Advance Information on Private Aircraft Arriving and Departing the United States

As Enacted ( Federal Register)

Cited authorities 21

Cited in

Federal Register: November 18, 2008 (Volume 73, Number 223)

Rules and Regulations

Page 68295-68313

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr18no08-3

DEPARTMENT OF HOMELAND SECURITY 8 CFR Part 231

Bureau of Customs and Border Protection 19 CFR Part 122

CBP Dec. 08-43; Docket No. USCBP-2007-0064

RIN 1651-AA41

Advance Information on Private Aircraft Arriving and Departing the United States

AGENCY: Customs and Border Protection, DHS.

ACTION: Final rule.

SUMMARY: This rule finalizes, with modifications, amendments to U.S.

Customs and Border Protection (CBP) regulations pertaining to private aircraft arriving and departing the United States. This final rule requires private aircraft pilots or their designees arriving in the

United States from a foreign port or location destined for a U.S. port or location, or departing the United States to a foreign port or location, to transmit electronically to CBP passenger manifest information for each individual traveling onboard the aircraft. This final rule requires private aircraft pilots or their designees to provide additional data elements when submitting a notice of arrival and requires private aircraft pilots or their designees to submit a notice of departure. Private aircraft pilots (or their designees) will be required to submit the notice of arrival and notice of departure information to CBP through an approved electronic data interchange system in the same transmission as the corresponding arrival or departure passenger manifest information. Under this rule, this data must be received by CBP no later than 60 minutes before an arriving private aircraft departs from a foreign location destined for the

United States and no later than 60 minutes before a private aircraft departs a U.S. airport or location for a foreign port or place.

This rule also expressly acknowledges CBP's authority to restrict aircraft from landing in the United States based on security and/or risk assessments, or, based on such assessments, to specifically designate and limit the airports where aircraft may land or depart.

DATES: This final rule is effective on December 18, 2008. Compliance

Date: Private aircraft pilots (or their designees) must comply with the requirements of this final rule on May 18, 2009.

FOR FURTHER INFORMATION CONTACT: For Operational aspects: Eric

Rodriguez, Office of Field Operations, (281) 230-4642; or for Legal aspects: Glen Vereb, Office of International Trade, (202) 352-0030.

SUPPLEMENTARY INFORMATION:

Background
1. Background and Authorities
2. Current Requirements and Vulnerabilities for All Aircraft 1. Advance Notice of Arrival a. Private Aircraft Arriving in the United States b. Private Aircraft Arriving From Areas South of the United
States c. Aircraft Arriving From Cuba 2. Permission To Land (Landing Rights) 3. Vulnerabilities
Summary of Requirements in the Proposed Rule
1. General Requirements for Private Aircraft Arriving in the
  
  United States 1. Notice of Arrival 2. CBP's Authority To Restrict and/or Deny Landing Rights
2. Certain Aircraft Arriving From Areas South of the United
  
  States
3. Notice of Arrival for Private Aircraft Arriving From Cuba
Discussion of Comments
Summary of Changes Made to NPRM
Conclusion
Regulatory Analyses
1. Executive Order 12866 (Regulatory Planning and Review)
2. Regulatory Flexibility Act
3. Unfunded Mandates Reform Act
4. Executive Order 13132 (Federalism)
5. Executive Order 12988 (Civil Justice Reform)
6. National Environmental Policy Act
7. Paperwork Reduction Act
8. Privacy Statement
Signing Authority
Amendments to the Regulations
Background
1. Background and Authorities
  
  A private aircraft,\1\ in contrast to a commercial aircraft,\2\ is generally any aircraft engaged in a personal or business flight to or from the United States which is not carrying passengers and/or cargo for commercial purposes. See 19 CFR 122.1(h). Pursuant to 19 U.S.C. 1433, 1644 and 1644a, the Secretary of Homeland Security (Secretary) has broad authority respecting all aircraft, including private aircraft, arriving in and departing from the United States. The term
  
  ``general aviation'' is commonly used in regard to private aircraft.
  
  Specifically, 19 U.S.C. 1433(c) provides that the pilot of any aircraft arriving in the United States or the U.S. Virgin Islands from any foreign location is required to comply with such advance notification, arrival reporting, and landing requirements as regulations may require.
  
  Under this authority, CBP can deny aircraft landing rights within the
  
  United States based on, among other considerations, security and/or risk assessments. Alternatively, based on such assessments, CBP may specifically designate and limit the airports where aircraft may land.
  
  In addition, under 19 U.S.C. 1433(d), an aircraft pilot is required to present or transmit to CBP through an electronic data interchange system such information, data, documents, papers or manifests as the regulations may require. Section 1433(e) provides, among other things, that aircraft after arriving in the United States or U.S. Virgin
  
  Islands may depart from the airport of arrival, but only in accordance with regulations prescribed by the Secretary. And, under 19 U.S.C. 1644 and 1644a, the Secretary can designate ports of entry for aircraft and apply vessel entry and clearance laws and regulations to civil aircraft.
  
  \1\ 19 CFR 122.1(h) defines a ``private aircraft'' as any aircraft engaged in a personal or business flight to or from the
  
  U.S. which is not: (1) Carrying passengers and/or cargo for commercial purposes; or (2) leaving the United States carrying neither passengers nor cargo in order to lade passengers and/or cargo in a foreign area for commercial purposes; or (3) returning to the United States carrying neither passengers nor cargo in ballast after leaving with passengers and/or cargo for commercial purposes.
  
  \2\ 19 CFR 122.1(d) defines ``commercial aircraft'' as any aircraft transporting passengers and/or cargo for some payment or other consideration, including money or services rendered. If either the arrival or departure leg of an aircraft's journey is commercial, then CBP considers both legs of the journey to be commercial.
  
  Further, 46 U.S.C. 60105 provides that any vessel shall obtain clearance from the Secretary pursuant to regulation, in a manner prescribed by the Secretary, before departing the United States for a
  
  Page 68296
  
  foreign port or place. Because 19 U.S.C. 1644 and 1644a provide for the extension of the vessel entry and clearance laws and regulations to civil aircraft, the Secretary is authorized to issue regulations for civil aircraft that correspond with the vessel clearance requirements under 46 U.S.C. 60105. The previous ``exception'' from clearance requirements for private aircraft under 19 CFR 122.61 did not reflect a lack of statutory authority to regulate private aircraft. It reflected instead the Secretary's (then the Secretary of the Treasury's) discretion not to impose clearance requirements on that segment of civil aviation pursuant to the implementing regulations.
2. Current Requirements and Vulnerabilities for All Aircraft 1. Advance Notice of Arrival
  
  CBP currently requires aircraft pilots of all aircraft entering the
  
  United States from a foreign area, except aircraft of a scheduled airline arriving under a regular schedule, to give advance notice of arrival. See 19 CFR 122.31(a). Advance notice of arrival must be furnished by the pilot of the aircraft and is generally given when the aircraft is in the air. As described below, the regulations set forth the general rule for advance notice of arrival for private aircraft and specific requirements for certain aircraft arriving from areas south of the United States, including aircraft from Cuba. a. Private Aircraft Arriving in the United States
  
  Pursuant to 19 CFR 122.22, private aircraft, except those arriving from areas south of the United States (discussed below), are required to give advance notice of arrival as set forth in 19 CFR 122.31. This notice must be provided to the port director at the place of first landing by radio, telephone, or other method, or through the Federal
  
  Aviation Administration (FAA)'s flight notification procedure. See 19
  
  CFR 122.31(c). The advance notice must include information about the number of alien passengers and number of U.S. citizen passengers, but the regulation does not require any identifying information for individual passengers onboard to be submitted.\3\ Nor does the current regulation provide a specific timeframe for when the notice of arrival shall be given, except that the pilot shall furnish such information far enough in advance to allow inspecting officers to reach the place of first landing of the aircraft. See 19 CFR 122.31(e).
  
  \3\ 19 CFR 122.31 provides that the contents of advance notice of arrival shall include the following information: (1) Type of aircraft and registration number; (2) Name of aircraft commander;
  
  (3) Place of last foreign departure; (4) International airport of intended landing or other place at which landing has been authorized by CBP; (5) Number of alien passengers; (6) Number of citizen passengers; and (7) Estimated time of arrival.
  1. Private Aircraft Arriving From Areas South of the United States
    
    Private aircraft entering the continental United States from a foreign area in the Western Hemisphere south of the United States are subject to special advance notice of arrival and landing requirements.
    
    See 19 CFR 122.23-24. These aircraft include all private aircraft and commercial unscheduled aircraft with a seating capacity of 30 passengers or less, or maximum payload capacity of 7,500 pounds or less. Pursuant to 19 CFR 122.23(b), such aircraft are required to give advance notice of arrival to CBP at the nearest designated airport to the border or coastline crossing point listed in 19 CFR 122.24(b).
    
    These aircraft must also provide advance notice of arrival at least one hour before crossing the U.S. coastline or border. See 19 CFR 122.23(b). The pilot may provide advance notice of arrival for these aircraft by radio, telephone, or other method, or through the FAA flight notification procedure. The advance notice of arrival for such aircraft arriving from areas south of the United States must include the information listed in 19 CFR 122.23(c).\4\ Aircraft arriving from areas south of the United States that are subject to the requirements of 19 CFR 122.23 are required to land at designated airports listed in 19 CFR 122.24(b), unless DHS grants an exemption from the special landing requirement.\5\
    
    \4\ Section 122.23(c) provides that the contents of the advance notice of arrival shall include the following: (1) Aircraft registration number; (2) Name of aircraft commander; (3) Number of
    
    U.S. citizen passengers; (4) Number of alien passengers; (5) Place of last departure; (6) Estimated time and location of crossing U.S. border/coastline; (7) Estimated time of arrival; and (8) Name of intended U.S. airport of first landing, as listed in Sec. 122.24, unless an exemption has been granted under Sec. 122.25, or the aircraft has not landed in foreign territory or is arriving directly from Puerto Rico, or the aircraft was inspected by CBP officers in the U.S. Virgin Islands.
    
    \5\ 19 CFR 122.25 sets forth the procedures concerning exemption from special landing requirements--known as an overflight privileges.
  2. Aircraft Arriving From Cuba
    
    The current regulations require all aircraft entering the United
    
    States from Cuba, except for public aircraft,\6\ to give advance notice of arrival at least one hour before crossing the U.S. border or coastline. See 19 CFR 122.152 and 122.154. This notice must be furnished either directly to the CBP Officer in charge at the relevant airport listed in 19 CFR 122.154(b)(2) or through the FAA flight notification procedure. The advance notice of arrival for aircraft from
    
    Cuba must include the information listed in 19 CFR 122.154(c).\7\
    
    \6\ 19 CFR 122.1(i) defines ``public aircraft'' as any aircraft owned by, or under the complete control and management of the U.S. government or any of its agencies, or any aircraft owned by or under the complete control and management of any foreign government which exempts public aircraft of the United States from arrival, entry and clearance requirements similar to those provided in subpart C of this part, but not including any government-owned aircraft engaged in carrying persons or property for commercial purposes.
    
    \7\ 19 CFR 122.154(c) provides that the contents of advance notice of arrival shall state: (1) Type of aircraft and registration number; (2) Name of aircraft commander; (3) Number of U.S. citizen passengers; (4) Number of alien passengers; (5) Place of last foreign departure; (6) Estimated time and location of crossing the
    
    U.S. coast or border; and (7) Estimated time of arrival.
    1. Permission To Land (Landing Rights)
    The current regulations require the owner or operator of any aircraft, including a private aircraft, arriving at a landing rights airport or user fee airport to request permission to land, known as landing rights, from CBP. See 19 CFR 122.14(a) and 122.15(a). A
    
    ``landing rights airport'' is defined as any airport, other than an international airport or user fee airport, at which flights from a foreign area are given permission by CBP to land. See 19 CFR 122.1(f).
    
    A ``user fee airport'' is defined as an airport so designated by CBP and flights from a foreign area may be granted permission to land at a user fee airport rather than at an international airport or a landing rights airport. See 19 CFR 122.1(m). An informational listing of user fee airports is contained in section 122.15. Permission to land must be secured from the director of the port, or his representative, at the port nearest the first place of landing for both landing rights airports and user fee airports. However, the current regulations do not set forth a precise application procedure or time frame for securing permission to land. 3. Vulnerabilities
    
    DHS is working to strengthen general aviation security to further minimize the vulnerability of private aircraft flights being used to deliver illicit materials, transport dangerous individuals or employ the aircraft as a weapon. Today, compared to regularly scheduled commercial airline operations, little or no screening or vetting of the crew, passengers or the aircraft itself is required of private aircraft before entering or departing the United States
    
    Page 68297
    
    at air ports of entry (APOE). Some of these APOEs are located well within U.S. territory and near highly populated areas. DHS has developed this final rule to address these vulnerabilities and to enhance international and domestic general aviation security. This final rule includes the identification and vetting of passengers and crew on private aircraft prior to entering and departing U.S. airspace.
Summary of Requirements in the Proposed Rule

On September 18, 2007, CBP published in the Federal Register a notice of proposed rulemaking (NPRM) entitled ``Advance Information on

Private Aircraft Arriving and Departing the United States,'' proposing new requirements for private aircraft arriving to and departing from the United States, as described below. See 72 FR 53394.
1. General Requirements for Private Aircraft Arriving in the United
  
  States
  
  The NPRM proposed to require the pilot of any private aircraft arriving in the United States from a foreign port or location or departing the United States for a foreign port or location to transmit to CBP an advance electronic manifest comprised of specific information regarding each individual traveling onboard the aircraft pursuant to 19
  
  U.S.C. 1433, 1644 and 1644a. 1. Notice of Arrival
  
  The NPRM proposed adding data elements to the existing notice of arrival requirements and proposed a new notice of departure requirement. In addition, CBP would require pilots to provide the notice of arrival and notice of departure information through the electronic Advance Passenger Information System (eAPIS) \8\ Web portal or through another CBP-approved electronic data interchange system in the same transmission as the corresponding arrival or departure manifest information. Under the NPRM, these data are to be received by
  
  CBP no later than 60 minutes before an arriving private aircraft departs from a foreign location to a U.S. port or location, and no later than 60 minutes before a private aircraft departs a United States airport or location for a foreign port or place.
  
  \8\ eAPIS is an online transmission system that meets all current APIS data element requirements for all mandated APIS transmission types.
  
  The NPRM also proposed a new timeframe for reporting notice of arrival no later than 60 minutes prior to the aircraft's departure to the United States from a foreign port or location, as opposed to 60 minutes before crossing the U.S border, as is the current requirement.
  
  Under the proposed rule, notice of arrival and manifest data would be required to be furnished as set forth in 19 CFR 122.22 for private aircraft, which requires submission of such information to CBP via an electronic data interchange system approved by CBP. All other aircraft subject to 19 CFR 122.23 would be required to report notice of arrival as required under that provision. 2. CBP's Authority To Restrict or Deny Aircraft Landing Rights
  
  The NPRM proposed to clarify landing rights procedures and departure clearance procedures, and acknowledge CBP's authority to restrict aircraft from landing in the United States based on security and/or risk assessments, or to specifically designate and limit the
  
  United States airports where aircraft may land or depart.
2. Certain Aircraft Arriving From Areas South of the United States
  
  The NPRM proposed to correct a discrepancy between the definition of ``private aircraft'' in 19 CFR 122.23, which encompasses both private aircraft and, in some instances, small, unscheduled commercial aircraft and the general definition provided for ``private aircraft'' in 19 CFR 122.1(h). This correction will properly indicate that section 122.23 encompasses small, commercial aircraft that seat less than 30 passengers, or have a maximum payload capacity of less than 7,500 pounds, carrying people or cargo for hire, which are not currently covered by section 122.23(a)(1)(iii), but which, under section 122.1(d), are considered commercial aircraft.
3. Notice of Arrival for Private Aircraft Arriving From Cuba
  
  The NPRM proposed that private aircraft arriving from Cuba, as provided for in 19 CFR 122.154, be required to provide notice of arrival and manifest data in the same manner as private aircraft that are subject to proposed 19 CFR 122.22. Private aircraft arriving from
  
  Cuba would continue to be required to provide notice of arrival information to the specifically designated airports where the aircraft will land: Miami International Airport, Miami, Florida; John F. Kennedy
  
  International Airport, Jamaica, New York; or Los Angeles International
  
  Airport, Los Angeles, California.
Discussion of Comments

The NPRM requested comments to be submitted on or before November 18, 2007, regarding the proposed amendments. CBP extended the comment period to December 4, 2007, by notice published in the Federal Register on November 14, 2007. See 72 FR 64012. A total of 2,907 comments were received from the general public, including individual pilots and members of various pilot associations. CBP's responses to the comments are provided below.

General Comments

Comment: Several commenters requested that the comment period for the NPRM be extended an additional 60 days to January 18, 2008.

Response: Although CBP did not extend the comment period for an additional 60 days, CBP did extend the comment period by an additional 15 days, until December 4, 2007. See 72 FR 64012. CBP believed that the original 60-day comment period in addition to the 15-day extension provided the public with an adequate amount of time to submit comments.

Moreover, based on the ample number of comments received by the end of the original comment period, CBP believed that public sentiment was accurately captured. Further extension of the comment period would delay implementing the final rule, which would allow the continued existence of vulnerabilities that threaten the security of the United

States.

Comment: Several hundred commenters objected to what was described as proposed user fees and contact fees, but did not specify the nature or source of such fees.

Response: This final rule does not change existing user fees or create new user fees. User fees are not part of this rulemaking.

Comment: Several commenters asked how DHS was going to control the flow of traffic at airports upon implementation of the rule.

Response: This rule requires pilots to provide advance information on aircraft and individuals onboard that aircraft, prior to departure to or from the United States. CBP believes the collection and submission of this information will have a limited impact on the flow of traffic at airports. However, responsibility over the flow of air traffic at airports falls within the purview of the FAA.

Comment: Commenters expressed concerns as to whether they would be required to electronically transmit manifest and notice of arrival information when a flight begins and ends in the same country but the aircraft utilized international airspace for routing purposes.

Response: This rule does not regulate domestic flights as in the case of an

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aircraft that takes off and lands within the United States, but utilizes foreign airspace. In addition, this rule does not regulate foreign flights in which a flight originates and terminates in that foreign country, but utilizes U.S. airspace. Therefore, those types of flights are unaffected by this rule.

Comment: One commenter recommended that CBP use FAA future surveillance and make changes involving FAA and Automated Flight

Service Stations (AFSS). In their comment, Aircraft Owners and Pilots

Association (AOPA) recommended an evaluation of how the FAA's (Flight

Service Stations) FSS system could be incorporated in the arrival notification procedures. The commenter asserted that FSS is similar with interfacing between FAA air traffic control facilities and CBP.

AOPA also asserted in its comment that in September 2007, the FAA issued a proposed rule that would require all aircraft to be equipped with Automatic Dependent Surveillance--Broadcast (ADS-B) by 2020 in order to fly within Class B and C airspace and above 10,000 feet. ADS-B is a datalink technology that uses satellite-based navigation equipment located on board aircraft and positioning information from Global

Positioning System (GPS) satellites to automatically transmit aircraft location and altitude to air traffic controllers and other nearby aircraft.

Response: The technology referenced by the commenters is helpful to the FAA in monitoring airborne aircraft. However, the goal of this final rule is to obtain information on passengers and aircraft prior to take-off, not after an aircraft is airborne. CBP deems it more effective to identify potential risks to aviation and border security before an aircraft gains access to United States airspace.

Comment: Several commenters expressed concern about names that are very common and continuously appearing on the ``Watch List'' which would either restrict or delay their arrival or departure.

Response: CBP appreciates the concerns that members of the public have expressed regarding shared and/or similar names to those that appear on the consolidated U.S. government watchlist and the potential for misidentification. Maintenance of the watchlist is beyond the scope of this rule. For more information on the watchlist and how to seek redress, please refer to the U.S. Department of Homeland Security's

Travel Redress Inquiry Program (DHSTRIP) by going to the Department of

Homeland Security Web site, http://www.dhs.gov or by cutting and pasting the following web address into a web browser for information on how to address such issues: http://www.dhs.gov/xtrvlsec/programs/gc_ 1169676919316.shtm.

Comment: Several hundred commenters requested that CBP meet with their association to discuss the proposed rule.

Response: CBP did not hold public meetings on this proposed rule and did not meet with any individuals or associations to discuss the proposed rule. The 75-day comment period and the large number of comments received during the NPRM's comment period were sufficient for

CBP to accurately determine public sentiment.

Comment: One commenter alleged that the public had been disenfranchised of their right to comment on this NPRM because no comments were posted on 22 separate days during the comment period.

Response: CBP works diligently to keep the public apprised of its current public policies, and takes steps in the form of published notices, notices of proposed rulemakings, final rules and other actions allowing for public comment. The commenter is correct that no comments were posted on http://www.regulations.gov on the days referenced during the comment period. However, there is a difference between comments being posted and comments being submitted and received. Depending on the method of submission (e.g., U.S. mail or online), the process of posting comments varies slightly, but it is never immediate. On the days referenced by the commenter, comments actually were submitted (and received) for each day. However, comments are not posted immediately when submitted because prior to being posted, all comments must be initially reviewed for various reasons, such as verifying the comments received in the mail are not duplicated in the electronic docket, use of inappropriate language or locating missing attachments. After this initial review, comments are then posted. All of the days referenced by the commenter were weekend days or holidays, with one exception (the

Friday following Thanksgiving). Comments were not posted on those days because personnel were not available to perform the tasks referenced above.

Comment: Some commenters expressed concern regarding how they could expect the transition from current methods of operation for international arrivals and departures by private aircraft at the various ports around the country to the newly required use of eAPIS to occur.

Response: When these regulations become effective, there will be a transitional period during which the current manual process of requesting landing rights will gradually be replaced by this automated procedure (i.e., eAPIS). During this transitional period, pilots flying into locations that currently require advance arrangements with the CBP port to ensure the availability of CBP officers to process the aircraft should continue to follow those local procedures for requesting landing rights until instructed otherwise.

Implementation--Privacy Issues

Comment: Several hundred commenters expressed concern that, as U.S. citizens, they should not be required to ``request permission'' to enter or leave their own country. Two commenters noted the proposed rule is an effort to increase surveillance and information gathering on

U.S. citizens under the guise of security.

Response: DHS is working to strengthen aviation security to further minimize the vulnerability of private aircraft flights being used to deliver illicit materials, transport dangerous individuals or employ the aircraft as a weapon. Today, compared to regularly scheduled commercial airline operations, little or no screening or vetting of the crew, passengers or the aircraft itself is required of private aircraft before entering or departing the United States at air ports of entry

(APOE). Some of these APOEs are located well within U.S. territory and near highly populated areas. To address this vulnerability and further strengthen U.S. borders, DHS has developed this rule.

The requirements under the final rule include the identification and vetting of individuals on private aircraft, prior to entering and departing U.S. airspace. Submission of information for all travelers, including U.S. citizens, on board a private aircraft arriving in the

United States, is already authorized under 19 U.S.C. 1433(d), as implemented in 19 CFR 122.31 and 19 CFR 122.23. This final rule changes the timing of the arrival submission (60 minutes prior to departure) and the method of submission (through eAPIS or another CBP-approved data transmission method). It also requires transmission of departure manifest information for private aircraft--something CBP does not collect currently. CBP expects that early receipt of departure manifest data for private aircraft exiting the United States will allow CBP to assess the threat presented by the aircraft and persons onboard prior to takeoff, and thus aid CBP in

Page 68299

preventing terrorists or terrorist weapons from gaining access to an airborne aircraft.

Furthermore, pursuant to 19 U.S.C. 1433(d) and (e), 1644 and 1644a, the Secretary has the authority to regulate the departure of aircraft, both commercial and private, including requiring passenger manifest information. Further authority may be found in 46 U.S.C. 60105, providing that any vessel shall obtain clearance from the Secretary, in a manner prescribed by the Secretary, before departing the United

States for a foreign port or place; this authority is extended to the departure of aircraft pursuant to the provisions of 19 U.S.C. 1644 and 1644a.

Comment: Several commenters stated that the information required for the arrival and departure manifests goes beyond what is required for international commercial air passengers.

Response: Under the current Advance Passenger Information System

(APIS) requirements for commercial aviation, information is collected regarding passengers, crew and non-crew. See 19 CFR 4.64, 122.49a, 122.49b, 122.49c, 122.75a and 122.75b. CBP is working to process arriving passengers on private aircraft in a similar manner. For private aircraft, CBP has determined that information regarding all individuals onboard the aircraft, as well as the aircraft, is relevant for purposes of law enforcement and threat assessment. Much of the information that CBP has determined necessary for collection regarding the individuals onboard departing and arriving private aircraft is comparable to the information that commercial air carriers are currently required to submit in electronic arrival and departure manifests for passengers and crew-members. Collecting this information prior to a private aircraft's arrival or departure will allow CBP to perform advance screening to identify any individuals who may pose a risk to aviation security prior to take off and access to U.S. airspace.

With this final rule, electronic manifest information will be required for all aircraft, except public aircraft as defined in part 122, arriving in or departing from the United States. Private aircraft will be covered by the provisions outlined in this rule and commercial aircraft will be covered by the provisions outlined in the other APIS regulations. See 19 CFR 122.49a, 122.49b, 122.49c, 122.75a, and 122.75b.

Comment: Several commenters expressed concern that submitting data through the eAPIS system will lead to increased identity theft. One commenter stated that hackers could steal a pilot's clearance.

Response: CBP has a multi-layer approach to security of its databases, including software firewalls to prevent hackers from compromising its database and a secured log-in when one signs into eAPIS. CBP is very sensitive to the privacy issues associated with the use of eAPIS. For further information, CBP has published a Privacy

Impact Statement (PIA) that outlines in detail what records are kept, how they are kept, and for how long they are kept. See http://dhs.gov/ xinfoshare/publications/editorial_0511.shtm.

Implementation--Modes of Transportation

Comment: A few commenters wanted to know if hot air balloons constituted aircraft subject to the proposed rulemaking.

Response: Pursuant to 19 CFR 122.1(a), ``aircraft'' is defined as

``any device now known, or hereafter invented, used or designed for navigation or flight in the air. It does not include ``hovercraft,'' which is a vehicle that hydroplanes on a thin layer of air just above the surface of water or land. Because hot air balloons are designed and used for flight in the air, they meet the definition of an ``aircraft'' set forth in 19 CFR 122.1(a). Thus, hot air balloons are considered aircraft under CBP regulations and are subject to this final rule.

Comment: Many comments stated that if other modes of transportation, such as passenger vehicles, buses, trucks, and boats are not subject to the presentation requirement for arrival and departure manifests, private aircraft should not be either.

Response: CBP disagrees. Submission of notice of arrival information indicating the number of citizen passengers and alien passengers arriving by air in the United States is already required under 19 CFR 122.31 and 19 CFR 122.23. Additionally, pursuant to 19

U.S.C. 1433(d), (e), 1644 and 1644a, the Secretary has the authority to prescribe regulations regarding the departure of aircraft, both commercial and private. Further authority exists in 46 U.S.C. 60105, which provides that any vessel shall obtain clearance from the

Secretary, in a manner prescribed by the Secretary, before departing the United States for a foreign port or place. This authority is extended to aircraft pursuant to the provisions of 19 U.S.C. 1644 and 1644a.

Although the timing of the submission, the method of submission, and the data elements required are being modified, CBP does not anticipate this final rule to negatively affect private aircraft outside the United States because notice of arrival requirements are already in place and do not cause severe economic hardship.

Additionally, other modes of transportation besides aircraft and vessels, specifically trucks and trains, are subject to manifest requirements. The statutory basis for requiring a manifest from a

``vehicle'' (which includes trucks and trains) is found in 19 U.S.C. 1431(b). The regulatory provisions implementing this statute are spread throughout 19 CFR Part 123 (see, e.g., sections 123.3, 123.4, 123.5, 123.91, 123.92, etc.). Vehicles required to submit a manifest would do so through presentation of CBP Form 7533 Inward Cargo Manifest for

Vessel Under Five Tons, Ferry, Train, Car, Vehicle, etc., which requires the following information be submitted: name or number and description of importing conveyance, name of master or person in charge, name and address of owner, foreign port of lading, U.S. port of destination, port of arrival, date of arrival, bill of lading or marks

& numbers of consignee on package, car number and initials, number and gross weight (in kilos or pounds) of packages and description of goods, and name of consignee. As indicated by the aforementioned data elements for vehicles, many elements are similar to those that will be required for private aircraft under this final rule.

CBP does not require manifests from passenger vehicles unless they are carrying commercial goods. Non-commercial pleasure boats are exempt from the entry/manifest requirements under 19 CFR 4.94. Private aircraft, unlike other modes of transportation, present a unique threat because they are not inspected at the physical border and will travel over U.S. territory before CBP has the opportunity to inspect them.

Implementation--General

Comment: One commenter expressed concern that a terrorist could use the eAPIS system to verify whether certain names are on the ``No-Fly'' list.

Response: CBP has taken into consideration potential threats and intentional misuse of the eAPIS system in the development of system access and security. If an individual on the ``No-Fly'' list is identified on the manifest, DHS will conduct a risk-based analysis to determine whether to grant, restrict or deny landing rights. If landing rights are restricted or denied, the pilot will be provided with appropriate instructions and contact information.

Comment: Several hundred commenters stated that the requirement for clearance to leave the United States should be deleted because the U.S.

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government should not care if ``terrorists'' are leaving the country.

Three commenters questioned how CBP would be able to apprehend terrorist suspects if we did not allow them to enter the United States.

Response: CBP disagrees. CBP believes that the outbound passenger manifest information allows CBP and other law enforcement officials to better identify individuals who may be on the ``No-Fly'' watch list when either arriving in or leaving from the United States.

Additionally, outbound information is necessary because any airborne aircraft can be used to transport a dangerous device and gain access to

U.S. airspace. CBP's main concern is to keep individuals who are on the

``No-Fly'' list from traveling by air, whether outgoing or incoming to prevent threats to our homeland security. As a result, CBP is able to conduct better risk assessments which can lead to higher rates of detection of individuals who are on the ``No-Fly'' list. In addition,

CBP has authority under 8 U.S.C. 1185 to regulate the entry and exit of individuals from the United States.

Comment: Several hundred commenters stated that the rule does nothing to increase security for private aircraft operators because passengers aboard private aircraft generally have an established relationship with the pilot.

Response: CBP disagrees. The purpose of this rule is to increase

U.S. national security as well as that of private aircraft operators.

As such, it is entirely possible that the family members, friends, acquaintances and employers who may travel as passengers on private aircraft are in fact on the ``No-Fly'' list unbeknownst to the pilot, which will affect whether CBP grants, denies, or restricts landing rights to the aircraft. Because the advance screening will allow for the identification of individuals on the ``No-Fly'' list and as such will prevent these individuals from gaining access to U.S. airspace, the rule will in fact increase security for private aircraft operators.

As previously stated, CBP believes that the passenger manifest information allows CBP and other law enforcement officials to better identify the travel plans of individuals on the ``No-Fly'' list. The final rule addresses the threat to national security presented by private aircraft or any of its occupants, whether or not the operator of the aircraft has a personal relationship with any or all passengers.

Comment: Several commenters suggested that DHS should allow private aircraft pilots to submit passenger manifest data for both departure from the United States and return to the United States prior to leaving the United States to accommodate situations where communications equipment may not be available or reliable outside the United States.

Response: CBP agrees. Under the final rule, as well as proposed in the NPRM, pilots may submit passenger manifest data via the eAPIS portal for both departure and arrival manifests (that is, the outbound and the return flight inbound manifests) prior to departure from the

United States. As proposed in the NPRM, such advance submission of arrival and departure manifests is permitted under this final rule, inasmuch as only a minimum time frame for submission of the arrival and/or departure manifest was indicated. This final rule in no way restricts pilots from submitting manifests in advance of their departure from the United States to a foreign port or location. In fact, such early submissions are encouraged and, in cases where pre- clearance services are made available abroad, the early submission

(from the United States or the originating foreign country) could help expedite the processing of the flight at the pre-clearance site.

Comment: Several hundred commenters stated that this rule will negatively affect humanitarian and tourist visits from U.S. citizens to other countries. One commenter stated that this rule would adversely affect business travel.

Response: CBP disagrees. Submission of notice of arrival information for U.S. citizens entering the United States is already required for commercial flights in 19 CFR 122.31 and 19 CFR 122.23.

Although the timing of the submission, the method of submission, and the data elements required are being modified, this final rule is not anticipated to negatively affect trips outside the United States because notice of arrival requirements are already in place and do not cause severe economic hardship.

Comment: Several hundred commenters stated that current systems and procedures are adequate and new requirements are not necessary.

Response: CBP disagrees. The purpose of this rule is to provide CBP and other law enforcement officials with advance electronic information regarding pilots and passengers traveling via private aircraft to allow

DHS to conduct timely risk and threat assessments. The pre-screening of passenger names against the ``No-Fly'' list prior to departure from or to the United States will allow DHS to conduct threat assessments allowing the advance identification of individuals on the ``No-Fly'' list prior to take off and access to U.S. airspace.

Comment: Several commenters stated that approval should be given annually and not on a per-flight basis. Two commenters recommended approval every five years. One commenter recommended a NEXUS type program for private aircraft.

Response: CBP disagrees. Every flight that takes off for departure and/or arrival in the United States poses a possible threat by allowing access to United States airspace by every individual onboard the aircraft. For risk assessment purposes, this arrival and departure manifest information is necessary for each flight arriving in and departing from the United States. This is so because it will allow CBP to use the most up-to-date intelligence to properly react to any persons or aircraft that pose a threat to aviation and national security. CBP notes, however, that arrival and departure manifest information for a particular flight may be submitted even months in advance of arrival or departure, but no later than 60 minutes prior to departure of the private aircraft to or from the United States.

Comment: Several hundred commenters indicated that the rule is unnecessary because small private aircraft cannot cause significant damage or threat.

Response: CBP disagrees. Any size aircraft (large or small) may meet the definition of a private aircraft under CBP regulations.

Furthermore, even though large aircraft may inflict more damage if flown into infrastructure, both large and small aircraft present a threat because they may be used to transport terrorists or terrorist weapons. Creating an exemption for private aircraft would provide a loophole that could compromise our national security. Furthermore, the purpose of the rule is not only to provide CBP with advance aircraft information, but to also provide CBP with advance information regarding pilots and passengers traveling via private aircraft. This will allow

DHS to conduct threat assessments and reduce the probability of a terrorist attack by allowing for the advance identification of individuals on the ``No-Fly'' list prior to their gaining access to

U.S. airspace via an airborne aircraft, and granting, denying or restricting landing rights accordingly. This information is needed for each flight by private aircraft arriving in and departing from the

United States, regardless of the size or weight.

Comment: Thirteen commenters suggested that if one of the passengers is not approved to come into the United States, the flight may be unexpectedly grounded abroad for an extended period of time until the issue is resolved. One commenter stated that pilots should not be responsible for law enforcement

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duties. Another commenter wanted to know his liability if one of his passengers shows up on the ``No-Fly'' list.

Response: DHS will resolve any delays as quickly as possible and estimates that the frequency of such occurrences should be very low.

CBP does not expect the pilot to be responsible for law enforcement duties. The pilot is best situated to review passenger documents and to verify that the passengers he will be flying appear to match the travel documents presented. Yet, although the pilot bears responsibility for the accuracy of the data submitted, DHS is responsible for any necessary enforcement that flows from that data.

If an individual on the ``No-Fly'' watch list is identified on the manifest, DHS will conduct a risk-based analysis and make a determination whether to grant, restrict or deny landing rights. If landing rights are restricted or denied, the pilot will be provided with appropriate instructions and contact information. Provided the pilot, in accordance with his/her legal obligations under this rule, correctly transmits the manifest information and follows the instructions provided by CBP and/or TSA regarding the boarding or non- boarding of particular passengers, he should have no liability.

Comment: Several commenters stated that there was no basis in existing law for the Secretary to exercise departure clearance authority over private aircraft.

Response: CBP disagrees. As previously stated, pursuant to 19

U.S.C. 1433(e), 1644 and 1644a, the Secretary has the authority to prescribe regulations regarding the departure of aircraft to and from the United States, both commercial and private. Further authority may be found in 46 U.S.C. 60105, providing that any vessel shall obtain clearance from the Secretary, in a manner prescribed by the Secretary, before departing the U.S. for a foreign port or place; and that authority is extended to civil aircraft under 19 U.S.C. 1644 and 1644a.

The ``exception'' previously provided for private aircraft under 19 CFR 122.61 was not the result of a lack of statutory authority to regulate private aircraft. Instead, the Secretary (then, the Secretary of the

Treasury), exercised his discretion at the time not to impose clearance requirements on that segment of civil aviation. With this new rule, the

Secretary has determined that, after September 11, 2001, the clearance requirements in this rule are necessary and appropriate.

Comment: One commenter stated that the passenger manifest requirement for departure is extremely cumbersome as private flights require flexibility in terms of passengers actually onboard at departure.

Response: The rule provides that, if a departure manifest is submitted to CBP before all individuals arrive for transport, the pilot is required to submit any changes to traveler information, and receive a new clearance from CBP. If the changes are submitted less than 60 minutes prior to departure, the pilot is only required to receive a new clearance from CBP prior to departing, he does not necessarily need to wait an additional 60 minutes. By not requiring that the pilot wait a full 60 minutes, CBP believes that the rule provides sufficient flexibility and promotes efficiency.

Comment: One commenter stated that CBP should no longer require CBP

Form 178 (Private Aircraft Enforcement System Arrival Report) as the included information will be electronically transmitted to CBP one hour prior to departure.

Response: CBP agrees. CBP Form 178 was created as an internal

Customs form for the use by Customs inspectors. Because the information on the CBP Form 178 is now electronically available to CBP officers through eAPIS, CBP will no longer require the form.

Implementation--Enforcement

Comment: Two commenters raised concerns whether the proposed rule was in compliance with unspecified international transportation and customs treaty agreements. One of the two commenters was concerned that

CBP had not communicated with the international branch of the U.S.

Department of Transportation regarding the proposed rule's impact upon international obligations.

Response: CBP believes that the rule is in compliance with all applicable international agreements. International law recognizes a

State's right to regulate aircraft entering into, within or departing from its territory. International treaties, such as the Chicago

Convention, contain provisions requiring aircraft in U.S. territory to comply with a broad array of U.S. laws and regulations. For example,

Article 11 of the Chicago Convention requires compliance with ``the laws and regulations of a contracting State relating to the admission to or departure from its territory of aircraft engaged in international air navigation, or to the operation and navigation of such aircraft while within its territory.'' Similarly, Article 13 requires compliance with a State's laws and regulations ``as to the admission to or departure from its territory of passengers, crew or cargo of aircraft *

* * upon entrance into or departure from, or while within the territory of that State.'' The tenets of the Chicago Convention obligations are followed in this final rule.

Comment: Several hundred commenters questioned CBP's ability to receive and process private aircraft APIS transmissions in a timely manner. One commenter stated that if CBP cannot provide a response within five minutes, approval should be assumed to be granted. One commenter indicated that this rule has very little chance of being implemented with the limited staff that CBP has available. One commenter asked what assurance the pilot will have that the eAPIS transmission was received.

Response: CBP anticipates handling the volume of private aircraft submissions through the enhanced capabilities of the eAPIS portal and other CBP-approved submission methods. CBP is capable of receiving and processing tens of thousands of private aircraft manifest submissions daily. Additionally, small commercial carriers currently use eAPIS successfully to make timely submissions of passenger manifest data. A pilot may not depart without receiving a ``cleared'' message from CBP and following all other instructions provided by DHS in the response to the eAPIS submission. Pilots will know that the eAPIS transmission has been received, based upon CBP's response to the transmission. Clearance for a flight to or from the United States should never be assumed regardless of the amount of time that has elapsed; only the pilot's receipt of a cleared response from CBP ensures that the agency has received the arrival and/or departure manifest submission.

Comment: Many commenters questioned the necessity of the proposed rule since the manifest information submitted via eAPIS cannot and/or will not be physically verified by CBP.

Response: CBP appreciates this concern. Because CBP officers do meet private aircraft upon arrival, it is imperative that the electronic manifest be available for CBP verification prior to the aircraft's arrival in the United States. Additionally, electronic departure manifests will be available for verification by CBP officers prior to the aircraft's departure from the United States.

Comment: Many commenters stated that Puerto Rico should not be considered a foreign location, and flights from Puerto Rico to the continental United States should not be subject to the requirements of the rule.

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Response: CBP agrees. CBP would like to clarify that as proposed in the NPRM and as finalized in this rule, under 19 CFR 122.22(a) ''United

States'' means the continental United States, Alaska, Hawaii, Puerto

Rico, the Virgin Islands of the United States, Guam and the

Commonwealth of Northern Mariana Islands. Accordingly, flights between

Puerto Rico and other locations in the United States would not be subject to the requirements of this rule.

Comment: Several commenters inquired as to what penalties would be imposed if a pilot fails to file an arrival or departure manifest and obtain the required clearance for landing before taking off for the

United States from a foreign port or place or departing the United

States for a foreign destination.

Response: Pilots of aircraft departing the United States, or departing a foreign place for the United States, who fail to comply with the terms of this rule are subject to a civil penalty of $5,000 for the first violation and $10,000 for each subsequent violation as prescribed in 19 U.S.C. 1436(b) and 19 CFR 122.166(a)(c)(1). The pilot may also be subject to criminal penalties for violations under 19

U.S.C. 1436(c). In addition, the U.S. government has established protocols and procedures to defend and protect its airspace against potential threats if it is unable to identify the intention of any aircraft.

Comment: One commenter pointed out that 8 CFR 231.3 which provides exemptions for private vessels and aircraft from manifest requirements, exempts private aircraft and, therefore, contradicts the requirements proposed by the NPRM. The commenter suggested that it be amended to conform to the requirements proposed by the NPRM.

Response: Although CBP does not believe any real conflict exists to the extent this final rule is under Title 19, rather than Title 8, CBP agrees that clarification regarding exemptions for private aircraft noted in title 8 of the Code of Federal Regulations is appropriate to avoid any confusion. Section 231.3 of title 8 of the Code of Federal

Regulations will be amended to reference the requirements for arrival and departure manifest presentation of 19 CFR 122.22.

Implementation--60 Minute Requirement

Comment: Several hundred commenters asked if CBP could guarantee that aircraft operators will receive a response within 45 minutes of transmitting the arrival information and manifest data so that they can proceed to the aircraft, taxi and takeoff 60 minutes after they submit the information. Two commenters stated that waiting for permission from

DHS to depart is a terrible burden that will lead to delays.

Response: In most cases, an automated analysis will create a rapid response well within the 60 minute time period. In other cases, additional review may be necessary, requiring additional time. DHS will strive to process each request within 60 minutes of receipt or as quickly as possible to avoid delays.

Comment: Many commenters expressed concerns that a pilot would have to resubmit new arrival times to FAA and wait additional time if CBP's response to arrival and/or departure manifests occurred 10 minutes after the pilot's stated departure time submitted in FAA flight plans.

Response: CBP wishes to clarify that once pilots have submitted their completed passenger manifest data and have received electronic clearance to depart regarding the transmission from CBP, they are free to depart. Absent changes to the information previously transmitted, an additional submission is not necessary unless otherwise indicated by

CBP. Pilots may contact the intended port of arrival telephonically or by radio with expected time of arrival updates. The 60-minute requirement is designed to give CBP an adequate amount of time to respond to the eAPIS transmission so that pilots will be able to make their scheduled departure time, as reported to FAA. Pilots also have the option of submitting an arrival/departure manifest to CBP earlier than 60 minutes prior to take off if that is their preference.

Communications--Equipment Concerns

Comment: Several hundred commenters stated that the equipment required to submit APIS information is not available in all general aviation airports.

Response: CBP recognizes that not all private aircraft departure locations are equipped to submit APIS data in the timeframe required.

Under this final rule, CBP is allowing private aircraft pilots a great deal of flexibility in how and when they submit passenger manifest data to CBP. A pilot may submit complete, correct, and accurate passenger manifest data any time in advance, but no later than 60 minutes prior to departure to or from the United States, allowing the flexibility to provide data prior to travel to or from a remote location. As one alternative, a pilot may also have a third-party agent submit the data.

Additionally, in response to the comments received from the NPRM, certain elements of a previously submitted arrival and/or departure manifest (i.e., flight cancellation, expected time of arrival and changes in arrival location) may now be amended via telephone, radio or by existing processes and procedures if access to the Internet is unavailable.

Original arrival and departure manifests generally must be submitted via eAPIS or another CBP-approved data interchange system.

However, on a limited case-by-case basis, CBP may permit a pilot to submit or update notice of arrival and arrival/departure manifest information telephonically when unforeseen circumstances preclude submission of the information via eAPIS. Under such circumstances, CBP will manually enter the notice of arrival and arrival/departure manifest information provided by the pilot and the pilot is required to wait for CBP screening and approval to depart. CBP will strive to process such manual submissions as quickly as possible; however, the processing of these non-electronic manifests may significantly delay clearance.

Finally, when there is a change in the expected time of arrival due to unforeseen conditions such as weather changes, the pilot is permitted to contact the intended port of arrival with the new expected time of arrival telephonically, by radio, or via the FAA automated flight service stations (AFSS) and/or flight services.

Comment: Several hundred commenters noted that few private aircraft have the necessary equipment on board to transmit an arrival manifest should they need to divert to a U.S. airport in the case of emergency.

Two commenters stated that the requirement to provide a 30-minute arrival notice places an undue burden on the pilot. One commenter stated weather can play a part in causing a diversion while already in flight.

Response: With respect to an aircraft arriving at a U.S. port,

``emergency'' means an urgent situation due to a mechanical, medical, or security problem affecting the flight, or an urgent situation affecting the non-U.S. port of destination that necessitates a detour to a U.S. port. CBP's policy on emergency landings remains unchanged and permission continues to be granted on a case-by-case basis. CBP will take into consideration the nature of the emergency prior to issuing any penalties and as a mitigating factor when any penalties issued by the agency are considered in the administrative petition process.

Comment: Several hundred commenters asked if facsimile, telephone, use of Flight Service Station and/or email transmissions would be

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acceptable alternatives in addition to transmissions through eAPIS.

Five commenters inquired as to whether the additional passenger information required by CBP could be added to the flight plan notification that they already file with the FAA.

Response: Although CBP will allow the submission of arrival manifests well in advance of the actual arrival of the aircraft and approve the passengers and aircraft depending upon the outcome of the screening process, the pilot may still be required, per any instructions received from CBP, to contact CBP at the arrival airport to confirm CBP officer availability at that port for the expected time and date of arrival indicated in the manifest. Under this final rule, facsimile, email transmissions, or submission via another agency such as the (FAA) of arrival and departure manifest data are not acceptable methods of original submission. Methods such as facsimile, email and telephone can lead to inaccuracies, tend to be inefficient and do not promote the uniformity that submission via one standard method allows.

That said, on a limited case-by-case basis, CBP may permit a pilot to submit or update notice of arrival and arrival/departure manifest information telephonically when unforeseen circumstances preclude submission of the information via eAPIS. CBP also may review and approve alternative methods for electronically transmitting the required data to CBP. For example, a pilot may authorize a third-party to submit the original arrival and/or departure manifest data on the pilot's behalf.

Certain elements of a previously submitted arrival and/or departure manifest may be amended or supplemented via telephone or radio if access to the Internet is unavailable. Also, when there is a change in the expected time of arrival due to unforeseen conditions such as weather changes, the pilot is permitted to contact the intended port of arrival with the new expected time of arrival telephonically, by radio, or via the FAA automated flight service station (AFSS) and/or flight services.

Comment: One commenter had concerns about backup procedures should eAPIS not be available due to CBP/DHS system outages.

Response: In the event that eAPIS is unavailable, authorized users will need to contact CBP at the intended U.S. airport of arrival/ departure for instructions on how to proceed in submitting required information. Each outage presents unique circumstances that will be dealt with on a case-by-case basis per the port's instructions.

Communications--General

Comment: Several commenters stated that the requirement to provide a 24-hour point of contact is difficult because private aircraft operators do not normally have 24-hour operation centers.

Response: The data element ``24-hour point of contact'' in Sec. 122.22, paragraphs (b)(4)(xx) and (c)(4)(xviii) will be changed to

``24-hour Emergency Point of Contact'' to clarify that the named entity or individual provided for in this element is available for contact by

CBP should an emergency arise (as opposed to day to day operations) and

CBP needs information about the flight as a result of communication equipment failure or pilot unavailability.

Comment: Several commenters stated that submitting the transponder/ beacon code and/or decal number in eAPIS was not possible because it was not available 60 minutes prior to takeoff. One commenter was concerned about supplying the CBP decal number as the decal may be purchased upon arrival in the United States.

Response: CBP agrees and is amending 19 CFR 122.22 (b)(4)(xviii) and (c)(4)(xix) so that the transponder code will no longer be listed as a required data element and the decal number will be required to be submitted if available.

Comment: Several commenters stated eAPIS does not accept aircraft registration numbers and airports that are not identified with an ICAO airport code.

Response: CBP developed a new module within eAPIS for private aircraft use to capture the data elements required by this regulation.

Regulatory Analyses--E.O. 12866

Comment: Several commenters stated that the Regulatory Analysis is deficient because it does not address the costs that pilots would incur to fly to another airport with adequate facilities. Three commenters stated that the costs for Internet access were not considered. One commenter stated that the costs for eAPIS on-line training and registration were not considered. One commenter stated the time for programming changes to eAPIS by DHS were not considered. One commenter stated that the Regulatory Assessment did not consider the ``ripple effects'' beyond those to private pilots and their passengers.

Response: The commenters are correct that the analysis for the NPRM did not account for all of these costs. The Regulatory Analysis for this final rule takes into account the costs for flying to facilities with Internet capabilities (see below). Costs for online training for eAPIS are not considered because eAPIS is designed to be a user- friendly system and will require users to spend little time familiarizing themselves with the web interface. Finally, as noted in the analysis for the NPRM, ``ripple effects'' beyond those entities not directly regulated are not considered because they do not represent losses in consumer surplus but are rather transfers within the economy.

Comment: A few commenters stated that the Regulatory Analysis incorrectly estimated that pilots and passengers would have to arrive 15 minutes prior to takeoff.

Response: The commenters are incorrect. CBP assumed that all pilots would have to arrive at the airport in time to submit their APIS data in a timely fashion. CBP assumed that for a portion of the pilots affected, arriving at least 60 minutes prior to takeoff would represent a departure from their normal flying practices. For this portion of the population, CBP assumed that they would arrive 15 minutes earlier than customary. CBP acknowledges that pilots could avoid arriving at the airport early by using a third party to submit required information.

However, CBP believes that it is unlikely that pilots of private aircraft would hire a third party to submit required data. Also, hiring third parties to submit required data would not obviate the time costs of arriving to the airport early, as hiring third parties would create other costs.

Comment: A few commenters stated that CBP's estimate that it would take 8 hours to resolve a security incident is too low. One commenter stated that the CBP estimate of one hour to resolve a ``No-Fly'' designation has no support.

Response: This estimate was intended to represent an average time to resolve a security incident. Some incidents could take less time and others could take more time.

Comment: One commenter stated that CBP's estimate for a Value of a

Statistical Life (VSL) is too high because pilots would not be willing to pay anything to reduce the risk of dying in a terrorist attack because they know the passengers they are carrying.

Response: CBP interprets this commenter's point to be that because the pilot knows the passengers he is carrying, there is no risk and the pilot would not be willing to pay to reduce a risk that does not exist.

CBP disagrees that a risk does not exist for private aircraft. A terrorist incident can be caused by persons in a private aircraft. CBP presents two VSLs that are intended to capture an individual's

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willingness to pay to avoid an incident. These values are used in multiple economic evaluations across the U.S. government. These values were reviewed by the Office of Management and Budget (OMB) during the proposed and final rule stages.

Comment: A few commenters stated that the risk scenarios presented in the Regulatory Analysis were not realistic for the vast majority of general aviation aircraft. One commenter stated that potential terrorist risks on small aircraft are miniscule.

Response: CBP agrees that some of the risk scenarios are more likely than others and noted this in the NPRM and in this document.

These scenarios were intended to capture a range of possible outcomes given the lack of specific data on terrorist attacks involving private aircraft.

Comment: One commenter stated that the macroeconomic costs of a terrorist incident were not addressed in the Regulatory Analysis.

Response: CBP agrees that the larger economic impacts stemming from a terrorist incident are potentially significant. However, CBP does not present secondary impacts of the rule because CBP does not know the extent to which these losses are transfers versus real economic losses.

In the analysis of costs, benefits, and risk reduction that would be required in order for this rule to be cost-effective [see section

``Executive Order 12866 (Regulatory Planning and Review)'' below] CBP has compared direct costs to direct benefits. The ``ripple'' effects, while important to recognize as potentially large, are not direct costs or benefits.
Summary of Changes Made to NPRM

After further review of the NPRM, the analysis of the comments received from the public, and in light of CBP's desire to provide clear policy and procedural guidance to the public, CBP has made certain changes to the proposed regulatory text in this final rule. The changes are summarized below.

(1) The NPRM proposed that the redress number be a required data element for arrival and departure manifests if available. A redress number is a number assigned to a passenger who has requested redress respecting a screening concern. CBP is now encouraging, but not requiring, that pilots include in their eAPIS manifest transmissions, any redress numbers issued by TSA (or any other unique passenger number approved by DHS for the same purpose) to facilitate screening and clearance of passengers. CBP will not require a redress number as a data element for the arrival and departure manifests because a passenger may not have this number readily available for the pilot's use on the arrival or departure manifest. As such, the data element

``redress number'' in proposed Sec. 122.22, paragraphs (b)(4)(xiii) and (c)(4)(xiii) has been removed and will not be required as an element of an arrival or departure manifest submission to CBP. Pilots are encouraged but not required to submit the redress number in their eAPIS transmissions, if available.

(2) While the NPRM did not include in the proposed regulatory text the requirement that the pilot must compare the manifest information with the information on the DHS-approved travel document presented by each individual attempting to travel onboard the aircraft to ensure that the manifest information is correct, that the travel document appears to be valid for travel to the United States, and that the traveler is the person to whom the travel document was issued, this concept was included in the background section of the NPRM (see 72 FR 53397). As such, language has been added to Sec. 122.22, paragraphs

(b)(8) and (c)(7), which will reflect this obligation. CBP is adding this requirement to the regulatory text for Sec. 122.22 to avoid any confusion regarding this specific responsibility of pilots to examine the travel documents as well as the traveler to mitigate the security vulnerabilities of private air travel.

(3) The NPRM did not contain a proposed amendment to 8 CFR 231.3, which currently makes clear that private aircraft are exempt from having to file an arrival or departure manifest which is otherwise required for commercial aircraft under title 8. In this final rule, appropriate conforming changes have been made to 8 CFR 231.3 to clarify that that electronic arrival and departure manifest requirements for individuals traveling onboard private aircraft are now found in 19 CFR 122.22.

(4) Proposed Sec. Sec. 122.26 and 122.61 are now clarified to reflect that ``United States'' as used in those sections, is as defined in Sec. 122.22.

(5) The data element ``transponder code'' (also known as beacon code) in proposed Sec. 122.22, paragraphs (b)(4)(xviii) and

(c)(4)(xix) has been removed and will not be required as an element of an arrival or departure manifest submission to CBP, since this information is not available until after the aircraft is airborne and, thus, is unavailable for submission on an arrival and/or departure manifest 60 minutes prior to departure.

(6) The data element ``decal number'' in proposed Sec. 122.22, paragraphs (b)(4)(iv) and (c)(4)(iv) will be optional and have ``(if available)'' added to indicate that this data element will not be required as an element of an arrival or departure manifest submission to CBP, since not all aircraft possess a decal number.

(7) The data element ``24-hour point of contact'' in proposed Sec. 122.22, paragraphs (b)(4)(xx) and (c)(4)(xviii) will be changed to

``24-hour Emergency point of contact'' in order to clarify that the named entity or individual provided for this element is available for contact by CBP in an emergency, in case CBP needs immediate information about the flight as a result of communication equipment or pilot unavailability, rather than for contact regarding day to day operational issues.

(8) Language has been added to Sec. 122.22 paragraphs (b)(2)(i) and (c)(2) clarifying that arrival and departure manifests may be submitted anytime prior to the departure of the aircraft, but no later than 60 minutes prior to departure of the aircraft.

(9) Language has been added to Sec. 122.22 paragraphs (b)(6) and

(c)(5) clarifying that once DHS has approved departure from the United

States and/or landing within the United States, and the pilot has complied with all instructions issued by DHS, the aircraft is free to depart or land.

(10) Language has been added to Sec. 122.22, paragraphs (b)(7) and

(c)(6) indicating that changes to an already transmitted manifest regarding flight cancellation, expected time of arrival and arrival location, can be submitted telephonically, by radio or through existing processes and procedures. Additionally, language has been added to these paragraphs clarifying that changes to passenger or aircraft information must be resubmitted to CBP via eAPIS or other CBP-approved data interchange system, invalidating any CBP approval given regarding the originally submitted manifest, and requiring the pilot to await CBP approval to depart based on the amended manifest containing the added passenger information and/or changes to information regarding the aircraft.

(11) The definition of the United States in Sec. 122.22 has been changed to include the territory of the Commonwealth of the Northern

Mariana Islands (CNMI) due to subsequent legislation (section 702 of the Consolidated Natural Resources Act of 2008; Public Law 110-229 (May 8, 2008) which extends the United States immigration laws to the CNMI.

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(12) Section 122.0 (scope) has been amended by deleting the last two sentences of paragraph (a) which specifically identified geographic areas where the regulations under part 122 did and did not apply. Since each section within part 122 specifies the geographic areas where they apply, these sentences have been deleted for clarification.
Conclusion

After careful consideration of the comments received in response to the NPRM and further review of the proposed rule, CBP is adopting as final, with the modifications discussed above, the proposed amendments published in the Federal Register on September 18, 2007. This final rule will help safeguard the traveling public, and aid CBP in accurately assessing the threat risk of private aircraft and those individuals traveling via private aircraft.
Regulatory Analyses
1. Executive Order 12866 (Regulatory Planning and Review)
This rule is not an ``economically significant'' rulemaking action under Executive Order 12866 because it will not result in the expenditure of more than $100 million in any one year. This rule, however, is a significant regulatory action under Executive Order 12866 and, therefore, has been reviewed by the Office of Management and

Budget (OMB).

Currently, pilots of private aircraft must submit information regarding themselves, their aircraft, and any passengers prior to arrival into the United States from a foreign airport. Depending on the location of the foreign airport, the pilot provides the arrival information one hour prior to crossing the U.S. coastline or border

(areas south of the United States) or during the flight (other areas).

The information that would be required by this rule is already collected pursuant to sections 122.31 and 122.23 for notice of arrival.

The newly required data elements that must be electronically submitted pursuant to the requirements of this final rule include the information that pilots must currently provide for notice of arrival; the required information would need to be submitted earlier (60 minutes prior to departure). No notice of departure information is currently required for private aircraft departing the United States for a foreign airport.

CBP estimates that 138,559 private aircraft landed in the United

States in 2006 based on current notice of arrival data. These aircraft collectively carried 455,324 passengers; including the 138,559 pilots of the aircraft, this totals 593,883 individuals arriving in the United

States aboard private aircraft. CBP notes that this statistic reflects the unique and actual instances of landings by private aircraft. CBP estimates that approximately two-thirds are U.S. citizens and the remaining one-third is comprised of non-U.S. citizens.

Table 1 summarizes the 2006 arrival information for the top airports in the United States that receive private aircraft from foreign airports. Fort Lauderdale received the most arrivals, with nearly 10 percent of the U.S. private aircraft arrivals. The top 18 airports received approximately 60 percent of the total. As shown, the average number of passengers per arrival varies by port; JFK has the highest passengers per arrival (4.7) while Bellingham, Washington, has the lowest (1.4). Nationwide, the average number of passengers carried per arrival is 3.3.

Table 1--Summary of Arrivals and Passengers Aboard Private Aircraft (2006)

Percent of

Average

Airport

Aircraft/pilot

Percent of

Passenger

total

passengers arrivals

total aircraft

arrivals

passengers

per arrival

Ft. Lauderdale Intl. Airport, FL

12,831

9

37,848

8

2.9

West Palm Beach, FL.............

9,031

7

25,109

6

2.8

New York-Newark, Newark, NJ.....

6,464

5

29,779

7

4.6

Miami Airport, FL...............

5,676

4

17,596

4

3.1

Fort Pierce, FL.................

5,216

4

11,376

2

2.2

Otay Mesa, CA...................

4,944

4

18,216

4

3.7

San Juan, PR....................

4,090

3

10,821

2

2.6

Hidalgo, TX.....................

3,827

3

8,647

2

2.3

Calexico, CA....................

3,597

3

7,963

2

2.2

JFK Airport, NY.................

3,497

3

16,492

4

4.7

Laredo, TX......................

3,280

2

10,974

2

3.3

Tucson, AZ......................

3,013

2

9,059

2

3.0

El Paso, TX.....................

2,548

2

9,544

2

3.7

Houston/Galveston, TX...........

2,534

2

10,850

2

4.3

Seattle, WA.....................

2,529

2

6,238

1

2.5

Brownsville, TX.................

2,303

2

7,027

2

3.1

San Antonio, TX.................

2,185

2

8,520

2

3.9

Bellingham, WA..................

2,160

2

3,106

1

1.4

Remaining 223 airports..........

58,834

42

206,159

45

3.5

Total.......................

138,559

100

455,324

100

3.3

CBP does not currently compile data for departures, as there are currently no requirements for private aircraft departing the United

States. For this analysis, we assume that the number of departures is the same as the number of arrivals.

Thus, we estimate that 140,000 private aircraft arrivals and 140,000 departures will be affected annually as a result of the rule.

Although the current data elements for pilots are very similar to the requirements in this rule, the data elements for passengers are more extensive. Based on the current information collected and accounting for proposed changes in the data elements, CBP estimates that one submission, which includes the arrival information and the passenger manifest data, will require 15 minutes of time (0.25 hours) for the pilot to complete. Additionally, CBP estimates that it will require each of the 460,000 passengers 1 minute (0.017 hours) to provide the required data to the pilot. These data are all contained on a passenger's passport

Page 68306

or alien registration card and are thus simple to provide to the pilot.

Currently, arrival information is submitted by radio, telephone, or other method, or through the FAA's flight notification procedure. Under this rule, pilots must submit the arrival and passenger data through the eAPIS web portal, electronic EDIFACT transmissions, or an approved alternative transmission medium. For this analysis, we assume that pilots will use the eAPIS system, as it is a user-friendly and costless method to submit the required data elements to CBP and the pilot need only have access to a computer with web capabilities to access the system. We also assume that pilots will have access to a computer and the Internet to make the electronic submission. This analysis in no way precludes a private aircraft operator from implementing another approved method of transmission; however, we believe that most pilots, particularly those not traveling for business, will choose to submit the required data through the least-cost option: eAPIS.

Currently, private aircraft arriving from areas south of the United

States must provide advance notice of arrival at least one hour before crossing the U.S. coastline or border. There are no such timing requirements for other areas. Thus, some pilots and their passengers may decide that to comply with the new requirements, including submitting information through eAPIS and waiting for a response from

CBP, they must convene at the airport earlier than they customarily would. We do not have any information on how many, if any, pilots or passengers would need to change their practices. For this analysis, we assume that 50 percent of the pilots and passengers would need to arrive 15 minutes (0.25 hours) earlier than customary. This would result in 70,000 affected pilots (140,000 arrivals * 0.5) and 231,000 affected passengers (70,000 arrivals * 3.3 passengers per arrival) for a total of 301,000 individuals affected.

To estimate the costs associated with the time required to input data into eAPIS, we use the value of an hour of time as reported in the

FAA's document on critical values, $37.20.\9\ This represents a weighted cost for business and leisure private aircraft travelers. CBP believes this is a reasonable approximation of the average value of a pilot's and traveler's time.

\9\ Federal Aviation Administration. 2005. Economic Values for

FAA Investment and Regulatory Decisions, A Guide. Prepared by GRA,

Inc. July 3, 2007. Table ES-1. Per the instructions of this guidance document (see pages 1-1 and 1-3), this estimate has not been adjusted for inflation.

The cost to submit advance notice of arrival data through eAPIS would be approximately $1.3 million (140,000 arrivals * 0.25 hours *

$37.20 per hour). Similarly, costs to submit advance notice of departure data would be $1.3 million, for a total cost for pilots to submit the required data elements of $2.6 million annually. The cost for passengers to provide the data to the pilot to be entered into eAPIS would be approximately $570,000 (920,000 arrivals and departures

* 0.017 hours * $37.20 per hour). Total costs for the eAPIS submissions would be $3.2 million annually.

To estimate the costs of arriving earlier than customary, we again use the value of time of $37.20 per hour. As noted previously, we assume that 301,000 pilots and passengers may choose to arrive 0.25 hours earlier than customary. This would result in a cost of approximately $2.8 million for arrivals and $2.8 million for departures, a total of $5.6 million annually (301,000 individuals * 0.25 hours * $37.20 per hour * 2).

Additionally, CBP estimates the potential costs to resolve issues with passengers that have been designated as ``No-Fly'' based on the screening process. Although a law enforcement response is not required under this rule, CBP estimates the costs for such a response to avoid underestimating the costs of this rule. For the purposes of this analysis, CBP estimates that on two occasions annually, a private aircraft flight will have a passenger that is designated ``No-Fly'' but through the resolution process is downgraded from ``No-Fly'' and the entire traveling party continues on their flight. CBP assumes that four individuals (the pilot plus three passengers) would be affected by a one-hour delay to resolve the ``No-Fly'' designation. CBP also assumes the resolution process will require 1 hour of law enforcement time at a

TSA-estimated cost of $62.43 per hour. The total annual costs for these incidents would be approximately $422 [(four individuals * $37.20 * 1 hour + 1 individual * $62.43 * 1 hour) * two incidents].

CBP also estimates the potential costs for pilots and passengers who may be denied landing rights as a result of their eAPIS manifest submission. For the purposes of this analysis, CBP estimates that once per year, a private aircraft flight is denied landing rights. CBP again assumes that four individuals (the pilot plus three passengers) will be affected, and the delay will be eight hours to coordinate a law enforcement response. CBP assumes that four law enforcement personnel will be involved in the investigation. The total annual costs for this incident would be approximately $3,188 [(four individuals * $37.20 * 8 hours + 4 individuals * $62.43 * 8 hours) * one incident].

In response to comments received during the public comment period,

CBP also addressed costs pilots may incur to fly to another airport with adequate facilities to access eAPIS. CBP believes that this will be an uncommon occurrence, as considerable flexibility has been provided in this final rule to allow pilots to submit APIS data while they are in the United States (or other locations where facilities are available) or to have a third party submit information through eAPIS on the pilots' behalf. To not underestimate costs, CBP estimates that 1 percent of the affected pilots will have to travel to another location with Internet access to submit their APIS data. Assuming that 140,000 private aircraft are affected by this rule, CBP estimates the following costs.

As noted previously, the time cost per hour for a traveler onboard a private aircraft is $37.20, and we assume 4.29 travelers aboard an aircraft (1 pilot plus the 3.29 passengers). Per the FAA critical values document, total operation costs for a general aviation aircraft are $1,090 per hour. The sum of time costs and capital costs per aircraft each hour are therefore $1,127.20. CBP assumes that the extra travel time for each affected aircraft is 4 hours, and the total undiscounted costs to fly to another airport with adequate facilities are approximately $6,997,693 [($1,090 operation costs * 1,400 flights +

$37.20 * 1,400 pilots + $37.20 * 4,606 passengers) * 4 hours].

The total annual cost of the rule is expected to be $22.1 million.

Over 10 years, this would total a present value cost of $155.1 million at a 7 percent discount rate ($188.1 million at a 3 percent discount rate).

The primary impetus of this rule is the security benefit afforded by a more timely submission of APIS information. Ideally, the quantification and monetization of the beneficial security effects of this regulation would involve two steps. First, we would estimate the reduction in the probability of a terrorist attack resulting from implementation of the regulation and the consequences of the avoided event (collectively, the risk associated with a potential terrorist attack). Then we would identify individuals' willingness to pay for this incremental risk reduction and multiply it by the population experiencing the benefit. Both of these steps, however, rely on key data that are not available for this rule.

Page 68307

In light of these limitations, we conduct a ``breakeven'' analysis to determine what change in the reduction of risk would be necessary for the benefits of the rule to exceed the costs. Because the types of attack that could be prevented vary widely in their intensity and effects, we present a range of potential losses that are driven by casualty estimates and asset destruction. For example, the average private aircraft is 3,384 pounds and carries an average of a little over four people (1 pilot and 3 passengers).\10\ Some private aircraft, however, are much larger and carry many more people and thus could have potentially higher casualty losses and property damages in the event of an incident. We use two estimates of a Value of a Statistical Life

(VSL) to represent an individual's willingness to pay to avoid a fatality onboard an aircraft, based on economic studies of the value individuals place on small changes in risk: $3 million per VSL and $6 million per VSL.

\10\ Federal Aviation Administration. 2005. Economic Values for

FAA Investment and Regulatory Decisions, A Guide. Prepared by GRA,

Inc. July 3, 2007. Table ES-1.

Additionally, we present four attack scenarios. Scenario 1 explores a situation where solely individuals are lost (no destruction of physical property). In this scenario, we estimate the losses if an attack resulted in 4 (average number of people on a private aircraft- one pilot, three passengers) to 1,000 casualties but no loss of physical capital. We acknowledge that this scenario is unlikely because an attack that would result in 1,000 casualties would almost certainly also result in loss of physical assets; however, this scenario provides a useful high end for the risk reduction probabilities required for the rule to break even.

Scenario 2 explores a situation where individuals are lost and a lower-value aircraft is destroyed. The value of the aircraft lost,

$94,661, is based on the value from the FAA critical values study cited previously.\11\ This value is for an aircraft built prior to 1982, which is a substantial proportion (75 percent) of the general aviation fleet of aircraft.\12\

\11\ Federal Aviation Administration. 2005. Economic Values for

FAA Investment and Regulatory Decisions, A Guide. Prepared by GRA,

Inc. July 3, 2007. Table ES-1. This estimate has not been adjusted for inflation.

\12\ Federal Aviation Administration. 2005. Economic Values for

FAA Investment and Regulatory Decisions, A Guide. Prepared by GRA,

Inc. July 3, 2007. Table 3-14.

Scenario 3 explores a situation where individuals are lost and a higher-value aircraft is destroyed. The value of the aircraft lost is

$1,817,062 (aircraft built in 1982 and later).

Scenario 4 explores a situation where individuals are lost and substantial destruction of physical capital is incurred. In this scenario we again estimate individual lives lost but now consider a massive loss of physical capital (the 9/11 attack is an example of such an event).

Casualties are again estimated as before using the two VSL estimates. To value the loss of capital assets, we use a report from the Comptroller of the City of New York that estimated $21.8 billion in physical capital destruction as a result of the 9/11 attacks on the

World Trade Center.\13\ This report also estimates the ``ripple effects'' of the attack--the air traffic shutdown, lost tourism in New

York City, and long-term economic impacts; however, we do not compare these secondary impacts to the direct costs of the rule estimated previously because we do not know the extent to which these losses are transfers versus real economic losses. In this analysis we compare direct costs to direct benefits to estimate the risk reduction required for the rule to break even.

\13\ Thompson, Jr., William C. Comptroller, City of New York.

``One Year Later: The Fiscal Impact of 9/11 on New York City.''

September 4, 2002.

Again, the impacts in these scenarios would be driven largely by the number of people aboard the aircraft and the size of the aircraft.

The annual risk reductions required for the rule to break even are presented in Table 2 for the four attack scenarios, the two estimates of VSL, and a range of casualties. As shown, depending on the attack scenario, the VSL, and the casualty level, risk would have to be reduced less than 1 percent (Scenario 4, 1,000 casualties avoided) to 184.1 percent (Scenario 1, 4 casualties avoided) in order for the benefits of the rule to exceed the costs to break even. However, CBP notes that risk reductions of over 100% are not possible to achieve.

Table 2--Annual Risk Reduction Required (%) for Net Costs to Equal Benefits

Annualized at 7 percent over 10 years

Scenario 4:

Scenario 2:

Scenario 3:

Loss of life

Scenario 1:

Loss of life

Loss of Life

and

Casualties avoided

Loss of life and aircraft and aircraft catastrophic

(low value)

(high value)

loss of property

$3M VSL: 4...........................................

184.1

182.6

159.9

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Advance Information on Private Aircraft Arriving and Departing the United States

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