[Federal Register Volume 88, Number 22 (Thursday, February 2, 2023)]
[Proposed Rules]
[Pages 7016-7033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02139]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
19 CFR Part 122
[Docket No. USCBP-2023-0002]
RIN 1651-AB43
Advance Passenger Information System: Electronic Validation of
Travel Documents
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security.
ACTION: Notice of proposed rulemaking.
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SUMMARY: U.S. Customs and Border Protection (CBP) regulations require
commercial air carriers to electronically transmit passenger
information to CBP's Advance Passenger Information System (APIS) prior
to an aircraft's departure to the United States from a foreign port or
place or departure from the United States so that the Department of
Homeland Security (DHS) can determine whether the carrier must conduct
an additional security analysis or security screening of the
passengers. CBP proposes to amend these regulations to incorporate
additional commercial carrier requirements that would enable CBP to
determine whether each passenger is traveling with valid, authentic
travel documents prior to the passenger boarding the aircraft. The
proposed regulations would also require commercial air carriers to
transmit additional data elements through APIS for all commercial
aircraft passengers arriving, or intending to arrive, in the United
States in order to support border operations and national security and
safety. Additionally, this proposal includes changes to conform
existing regulations to current practice. Finally, the proposed
regulations would allow commercial carriers to transmit an aircraft's
registration number to CBP via APIS. This proposed rule is intended to
increase the security and safety of the international traveling public,
the international air carrier industry, and the United States.
DATES: Comments must be received by April 3, 2023.
ADDRESSES: Please submit comments, identified by docket number, by the
following method:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments via docket number
USCBP-2023-0002.
Due to COVID-19-related restrictions, CBP has temporarily suspended
its ability to receive public comments by mail.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Due to relevant
COVID-19-related restrictions, CBP has temporarily suspended its on-
site public inspection of submitted comments.
FOR FURTHER INFORMATION CONTACT: Robert Neumann, Office of Field
Operations, U.S. Customs and Border Protection, by phone at 202-412-
2788.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
notice of proposed rulemaking. The Department of Homeland Security
(DHS) also invites comments that relate to the economic, environmental,
or federalism effects that might result from this proposal.
Comments that will provide the most assistance to the Department in
developing these procedures will reference a specific portion of the
proposed rule, explain the reason for any recommended change, and
include data, information, or authority that support such recommended
change.
II. Statutory Authority
Multiple statutes require air carriers to electronically transmit
passenger information to Customs and Border Protection (CBP) prior to
arriving in or departing from the United States.\1\ For instance,
section 115 of the Aviation and Transportation Security Act (Pub. L.
107-71, 115 Stat. 623, Nov. 19, 2001) requires air carriers operating a
passenger flight in foreign air transportation to the United States to
electronically transmit a passenger manifest to CBP. See 49 U.S.C.
44909(c). Pursuant to this statute, the manifest must contain the
following data for each passenger: full name; date of birth;
citizenship; sex; passport number and
[[Page 7017]]
country of issuance (if a passport is required for travel); U.S. visa
number or resident alien card, as applicable; and such other
information as the Administrator of the Transportation Security
Administration (TSA), in consultation with the Commissioner of CBP,
determines is reasonably necessary to ensure aviation safety. See 49
U.S.C. 44909(c)(2). The passenger manifest must be transmitted in
advance of the aircraft landing in the United States in such manner,
time, and form as CBP requires. See 49 U.S.C. 44909(c)(4).
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\1\ Those statutes include, but are not limited to, section 115
of the Aviation and Transportation Security Act (Pub. L. 107-71, 115
Stat. 623, 49 U.S.C. 44909), section 402 of the Enhanced Border
Security and Visa Entry Reform Act of 2002 (Pub. L. 107-173, 116
Stat. 557, 8 U.S.C. 1221), section 4012 of the Intelligence Reform
and Terrorism Prevention Act of 2004 (Pub. L. 108-458; 49 U.S.C.
44909(c)), and certain authorities administered by the
Transportation Security Administration (TSA) (49 U.S.C. 114, 49 CFR
parts 1550, 1544, 1546).
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Section 402 of the Enhanced Border Security and Visa Entry Reform
Act of 2002 (Pub. L. 107-173, 116 Stat. 557) requires a master or
commanding officer, or the authorized agent, owner, or consignee of a
commercial aircraft that is either departing the United States or
arriving in the United States to transmit to CBP manifest information
about each passenger on board. See 8 U.S.C. 1221(a)-(b). The manifest
information must contain the following information: complete name; date
of birth; citizenship; sex; \2\ passport number and country of
issuance; country of residence; U.S. visa number, date and place of
issuance, where applicable; alien registration number, where
applicable; and U.S. address while in the United States. Id. The
Secretary of Homeland Security (Secretary) may also require additional
manifest information if the Secretary, in consultation with the
Secretary of State and the Secretary of the Treasury, determines that
the information is necessary for the identification of the persons
transported, the enforcement of the immigration laws, or the protection
of safety and national security. See 8 U.S.C. 1221(c); 8 U.S.C.
1103(a)(1). Together, these and other applicable broad statutes cited
as authority for CBP's Advance Passenger Information System (APIS)
regulations allow CBP to require that commercial air carriers transmit
to CBP manifest information relating to each individual traveling
onboard an aircraft arriving in or departing from the United States and
specify the type of information that must be submitted.\3\
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\2\ APIS allows carriers to transmit male, female, or any gender
code included on a Government-issued ID. See DHS Consolidated User
Guide Part 4--UN/EDIFACT Implementation Guide, September 6, 2016,
available at https://www.cbp.gov/sites/default/files/assets/documents/2016-Sep/DHS_CUG_v4%202_09-06-2016_Pt%204_EDIFACT.pdf
(last accessed October 29, 2021).
\3\ Additional document validation procedures and advance data
submitted through APIS supports CBP's mission to identify and
interdict nefarious actors before departing to and from the United
States. See 6 U.S.C. 211. For more information regarding the purpose
of the proposed regulations see section IV.
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Additionally, section 4012 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (IRTPA) (Pub. L. 108-458, 118 Stat. 3638)
requires DHS to perform security vetting of passengers on board
aircraft bound for or departing from the United States prior to the
departure of the aircraft. Specifically, section 4012 requires DHS to
compare passenger information for any international flight to or from
the United States against the consolidated and integrated terrorist
watch list maintained by the Federal Government before departure of the
flight. See 49 U.S.C. 44909(c)(6). IRTPA authorizes the Secretary of
Homeland Security to issue regulations to implement these requirements.
Regulations implementing section 4012 of IRTPA were published on August
23, 2007 (72 FR 48320). Those regulations are described below.
III. Background and Current Requirements
Current CBP regulations require commercial air carriers to transmit
information electronically to CBP for individuals traveling or
intending to travel to or from the United States on board an aircraft.
The focus of this proposed rulemaking is commercial aircraft arriving
in or departing from the United States. Unless otherwise specified, use
of the term ``carrier'' throughout this proposed rulemaking refers to
``commercial air carriers.'' \4\ Section 122.49a of title 19 of the
Code of Federal Regulations (19 CFR 122.49a) specifies the information
that commercial carriers must transmit for each passenger checked in
for a flight arriving in the United States from a foreign place.\5\
Title 19 CFR 122.75a specifies the information that commercial carriers
must transmit for each passenger checked in for an aircraft departing
the United States for a foreign place.\6\ Under the current APIS
regulations, carriers submit passenger data to CBP between 72 hours and
30 minutes before departure, and no later than securing the aircraft
doors for individual submissions. The required information varies
depending on whether the aircraft is departing or arriving, but it
generally must include: the passenger's name; date of birth; sex;
citizenship; status on board the aircraft (i.e., passenger); travel
document type; passport number, country of issuance, and expiration
date (if a passport is required); location of boarding and departure;
and the date of arrival or departure for each individual.
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\4\ Separate regulations that address electronic manifest
requirements for crew and non-crew members arriving in or departing
from the United States by commercial aircraft, see 19 CFR 122.49b,
122.75b, and individuals onboard private aircraft arriving in and
departing from the United States, see 19 CFR 122.22, are not
affected by this proposed rulemaking.
\5\ CBP regulations do not require commercial air carriers to
transmit this information to CBP for active-duty U.S. military
personnel being transported as passengers on Department of Defense
commercial chartered aircraft. 19 CFR 122.49a(c), 122.75a(c).
\6\ A more detailed description of the history of electronic
manifest information requirements, and the relevant authorities, is
set forth in the APIS final rule published on April 7, 2005 (70 FR
17820) and the pre-departure final rule published on August 23, 2007
(72 FR 48320).
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Carriers have two options for transmitting the required information
to CBP. Under the first option, a carrier uses an interactive
electronic transmission system that is capable of transmitting data to
APIS and receiving electronic messages from CBP. See 19 CFR
122.49a(b)(1)(ii)(B), 122.49a(b)(1)(ii)(C), 122.75a(b)(1)(ii)(B), and
122.75a(b)(1)(ii)(C). Before using an interactive electronic
transmission system, the carrier must subject its system to CBP
testing, and CBP must certify that the carrier's system is capable of
interactively communicating with the CBP system for effective
transmission of manifest data and receipt of appropriate messages in
accordance with the regulations. See 19 CFR 122.49a(b)(1)(ii)(E) and
122.75a(b)(1)(ii)(E). Once CBP certifies the interactive electronic
transmission system, the carrier may use it to transmit the required
electronic data. The vast majority of commercial carriers use an
interactive CBP-certified transmission system.
Under the second option, the carrier may electronically transmit
the required information through a non-interactive electronic
transmission system approved by CBP. See 19 CFR 122.49a(b)(1)(ii)(A)
and 122.75a(b)(1)(ii)(A). This includes the electronic Advance
Passenger Information System (eAPIS), which is an online transmission
system that meets all APIS data element requirements for all mandated
APIS transmission types. eAPIS is a web-based transmission system that
can be accessed through the internet.
Regardless of the transmission method, carriers must transmit the
required information through APIS to CBP prior to the securing of the
aircraft, with certain transmission methods requiring transmission no
later than 30 minutes prior to securing of the
[[Page 7018]]
aircraft.\7\ See 19 CFR 122.49a(b)(2) and 19 CFR 122.75a(b)(2). After
receiving a transmission of APIS manifest information either through a
CBP-certified transmission system or through eAPIS, CBP stores APIS
information in a data system called TECS.\8\ CBP simultaneously
transfers this information to the Automated Targeting System (ATS) \9\
to perform multiple enforcement and security queries against various
databases, including multiagency law enforcement databases and the
terrorist watch list.\10\
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ry personnel being transported as passengers on Department of
Defense commercial chartered aircraft. 19 CFR 122.49a(c),
122.75a(c).
\8\ CBP retains APIS information in TECS for 13 months. TECS is
the name of a computerized information system designed to identify
individuals and businesses suspected of violations of federal law.
TECS also serves as a communications system permitting the
transmittal of messages between CBP and other national, state, and
local law enforcement agencies. While the term ``TECS'' previously
was an acronym for the Treasury Enforcement Communications System,
it is no longer an abbreviation and is now simply the name of the
system. For more information, see DHS's Privacy Impact Assessments
on TECS at https://www.dhs.gov/publication/tecs-system-cbp-primary-and-secondary-processing-tecs-national-sar-initiative.
\9\ ATS is a decision support tool that compares traveler,
cargo, and conveyance information against law enforcement,
intelligence, and other enforcement data.
\10\ CBP retains APIS information in TECS for 13 months and ATS
for 15 years. CBP uses such data for all routine purposes permitted
by the ATS System of Records Notice (SORN) and the APIS SORN. CBP
shares passenger data automatically with other law enforcement and
national security partners pursuant to agreements with those
partners for use throughout a period of time specified by the
relevant agreement. CBP's current APIS regulations contemplate such
sharing. See 19 CFR 122.49a(e), 122.75a(e). For further details,
please see the APIS SORN, ATS SORN, privacy impact assessments
regarding APIS and ATS, and section VI.F. CBP's privacy impact
assessments are available at https://www.dhs.gov/privacy-documents-us-customs-and-border-protection.
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After performing the security vetting, the CBP system transmits to
the carrier an electronic message. This message is generally referred
to as CBP's response message. If the carrier is using an interactive
transmission system, the response message provides certain instructions
to the carrier. Specifically, it states whether each passenger is
authorized to board, requires additional security screening, or is
prohibited by TSA from boarding based on the security status of the
passenger. Depending on the instructions received in the response
message, the carrier may be required to take additional steps,
including coordinating secondary security screening with TSA, before
loading the baggage of or boarding the passenger at issue. If the
carrier is using eAPIS, the CBP system will send a message to the
carrier through a non-interactive method, such as email, that states
whether the flight is cleared, meaning that no passengers were
identified as not being cleared for boarding. If the flight is not
cleared, the carrier is required to contact TSA in order to resolve the
security status of one or more passengers.\11\
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\11\ CBP regulations, procedures, and actions may be subject to
oversight by the DHS Office for Civil Rights and Civil Liberties,
the Privacy Office, the Office of General Counsel, and the Office of
Inspector General. See 6 U.S.C. 345; 6 U.S.C. 113; 6 U.S.C. 142; 42
U.S.C. 2000ee-1.
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IV. Purpose of Rule and APIS Document Validation Program
Although CBP currently uses APIS to compare the passenger
information submitted by the carriers to various law enforcement
databases and the terrorist watch list, to enhance national security
and safety, CBP and the air carrier industry, under the governing
statutes and regulations, continue to take steps to further strengthen
the quality of the results and protect vital industries and the public.
To further improve CBP's vetting processes with respect to APIS data
and enhance communication with air carriers, CBP proposes to amend its
regulations to require carriers to ensure that their systems are
capable of accepting document validation instructions from CBP's system
and to contact CBP, if necessary, to take appropriate action to resolve
the travel document status of each passenger intending to board an
aircraft arriving in or departing from the United States.
To mitigate the risk regarding the potential use of fraudulent or
invalid travel documents, in 2013 CBP implemented the voluntary
Document Validation Program (DVP), which enables CBP to use APIS to vet
the validity of each travel document and provide an electronic response
message, either via response message or email, to the carriers as a
result of that vetting. Under the DVP, APIS vets the information
transmitted by carriers by comparing the information to CBP's
databases, which include access to information regarding valid
Department of State-issued U.S. passports and U.S. visas, DHS-issued
Permanent Resident Cards, Electronic System for Travel Authorization
(ESTA) approvals, and Electronic Visa Update System (EVUS)
enrollments.\12\ APIS then transmits a response message to the carriers
participating in the voluntary program. Unlike the original (non-DVP)
response message, which contains one element, the DVP response message
contains two elements. The first element indicates the security status
of each passenger, as required by current regulations. See 19 CFR
122.49a(b) and 122.75a(b). The second element states whether each
passenger's travel documents have been validated, meaning that the
travel document was matched to a valid, existing travel document in
CBP's databases. Multiple carriers participate in the voluntary program
and have updated their transmission systems in order to receive the
document validation message.
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\12\ Nonimmigrants intending to travel under the Visa Waiver
Program (VWP) must have a valid ESTA approval prior to travel. See 8
CFR part 217. Nonimmigrants who hold a passport issued by a country
identified for inclusion in EVUS containing a U.S. nonimmigrant visa
of a designated category are required to enroll in EVUS. See 8 CFR
part 215. EVUS enrollment is currently limited to nonimmigrants who
hold unrestricted, maximum validity B-1 (visitor for business), B-2
(visitor for pleasure), or combination B-1/B-2 visas, contained in a
passport issued by the People's Republic of China.
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The voluntary DVP has enabled CBP to more efficiently identify
passengers attempting to use fraudulent travel documents and
electronically communicate that information to air carriers. As a
result, carriers have prevented those passengers from boarding aircraft
destined for or departing from the United States. For example, in 2016,
a participating carrier received a response message from CBP stating
that seven passengers on one flight had travel documents that could not
be validated. The carrier therefore refused to board the passengers.
Later investigations revealed that all seven passengers were attempting
to travel with visa numbers that had been reported as lost or stolen.
In 2017, a participating carrier refused to board a passenger whose
visa could not be validated by CBP. Although the visa appeared
authentic and showed the passenger's name, the passenger's date of
birth did not match the date of birth listed for the visa in CBP's
databases. As a result, the visa was not validated, and the carrier
refused to board the individual. An investigation indicated that the
passenger likely shared a name with his father and was attempting to
travel using a visa issued to his father.
These examples demonstrate that document validation instructions
have the potential to increase security and safety for the commercial
air industry and the United States and significantly improve rapid
communication between CBP and air carriers. Without mandatory
requirements, however, not all carriers will take the steps necessary
to electronically receive CBP's document validation instructions and
contact CBP prior to issuing boarding passes to passengers whose travel
documents are not validated.
[[Page 7019]]
In addition to enhancing document validation procedures, CBP
proposes to require carriers to transmit additional contact data for
all passengers on commercial flights arriving in the United States to
support CBP border and national security missions and safety. The
proposed additional requirements assist CBP in identifying and locating
individuals suspected of posing a risk to national security and safety
and aviation security before departing to and from the United States.
For instance, in December 2009 an individual suspected of receiving
explosives training arrived in the United States from Pakistan. That
individual was later linked to the failed detonation of a vehicle-borne
improvised explosive device at Times Square in New York City using data
related to the individual's flight to the United States. DHS was
ultimately able to interdict the individual just as he was about to
board an international flight. Although DHS was able to prevent this
individual from boarding an international flight at the last minute,
additional contact information including a primary and alternative
phone number and email address will better assist CBP in identifying
and locating potential nefarious actors in the future. Additionally,
prior to September 11, 2001, CBP refused entry to the so-called ``20th
hijacker.'' CBP concluded, after its review of this incident, that the
inclusion of a phone number, alternate phone number, and email address
would have provided CBP with an opportunity to identify other
individuals associated with the traveler.
In addition to terrorism-related concerns, the inclusion of these
additional data elements would also increase CBP's ability to
investigate or respond to suspected crimes occurring on international
flights. For example, in 2013, a passenger was suspected of kidnapping
his daughter and taking her on a flight to Jamaica to avoid U.S.
authorities. CBP was ultimately able to help locate the missing child.
Had the passenger been required to provide a phone number, email
information and U.S. address, CBP could have located the child more
quickly.
As a result of these and other incidents, CBP has concluded that
the inclusion of a primary and alternative phone number, email address,
and address while in the United States for all passengers (other than
those in transit to a location outside the United States) will enable
CBP to further mitigate risks to border, national and aviation
security.
V. Proposed Requirements
CBP is proposing four main changes to CBP's regulations in this
Notice of Proposed Rulemaking. First, CBP proposes to require carriers
to participate in the DVP program in order to receive the document
validation message from CBP and to contact CBP regarding any passengers
whose travel documents cannot be validated. Second, CBP proposes to
require carriers to transmit additional data elements for all
passengers on commercial flights arriving in the United States. Third,
CBP proposes to enable carriers to include an aircraft's registration
number as an optional data element in the APIS transmission. Fourth,
CBP proposes several changes to conform the regulations to current
practice. Each proposal is discussed in detail below.
A. Document Validation Message, Requirement To Contact CBP, and
Recommendation Not To Board
Title 19 CFR 122.49a describes the electronic manifest requirement
for passengers onboard commercial aircraft arriving in the United
States. Title 19 CFR 122.75a describes the electronic manifest
requirement for passengers onboard commercial aircraft departing from
the United States. Both sections require the appropriate official of a
commercial aircraft arriving in or departing from the United States to
transmit through APIS to CBP an electronic passenger arrival or
departure manifest. The arrival and departure manifest requirements are
nearly the same and specify the transmission methods, the information
that must be included in the manifest, and the applicable exceptions.
CBP proposes to add a new paragraph (c) to both 19 CFR 122.49a and
122.75a. The new paragraphs would be identical for both sections. The
new paragraphs would be divided into two sub-paragraphs and would
describe the document validation message and the recommendation not to
board passengers whose travel documents cannot be validated. This
proposed rule differs from current practice in three respects. First,
this proposed rule would enable CBP to more efficiently validate the
travel documents of each passenger. Second, this proposed rule would
require the carrier to receive a second message from CBP stating
whether the passenger's travel documents are validated. Third, the
proposed rule would require the carrier to take appropriate action if
CBP is unable to validate the travel documents of a passenger.
1. Document Validation Message
Proposed paragraphs (c)(1) to 122.49a and 122.75a describe the
required process for the document validation message. The general
process is as follows. After a carrier transmits passenger manifest
information to CBP through APIS, CBP responds to the carrier with a
document validation message.
The carrier would be required to ensure its transmission system is
capable of receiving the document validation message. For carriers
using an interactive transmission method, APIS would transmit the
document validation message through the interactive system. The
document validation message from CBP would state whether CBP's system
matched each passenger's travel documents to a valid, existing travel
document in CBP's databases.
This proposal would add two new definitions in 19 CFR 122.49a(a) to
define terms used in 122.49a and 122.75a. A ``travel document'' would
be defined as any document or electronic record presented for travel to
or from the United States, including DHS-approved travel documents,
U.S.-issued visas, Electronic System for Travel Authorization (ESTA)
approvals, and Electronic Visa Update System (EVUS) enrollments. ``DHS-
approved travel document'' would be defined as a document approved by
DHS for travel in or out of the United States, such as a passport or
other Western Hemisphere Travel Initiative (WHTI) approved document.
2. Requirement To Contact CBP
If the document validation message states that the CBP system could
not validate a passenger's travel documents and the carrier is unable
to resolve the issue on its own, the carrier would be required to
contact CBP prior to issuing a boarding pass to that passenger or
allowing the passenger to board the aircraft. However, the carrier
would not be required to contact CBP for individuals who are ineligible
to travel or will not travel on the flight.
To facilitate the document validation process, and prior to
contacting CBP, a carrier using an interactive transmission method may
transmit additional biographical information as listed in paragraph
(b)(3) of 19 CFR 122.49a and 122.75a.\13\ For example, for a passenger
[[Page 7020]]
with more than one travel document whose name appears differently on
the travel documents, the carrier may transmit the names as they appear
on each travel document. If, after submitting the additional
biographical information, the CBP document validation message states
that the passenger's travel documents were validated, the carrier is
not required to contact CBP to resolve that passenger's travel document
status prior to issuing a boarding pass to that passenger.
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\13\ Biographical information refers to the information set
forth in the proposed 19 CFR 122.49a(b)(3)(i) through (v), (vii)
through (xi), and (xiii) for arriving aircraft and 19 CFR
122.75a(b)(3)(i) through (iv), and (vi) through (xi) for departing
aircraft. That is: full name; date of birth; gender; citizenship;
country of residence (for arriving passengers); DHS-approved travel
document type, number, country of issuance, and expiration date (if
a DHS-approved travel document is required); alien registration
number (where applicable), and passenger name record locator (if
available).
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For carriers using a non-interactive transmission method, the CBP
system would respond to the carrier with a document validation message
indicating whether the flight was cleared. The carrier must ensure that
it is capable of receiving the document validation message through a
non-interactive method, such as email. A cleared flight for document
validation purposes means that the CBP system matched each passenger's
travel documents to a valid, existing travel document in CBP's
databases. If the document validation message states that the CBP
system was unable to clear the flight, the carrier must contact CBP
prior to issuing any boarding passes for that flight or boarding any
passengers. Upon the carrier contacting CBP, CBP would provide the
carrier additional details as to which passenger's travel documents
could not be validated.
3. Recommendation Not To Board
Proposed paragraph (c)(2) of 19 CFR 122.49a and 122.75a states that
if CBP is unable to validate a passenger's travel documents even after
the carrier has contacted CBP, CBP would issue a recommendation to the
carrier not to board the passenger. However, it is within the
discretion of the carrier whether to board the passenger upon receiving
CBP's recommendation.\14\
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\14\ CBP cannot require that a passenger be denied boarding.
However, if an air carrier boards a passenger who is then denied
entry to the United States, the air carrier may have to pay a
penalty and bear the costs of transporting that passenger out of the
United States.
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B. Additional APIS Data Elements
The required data elements in the electronic passenger arrival
manifest are specified in 19 CFR 122.49a(b)(3). CBP proposes to amend
this provision to require the carrier to transmit four additional data
elements for each passenger in the arrival manifest: phone number with
country code, alternative phone number with country code, email
address, and address while in the United States. The carrier would be
required to transmit an address in the United States for all
passengers, except for passengers who are in transit to a location
outside the United States.
Under current regulations, carriers are not required to transmit a
U.S. address for U.S. citizens, lawful permanent residents (LPRs), and
those in transit to locations outside the United States. See 19 CFR
122.49a(b)(3)(xii). When promulgating the current regulations, CBP
explained that a U.S. address for U.S. citizens and LPRs could be
obtained through other means. See 70 FR 17829-17830. The primary method
for obtaining these addresses in 2005 was the Customs Declaration Form
6059B, which is a paper form filled out by the traveler upon arrival in
the United States. Since 2005, CBP has automated much of the processing
of arriving passengers. As a result, the collection of an address from
U.S. citizens and LPRs through the Customs Declaration is no longer
effective for use with all of CBP's electronic systems. Accordingly,
CBP has determined that the collection of a U.S. address from U.S.
citizens and LPRs prior to arrival and through the electronic APIS
process is necessary to ensure that CBP has the information in a timely
manner and in a format that can be easily accessed. Once the proposed
APIS regulatory changes are implemented, other regulatory changes may
be proposed to reduce redundancies in the collection of personal
information. However, the proposed APIS changes are foundational before
other changes to information collection can be made.
Under current regulations, carriers are not required to transmit
through APIS a phone number with country code, alternative phone number
with country code, or email address for any passenger. Requiring this
additional contact information through APIS for all passengers arriving
in the United States, including U.S. Citizens, LPRs, and visitors
provides CBP with additional avenues to identify and locate individuals
suspected of posing a risk to national security and safety and aviation
security.
In addition to promoting national security and safety, the
collection of these additional data elements would also enable CBP to
further support the efforts of the Centers for Disease Control and
Prevention (CDC), within the Department of Health and Human Services
(HHS), to monitor and conduct contact tracing related to public health
incidents. In 2017, the CDC promulgated regulations requiring any
airline arriving in the United States to make certain data available to
the CDC Director for passengers or crew who may be at risk of exposure
to a communicable disease, to the extent that such data is already
available and maintained by the airline. See 82 FR 6890 (Jan. 19, 2017)
and 42 CFR 71.4. CBP also provides support to the CDC pursuant to 42
U.S.C. 268, which states that it ``shall be the duty of the customs
officers . . . to aid in the enforcement of quarantine rules and
regulations.'' Pursuant to these authorities, DHS and HHS have
developed procedures and technical infrastructure that facilitate DHS
sharing traveler information with HHS upon request, including
safeguards for data privacy and security.
In response to the COVID-19 pandemic, the CDC issued an interim
final rule (IFR) on February 12, 2020 (85 FR 7874), requiring that
``any airline with a flight arriving into the United States, including
any intermediate stops between the flight's original and final
destination, shall collect and, within 24 hours of an order by the
Director [of the CDC], transmit to the Director'' certain data
regarding passengers and crew arriving from foreign countries ``for the
purposes of public health follow-up, such as health education,
treatment, prophylaxis, or other appropriate public health
interventions, including travel restrictions.'' Pursuant to the IFR,
airlines must submit the following five data elements to CDC with
respect to each passenger and crew member, to the extent that such
information exists for the individual, and in a format acceptable to
the Director when ordered by CDC to do so: full name, address while in
the United States, email address, primary phone number, and secondary
phone number. According to the CDC, these data elements are the most
useful for responding to a critical health crisis. In light of COVID-
19, CBP issued a Privacy Impact Assessment (PIA) documenting CBP
efforts to support the CDC public health response.\15\
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\15\ For more information, please access https://www.dhs.gov/publication/dhscbppia-066-cbp-support-cdc-public-health-contact-tracing.
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If this proposed rule is implemented and the carrier submits the
required information through APIS, CBP would also have the ability to
share these data elements with the CDC upon its request, using existing
communication channels between DHS and HHS, which would mitigate the
need for airlines to separately transmit the same information to the
CDC if the airline has
[[Page 7021]]
already transmitted the necessary information to CBP.
Lastly, the proposed regulations were developed to comply with the
United States' international obligations.\16\ The International Civil
Aviation Organization (ICAO), of which the United States is a
contracting state, directs contracting states to use a single window to
collect advance passenger information from air carriers and then
provide necessary data to agencies that require the information, rather
than require individual transmissions from carriers to each relevant
agency within one contracting state. Convention on International Civil
Aviation, 61 Stat. 1180, 15 U.N.T.S. 295, Annex 9, SARP 9.1 (Chicago,
1944) (Chicago Convention). The Chicago Convention is the international
agreement which established the ICAO and ICAO standards and recommended
practices (SARPs). In accordance with the ICAO SARPs covering advance
passenger information (API), CBP is using APIS to collect data from
carriers that can be provided to other agencies that require the
information. This ensures that carriers are required to provide only
one electronic API message to the U.S. government, which can be used to
satisfy the needs of multiple government agencies.
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\16\ Nothing in the proposed rule is intended to change existing
bilateral agreements between the United States and other entities.
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ICAO permits contracting states to establish rules that deviate
from the SARPs, so long as the contracting state notifies ICAO of the
deviation by filing a difference. Chicago Convention, art. 38. The
United States currently files a difference with ICAO concerning Annex
9, SARP 9.10, which requires contracting states to require as advanced
passenger information only data elements that are available in machine
readable form on accepted travel documents. The United States already
files a difference under SARP 9.10 because CBP requires carriers to
collect street address and country of residence, which are not
available in machine readable form on accepted travel documents. See 19
CFR 122.49a(b)(3). The additional data elements that DHS is now
proposing (primary phone number with country code, alternative phone
number with country code, and email address) similarly are not
available in machine readable form on accepted travel documents.
Therefore, the United States would need to amend the difference that is
already on file with ICAO to include the additional data requirements
under the proposed regulations.
C. Changes Conforming Regulations With Current Practices
1. Close-Out Message
Carriers must submit passenger manifest information to CBP upon the
aircraft's departure or arrival. Pursuant to existing regulatory
requirements, carriers may use an interactive transmission option to
transmit a ``close-out message'' not later than 30 minutes after
securing the aircraft. See 19 CFR 122.49a(b)(1)(ii)(B) and (C) and 19
CFR 122.75a(b)(1)(ii)(B) and (C). The close-out message includes a
header (information about the carrier sending a secure link to CBP),
flight information (flight number, departure time, estimated arrival
time), and passenger manifest information. This option is described in
19 CFR 122.49a(b)(1)(ii)(B) and (C) for arriving aircraft and section
19 CFR 122.75a(b)(1)(ii)(B) and (C) for departing aircraft. The current
regulations permit the carrier to select one of two ways to format the
close-out messages. Under the first option, the carrier can transmit a
message for any passengers who checked in but who were not onboard the
flight. Under the second option, the carrier can transmit a message for
all passengers who boarded the flight.
CBP proposes to amend 19 CFR 122.49a(b)(1)(ii)(B) and (C) and 19
CFR 122.75a(b)(1)(ii)(B) and (C) to eliminate the option to transmit
messages for any passengers who checked in but who were not onboard the
flight. Carriers subject to these provisions would be required to
transmit a close-out message that identifies all passengers onboard the
flight.
Allowing carriers to transmit a message identifying passengers who
checked in but were not onboard the flight has impeded CBP's efforts to
document who was actually on board a flight. Under the current
regulations, a carrier could submit a close-out message that only
identifies individuals who checked in but did not board the flight.
This allows for instances where an individual reserves a flight, the
carrier transmits APIS data that includes this individual to CBP, then
the individual cancels before checking in. A carrier that transmits a
close-out message identifying only individuals that checked in but did
not board would not indicate that this passenger also did not board
because the passenger never checked in. CBP would then consider that
the individual described above was onboard the flight. Because of this
discrepancy, carriers have ceased transmitting close-out messages that
transmit a message only identifying those individuals who checked in
but who were not onboard the flight. Instead, it is common practice for
carriers to transmit a message identifying only those individuals who
boarded the flight. CBP proposes to amend the regulations to reflect
the current practice.
2. U.S. Electronic Data Interchange for Administration, Commerce and
Transport (U.S. EDIFACT) Format
19 CFR 122.49a(b)(1)(i) and 19 CFR 122.75a(b)(1)(i) state that a
passenger manifest must be transmitted separately from a crew member
manifest if the transmission is in U.S. EDIFACT format. CBP proposes to
eliminate the references to U.S. EDIFACT.
In March 2003, the World Customs Organization adopted the U.N.
EDIFACT format as the global standard for advance passenger information
messaging. As a result, when CBP published the final rule requiring the
transmission of passenger manifest information through APIS, CBP
announced that U.N. EDIFACT would be the mandatory format 180 days
after the publication of the final rule. See 70 FR 17831 (Apr. 7,
2005). Because U.N. EDIFACT is now the mandatory format for APIS
transmissions, the references to U.S. EDIFACT in 19 CFR 122.49a and
122.75a are no longer necessary and would be removed.
3. 2005 Exception
19 CFR 122.49a(b)(3) lists the data elements that must be
transmitted in the arrival manifest. 19 CFR 122.75a(b)(3) lists the
data elements that must be transmitted in the departure manifest. Both
sections state that certain information is not required until after
October 4, 2005. As this exception no longer applies, the language is
no longer necessary and would be removed.
4. DHS-Approved Travel Document
In accordance with section 7209 of the IRTPA, the Secretary of
Homeland Security is authorized to require passengers entering the
United States from the Western Hemisphere to present a passport or
other documents that the Secretary of Homeland Security has determined
to be sufficient to denote identity and citizenship. See Public Law
108-458, 118 Stat. 3638 (Dec. 17, 2004). In order to reflect the
inclusion of travel documents, in addition to passports, which are
approved for travel to or from the United States in certain situations,
CBP proposes to amend 19 CFR 122.49a(b)(3) and 122.75a(b)(3) to replace
the references to ``passport'' with ``DHS-approved travel document.''
As stated above, ``DHS-approved travel document'' would be defined as a
travel
[[Page 7022]]
document approved by the U.S. Department of Homeland Security for
travel in or out of the United States, such as a passport, or other
Western Hemisphere Travel Initiative (WHTI) approved document.\17\
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\17\ For more information on WHTI, see 73 FR 18383 (Apr. 3,
2008).
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Further, 19 CFR 122.49a(b)(3) and 122.75a(b)(3) list the data
elements that must be included in the passenger manifest and require a
carrier to submit each passenger's travel document type (e.g.,
passport), passport number, passport country of issuance, and passport
expiration date (if a passport is required). Under the proposed
amendments, carriers would instead be required to transmit the DHS-
approved travel document type, DHS-approved travel document number,
DHS-approved travel document country of issuance, and DHS-approved
travel document expiration date.
D. Optional Additional Data Element: Aircraft Registration Number
As discussed above, carriers that use an interactive transmission
option must transmit the close-out message not later than 30 minutes
after securing the aircraft. See 19 CFR 122.49a(b)(1)(ii)(B) and (C)
and 19 CFR 122.75a(b)(1)(ii)(B) and (C). CBP proposes to permit
carriers that use an interactive electronic transmission system to
include the aircraft's registration number in the close-out message.
The change is proposed as part of CBP's efforts to automate the
General Declaration (CBP Form 7507). The General Declaration is a paper
form submitted by owners or operators of commercial aircraft to CBP at
the time of an aircraft's departure from or arrival to the United
States. The General Declaration includes information on the arrival and
departure of aircraft entering or departing the United States, the
flight itinerary, and passenger and crew information. One of the
required data elements of the CBP Form 7507 is the aircraft's
registration number. This data element is not collected through any
other means and is critical to CBP operations. If CBP automates CBP
Form 7507 through a subsequent rulemaking, it is likely that
transmission through APIS would be one option for a carrier to continue
transmitting the aircraft registration number to CBP. Unless and until
the existing regulatory requirements change regarding submission of
Form 7507, carriers that transmit the aircraft's registration number in
APIS will still need to submit the General Declaration.
VI. Statutory and Regulatory Reviews
A. Executive Order 12866 and 13563
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This proposed rule has been designated as a ``significant
regulatory action'' under section 3(f) of Executive Order 12866.
Accordingly, the Office of Management and Budget (OMB) has reviewed
this regulation.
Purpose of Rule
Entry into the United States by U.S. citizens and foreign travelers
via air travel requires certain travel documents containing
biographical information, such as a passenger's name and date of birth.
As a security measure, CBP compares the information on passengers'
documents to various databases and the terrorist watch list and
recommends that air carriers deny boarding to those who are likely to
be deemed inadmissible upon arrival in the United States. However,
current processes for advising carriers regarding passengers who may be
presenting fraudulent travel documents would be improved through CBP
providing electronic messages to carriers indicating if the false
information on their documents does not match the information in CBP
databases. This proposed rule would allow CBP to add a document
validation message to the electronic messages currently exchanged
between air carriers and CBP prior to departure to the United States
from a foreign port or place or departure from the United States. The
addition of the proposed electronic validation of travel documents and
response messaging to carriers to the pre-boarding vetting process
would allow CBP and carriers to more efficiently identify and prevent
those passengers with fraudulent or improper documents from traveling
to the United States. The proposed rule would also reduce the number of
errors in CBP records that must be corrected by CBP officers during
inspections.
The proposed rule also would require carriers to transmit
additional passenger information to CBP, including phone number with
country code, alternative phone number with country code, email
address, and address while in the United States. The carrier would be
required to transmit an address in the United States for all
passengers, except for passengers who are in transit to a location
outside of the United States. Submission of such information would
enable CBP to identify and interdict more quickly individuals posing a
risk to border, national, and aviation safety and security. Collecting
these additional data elements would also enable CBP to further assist
CDC to monitor and trace the contacts of those involved in serious
public health incidents, when CDC requests such assistance from CBP.
Finally, the proposed rule would give carriers the option to
include the aircraft registration number in their electronic messages
to CBP and would make technical changes to conform with current
practice.
Background
United States citizens traveling outside the United States require
a passport or other WHTI-approved travel document to re-enter the
United States. Foreign travelers coming to the United States by air
must possess either a visa or approval under the Electronic System for
Travel Authorization (ESTA), in addition to other appropriate travel
documentation, such as a foreign passport, to be presented to CBP for
inspection when required.\18\ Though a visa or ESTA approval is not
required to purchase a ticket, it is required to check in for a flight.
When a traveler arrives at an airport for a flight, the carrier is
required to check the ticket and travel documents to confirm the
document appears to be valid for travel to the United States, and the
passenger is the person to whom the travel document was issued. Current
regulations also require air carriers to submit information
electronically for each individual traveling or intending to travel to
or from the United States, including passengers, crew, and non-crew.
The required information is different for flights departing from and
arriving in the United States, but generally includes biographical
information, such as a passenger's name, date of birth, sex, status on
the
[[Page 7023]]
aircraft, passport type and number, country of issuance, expiration
date, and departure or arrival details. CBP checks these details
against various databases and the terrorist watch list and sends a
response in the form of numbers and letters to the carrier, indicating
whether the passengers are cleared to board or if CBP recommends they
not be boarded.\19\ Under this proposed regulation, as part of the
Document Validation Program (DVP) and in addition to current checks,
CBP would also include in the response message to carriers a character
that indicates whether a passenger's travel documents are validated.
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\18\ Approved ESTA applications (ESTAs) are required of
travelers who are traveling by air or sea to the U.S. under the Visa
Waiver Program. Most citizens and nationals from visa waiver
countries do not require a visa to travel to the United States for a
period not exceeding 90 days; instead, they may apply for an ESTA
approval, which is valid for two years or until their passport
expires. ESTA holders are not required to provide a physical copy of
a document. Rather, DHS can communicate their status to air
carriers. See https://esta.cbp.dhs.gov/ for more information on the
ESTA program.
\19\ As discussed in footnote 14 above, CBP cannot require that
a passenger be denied boarding. However, if an air carrier boards a
passenger who is then denied entry to the United States, the air
carrier may have to pay a penalty and bear the costs of transporting
that passenger out of the United States.
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Carriers submit required electronic manifest information to CBP
through APIS. Most large, commercial operators use a CBP-certified
interactive system capable of transmitting and receiving messages to or
from APIS electronically. Beginning 72 hours before the departure time,
carriers may submit individual records or batches of passenger
information through APIS acquired during ticket reservation for
validation. Carriers must submit all non-interactive and interactive
batch transmission information at least 30 minutes prior to securing
the aircraft doors, and all interactive individual passenger
information transmission messages up to the time of securing the
aircraft doors. Passenger information is automatically vetted against
CBP databases and the terrorist watch list. CBP transmits vetting
results back to the carrier in batches or through individual
interactive messages, with one vetting response for each name uniquely
identified in the transmission. During check-in, carriers may submit
passenger information through APIS Quick Query in up to 10-person
batches, with responses coming within 4 seconds. The Quick Query mode
is often used to send updates for passengers whose information has
already been submitted or for last minute ticket reservations. APIS
Quick Query allows passengers to print their boarding passes at home or
at an airport kiosk without consulting a gate agent.
Smaller carriers and charter carriers usually use a non-
interactive, web-based portal called eAPIS to send uploaded manifest
information through APIS for validation. Smaller carriers usually use
eAPIS to avoid the costs of setting up and maintaining an interactive
system. Many of these carriers fly infrequently and with small
passenger counts. Those using eAPIS must submit information to CBP via
the internet at least 30 minutes prior to securing the aircraft doors
and will receive messages back electronically, usually through email.
The response message contains vetting results and states whether the
carrier should continue with printing boarding passes or boarding
passengers. Because charters and small carriers generally have smaller
passenger lists and fly less frequently, they do not require the same
processing speeds enabled by an interactive system.
With APIS, carriers receive a response message from CBP noting
whether individuals are cleared to board, require additional security
screening, or are recommended to be denied boarding based on checks
against law enforcement databases. With eAPIS, carriers receive a
single response message for the entire manifest, in the form of an
email, stating whether the entire flight is cleared or not. In the
event a flight is not cleared, additional processes will be developed
such as the carrier logging back in to their eAPIS account for greater
details on which passengers are not cleared and how they may resolve
the issue.\20\ The proposed rule requires carriers to receive
additional data in the response message(s) they receive from CBP
indicating whether each passenger's travel documents have been
validated. Travel documents would be defined as any document or
electronic record presented for travel to the United States, including
DHS-approved travel documents, U.S.-issued visas, Electronic System for
Travel Authorization (ESTA) approvals, and Electronic Visa Update
System (EVUS) enrollments.\21\ Passengers cleared by CBP whose
documents are validated may be issued a boarding pass automatically,
online or at an airport kiosk.
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\20\ No smaller carriers using the eAPIS system are currently
enrolled in the voluntary DVP. This system and protocols will be
developed as those carriers implement the program.
\21\ Chinese nationals holding a 10-year B1, B2, or B1/B2 visa
must enroll in EVUS. See https://www.cbp.gov/travel/international-visitors/electronic-visa-update-system-evus/frequently-asked-questions.
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With the addition of document validation to pre-flight APIS
transmissions via the voluntary DVP, discussed in more detail below,
carriers follow the same information collection and submission
procedures as established in existing regulations and discussed above.
When the travel document information gets to CBP, it undergoes an
additional database check to validate the travel documents. The results
of that additional check are returned to the carriers in the form of a
character in the APIS response message they already receive. Carriers
participating in DVP receive the same message as those not yet
participating, but with the addition of the DVP-specific character
indicating whether documents were validated against the CBP database.
Any carrier not enrolled in the DVP would, under existing regulation,
not receive the document validation part of the response message
through APIS. In that case, the validity of documents is not confirmed
via a CBP database check and would not affect whether the passenger or
flight is cleared. Under the terms of the proposed rule, all commercial
carriers transporting passengers must participate in document
validation program, and CBP will work with carriers to implement
changes to receive DVP response messages from CBP.
The response message from CBP includes characters indicating a
passenger's status. Passenger information sent by commercial carriers
is checked against various databases and the terrorist watch list, and
the results are submitted to the carrier in the form of alphanumeric
codes. For TSA information, numerical characters indicate statuses like
cleared or selectee for further review, among others. Under current
regulations, CBP includes a letter indicating the passenger's travel
status. With the DVP, CBP can indicate particular document validation
errors, such as valid ESTA on file, ESTA denial, no U.S. travel
documents on file, or that CBP recommends the carrier not board the
passenger. Some of these codes have been in use since interactive APIS
was deployed, though CBP introduced new letters to accommodate the DVP.
Under current regulations and practices, errors can occur when a
passenger submits their information to the carrier. This often happens
when documents are damaged, smudged, or scanned incorrectly. Minor
errors like a misspelled name or incorrectly recorded passport number
may be fixed by the passenger. More egregious errors or errors a
passenger cannot correct themselves would require the assistance of a
carrier employee to complete the check-in process, or the need to
contact CBP for assistance if unable to resolve the issue. In some
instances, though, errors like a misspelled name remain in the APIS
record during travel and would be corrected upon arrival. Under the DVP
and the proposed rule, these simple errors may cause legitimate travel
documents to not be validated.
[[Page 7024]]
Such errors would, without DVP, either require intervention by a
carrier employee or be missed and only noted and corrected upon
arrival. In some instances, failure to validate indicates intentional
deception or fraud.
Often, a passenger traveling with a carrier participating in DVP
whose documents are not validated when initially submitted as part of
the check-in process can quickly identify an error like an incorrect
birthdate while they are still online or at an airport kiosk attempting
to check-in for a flight. They are then able to correct that
information manually, by re-scanning the document or manually entering
the data, and resubmitting. The documents will then be validated and
the passenger may print their boarding pass without assistance from a
carrier employee. However, if, after the information is submitted and
the passenger has attempted any necessary corrections, a passenger's
documents are still not validated, they may seek assistance from
carrier staff to complete check-in. In the event the carrier employee
is unable to validate the document by re-submitting the information or
performing a manual check, they would need to work with CBP and the
passenger to resolve the issue.\22\
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\22\ If a gate agent is unable to resolve a passenger issue, for
example by manually checking for a visa, the gate agent may call CBP
for assistance. CBP provides support to carriers via the Immigration
Advisory Program and the Regional Carrier Liaison Group. See https://www.cbp.gov/document/fact-sheets/immigration-advisory-program-iap
and https://www.cbp.gov/travel/travel-industry-personnel/carrier-liaison-prog for more information.
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Before calling CBP, an agent for a DVP-enrolled carrier may re-
submit the information in order to correct any entry errors or account
for changes that have occurred since the document was issued.
Passengers with multiple travel documents may be more likely to require
assistance. This can occur, for example, if a dual citizen uses one
passport to reserve his or her ticket and the other to check-in to the
flight. Some passengers from Visa Waiver Program (VWP) countries who
under other circumstances would not require a visa, must travel with a
visa if, for instance, they are staying in the United States for longer
than 90 days or attending an American university and may require
additional help resubmitting information to validate those documents.
Though document validation automatically checks for a visa for a VWP
passenger without an ESTA approval, carrier agents may need to check
for a visa manually. Additionally, those passengers with multiple
travel documents may re-submit their information, adding their second
document, for validation. If a passenger's documents are still not
validated, the carrier must contact CBP for resolution.
Carriers both enrolled and not enrolled in DVP and using the
interactive system receive validation messages almost in real time or
in batches of multiple passengers, which indicate whether CBP cleared
each passenger. DVP-enrolled carriers also receive a message indicating
whether CBP has validated their travel documents. All carriers using
the non-interactive system receive a single response message for the
entire manifest, in the form of an email, indicating whether the entire
flight is cleared or not. If the flight is not cleared, the carrier may
log in to their eAPIS account for greater detail to determine which
passenger or passengers are at issue. Those enrolled in DVP will also
receive validation information in their response messages. To resolve
any issues they cannot resolve themselves, carriers must contact CBP
regardless of DVP enrollment status.
Error in the APIS record regarding traveler documentation not
identified and resolved by carriers before departure are generally
identified and corrected by CBP Officers (CBPOs) during inspection once
the passenger has arrived at a United States port of entry. CBPOs
compare document information against APIS data and modify the APIS
record to reflect the correct information when errors are identified.
Adding document validation to the pre-departure APIS system checks
would reduce the number of errors CBPOs would encounter and need to
correct during inspections as passengers have a better opportunity to
identify and resolve these errors themselves.
CBP began the voluntary DVP to test document validation in 2013.
Because carriers were already required to submit information to APIS
beginning in 2005,\23\ the infrastructure to send and receive messages
was already in place. Most large, commercial carriers have already
incurred the cost of setting up an interactive system for communicating
with APIS to comply with other regulations. Smaller carriers and
charter carriers submit their information to CBP through eAPIS. This
web portal allows information to be transmitted over the internet once
the user has established an account. CBP does not believe that any
carriers would choose to switch from eAPIS to APIS as a result of this
proposed rule.
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\23\ Source: U.S. Department of Homeland Security, ``Advance
Passenger Information System Fact Sheet,'' November 12, 2013,
https://www.cbp.gov/document/fact-sheets/advance-passenger-information-system-fact-sheet. Accessed August 26, 2020.
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In the following sections, CBP provides a full accounting of the
costs and benefits of the proposed rule, including during the
regulatory period from 2022-2026, and the voluntary DVP period from
2013-2021.
Costs of the Rule
Technology Costs
To comply with this proposed rule, carriers would be required to
ensure their systems can both transmit and receive messages. Because
carriers already must use a CBP-certified system to connect to APIS,
and any system already certified by CBP is able to receive messages,
they face minimal or no costs to be able to receive the document
validation message required by the proposed rule or to submit
additional passenger information.\24\ Because carriers participating in
the voluntary DVP already have the systems in place to send passenger
information and receive CBP response codes, they require no new
technology. Carriers would not face additional technology maintenance
costs to comply with this proposed rule. CBP does not anticipate that
this proposed rule would cause any more carriers to switch to and bear
the costs of adopting an interactive system.
---------------------------------------------------------------------------
\24\ CBP bases this assumption on discussions between Office of
Field Operations personnel and participating carriers.
---------------------------------------------------------------------------
CBP has already configured its system to check travel document
information automatically against CBP databases, as well as to send and
receive the appropriate messages. Development of the document
validation system occurred in 2012 and 2013 and is discussed in detail
in the Voluntary Period section below. The database of travel documents
used in document validation was already built for use in other CBP
programs. In the years since 2013, the DVP has cost CBP approximately
$500,000 per year for ongoing technological maintenance.\25\ CBP has
already established a channel of communication with other agencies,
including the CDC, and would not need to make any updates in order to
collect and share, when appropriate, additional passenger biographical
information. Therefore, technology costs for the proposed rule would
include $500,000 per year in maintenance costs.
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\25\ Source: CBP's Office of Field Operations on Jan. 6, 2022.
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[[Page 7025]]
Time Costs To Resolve Errors
Under the current regulations, air carriers submit passenger data
to CBP between 72 hours and 30 minutes before departure, and no later
than securing the aircraft doors for interactive individual
submissions. CBP systems automatically perform checks between the data
and information stored in CBP databases. CBP sends response messages to
the carriers indicating whether CBP has cleared each passenger for
boarding or requires additional screening, or recommends the air
carrier deny boarding, although under existing regulations there is no
document validation message included. Once the flight arrives,
passengers must go through CBP inspection where a CBPO checks their
travel documents against APIS manifest information. Errors in the
manifest data, such as misspellings or incorrect date information, are
corrected at this time.
By adding document validation to the checks CBP already runs on
passenger information, many of the errors corrected by a CBPO during
inspection upon arrival could be corrected by the passenger during the
check-in process. For example, should the date of birth read
incorrectly when a passenger scans their document pre-flight with their
phone or at an airport kiosk, the document may not be validated and the
passenger will receive an error message.\26\ The passenger may review
their data, correct the mistake, and resubmit their information. The
document would then be validated and the passenger could automatically
print the boarding pass. Without the DVP, the error might require the
passenger to seek assistance from carrier employees or may not be
caught before the boarding pass is printed, but would then be noticed
by the CBPO, who would correct the APIS record during inspection after
the flight arrives in the United States.
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\26\ The passenger does not see the response message from CBP.
Instead, the passenger sees whatever error message the individual
carrier uses in its system. That message is based upon the response
from CBP. Such an error might direct the passenger to review the
passenger's data and try submitting again or, in the case of a more
egregious issue such as a recommendation not to board the passenger,
might direct the passenger to seek assistance from a carrier
employee.
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Some errors require the passenger to seek assistance and the
carrier agent to call CBP to resolve an issue, though such calls are
rare. Under DVP, passengers would correct the majority of errors either
online or at an airport kiosk during check-in. These corrections would
lead to an increase in the time spent by these passengers during check-
in. CBP estimates that passengers needing to correct personal
information average about 10 seconds in making the correction. Because
they no longer spend about 20 seconds waiting for a CBPO to make the
correction (discussed further in the Benefits of the Rule section
below), this represents a partial burden transfer. Although passengers
would spend an additional 10 seconds pre-flight to correct the error,
they then save 20 seconds during processing. By allowing passengers to
make their own corrections online or at a kiosk, the overall check-in
process would be more efficient. Enabling passengers to correct errors
themselves, whether it be a spelling mistake or the submission of the
wrong document, allows them to continue using an automated check-in
process rather than seeking assistance with manual validation. This
would reduce time spent waiting in line for help, as well as the number
of instances where carrier employees must manually validate documents
or seek CBP assistance if they cannot resolve the error in some way.
For example, a passenger traveling from a VWP country who does not have
an ESTA but does have a valid visa would, without DVP, require
assistance from carrier personnel because the system would not find an
ESTA upon initial submission of passenger information. With DVP, the
system automatically checks for a visa if an ESTA is not found, so the
passenger could continue using the automated check-in process and would
not require assistance. Air carriers participating in the DVP
voluntarily have reported increased efficiency pre-flight.\27\
---------------------------------------------------------------------------
\27\ Source: discussion with the Office of Field Operations on
July 28, 2020.
---------------------------------------------------------------------------
For smaller carriers using the non-interactive, eAPIS system, the
travel document error resolution process is similar to the interactive
version. Carriers send in passenger data and receive a response
message. Generally, the entire manifest is cleared, but should there be
an issue, the carrier is notified via an email. The carrier may review
the data to determine which passenger is at issue, then log back into
their eAPIS account to re-submit corrected data. Should the problem not
be resolvable by re-submitting corrected data, the carrier may call CBP
for assistance in the same way as users of the interactive system. The
vast majority of flights and passengers are processed through the
interactive APIS system. Approximately 0.4 percent of passenger data is
submitted via the non-interactive, eAPIS system.
Some errors and corrections would require carriers to call into a
CBP support center for assistance. For example, if a passenger has a
visa that appears valid, but the CBP response indicated it was not, the
carrier agent may call to verify if the visa has been revoked. In
another scenario, if a passenger's visa has been washed to remove the
ink and the data altered, the DVP system would fail to validate the
document and the carrier might call CBP to manually verify the
information they see on the document.\28\ These calls generally take no
more than five minutes. CBP does not anticipate the number of calls for
assistance to increase from pre-DVP levels, nor does CBP believe that
either carriers or the support centers would need to increase staffing
to accommodate additional calls.
---------------------------------------------------------------------------
\28\ In this instance, if the document had been improperly
altered, the document would not be validated and the passenger would
not receive a boarding pass.
---------------------------------------------------------------------------
Carriers not participating in DVP currently sometimes call CBP to
verfiy travel documents. Using the automated process can confirm that a
document is valid, which can prevent additional calls. CBP does not
collect information on the frequency of these calls or what issues each
call addresses and so cannot estimate how many calls would be prevented
if passengers or carrier agents catch and correct a greater number of
data errors as a result of mandating the DVP.
In total, CBP has already incurred technology costs described above
in preparation for the proposed rule. Some passengers would experience
an increased time burden during check-in in order to identify and
correct errors in information submitted through APIS. CBP does not
anticipate increased costs for air carriers as a result of the proposed
rule.
Changes Conforming Regulations With Current Practices
CBP is making several changes to conform the regulations to current
practice in this proposed rule, as described in the SUMMARY section
above. These changes are unlikely to result in increased costs to
carriers, passengers or CBP. The changes, including updates to the
requirements for close-out messages, removal of superfluous language
from the regulations, and the replacement of ``passport'' with ``DHS-
approved travel document'' would simplify the regulations without
imposing an additional burden on carriers, passengers, or CBP. Because
carriers already send close-out messages, the change to the
requirements would not result in additional programming costs,
[[Page 7026]]
technology investments, or an increased time burden for carrier
personnel. It is common practice for carriers to transmit a message
identifying only those individuals who boarded the flight. The other
revisions reflect current practice or minor, clarifying changes.
Benefits of the Rule
To Passengers, Carriers, and CBP
As error correction is moved from CBP inspection to the pre-
departure period, passengers and CBPOs would experience greater
efficiency after flights have arrived in the United States. Because
CBPOs would not need to re-run as much information or modify as many
records, they would complete inspection of passengers more quickly,
leading to shortened wait times for everyone. Because CBP has
instituted a number of programs to reduce inspection wait times
throughout the time that the voluntary DVP has been in place, it is
impossible to estimate precisely the degree to which the DVP may have
impacted overall wait times in the voluntary phase of the program.
However, CBP believes it has contributed to faster overall processing.
Approximately 135,747,880 commercial passengers arrived in the
United States by air in Fiscal Year (FY) 2019.\29\ Over the 5-year
period from FY 2015 to FY 2019, arrivals in the United States grew at a
compound annual growth rate of 3.8 percent.\30\ Over the 5-year period
of analysis from FY 2022 to FY 2026, CBP projects that 820,115,824
commercial air passengers will arrive in the United States, assuming a
continued growth rate of 3.84 percent per year. Under the terms of
proposed rule, all arriving commercial air passengers would be subject
to the DVP, rather than the 67 percent of commercial air passengers
covered as of 2021 in the voluntary program. See Table 1 for historical
passenger arrival data and Table 2 future projections.
---------------------------------------------------------------------------
\29\ The COVID-19 pandemic led to a significant decrease in
passenger arrivals in both 2020 and 2021, so those years are
excluded from calculations as highly anomalous. CBP also cannot
predict when or if passenger arrivals might return to pre-2020
trends, so we have used data from 2015-2019 as a basis for passenger
number projections.
\30\ CBP is aware that the COVID-19 pandemic will likely reduce
the volume of arriving travelers in the short run. Consequently,
using historical growth rates and figures from FY 2015 to FY 2019 to
estimate arriving passenger volumes for FY 2021 through FY 2025 will
not reflect any impacts from the COVID-19 pandemic. It is not clear
what level of reductions the pandemic will have on arriving
passenger volumes or how CBP would estimate such an impact with any
precision given available data. Therefore, the arriving passenger
projections that CBP uses in this analysis may be overestimations
for the period of analysis, resulting in potential overestimations
of this proposed rule's costs and benefits.
Table 1--Historic Commercial Air Passenger Arrivals From FY 2015-FY 2019
------------------------------------------------------------------------
Arriving
Fiscal year passengers
------------------------------------------------------------------------
2015.................................................... 112,505,410
2016.................................................... 119,253,895
2017.................................................... 124,262,060
2018.................................................... 130,833,520
2019.................................................... 135,747,880
---------------
Total................................................. 622,602,765
------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.
Table 2--Projected Commercial Air Passenger Arrivals From FY 2022-FY
2026
------------------------------------------------------------------------
Arriving
Fiscal year passengers
------------------------------------------------------------------------
2022.................................................... 151,938,854
2023.................................................... 157,754,144
2024.................................................... 163,792,007
2025.................................................... 170,060,963
2026.................................................... 176,569,857
---------------
Total................................................. 820,115,824
------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.
Common errors corrected by CBPOs during inspections that would be
corrected pre-flight with the DVP in place include a passenger's
misspelled last name, incorrect date of birth, and incorrect document
number. Based on a sampling of more than three million commercial
passengers arriving in FY 2019, CBP estimates that 7.5 percent of
passengers require a simple correction to their APIS record upon
arrival at CBP inspection.\31\ Of those 7.5 percent of passengers that
require a simple correction, CBP estimates based on its experience with
the voluntary program that initially 50 percent would be corrected pre-
flight under the proposed rule, meaning that neither the passenger nor
the CBPO would need to expend time in making corrections during CBP
inspection. This would save each party about 20 seconds (0.0056 hours)
per inspection. Note that the passenger would have spent about 10
seconds making the correction before the flight during the check-in
process and, on average, would see a net time savings of about 10
seconds. The remaining 50 percent would continue to be resolved upon
arrival when the CBPO processes the traveler.
---------------------------------------------------------------------------
\31\ Source: email correspondence with the Office of Field
Operations on August 11, 2020.
---------------------------------------------------------------------------
Over the 5-year period of analysis, approximately 820,115,824
commercial passengers are projected to arrive in the United States by
air. Under the baseline, approximately 67 percent of those passengers
would arrive via carriers participating in the voluntary DVP as of
2021. Under the terms of the proposed rule, the remaining 33 percent of
passengers would arrive on carriers newly required to join the DVP. We
estimate that those passengers would experience 20,269,456 errors over
5 years. Under the proposed rule, about 50 percent, or 10,134,728 of
those errors would be corrected pre-flight, saving CBPOs and air
passengers $6,181,058. This benefit estimate is based on a wage rate of
$86.23 for CBPOs and $47.10 for air passengers, resulting in a combined
wage rate of $133.33.\32\ See Table 3 for a summary.
---------------------------------------------------------------------------
\32\ Because both passengers and CBPOs would save time under the
proposed rule, this wage rate encompasses both the wage rate of a
CBPO ($86.23) and the wage rate for an all-purpose air traveler
($47.10). CBP bases this wage on the FY 2021 salary and benefits of
the national average of CBP Officer Positions, which is equal to a
GS-11, Step 9. Source: Email correspondence with CBP's Office of
Finance on September 7, 2021. Source for the passenger wage rate:
U.S. Department of Transportation, Office of Transportation Policy.
The Value of Travel Time Savings: Departmental Guidance for
Conducting Economic Evaluations Revision 2 (2016 Update), ``Table 4
(Revision 2--2016 Update): Recommended Hourly Values of Travel Time
Savings for Intercity, All-Purpose Travel by Air and High-Speed
Rail.'' September 27, 2016. Available at https://www.transportation.gov/sites/dot.gov/files/docs/2016%20Revised%20Value%20of%20Travel%20Time%20Guidance.pdf. Accessed
June 12, 2021.
---------------------------------------------------------------------------
Individual time savings may also accumulate to create greater
overall time savings for entire groups of arriving air passengers. If
half of all passengers with a data error save 20 seconds each during
CBP inspection, the passengers waiting behind them for inspection would
also benefit from the effects of that 20 seconds saved per passenger.
CBP cannot reliably estimate the net impact of this time savings,
because those passengers with errors to be corrected would be, in any
given group, randomly dispersed among all the passengers. However, CBP
does believe the proposed rule would result in additional time savings
to passengers overall as individual time savings allow groups to move
more quickly through CBP inspection.\33\
---------------------------------------------------------------------------
\33\ This analysis is performed from a global perspective and
includes individuals who travel to the United States. Not all
individuals benefiting from the proposed rule are U.S. citizens or
permanent residents.
[[Page 7027]]
Table 3--Summary of Benefits for Commercial Air Passengers and CBPOs
[Undiscounted 2021 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
Arriving
Fiscal year passengers Errors avoided Time per error Time per error Benefits
newly affected (hrs, CBP) (hrs, Passenger)
----------------------------------------------------------------------------------------------------------------
2022......................... 50,139,822 1,877,612 0.0056 0.0028 $1,145,134
2023......................... 52,058,867 1,949,475 0.0056 0.0028 1,188,963
2024......................... 54,051,362 2,024,089 0.0056 0.0028 1,234,469
2025......................... 56,120,118 2,101,559 0.0056 0.0028 1,281,717
2026......................... 58,268,053 2,181,994 0.0056 0.0028 1,330,774
----------------------------------------------------------------------------------
Total.................... 270,638,222 10,134,728 .............. ................. 6,181,058
----------------------------------------------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.
In addition to time savings from correcting errors earlier in the
process, as a result of the proposed rule, fewer passengers would
ultimately be denied entry upon arrival in the United States because
their fraudulent or expired documents are discovered in CBP inspection,
instead of before boarding. In FY 2022, carriers will incur penalties
of $6,215.00 \34\ for each boarded passenger who was subsequently
denied entry, though penalties are modified or reduced for those
carriers who have signed a Memorandum of Understanding with CBP
regarding their penalty mitigation practices. Carriers are eligible for
mitigation based on their violation records and status with CBP.
Mitigated amounts are generally 25 percent or 50 percent of the base
penalty. In addition to the penalty, carriers are responsible for the
costs of returning the passenger to their home country.\35\ With the
DVP, some passengers with fraudulent or improper documents may be
identified before boarding, in which case the carrier may deny
boarding, saving the air carrier both the cost of the penalty and the
cost of securing and transporting the passenger out of the United
States, which amounts to about $10,000 for a single passenger.\36\
---------------------------------------------------------------------------
\34\ Penalties are indexed to inflation. See Department of
Homeland Security, Final Rule, ``Civil and Monetary Adjustments for
Inflation,'' 87 FR 1317 (January 11, 2022).
\35\ See 8 U.S.C. 1231(c)-(e).
\36\ Source: discussions with the Office of Field Operations on
July 28, 2020.
---------------------------------------------------------------------------
The number of penalties that would be issued to air carriers for
improperly transporting some passengers is difficult or close to
impossible to predict. The average number of penalties issued annually
between 2015 and 2019 was 415.\37\ CBP cannot project the number of
penalties that might be incurred over the coming years, but CBP's
subject matter experts estimate that roughly 20 percent of penalties
could be avoided due to the DVP.\38\ Based on this rough estimate,
carriers would avoid $515,845 in penalty costs (2022 U.S. Dollars) per
year as well as the costs to transport those individuals back to their
home countries.
---------------------------------------------------------------------------
\37\ As with passenger arrivals, the number of penalties per
year was significantly affected by the flight cancellations and
travel restrictions associated with the COVID-19 pandemic.
Therefore, CBP has used penalty counts from 2015-2019. Data provided
by CBP's Office of Regulations and Rulings.
\38\ Source: discussions with the Office of Field Operations on
July 28, 2020.
---------------------------------------------------------------------------
Benefits and Costs Not Estimated in This Analysis
CBP is unable to estimate some costs and benefits to carriers. For
example, while air carriers already have a CBP-certified system to send
and receive pre-flight messages, some air carriers may need to make
programming improvements to handle the messages required by the
proposed rule, though no participating carriers report burdensome
programming costs. Therefore, these programming costs are expected to
be minor and are generally built into overall technology maintenance
budgets, making them impossible to separate. The potential benefits are
equally difficult to estimate given variations in travel patterns, the
impossibility of predicting when and how passengers may attempt to use
fraudulent documents, and the fact that CBP has instituted several
time-saving programs (such as Global Entry), which make separating out
the time-savings from the DVP impossible.
Mandating the DVP would promote greater efficiency during the CBP
inspection process at ports of entry as fewer passengers would require
corrections to their information, which would lead to fewer missed
flight connections and a better experience for all parties. Carriers
enrolled in the voluntary DVP have also reported greater efficiency
pre-flight. Additionally, by further enabling carriers to prevent
individuals with fraudulent documents from boarding planes to the
United States, the proposed rule would increase U.S. national security
and safety, in addition to saving the carriers the cost of returning
passengers.
The Voluntary Period
CBP began the voluntary DVP in 2013. Initially, a single carrier
joined the program, representing about 1 percent of flights arriving in
the U.S. that year. Over the next 8 years, 39 carriers joined the
voluntary DVP.\39\ The 40 total carriers participating in 2021 include
the largest U.S. and foreign carriers and cover approximately 67
percent of flights. See Table 4 for more detail.
---------------------------------------------------------------------------
\39\ Source: Office of Field Operations records, received on
December 15, 2021.
Table 4--History of the Voluntary DVP
------------------------------------------------------------------------
Cumulative
Carriers proportion
Year added of flights
(%)
------------------------------------------------------------------------
2013.......................................... 1 1
2014.......................................... 3 12
2015.......................................... 2 24
2016 \40\..................................... 13 47
2017.......................................... 6 59
2018.......................................... 9 63
2019.......................................... 3 65
2020.......................................... 2 66
2021.......................................... 1 67
-------------------------
Total....................................... 40 67
------------------------------------------------------------------------
Carriers participating in the voluntary DVP, the passengers on the
flights offered by participants, and CBP all experienced costs and
benefits during the voluntary period from 2013 to 2021. Though there
are no fees to enroll in the voluntary DVP and no carrier was required
to do so during the voluntary period, carriers may have experienced
minor programming costs to ensure they
[[Page 7028]]
were able to receive the additional codes included in CBP response
messages.
---------------------------------------------------------------------------
\40\ In 2016 and 2018, participating carriers merged, such that
the number of participants was reduced by one, although passengers
of those carriers were still covered by DVP.
---------------------------------------------------------------------------
Passengers faced no additional net costs as a result of the
voluntary DVP. Some passengers would likely have faced additional time
costs to resolve errors in the pre-flight check-in process, but those
costs would have been outweighed by faster processing after the flight.
See Time Costs to Resolve Errors, above, for more detail.
CBP incurred programing and IT development costs in 2012 and 2013,
and maintenance costs throughout the voluntary period. The DVP's main
IT development took place from 2012 to 2013 in preparation for the
voluntary DVP. However, the development of the technical infrastructure
for the program was a part of a larger series of IT improvements and
integration during those years which connected CBP systems with TSA
Secure Flight systems, upgraded existing database technology, and
improved data integration, response time, and coordination between the
systems. The entire program cost $12,893,000 over the two-year period,
including initial development costs of $7,493,000 and maintenance costs
of $2,700,000 per year for the two years.\41\ However, CBP works to
efficiently add technological changes that can support multiple
efforts, saving costs for both government and industry, so it is
challenging to appropriately allocate these costs among programs. Many
of the IT upgrades would have been undertaken without the inclusion of
the DVP and the current technological backbone behind the DVP also
serves other programs, specifically, TSA's Secure Flight, as well as
the CBP ESTA and EVUS programs. Additionally, because these IT costs
cannot be recovered by not pursuing the proposed rule, CBP considers
them a sunk cost. See Table 5 for a summary of IT development costs.
---------------------------------------------------------------------------
\41\ Source of IT cost information and timing: CBP's Office of
Information and Technology on December 16, 2021.
Table 5--IT Development Costs for the DVP and Other IT Improvements
[2021 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
Development Maintenance
Year cost cost Total cost
----------------------------------------------------------------------------------------------------------------
2012............................................................ $5,887,000 $2,700,000 $8,587,000
2013............................................................ 1,606,000 2,700,000 4,306,000
-----------------------------------------------
Total....................................................... 7,493,000 5,400,000 12,893,000
----------------------------------------------------------------------------------------------------------------
All three parties did benefit from participation in the DVP as
well, saving time during pre-flight check-in and post-flight
processing. These costs and benefits all accrued during the voluntary
period and cannot be recovered should the proposed rule not move
forward. Therefore, these costs and benefits are excluded from the
overall costs of the proposed rule during the regulatory period. See
Table 6 for a quantification of the benefits during the voluntary
period. Costs and benefits are based on a time savings of 20 seconds
and a wage rate of $86.23 for CBPOs and a time savings of 10 seconds
(net) and a wage rate of $47.10 for commercial air passengers, as well
as an error correction rate of 50 percent for 7.5 percent of passengers
requiring them, all discussed in more detail above.\42\
---------------------------------------------------------------------------
\42\ CBP bases this wage on the FY 2021 salary and benefits of
the national average of CBP Officer Positions, which is equal to a
GS-11, Step 9. Source: Email correspondence with CBP's Office of
Finance on September 7, 2021. Source for the passenger wage rate:
U.S. Department of Transportation, Office of Transportation Policy.
The Value of Travel Time Savings: Departmental Guidance for
Conducting Economic Evaluations Revision 2 (2016 Update), ``Table 4
(Revision 2--2016 Update): Recommended Hourly Values of Travel Time
Savings for Intercity, All-Purpose Travel by Air and High-Speed
Rail.'' September 27, 2016. Available at https://www.transportation.gov/sites/dot.gov./files/docs/2016%20Revised%20Value%20of%20Travel%20Time%20Guidance.pdf. Accessed
June 12, 2020.
Table 6--Benefits During the Voluntary Period
[2021 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
Arriving Errors (7.5% x
Fiscal year commercial air Passengers in DVP Avoided (50% Benefit (CBP +
passengers the DVP passengers) of errors) passengers)
----------------------------------------------------------------------------------------------------------------
2013.......................... 102,221,415 1,022,214 76,559 38,279 $23,346
2014.......................... 107,048,937 12,845,872 962,092 481,046 293,385
2015.......................... 112,505,410 27,001,298 2,022,263 1,011,131 616,678
2016.......................... 119,253,895 56,049,331 4,197,816 2,098,908 1,280,101
2017.......................... 124,262,060 73,314,615 5,490,900 2,745,450 1,674,419
2018.......................... 130,833,520 82,425,118 6,173,231 3,086,616 1,882,493
2019.......................... 135,747,880 88,236,122 6,608,447 3,304,223 2,015,209
2020.......................... 140,943,478 93,022,696 6,966,937 3,483,469 2,124,529
2021.......................... 146,337,933 98,046,415 7,343,189 3,671,594 2,239,265
---------------------------------------------------------------------------------
Total..................... 972,816,595 433,917,266 32,498,244 16,249,122 12,149,424
----------------------------------------------------------------------------------------------------------------
Over the years of the voluntary period following IT development in
2012, CBP estimates that the DVP cost approximately $500,000 per year
in ongoing technical operation and maintenance costs.\43\ See Table 7
for a summary of the net benefits of the voluntary period.\44\
---------------------------------------------------------------------------
\43\ Source: CBP's Office of Field Operations on January 6,
2022.
\44\ CBP does not include the development costs identified in
Table 5, above, because CBP is unable to isolate the costs CBP
incurred solely for DVP from all of the IT upgrades made at the same
time.
[[Page 7029]]
Table 7--Net Benefits During the Voluntary Period
----------------------------------------------------------------------------------------------------------------
Year Benefit Cost Net benefit
----------------------------------------------------------------------------------------------------------------
2013............................................................ $23,346 $500,000 -$476,654
2014............................................................ 293,385 500,000 -206,615
2015............................................................ 616,678 500,000 116,678
2016............................................................ 1,280,101 500,000 780,101
2017............................................................ 1,674,419 500,000 1,174,419
2018............................................................ 1,882,493 500,000 1,382,493
2019............................................................ 2,015,209 500,000 1,515,209
2020............................................................ 2,124,529 500,000 1,624,529
2021............................................................ 2,239,265 500,000 1,739,265
-----------------------------------------------
Total....................................................... 12,149,424 4,500,000 7,649,424
----------------------------------------------------------------------------------------------------------------
Net Impact of the Rule
The proposed rule would result in $6,181,058 in undiscounted gross
benefits (i.e., cost savings) to air carriers, CBP, and passengers from
FY 2022-2026. See Table 8 for a summary of these benefits. CBP
estimates the undiscounted net benefits of the proposed rule to total
$3,681,058 over a 5-year period, as CBPOs and air passengers save time
and air carriers face fewer penalties and associated costs. The
proposed rule therefore results in a net benefit ranging from
$2,992,942 to $3,359,080 discounted at either seven or three percent.
The annualized net benefit comes to approximately $730,000 using either
rate.
Table 8--Net Benefits Summary
[Undiscounted 2021 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
Total benefit Total costs of
Fiscal year of rule rule Net benefits
----------------------------------------------------------------------------------------------------------------
2022............................................................ $1,145,134 $500,000 $645,134
2023............................................................ 1,188,963 500,000 688,963
2024............................................................ 1,234,469 500,000 734,469
2025............................................................ 1,281,717 500,000 781,717
2026............................................................ 1,330,774 500,000 830,774
-----------------------------------------------
Total....................................................... 6,181,058 2,500,000 3,681,058
----------------------------------------------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.
Table 9--Net Present Value and Annualized Benefits
[2021 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
----------------------------------------------------------------------------------------------------------------
Present value benefit Annualized benefit Present value benefit Annualized benefit
----------------------------------------------------------------------------------------------------------------
$3,359,080 $733,470 $2,992,941 $729,950
----------------------------------------------------------------------------------------------------------------
Table 10--OMB Circular A-4 Accounting Statement: Classification of Rule's Impacts, FY 2022-FY 2026
[2021 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
---------------------------------------------------------------------------
Present value Annualized Present value Annualized
----------------------------------------------------------------------------------------------------------------
Total Cost:
Monetized....................... $2,289,854 $500,000 $2,050,099 $500,000
Non-Monetized, but Quantified... ................. ................. ................. .................
Non-Monetized and Non-Quantified ................. ................. ................. .................
Total Benefit:
Monetized....................... 5,648,934 1,233,470 5,043,040 1,229,950
Non-Monetized, but Quantified... ................. ................. ................. .................
---------------------------------------------------------------------------
Non-Monetized and Non-Quantified Greater efficiency and passenger satisfaction in pre-boarding; improved
national security; participant enthusiasm; fewer penalties for carriers
following entry denial of a passenger; faster post-flight processing.
---------------------------------------------------------------------------
Total Net Benefit:
Monetized....................... 3,359,080 733,470 2,992,941 729,950
Non-Monetized, but Quantified... ................. ................. ................. .................
---------------------------------------------------------------------------
[[Page 7030]]
Non-Monetized and Non-Quantified Benefits: Greater efficiency and passenger satisfaction in pre-boarding;
improved national security; participant enthusiasm; fewer penalties for
carriers following entry denial of a passenger; faster post-flight
processing.
----------------------------------------------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996,
requires an agency to prepare and make available to the public a
regulatory flexibility analysis that describes the effect of a proposed
rule on small entities (i.e., small businesses, small organizations,
and small governmental jurisdictions) when the agency is required to
publish a general notice of proposed rulemaking for a rule.
This proposed rule would not have a significant economic impact on
small businesses or entities. All of the estimated costs are to the
federal government instead of carriers. Although some small businesses,
particularly smaller charter carriers, would be required to comply with
the requirements of the proposed rule, the necessary systems are
already in place because of other programs. CBP does not anticipate
that these entities would need to upgrade their technology to comply
with the proposed rule. Smaller carriers that currently transmit data
through non-interactive submissions are currently also required to
compare the travel document presented by the passenger with the
information it is transmitting to CBP, in order to ensure that the
information is correct, the document appears to be valid for travel to
the United States, and the passenger is the person to whom the travel
document was issued. The DVP will support small entities in meeting
this requirement by providing a response message on whether the data
submitted matches to a valid document or not. Charter carriers would
also likely benefit from increased efficiency for their customers
moving through CBP inspection. CBP thus certifies that this proposed
rule would not have a significant economic impact on a substantial
number of small entities.
C. Paperwork Reduction Act
The collections of information in this document will be submitted
for OMB review in accordance with the requirements of the Paperwork
Reduction Act (44 U.S.C. 3507) under control number 1651-0088. An
agency may not conduct, and a person is not required to respond to, a
collection of information unless the collection of information displays
a valid control number assigned by OMB. The collections of information
for this rulemaking are included in an existing collection for the
automated information collection system, APIS, under the OMB control
number 1651-0088.
This proposed rule would, among other things, require commercial
air carriers to transmit additional data elements to CBP before
departure of flights bound for the United States. These elements
include a passenger's phone number with country code, alternative phone
number with country code, email address, and address while in the
United States. Because the passenger generally provides most of these
data elements when booking a ticket for air travel and the carrier then
forwards this information to CBP, the estimated time burden for this
information collection has not increased. While private aircraft
pilots, bus, and rail carriers are covered by this information
collection, they are unaffected by the proposed rule.
Comments should be submitted to CBP per the instructions outlined
in the introductory text of this proposed rulemaking, as CBP is not
currently accepting comments via mail due to COVID-19. The comments
should address: (a) whether the collection of information is necessary
for the proper performance of the functions of the agency, including
whether the information shall have practical utility; (b) the accuracy
of the agency's estimates of the burden of the collection of
information; (c) ways to enhance the quality, utility, and clarity of
the information to be collected; (d) ways to minimize the burden
including the use of automated collection techniques or the use of
other forms of information technology; and (e) the annual cost burden
to respondents or record keepers form the collection of information
(total capital/startup costs and operations and maintenance costs).
Passenger and Crew Manifest
Commercial Air Carriers:
Estimated Number of Respondents: 1,130.
Estimated Number of Total Annual Responses: 1,850,878.
Estimated Time per Response: 10 minutes.
Estimated Total Annual Burden Hours: 307,246.
Commercial Air Carrier Passengers (3rd party):
Estimated Number of Respondents: 184,050,663.
Estimated Number of Total Annual Responses: 184,050,663.
Estimated Time per Response: 10 seconds.
Estimated Total Annual Burden Hours: 496,937.
Private Aircraft Pilots:
Estimated Number of Respondents: 460,000.
Estimated Number of Total Annual Responses: 460,000.
Estimated Time per Response: 15 minutes.
Estimated Total Annual Burden Hours: 115,000.
Commercial Passenger Rail Carrier:
Estimated Number of Respondents: 2.
Estimated Number of Total Annual Responses: 9,540.
Estimated Time per Response: 10 minutes.
Estimated Total Annual Burden Hours: 1,590.
Bus Passenger Carrier:
Estimated Number of Respondents: 9.
Estimated Number of Total Annual Responses: 309,294.
Estimated Time per Response: 15 minutes.
Estimated Total Annual Burden Hours: 77,324.
D. Privacy
CBP seeks input from the public regarding whether the data should
be retained, used, and shared under the terms of the current APIS data,
and if not, what use, retention, and sharing
[[Page 7031]]
limitations are appropriate. CBP will also consult with the DHS Privacy
Office, Office for Civil Rights and Civil Liberties, and Office of
General Counsel regarding these questions. CBP will ensure that all
Privacy Act requirements and DHS Privacy policies and guidance are
adhered to in the implementation of this proposed rule.\45\ CBP will
issue or update any necessary Privacy Impact Assessment and/or Privacy
Act System of Records notice to outline processes fully and ensure
compliance with Privacy Act protections.
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\45\ Comments regarding minimization of impacts on privacy,
civil rights, and civil liberties should be submitted per the
instructions outlined in the introductory text of this proposed
rulemaking. Due to COVID-19-related restrictions, CBP has
temporarily suspended its ability to receive public comments by
mail.
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E. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 requires
agencies to assess the effects of their regulatory actions on State,
local, and tribal governments and the private sector. This proposed
rule will not result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions are necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
VII. Signing Authority
The signing authority for these amendments falls under 19 CFR
0.2(a). Accordingly, this document is signed by the Secretary of
Homeland Security (or his delegate).
List of Subjects in 19 CFR Part 122
Air carriers, Aircraft, Airports, Reporting and recordkeeping
requirements, Security measures.
Proposed Regulatory Amendments
For the reasons stated in the preamble, U.S. Customs and Border
Protection proposes to amend 19 CFR part 122 as follows:
19 CFR PART 122--AIR COMMERCE REGULATIONS
0
1. The authority citation for part 122 continues to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 1415, 1431, 1433,
1436, 1448, 1459, 1590, 1594, 1623, 1624, 1644, 1644a, 2071 note.
Section 122.22 is also issued under 46 U.S.C. 60105.
Section 122.49a also issued under 8 U.S.C. 1101, 1221, 19 U.S.C.
1431, 49 U.S.C. 44909.
Section 122.49b also issued under 8 U.S.C. 1221, 19 U.S.C. 1431,
49 U.S.C. 114, 44909.
Section 122.49c also issued under 8 U.S.C. 1221, 19 U.S.C. 1431,
49 U.S.C. 114, 44909.
Section 122.49d also issued under 49 U.S.C. 44909(c)(3).
Section 122.75a also issued under 8 U.S.C. 1221, 19 U.S.C. 1431.
Section 122.75b also issued under 8 U.S.C. 1221, 19 U.S.C. 1431,
49 U.S.C. 114.
0
2. Amend Sec. 122.49a by:
0
a. In paragraph (a), adding in alphabetical order the definitions for
``DHS-approved travel document'' and ``Travel document'';
0
b. Revising paragraph (b)(1)(i);
0
c. Revising the last two sentences in paragraph (b)(1)(ii)(B);
0
d. Revising the last two sentences in paragraph (b)(1)(ii)(C);
0
e. Revising paragraph (b)(3) introductory text, and paragraphs
(b)(3)(vii) through (x), (xii), and (xviii) through (xxii);
0
f. Adding paragraphs (b)(3)(xx) through (xxii);
0
g. Redesignating paragraphs (c) through (e), as paragraphs (d) through
(f); respectively; and
0
h. Adding a new paragraph (c).
The revisions and additions read as follows:
Sec. 122.49a Electronic manifest requirement for passengers onboard
commercial aircraft arriving in the United States.
(a) * * *
DHS-approved travel document. ``DHS-approved travel document''
means a document approved by the U.S. Department of Homeland Security
for travel in or out of the United States, such as a passport, or other
Western Hemisphere Travel Initiative (WHTI) approved document.
* * * * *
Travel document. ``Travel document'' means any document or
electronic record presented for travel to or from the United States,
including DHS-approved travel documents, U.S.-issued visas, Electronic
System for Travel Authorization (ESTA) approvals, and Electronic Visa
Update System (EVUS) enrollments.
* * * * *
(b) * * *
(1) * * *
(i) Basic requirement. Except as provided in paragraph (d) of this
section, an appropriate official of each commercial aircraft (carrier)
arriving in the United States from any place outside the United States
must transmit to the Advance Passenger Information System (APIS)
(referred to in this section as the U.S. Customs and Border Protection
(CBP) system), the electronic data interchange system approved by CBP
for such transmissions, an electronic passenger arrival manifest
covering all passengers checked in for the flight. A passenger manifest
must be transmitted separately from a crew member manifest required
under Sec. 122.49b. The passenger manifest must be transmitted to the
CBP system at the place and time specified in paragraph (b)(2) of this
section, in the manner set forth under paragraph (b)(1)(ii) of this
section.
(ii) * * *
(B) * * * No later than 30 minutes after the securing of the
aircraft, the carrier must transmit to the CBP system a message
reporting all passengers onboard the flight. The message must identify
the passengers by a unique identifier selected or devised by the
carrier or by specific passenger data (e.g., name) and may include the
aircraft's registration number.
(C) * * * No later than 30 minutes after the securing of the
aircraft, the carrier must transmit to the CBP system a message
reporting all passengers onboard the flight. The message must identify
the passengers by a unique identifier selected or devised by the
carrier or by specific passenger data (e.g., name) and may include the
aircraft's registration number.
* * * * *
(3) Information required. Except as provided in paragraph (d) of
this section, the electronic passenger arrival manifest required under
paragraph (b)(1) of this section must contain the following information
for all passengers:
* * * * *
(vii) DHS-approved travel document type (e.g., P = passport; A =
alien registration card), if a DHS-approved travel document is
required;
(viii) DHS-approved travel document number, if a DHS-approved
travel document is required;
(ix) DHS-approved travel document country of issuance, if a DHS-
approved travel document is required;
(x) DHS-approved travel document expiration date, if a DHS-
approved travel document is required;
* * * * *
(xii) Address while in the United States (number and street, city,
state, and zip code), except that this information is not required for
persons who are in transit to a location outside the United States;
* * * * *
(xviii) Flight number;
(xix) Date of aircraft arrival;
(xx) Phone number with country code;
(xxi) Alternative phone number with country code; and
(xxii) Email address.
[[Page 7032]]
(c) Document Validation Message and Requirements--(1) Document
Validation Message. After the submission of the required information in
paragraph (b)(3) of this section, the carrier will receive a document
validation message from CBP. The message and carrier requirements vary
depending on whether the carrier is using an interactive transmission
method or a non-interactive transmission method.
(i) Carriers using an interactive transmission method. (A) For
carriers using an interactive transmission method, the CBP system will
respond to the carrier with a document validation message stating
whether the CBP system validated each passenger's travel documents.
(B) The carrier must ensure its interactive transmission system is
capable of receiving the document validation message.
(C) Except as provided in paragraph (c)(1)(i)(D) of this section,
if the document validation message states that the CBP system was
unable to validate a passenger's travel documents, the carrier must
contact CBP to resolve that passenger's travel document status prior to
issuing a boarding pass to or boarding that passenger.
(D) To facilitate the document validation process, prior to
contacting CBP as required by paragraph (c)(1)(i)(C), the carrier may
transmit additional biographical information as listed in paragraph
(b)(3) of this section.
(ii) Carriers using a non-interactive transmission method. (A) For
carriers using a non-interactive transmission method, the CBP system
will respond to the carrier with a document validation message stating
whether the CBP system cleared the flight.
(B) The carrier must ensure it is capable of receiving the document
validation message through a non-interactive method, such as email.
(C) If the document validation message states that the CBP system
was unable to clear the flight, the carrier must contact CBP prior to
issuing any boarding passes or boarding any passengers for that flight.
(2) Recommendation Not to Board. If CBP is unable to validate a
passenger's travel documents, CBP will recommend that the carrier not
board the passenger.
* * * * *
0
3. Amend Sec. 122.75a by:
0
a. Revising paragraph (b)(1)(i);
0
b. Revising the last two sentences in paragraph (b)(1)(ii)(B);
0
c. Revising the last two sentences in paragraph (b)(1)(ii)(C);
0
d. Revising paragraph (b)(3) introductory text, and paragraphs
(b)(3)(vi) through (ix);
0
e. Redesignating paragraphs (c) through (e), as paragraphs (d) through
(f) respectively; and
0
f. Adding a new paragraph (c).
The revisions and additions read as follows:
Sec. 122.75a Electronic manifest requirement for passengers onboard
commercial aircraft departing from the United States.
* * * * *
(b) * * *
(1) * * *
(i) Basic requirement. Except as provided in paragraph (d) of this
section, an appropriate official of each commercial aircraft (carrier)
departing from the United States en route to any port or place outside
the United States must transmit to the Advance Passenger Information
System (APIS) (referred to in this section as the U.S. Customs and
Border Protection (CBP) system), the electronic data interchange system
approved by CBP for such transmissions, an electronic passenger
departure manifest covering all passengers checked in for the flight. A
passenger manifest must be transmitted separately from a crew member
manifest required under Sec. 122.75b. The passenger manifest must be
transmitted to the CBP system at the place and time specified in
paragraph (b)(2) of this section, in the manner set forth under
paragraph (b)(1)(ii) of this section.
(ii) * * *
(B) * * * No later than 30 minutes after the securing of the
aircraft, the carrier must transmit to the CBP system a message
reporting all passengers onboard the flight. The message must identify
the passengers by a unique identifier selected or devised by the
carrier or by specific passenger data (e.g., name) and may include the
aircraft's registration number.
(C) * * * No later than 30 minutes after the securing of the
aircraft, the carrier must transmit to the CBP system a message
reporting all passengers onboard the flight. The message must identify
the passengers by a unique identifier selected or devised by the
carrier or by specific passenger data (e.g., name). The message may
include the aircraft's registration number.
* * * * *
(3) Information required. The electronic passenger departure
manifest required under paragraph (b)(1) of this section must contain
the following information for all passengers:
* * * * *
(vi) DHS-approved travel document type (e.g., P = passport; A =
alien registration card), if a DHS-approved travel document is
required;
(vii) DHS-approved travel document number, if a DHS-approved travel
document is required;
(viii) DHS-approved travel document country of issuance, if a DHS-
approved travel document is required;
(ix) DHS-approved travel document expiration date, if a DHS-
approved travel document is required;
* * * * *
(c) Document Validation Message and Requirements--(1) Document
Validation Message. After the submission of the required information in
paragraph (b)(3) of this section, the carrier will receive a document
validation message from CBP. The message and carrier requirements vary
depending on whether the carrier is using an interactive transmission
method or a non-interactive transmission method.
(i) Carriers using an interactive transmission method. (A) For
carriers using an interactive transmission method, the CBP system will
respond to the carrier with a document validation message stating
whether the CBP system validated each passenger's travel documents.
(B) The carrier must ensure its interactive transmission system is
capable of receiving the document validation message.
(C) Except as provided in paragraph (c)(1)(i)(D) of this section,
if the document validation message states that the CBP system was
unable to validate a passenger's travel documents, the carrier must
contact CBP to resolve that passenger's travel document status prior to
issuing a boarding pass to or boarding that passenger.
(D) To facilitate the document validation process, prior to
contacting CBP as required by paragraph (c)(1)(i)(C), the carrier may
transmit additional biographical information as listed in paragraph
(b)(3) of this section.
(ii) Carriers using a non-interactive transmission method. (A) For
carriers using a non-interactive transmission method, the CBP system
will respond to the carrier with a document validation message stating
whether the CBP system cleared the flight.
(B) The carrier must ensure it is capable of receiving the document
validation message through a non-interactive method, such as email.
(C) If the document validation message states that the CBP system
was unable to clear the flight, the carrier must contact CBP prior to
issuing any boarding passes or boarding any passengers for that flight.
[[Page 7033]]
(2) Recommendation Not to Board. If CBP is unable to validate a
passenger's travel documents, CBP will recommend that the carrier not
board the passenger.
* * * * *
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2023-02139 Filed 2-1-23; 8:45 am]
BILLING CODE 9111-14-P