
This rule, however, will not result in a major increase in costs or
prices; or significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based companies to compete with foreign-based companies in
domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be an economically significant
regulatory action under Executive Order 12866, section 3(f), Regulatory
Planning and Review. Accordingly, this regulation has been submitted
to
the Office of Management and Budget for review.
1. This Rule Does Not Require Carriers To Switch to the UN EDIFACT
Standard
Carriers currently submit arrival and departure manifests
electronically to APIS. In accordance with section 402 of Public Law
107-173, this proposed rule also requires carriers to transmit
additional data elements (e.g., U.S. address, visa information, PNR
locator). These additional data elements are not currently included
in
the APIS data being transmitted and carriers would have to incur some
costs adapting their systems to include these elements.
However, many of the carriers with which the Service consulted,
informed the Service that they have decided not to add the additional
data elements to their APIS submissions. Rather, carriers plan on
converting their systems from the US EDIFACT format to the UN EDIFACT
format.
Carriers are making this change in data format for their own
business reasons because it is the format being adopted in several
foreign countries, such as Canada, Mexico, Australia, New Zealand, and
United Kingdom. The Service wants to emphasize that neither section
231
of the Act nor this proposed rule require carriers to convert to the
UN
format. This movement to the UN format was based upon international
agreements between the Immigration and Customs Services of several
countries and is an international standard adopted by the IATA and ATA.
2. Estimated Costs
A. One Time Programming Costs
The conversion in EDIFACT data formats which the carriers are
undertaking on their own initiative makes it difficult for them to
provide the Service with the actual costs to them resulting from the
new additional data elements required by the statute and this proposed
rule. The estimated cost range has been from thousands of dollars for
the smaller carriers with a low volume of passengers to several million
dollars for a larger carriers with a high volume number of passengers.
The high-end estimates include the conversion of the US/UN EDIFACT
reprogramming costs to the carrier's existing reservation systems and
the hiring of additional personnel.
Carriers have informed the Service regarding the cost of new
equipment they will be purchasing on their own initiative as part of
their conversion to the UN EDIFACT format. Since the additional data
elements this rule requires carriers to collect are not, at present,
machine-readable, the Service has not included new equipment costs in
its estimates below. The reprogramming costs below include both the
cost of changing from the US to the UN EDIFACT format (which is not
required by this rule) and the costs of processing the new data
elements required by this rule, but the estimates below are the best
that the carriers have been able to provide the Service regarding their
non-equipment related costs of complying with this rule.
According to IATA, the average reprogramming costs are estimated at
$400,000 per carrier. The total reprogramming costs are estimated at
$36,800,000 (92 air carriers x $400,000).
The International Council of Cruiselines (ICCL) represents 16
passenger cruiselines. The estimated reprogramming costs reported by
ICCL members is $2,000,000 (16 x $125,000).
92 IATA carriers........................................... $36,800,000
.....................................
16 ICCL carriers........................................... 2,000,000
.....................................
--------------
IATA and ICCL carriers..................................... 38,800,000
.....................................
Other carriers............................................. 2,716,000
($38,800,000 x 20% of remaining
carriers =
--------------
............ 7,760,000 x 35% of IATA/ICCL carrier
costs).
Total.................................................. 41,516,000 Estimated
total one-time programming
costs.
The 108 carriers represented by IATA and ICCL account for the vast
majority (75-80 percent) of passengers covered by this rule. Therefore,
the Service has estimated that the remaining 20 percent of the
passengers transported by other carriers at a cost of $7,760,000
($38,800,000 x 20 percent). The Service then estimated that these other
carrier (non-IATA and ICCL carriers) costs at approximately 35 percent
of the IATA and ICCL carrier costs. Since, the USCS already provides
an
e-mail APIS account and will be developing a Web-Base APIS system for
the small entities, the Service estimates that the reprogramming costs
for the small and medium size entities will be much lower than the IATA
and ICCL carrier costs. Therefore, the other carriers estimated
reprogramming costs are calculated at $2,716,000 ($7,760,000 x 35
percent).
B. Operational Costs
The IATA estimates this rule will cost carriers approximately $1
per transaction per passenger for additional time costs. The IATA has
estimated that this will amount to approximately $62 million for the
inbound and the same for outbound with total estimated annual costs
at
$124 million.
However, the Service believes that some of these processing costs
can be deferred or reduced by travelers providing these additional data
elements to the travel agencies, Web-based/Internet or kiosk type
reservations systems, thereby reducing the check-in time.
3. Much of the Information Required By This Rule is Already Being
Submitted Electronically to the Service
USCS regulations already require all air carriers to submit arrival
manifests electronically. In addition, Service regulations already
require air and sea carriers to submit arrival and departure manifests
electronically, for passengers traveling pursuant to the Visa Waiver
Program. However, carriers have informed the Service that it is more
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efficient for them to transmit electronic manifest information for all
(not just Visa Waiver Program) passengers. Over 80 percent of these
carriers currently submit arrival and departure manifests
electronically for all passengers. This fact suggests that the costs
of
this rule will not be great since a substantial majority of the
carriers already provide most of the information this rule would
require.
4. Benefits This Rule Provides
Advanced electronic manifest provide the Service with the ability
to conduct advance record checks of passengers entering and departing
the United States. This allows the Service to check and pre-screen the
names of known inadmissible aliens, terrorists, and other dangerous
criminals prior to entering the United States. With the recent
improvements and enhancements to the APIS and other enforcement
database(s), which can identify high-risk passengers for more intensive
questioning upon arrival, the Service has been able to prevent an
increase in the number of aliens attempting to enter the United States
illegally.
APIS also allows the Service to check for removable aliens,
terrorists, and other dangerous criminals prior to exiting the United
States. With advance prescreening of passengers, the Service will be
able to process low-risk travelers with minimum delay and concentrate
on high-risk travelers who may pose a threat to national security. APIS
allows immigration intelligence officers to analyze the patterns and
associations of alien smugglers on a real-time basis.
The Service and the USCS are in the process of including the USCG's
vessel crewmember manifest requirements into the APIS. Currently, the
cargo industry must submit separate paper manifests, one to the Service
and one to the USCG. The carrier associations have indicated that they
prefer to transmit one manifest electronically that meets all of the
requirements for the Service, USCS, and USCG, thereby reducing the need
to submit three separate paper manifests. APIS is a joint effort
supported by the Service, USCS, USCG, foreign governments, World
Customs Organization (WCO), ATA, IATA, ICCL, and other intereste
stakeholders.
The UN EDIFACT format will improve the transmission of the
electronic arrival and departure data. Currently, all of the carriers
cannot submit 100 percent of the required APIS data in the US EDIFACT
format. In addition, passenger data elements sometimes get lost in the
APIS transmission. The US EDIFACT does not allow the carrier to receive
a confirmation message that the APIS transmission was submitted and
received by the system (for example, if an e-mail message is sent, a
receipt is sent back to the original sender to confirm that the e-mail
was received and opened by the intended user). The potential exists
that any lost records of a passenger will not be searched in the
appropriate database(s), and the absence of such checks on a particular
alien in advance of arrival could pose a threat to national security.
In addition, each loss of records in the transmission will cause a
delay in the inspection processing of passengers because the
immigration inspector will have to manually enter each passenger's name
in the database(s), process the information, and ask any additional
immigration related questions. This delay may have an impact on the
wait time of the other passengers waiting to be inspected at primary
inspection for admission to the United States. These delays may cause
some of the passengers to miss their connecting flights, thereby
causing an additional expense to the carriers. Therefore, conversion
to
the UN EDIFACT is expected to greatly enhance and improve the
transmission of the electronic arrival and departure manifests.
The Service welcomes comments on its assessment under Executive
Order 12866.
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States,
or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with Executive Order
13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
This rule requires that carriers provide arrival and departure
manifests electronically to the Service. This requirement is considered
an information collection requirement under the Paperwork Reduction
Act.
Accordingly, the Service has submitted an information collection
request to the Office of Management and Budget (OMB) for review and
clearance in accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
All comments and suggestions, or questions regarding additional
information, to include obtaining a copy of the proposed information
collection instrument with instructions, should be directed to the
Immigration and Naturalization Service, Regulations and Forms Services
Division, 425 I Street NW., Suite 4034, Washington, DC 20536;
Attention: Richard A. Sloan, Director, (202) 514-3291.
We request written comments and suggestions from the public and
affected agencies concerning the proposed collection of information.
Any comments on the information collection must be submitted on or
before March 4, 2003. Your comments should address one or more of the
following four points:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of the information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
Overview of this information collection:
(1) Type of information collection: New.
(2) Title of Form/Collection: Electronic arrival-departure
manifests.
(3) Agency form number, if any, and the applicable component of the
Department of Justice sponsoring the collection: No form number (File
number OMB-32), Immigration and Naturalization Service.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Business or Individuals. Section 402 of the
Enhanced Border Security and Visa Entry Reform Act requires arrival
and
departure manifests to be delivered electronically no later than
January 1, 2003. The information collection is necessary to comply with
section 402 and to ensure that the Service receives accurate passenger
and crewmember arrival and departure information in a timely manner.
[[Page 301]]
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: 600 respondents
at 10 minutes multiplied by 365 days.
(6) An estimate of the total of public burden (in hours) associated
with the collection: Approximately 36,500 burden hours.
If additional information is required contact Richard A. Sloan,
Director, (202) 514-3291.
List of Subjects
8 CFR Part 217
Air carriers, Aliens, Maritime carriers, Passports and Visas.
8 CFR Part 231
Air carriers, Aliens, Maritime carriers, Reporting and
recordkeeping requirements
8 CFR Part 251
Vessels, Alien crewmembers, Maritime carriers, Reporting and
recordkeeping requirements.
Accordingly, chapter I of the title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 217--VISA WAIVER PROGRAM
1. The authority citation for part 217 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.
2. Section 217.7 is revised to read as follows:
Sec. 217.7 Electronic data transmission requirement.
(a) An alien who applies for admission under the provisions of
section 217 of the Act after arriving via sea or air at a port-of-entry
will not be admitted under the Visa Waiver Program unless the carrier
transporting such an alien electronically transmits passenger arrival
and departure data in accordance with 8 CFR 231.1, for each Visa Waiver
Program passenger being transported on the aircraft or vessel.
(b) For those carriers that fail to submit electronic arrival and
departure manifests electronically, the Service will evaluate the
carrier's compliance with immigration requirements as a whole. The
Service will inform the carrier of any noncompliance and then may
revoke any contract agreements between the Service and the carrier.
The
carrier may also be subject to fines for violations of manifest
requirements or other statutory provisions. The Service will also
review each Visa Waiver Program applicant who applies for admission
and
on a case-by-case basis, may authorize a waiver under current Service
policy and guidelines or deny the applicant admission into the United
States.
PART 231--ARRIVAL AND DEPARTURE MANIFESTS
3. The heading for part 231 is revised as set forth above.
4. The authority citation for part 231 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1221, 1228, 1229; 8 CFR
part 2.
5. Section 231.1 is revised to read as follows:
Sec. 231.1 Electronic arrival and departure manifests for passengers
and crew.
(a) Definitions. As used in this part, the terms:
Appropriate official means the master or commanding officer, or
authorized agent, owner, or consignee of a commercial aircraft or
vessel.
Commercial aircraft means commercial aircraft as defined in Sec.
286.1(c) of this chapter.
Commercial vessel means commercial vessel as defined in Sec.
286.1(d) of this chapter.
Crewmember has the same meaning as the term crewman defined in
section 101(a)(10) of the Act.
Ferry means a commercial vessel that has provisions only for deck
passengers and/or vehicles, operating on a short run on a frequent
schedule between two points over the most direct water route, and
offering a public service of a type normally attributed to a bridge
or
tunnel. Vessels in coastwise or ocean service, as defined in the
regulations of the USCG, 46 CFR part 70, are not ferries and,
accordingly, are required to transmit electronic arrival and departure
manifests.
Passenger means any person being transported on a commercial
aircraft or commercial vessel who is not a crewmember.
United States means United States as defined in section 101(a)(38)
of the Act.
(b) Electronic arrival manifest. An appropriate official of every
commercial vessel or aircraft arriving in the United States from any
place outside of the United States shall transmit electronically to
the
Service a passenger arrival manifest and a crewmember arrival manifest.
The electronic arrival manifest must contain the data elements set
forth in paragraph (e) of this section for each passenger and
crewmember.
(1) For aircraft, an appropriate official must transmit the
passenger arrival manifest no later than 15 minutes after the flight
has departed from the last foreign port or place. The crewmember
arrival manifest must be transmitted electronically to the Service in
advance of departure from the last foreign port or place.
(2) For vessels, an appropriate official must transmit the
passenger and crewmember arrival manifests:
(i) at least 96 hours before entering the port or place of
destination, for voyages of 96 hours or more;
(ii) at least 24 hours before entering the port or place of
destination, for voyages of less than 96 hours but not less than 24
hours; or
(iii) prior to departing the port or place of departure, for
voyages of less than 24 hours.
(c) Electronic departure manifests. An appropriate official of
every commercial vessel or aircraft departing from the United States
to
any place outside of the United States shall transmit electronically
to
the Service a passenger departure manifest and a crewmember departure
manifest. The electronic departure manifest must contain the data
elements set forth in paragraph (e) of this section for each passenger
and crewmember.
(1) An appropriate official of a commercial vessel or aircraft must
transmit both the passenger departure manifest and the crewmember
departure manifest to the Service no later than 15 minutes before the
flight or vessel departs from the United States.
(2) If additional passengers or crewmembers board or disembark
after the original manifest has been submitted, an appropriate official
of the vessel or aircraft concerned will also be required to submit
amended or updated passenger and crewmember information electronically
to the Service no later than 15 minutes after the flight or vessel has
departed from the United States. An appropriate official of the
aircraft or vessel concerned must also notify the Service
electronically if a flight or voyage has been cancelled after a
departure manifest has been submitted.
(d) Electronic format.
(1) The arrival and departure manifests for passengers and
crewmember must be transmitted electronically to the Service via the
USCS, by means of an electronic data interchange system that is
approved by the Service.
(2) The passenger arrival and departure manifests must be
transmitted separately from the crewmember arrival and departure
manifests. To distinguish the two manifests transmitted for a given
flight or vessel, the crewmember arrival and departure manifests must
have the alpha character ``C'' included in the transmission to denote
that the manifest information pertains to the crewmembers for the
flight or vessel.
[[Page 302]]
(e) Contents of arrival and departure manifests. Each electronic
arrival or departure manifest must contain the following information
for all passengers or crewmembers:
------------------------------------------------------------------------
AIR carrier information SEA carrier Information
------------------------------------------------------------------------
Complete name (Last name, first name, Complete name (Last name, first
and middle name or initial). name, and middle name or
initial).
Date of birth.......................... Date of birth.
Citizenship (Country of document Citizenship (Country of
issuance). document issuance).
Gender (F=Female; M=Male).............. Gender (F=Female; M=Male).
Passport number and country of Passport number and country of
issuance, if a passport is required. issuance, if a passport is
required.
Country of residence................... Country of residence.
United States visa number, date, and United States visa number,
place of issuance, where applicable date, and place of issuance,
(arrivals only). where applicable (arrivals
only).
Alien registration number, where Alien registration number,
applicable. where applicable.
United States address while in the United States address while in
United States (number and street, the United States (number and
city, state, zip code). street, city, state, zip
code).
International Air Transport Association Arrival Port Code.
(IATA) Arrival Port Code.
IATA Departure Port Code............... Departure Port Code.
Flight Number.......................... Voyage number.
Date of Flight Arrival................. Date of Vessel Arrival.
Date of Flight Departure............... Date of Vessel Departure.
Airline Carrier Code................... Country of Registry/Flag.
Document Type (e.g., P=Passport; Document Type (e.g.,
V=Visa; A=Alien Registration). P=Passport; V=Visa; A=Alien
Registration).
Date of Document Expiration............ Date of Document Expiration.
A unique passenger identifier, or A unique passenger identifier,
reservation number or Passenger Name or reservation number or
Record (PNR) locator. Passenger Name Record (PNR)
locator.
Vessel Name.
International Maritime
Organization (IMO) number or
the official number of the
vessel.
------------------------------------------------------------------------
(f) Ferries. The provisions of this part relating to the
transmission of electronic arrival and departure manifests shall not
apply to a ferry (if the passengers are subject to a land-border
inspection by the Service upon arrival in the United States).
(g) Progressive clearance. Inspection of arriving passengers may be
deferred at the request of the carrier to an onward port of
debarkation. Authorization for this progressive clearance may be
granted by the Regional Commissioner when both the initial port-of-
entry and the onward port are within the same regional jurisdiction,
but when the initial port-of-entry and onward port are located within
different regions, requests for progressive clearance must be
authorized by the Assistant Commissioner for Inspections. When
progressive clearance is requested, the carrier shall present Form I-92
in duplicate at the initial port-of-entry. The original Form I-92 will
be processed at the initial port-of-entry, and the duplicate noted and
returned to the carrier for presentation at the onward port of
debarkation.
PART--251 ARRIVAL AND DEPARTURE MANIFESTS AND LISTS: SUPPORTING
DOCUMENTS
7. The heading for part 251 is revised as set forth above.
8. The authority citation for part 251 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1221, 1281, 1282; 8 CFR part 2.
Sec. 251.5 [Redesignated as Sec. 251.6]
9. Section 251.5 is redesignated as Sec. 251.6.
10. Section 251.5 is added to read as follows:
Sec. 251.5 Electronic arrival and departure manifest for crew member.
In addition to submitting arrival and departure manifests in a
paper format in accordance with Sec. Sec. 251.1, 251.3, and 251.4, the
master or commanding officer, or authorized agent, owner, or consignee
of any aircraft or vessel transporting passengers to any airport or
seaport of the United States from any place outside of the United
States or from any airport or seaport of the United States to any place
outside of the United States must submit electronic arrival and
departure manifests for all crewmembers on board in accordance with
8
CFR 231.1.
11. Newly redesignated Sec. 251.6 is revised to read as follows:
Sec. 251.6 Exemptions for private vessels and aircraft.
The provisions of this part relating to the presentation of arrival
and departure manifests shall not apply to a private vessel or private
aircraft not engaged directly or indirectly in the carrying of persons
or cargo for hire.
Michael J. Garcia,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-33145 Filed 12-30-02; 4:31 pm]
BILLING CODE 4410-10-P
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