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DEPARTMENT OF TRANSPORTATION Security and Terrorism, Congress and own data collection system, which the Administration acted swiftly to would be approved by the Department. Office of the Secretary amend Section 410 of the Federal The ANPRM posed a series of questions Aviation Act. P.L. 101–604 (entitled the about privacy concerns, current 14 CFR Part 243 Aviation Security Improvement Act of practices in the industry and potential [Docket No. OST±95±950] 1990, or ‘‘ASIA 90,’’ and which was impacts on day-to-day operations. later codified as 49 U.S.C. 44909), Twenty six comments were received RIN 2105±AB78 which was signed by President Bush on in response to the ANPRM. Commenters Passenger Manifest Information November 16, 1990, states: included the Air Transport Association of America (ATA), the National Air AGENCY: Office of the Secretary, DOT. SEC. 410. PASSENGER MANIFEST Carrier Association (NACA), the ACTION: Final rule. (a) REQUIREMENT.—Not later than Regional Airline Association (RAA), 120 days after the date of enactment of Alaska Airlines, American Trans Air, SUMMARY: This rule requires that this section, the Secretary of the American Society of Travel Agents certificated air carriers and large foreign Transportation shall require all United (ASTA), the group ‘‘Victims of Pan Am air carriers collect the full name of each States air carriers to provide a passenger Flight 103,’’ the Asociacion U.S.-citizen traveling on flight segments manifest for any flight to appropriate Internacional de Transporte Aereo to or from the United States and solicit representatives of the United States Latinoamericano (AITAL), a combined a contact name and telephone number. Department of State: (1) not later than 1 comment filed by four foreign air In case of an aviation disaster, airlines hour after any such carrier is notified of carriers and one association of foreign would be required to provide the an aviation disaster outside the United air carriers (Air Canada, Air Jamaica, information to the Department of State States which involves such flight; or (2) Balair, Condor Flugdienst GmbH, and and, in certain instances, to the National if it is not technologically feasible or the Orient Airlines Association), Transportation Safety Board. Each reasonable to fulfill the requirement of Aerocancun, Air-India, British Airways, carrier would develop its own collection this subsection within 1 hour, then as Japan Airlines, Lineas Aereas system. The rule is adopted pursuant to expeditiously as possible, but not later Paraguayas, Nigeria Airways, Royal Air the Aviation Security Improvement Act than 3 hours after such notification. Maroc, Swissair, the Embassy of of 1990. (b) CONTENTS.—For the purposes of Switzerland, the Embassy of the DATES: This rule is effective March 20, this section, a passenger manifest Philippines, the United States 1998. Compliance with this rule is not should include the following Department of State (Assistant Secretary required until October 1, 1998, except information: for Consular Affairs), the U.S. with respect to the plans in § 243.13, (1) The full name of each passenger. Department of the Treasury (U.S. which must be filed by July 1, 1998. (2) The passport number of each Customs Service), the Commissioner of FOR FURTHER INFORMATION CONTACT: passenger, if required for travel. Customs, the United States Government Dennis Marvich, Office of International (3) The name and telephone number Interagency Border Inspection System Transportation and Trade, DOT, (202) of a contact for each passenger. (IBIS), System One Corporation, and 366–4398; or, for legal questions, Joanne In implementing the requirement two individuals, Ms. Edwina M. Petrie, Office of the General Counsel, pursuant to the amendment made by Caldwell and Ms. Kathleen R. Flynn. In DOT, (202) 366–9306. subsection (a) of this section, the addition, the views of Meetings and SUPPLEMENTARY INFORMATION: Secretary of Transportation shall Incentives in Latin America, an Illinois consider the necessity and feasibility of travel and tour company, were included Background requiring United States carriers to in the docket because of a During the immediate aftermath of the collect passenger manifest information communication to a Department official tragic bombing of Pan American Flight as a condition for passenger boarding of after the ANPRM was issued. The 103 over Lockerbie, Scotland on any flight subject to such requirement. comments were summarized in the December 21, 1988, the Department of (c) FOREIGN AIR CARRIERS.—The notice of proposed rulemaking State experienced difficulties in Secretary of Transportation shall published in 61 FR 47692, September securing complete and accurate consider a requirement for foreign air 10, 1996. passenger manifest information and in carriers comparable to that imposed In January 1992, President Bush notifying the families of the Pan pursuant to the amendment made by announced a ‘‘Regulatory Moratorium American 103 victims. The Department subsection (a). and Review’’ during which federal agencies were instructed to issue only of State did not receive the information The ANPRM and Subsequent DOT rules that addressed a pressing health or for ‘‘more than seven hours after the Activity Leading to the NPRM tragedy’’ (Report of the President’s public safety concern. During the course Commission on Aviation Security and In order to implement the statutory of the moratorium, the Department Terrorism, p. 100). When the requirements, the Department of asked for comments on its regulatory Department of State did acquire the Transportation first published an program. Comments that addressed the passenger manifest information from advance notice of proposed rulemaking passenger manifest information Pan American, in accordance with (ANPRM) on January 31, 1991 (56 FR statutory requirement were filed by airline practice, it included only the 3810). The ANPRM requested comments ATA, Northwest Airlines, American passengers’ surnames and first initials, on how best to implement the statutory Airlines, Air Canada, and Japan which did not permit the Department of requirements. Among possible Airlines. ATA included the passenger State to carry out their legal approaches, the ANPRM noted that the manifest proposal among ten DOT and responsibility of notifying the family Department might require airlines to FAA regulatory initiatives that, if members in a timely fashion. collect the data at the time of implemented, would be the most reservation and maintain it in computer onerous for the airline industry. ATA Statutory Requirements reservations systems. Alternatively, the (supported by Northwest) recommended In response to the Report of the ANPRM noted that the Department that if additional passenger manifest President’s Commission on Aviation might require each airline to develop its information were to be required, it Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations 8259 should be limited to the information State’s needs and concerns on this creating a workable system that should that is required by the U.S. Customs matter. The events surrounding this reduce confusion and improve the Service’s APIS program. American crash led DOT to reconsider its view efficiency of the efforts of both the Airlines listed the passenger manifest that the passenger manifest airline and the Federal Government rulemaking in its top five (out of over requirements under ASIA 90 were following an airline crash. 100) pending aviation rulemakings that unnecessary. As a result of the working group, the Department of State has entered into should be eliminated/substantially Public Meeting revised. Air Canada said that if air Memoranda of Understanding (MOU) carriers were required to adopt the APIS On March 29, 1996, DOT held a Reflecting Best Practices and Procedures standard advocated by ATA, its costs public meeting on implementing a with 14 U.S. air carriers since November (and those of other foreign air carriers) passenger manifest requirement. The 1996. These carriers are American, would be unnecessarily raised. Japan notice announcing the public meeting Continental, Delta, Northwest, Trans Airlines said that any requirement to (61 FR 10706, March 15, 1996) noted World, United, US Airways, American collect personal data from air passengers that a long period of time had passed Trans Air, Miami Air International, would conflict with the Constitution of since the 1991 advance notice of Southern Air Transport, Tower Air, Japan, would be costly, and, to the proposed rulemaking, and that a public World Airways, North American and extent that it was anticipated that such meeting during which stakeholders Midwest Express. The MOUs provide a data would be shared with the APIS could exchange views and update basis for cooperation and mutual program, should be the subject of prior knowledge on implementing such a assistance in reacting to aviation public discussion. requirement was necessary as a prelude disasters occurring outside the United In the FY 1993 DOT Appropriations to DOT proposing a passenger manifest States with the goal of improving the Act, Congress provided that none of the information requirement. The notice treatment of victims’ families. The FY 1993 appropriation could be used for enumerated ten questions concerning MOUs contain provisions relating to a passenger manifest requirement that information availability and current passenger manifests, the exchange of only applies to U.S.-flag carriers. This notification practices, privacy liaison officers between the Department provision was repeated in the five considerations, similar information of State and the air carrier, and crisis subsequent DOT Appropriations requirements, information collection management training in which through FY 1997. The provision stated: techniques, and costs of collecting personnel are exchanged between the passenger manifest information. parties so as to become more familiar None of the funds provided in this Act The meeting was attended by with each other’s internal procedures. shall be made available for planning and approximately 80 people. To facilitate The Department of State regards the executing a passenger manifest program by discussion, representatives of three MOUs as a cooperative effort that the Department of Transportation that only family survivor groups (The American applies to United States flag carriers. includes the issue of passenger Association for Families of KAL 007 manifests. The Department of State does In light of the totality of comments Victims, Families of Pan Am 103/ not regard the MOUs as a substitute for and the fact that aviation disasters occur Lockerbie, and Justice for Pan Am 103), the rulemaking process concerning so rarely, DOT continued to examine the Air Transport Association, the passenger manifests because the MOUs whether there was a low-cost way to Regional Airlines Association, the do not address collection of emergency implement a passenger manifest National Air Carrier Association, the contact name and phone number. In requirement. In 1995, DOT considered International Air Transport Association, addition, participation in the MOUs is seeking legislative repeal or the American Society of Travel Agents, voluntary and not every airline will modification of the statutory U.S. Department of State, U.S. Customs enter into an agreement. The MOU requirements. In the November 28, Service, and DOT formed a panel. envisions that the airlines are in the best 1995, Unified Agenda of Federal Members of the audience, who included position to provide initial notification to Regulations, the passenger manifest representatives of foreign governments, family members of passengers who were entry stated that DOT ‘‘is recommending were invited to participate in the involved in aviation disasters, and that legislation to repeal the requirement [of discussion and did so. The discussion the airlines should provide the initial passenger manifests] because of the high lasted nearly 5 hours and covered a notification. The Department of State is costs and small benefits that would wide variety of topics. At the end of the still responsible for providing result.’’ meeting, it was the consensus that one notification, even if the family has The Cali Crash or more working groups headed by the already been provided notification by Air Transport Association would be the airline. On December 20, 1995, American formed to further explore some of the TWA Flight 800 Airlines Flight 965, which was flying issues raised. from Miami to Cali, Colombia, crashed On July 17, 1996, TWA Flight 800, near Cali. There were significant delays Memorandum of Understanding which was flying from New York to in providing the State Department with ATA convened an initial working Paris, crashed off Long Island, New a complete passenger manifest. Even group that consisted of representatives York. Local government officials when it was provided, the manifest was of Families of Pan Am 103/Lockerbie, publicly commented on difficulties in of limited utility to State because it the American Association for Families determining exactly who was on board lacked sufficient data. Department of of KAL 007 Victims, the National Air the flight and in compiling a complete, Transportation staff met with American Disaster Alliance (a group representing verified manifest. TWA caregivers were Airlines to explore the logistical, families of victims of several aviation generally praised for their efforts in the practical and legal problems that the disasters), the Department of State, and crash aftermath. Although this was an airline encountered in the aftermath of several U.S. airlines, with IATA in international flight, the crash occurred the crash, and ways these problems attendance. DOT was not a participant in U.S. territorial waters and, therefore, could be ameliorated in the future. We in the group. The working group made the Department of State had no specific also met with high level representatives progress in facilitating communication role in family notification and of the State Department to discuss among divergent interests and in facilitation for U.S. citizens. The 8260 Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations

Department of State received inquiries Presidential Directive and Inter-Federal responsibility for facilitating the recovery from foreign governments regarding the Government Memorandums of and identification of fatally injured fate of their citizens, and worked closely Understanding for Domestic Aviation passengers involved in an accident described in subsection (a). with foreign governments and foreign Disasters citizens in the aftermath of the crash. * * * * * On September 9, 1996, President (d) Passenger lists. Family notification was a problem Clinton issued a Presidential Directive (1) Requests for passenger lists.— following the disaster; indeed, some designating the National Transportation (A) Requests by director of family support family members stated that they never Safety Board (NTSB) as the agency to services.—It shall be the responsibility of the received notification from TWA that a coordinate the provision of federal director of family support services designated loved one was on board the aircraft, services to the families of victims for an accident under subsection (a)(1) to even after repeated phone calls to the following an aviation disaster in the request, as soon as practicable, from the air carrier or foreign air carrier involved in the airline. United States. Following issuance of the accident a list, which is based on the best Presidential directive, the NTSB entered The Notice of Proposed Rulemaking available information at the time of the into memorandums of understanding request, of the names of the passengers that Taking into account the experiences (MOUs) with the Departments of Justice, were aboard the aircraft involved in the of the airlines, family members, and the Defense, Transportation, State, Health accident. and Human Services and the Federal (B) Requests by designated organization.— government following American Emergency Management Agency. In The organization designated for an accident Airlines 965, TWA 800, and the process general, the MOUs commit the agencies under subsection (a)(2) may request from the leading to the MOU, the Department of to provide the NTSB with whatever air carrier or foreign air carrier involved in Transportation published a Notice of the accident a list described in subparagraph logistical and personnel support is (A). Proposed Rulemaking (NPRM) in 61 FR needed to fulfill the Board’s newly- 47692, September 10, 1996. This notice (2) Use of information.—The director of acquired family support role. The MOU family support services and the organizations proposed to require that each air carrier between the NTSB and DOS requires may not release to any person information on and foreign air carrier collect basic each to maintain close liaison and a list obtained under paragraph (1) but may information from specified passengers coordination, including exchange of provide information on the list about a traveling on flight segments to or from information. Neither the Presidential passenger to the family of the passenger to the United States (‘‘covered flights’’). Directive nor the above-referenced the extent that the director of family support U.S. carriers would collect the MOUs alter State’s role as the Federal services or the organization considers appropriate. information from all passengers, and Government’s notifier of the families of foreign air carriers would only be the U.S. citizens who are killed in Section 703 of the Act (§ 41113) required to collect the information for aviation disasters outside the United further requires each certificated U.S. U.S. citizens and lawful permanent States. air carrier to file a plan to address the residents of the United States. The needs of families of passengers involved The Aviation Disaster Family in aircraft accidents. Among other information would include the Assistance Act of 1996 passenger’s full name and passport things, the plan must include ‘‘[a] number and issuing country code, if a On October 9, 1996, President Clinton process for notifying the families, before passport were required for travel. signed Pub. L. 104–264. Title VII, the providing any public notice of the ‘‘Aviation Disaster Family Assistance names of the passengers,’’ ‘‘[a]n Carriers would be required to deny Act of 1996’’ (ADFAA), was later assurance that the notice * * * will be boarding to passengers who did not codified as 49 U.S.C. 40101 note. The provided to the family of a passenger as provide this information. In addition, ADFAA pertains to aviation disasters soon as the air carrier has verified that airlines would be required to solicit the occurring within the United States and the passenger was aboard the aircraft name and telephone number of a person its territories. It provides, in part: (whether or not the names of all of the or entity to be contacted in case of an Sec. 1136. Assistance to Families of passengers have been verified)’’, and aviation disaster. Airlines would be Passengers Involved in Aircraft Accidents ‘‘[a]n assurance that the air carrier will required to make a record of passengers (a) In General.—As soon as practicable provide to the director of family support who declined to provide an emergency after being notified of an aircraft accident services * * * immediately, upon contact. Passengers who declined to within the United States involving an air request, a list (which is based on the provide emergency contact information carrier or foreign air carrier and resulting in best available information at the time of would not, however, be denied a major loss of life the Chairman of the the request) of the names of the boarding. In the event of an aviation National Transportation Safety Board shall— passengers aboard the aircraft (whether disaster, the information would be (1) designate and publicize the name and or not such names have been verified), provided to DOT and the Department of phone number of a director of family support and will periodically update the list. services who shall be an employee of the Finally, section 704 of the Act State to be used for notification. DOT Board and shall be responsible for acting as proposed to allow each airline to a point of contact within the federal instructs the Secretary of Transportation develop its own procedures for government for the families of the passengers to appoint a Task Force comprised of soliciting, collecting, maintaining and involved in the accident and a liaison the Federal Government, the industry, transmitting the information. The notice between the air carrier or foreign air carrier as well as individuals representing the requested comment on whether and the families; families of the victims of aviation (2) designate an independent nonprofit disasters to review how to improve the passenger date of birth should be organization, with experience in disasters collected, either as additional assistance provided to families and post trauma communication with following an aviation disaster. Section information or as a substitute for families, which shall have primary 704(b)(6) instructs the task force to required information (e.g. passport responsibility for coordinating the emotional develop: number). care and support of the families of passengers involved in the accident. [R]ecommendations on methods to (b) Responsibilities of the Board.—The improve the timeliness of the notification Board shall have primary Federal provided by air carriers to the families of Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations 8261 passengers involved in an aircraft accident, requirement; (9) domestic passenger name would aid the notification including— manifests and electronic tickets; (10) process. Task Force members (A) An analysis of the steps that air carriers implications for high frequency representing the ATA, the Regional would have to take to ensure that an accurate corridors, high frequency facilities and Airline Association (RAA) and the list of passengers on board the aircraft would be available within 1 hour of the accident peak load capacity; (11) recurring costs National Air Carrier Association and an analysis of such steps to ensure that of such a system; (12) fixed costs of such (NACA), which represents charter such list would be available within 3 hours a system; and (13) integration of carriers, stated that the increased costs of the accident; manifest requirements with processes of obtaining the contact name data (B) An analysis of the added costs to air for expedited positive identification and element were not justified by the benefit carriers and travel agents that would result if notification. Fifty-seven comments were this data element provided. The air carriers were required to take the steps filed in response to the ANPRM from a remainder of the Task Force disagreed, described in subparagraph (A); wide variety of interests. We are finding that with only a contact phone (C) An analysis of any inconvenience to passengers, including flight delays, that currently reviewing the comments. We number, awkward situations could would result if air carriers were required to will review the implementation of the result, thereby making the notification take the steps described in subparagraph (A); international passenger manifest process more difficult and time- and requirements as we determine how to consuming. (D) An analysis of the implications for proceed with this rulemaking. The Task Force reviewed the costs of personal privacy that would result if air implementing a system requiring full carriers were required to take the steps The Task Force on Assistance to name, contact name and phone number. described in subparagraph (A) . Families of Aviation Disasters First, the Task Force found that an air The Domestic Passenger Manifest In March 1997, as requested in the carrier should be able to ‘‘verify’’ a ANPRM ADFAA, Secretary Slater appointed 22 passenger manifest within three hours people to serve on the Task Force on of beginning the verification process. On March 13, 1997, DOT published Assistance to Families of Aviation The Task Force did not find it possible an advance notice of proposed Disasters. The Task Force, which was or beneficial, however, to require an rulemaking (62 FR 11789) on a potential co-chaired by DOT Secretary Slater and airline to have a manifest ‘‘verified’’ passenger manifest requirement for NTSB Chairman Jim Hall, issued 61 within one hour. The Task Force domestic air travel. The ANPRM was recommendations to the Congress on deliberations did not find significant designed to solicit information which October 29, 1997. Four of those costs to air carriers to ‘‘verify’’ a could be used by the Task Force in recommendations concerned how to manifest within three hours. Second, assessing the costs and benefits of a improve the passenger manifests used the Task Force found that the annual requirement for enhanced domestic by the airlines to establish points of cost of implementing a passenger passenger manifests. The ANPRM contact with the families of passengers. manifest as outlined in the requested information on operational Pursuant to the ADFAA, the Task Force recommendation would be between $32 and cost issues related to U.S. air also issued findings on the cost of and $64 million for both air carriers and carriers collecting basic information implementing a passenger manifest travel agents if it took 40 seconds to (e.g., full name, date of birth and/or system. These recommendations and collect the additional data elements, and social security number, emergency findings were based, in part, on the between $48 and $96 million if it took contact and telephone number) from comments to the ANPRM. an additional 60 seconds. The Task passengers traveling on flights within The Task Force recommended that Force did not address the issue of the United States. The ANPRM airlines have readily available for every passengers who booked reservations and discussed the problems experienced in flight, either in a passenger manifest or then, subsequently, did not board the the aftermath of a crash, statutory through some other system, the flight. authority for requiring passenger following data: the full name for each manifest and emergency contact passenger; a contact phone number for Korean Air Flight 801 information, regulatory history, past each passenger; and a contact name for On August 6, 1997, Korean Air Flight domestic aviation disasters, and each passenger. The Task Force 801, a flight between Seoul, Korea and economic considerations. It asked recommended that while each passenger Guam, a territory of the United States, commenters to respond to thirteen should be encouraged to provide the crashed about 5 miles southwest of the detailed questions on the following information, furnishing contact name Guam International Airport. There were topics: (1) Basic approach; (2) and phone number would not be a 231 passengers, 20 flight attendants and information requirements and the prerequisite to boarding the flight. 3 flight deck crew members on board. capacity of computer reservations Further, the Task Force recommended Twenty-nine people survived the crash. systems; (3) frequent flyer information; that all information provided by a There were many problems encountered (4) privacy considerations and fraud passenger for passenger manifest by anxious and worried family members issues; (5) coverage of potential reasons must only be used in the case because Korean Air did not have domestic passenger manifest of an emergency. DOT abstained from prompt, complete and accurate flight information requirements and the voting on these recommendations due to manifest information and procedures to differing implications, if any, for the ongoing rulemakings. notify the families. For example, there different types of air carriers that might All members of the Task Force, were significant delays in providing be covered; (6) sharing of domestic including the Air Transport Association information to concerned families at passenger manifest information within (ATA), found that the full name of every Seoul’s Kimpo Airport, in both and among air carriers; (7) implications passenger should be included on the responding to callers and notifying the for different types of air carrier manifest. The Task Force as a whole families. operations (point-to-point) and the also agreed that, in conjunction with the current frequency of flights; (8) passenger’s name, a contact phone The Foreign Air Carrier Family interactions between domestic positive number is the second most important Support Act baggage matches and a domestic data element in the notification process. The Foreign Air Carrier Family passenger manifest information It was also recognized that a contact Support Act (Pun. L. 105–148,111 Stat. 8262 Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations

2681) was signed into law by President Kingdom (Britannic Majesty’s); the Second, such a distinction contradicts Clinton on December 16, 1997. The British Airports Authority; and the the equality-of-treatment policy that the legislation was prompted by the Korean International Civil Aviation Department has expressed in Air Flight 801 disaster. The Act requires Organization (ICAO). Agreements Relating to Liability foreign air carriers to develop family In addition, as noted above, the Limitations of the Warsaw Convention assistance plans comparable to that Department received valuable testimony Show-Cause Order (Order 96–10–7 (Oct. required by the Aviation Disaster and advice from the Family Assistance 7, 1996)). Third, the proposed rule’s Family Assistance Act for U.S. air Task Force meetings. Although their U.S. and foreign carrier provisions are carriers. The new requirements have focus was on the passenger manifest not ‘‘comparable,’’ the standard found been carefully drafted to apply to issue on domestic flights, many of the in the underlying statutory language. accidents that occur within the United issues and persons affected by this Fourth, uniformity will result in States jurisdiction. The existing international rule are identical. The properly assigning information requirements for U.S. air carriers were meetings of the Task Force were tape collection responsibilities for code-share adjusted for the foreign air carriers to be recorded and several written comments flights that foreign-flag carriers operate consistent with our international were filed. to and from the U.S. On these points, obligations. For example, foreign air American Airlines said that: whereas carriers may provide substitute Summary of Comments the proposed rule omits coverage of measures for certain provisions of the The Air Transport Association of some foreign passengers on the basis of Act, such as compensation to an America (ATA) filed comments on privacy considerations, there is no organization designated by the NTSB for behalf of its members (Alaska Airlines, citizenry to whom privacy is more services and direct assistance provided Aloha Airlines, America West Airlines, sacred than U.S. citizens; the to families as a result of the aviation American Airlines, American Trans Air, Department is legally able under the disaster. Continental Airlines, Delta Air Lines, International Security and Development Comments to the International NPRM DHL Airways, Emery Worldwide Cooperation Act of 1985 (Pub. L. 99–83) Airlines, Evergreen International to impose a passenger manifest Forty six comments were received in Airlines, Federal Express, Hawaiian information requirement covering all response to the NPRM. Commenters Airlines, KIWI International Air Lines, carriers and all passengers; and while included the Air Transport Association Midwest Express, Northwest Airlines, the nationality of passengers is not of America (ATA); the National Air Polar Air Cargo, Reeve Aleutian always clear due to dual citizenship and Transportation Association (NATA); Airways, Southwest Airlines, Trans mixed-nationality families, in the event American Airlines; Northwest Airlines; World Airlines, United Airlines, United of an aviation disaster the Department of Trans World Airlines; United Air Lines; Parcel Service, and US Air [now US State would want to know about all U.S. North American Airlines; Carnival Air citizens aboard the flight, including Lines; Gran-Aire; Hawaiian Airlines; the Airways]). American Airlines, those with multiple passports and Air Line Pilots Association (ALPA); the Northwest Airlines, Trans World nationalities. American Society of Travel Agents Airlines, and United Air Lines filed (ASTA); Passages: A Travel Company; individual comments, as well. ATA further stated that disparate U.S. American Express Travel Related ATA stated that its members stood Government information requirements Services; the American Association for ready to fulfill their responsibilities to impose unnecessary compliance costs Families of KAL 007 Victims; the U.S. collect and transmit passenger manifest on air carriers (and thereby passengers), Department of Justice (Immigration and information. ATA said that based on and there is thus a need for U.S. Naturalization Service); ; Mr. Richard P. lessons learned during recent Government agencies to coordinate Kessler, Jr.; Ms. Brenda Sheer; Ms. Liana negotiations of a voluntary current and contemplated information Ycikson; a group of three individual Memorandum of Understanding (MOU) requirements with customer citizens (Cayetano Alfonso; Nora Ramos; between U.S. air carriers and the convenience and carrier operational and Victoria Mendizabel); and a group Department of State on cooperation and practices. ATA stated that first and last of four students from Florida mutual assistance following air disasters name should be acceptable in any International University (My Trinh; outside the United States, any passenger passenger manifest information Chau Trinh; Walter Hernandez; and manifest information requirement must: requirement, as they are in the U.S. Joanne Flores); the International Air (1) apply to all carriers on all flights to Customs Service’s Advance Passenger Transport Association (IATA); the Arab and from the United States, and (2) Information System (APIS). ATA noted Air Carriers Organization; the Orient delineate clearly U.S. Government that international travelers, in Airlines Association; the European Civil agency responsibilities in handling particular, could have long last names Aviation Conference (ECAC); Air passenger manifest information. or multiple middle names. Northwest Canada; Aerolineas Argentinas; Qantas ATA stated that for legal and practical noted that the advantages of collecting Airways; Scandinavian Airlines System; reasons passenger manifest information only first and last names would be All Nippon Airways; Air New Zealand; requirements must apply to all reduced collection times and minimized Varig; Lauda Air; British Airways; passengers on all flights, and not just to demands on computer data fields. ATA Turkish Airlines; Swiss Air; Lufthansa; U.S. citizens and permanent legal said that date of birth should be able to Japan Airlines; Cathay Pacific Airways; residents on foreign air carrier flights. be used as a substitute for passport Laker Airways; Air Pacific; the Embassy First, there will be no public tolerance number. Northwest said that date-of- of Belgium; a combined comment from for a post-aviation-disaster scenario in birth digits are easier to comprehend the Embassies of Austria, Belgium, which more information is available to and are fewer in number than passport Denmark, Finland, France, Germany, family members inquiring about number digits and recording them Greece, Iceland, Ireland, Italy, Japan, passengers with a U.S. tie, either due to would therefore be less tedious, time- Netherlands, New Zealand, Norway, travel on a U.S. airline or U.S. consuming and prone to error; that Portugal, Spain, Sweden, Switzerland, citizenship or permanent residency, as collecting date of birth when booking a United Kingdom and the European compared to family members whose seat would be easier than collecting Commission; the Embassy of the United loved ones have no such tie. passport number because passengers Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations 8263 know their dates of birth, whereas most information. United said that the (to State, to DOT, and, per recent do not know their passport numbers and carrier’s responsibility should be met by legislative and regulatory decisions, rarely have their passports with them offering the passenger the opportunity perhaps to the NTSB) passenger when they book a flight; and that unless to participate, and that the absence of manifest data that is sensitive, and may date of birth is sufficient compliance, contact information would be sufficient change repeatedly as information is passengers and carriers will be greatly evidence that the passenger has updated from the site of an incident, inconvenienced by the need to have a declined to provide it. could only consume valuable time and second conversation, whether over the ATA then stated that the information might well lead to inconsistent and telephone or at the airport, to provide requirements in the proposed rule confusing communications to the next passport information. United said that raised two other significant issues that of kin and the public. ATA said that the use of date-of-birth information, were unrelated to the content of the another issue requiring attention is that rather than passport number categories of data to be collected. First, of how an air carrier is to respond to information, would avoid the problem ATA said that there is a clear difference demands for passenger manifest of collecting identification data from between collecting information from information from other Federal passengers on international flights to passengers and verifying the Government agencies or other levels of points where passports were not information that passengers provided; government. ATA said that a final rule required; would facilitate the that verification would be intrusive and should provide thoughtful and clear identification of passengers on such time-consuming; and that carriers guidance regarding such requests. ATA said that the triggering event for flights; and would simplify the should not have to ‘‘police’’ the transmission of a passenger manifest development of programs and personnel collection of information from needed to be clarified. ATA noted that training for collection of data by passengers. Second, ATA said that the section 44909 was traceable to assuring that all international flights are fact that the proposed rule would have recommendations related to acts of subject to the same passenger manifest passenger manifest information go to terrorism and not to isolated on-board information requirement. State and DOT raised important accidents, and suggested redefining ATA stated that the treatment of two questions about the roles of government ‘‘aviation disaster’’ as: ‘‘loss of life due related areas of passenger response to entities and the appropriate use of such to crash, fire, collision, or sabotage/ requests for information should be information. On the latter point, ATA missing aircraft/air piracy.’’ TWA said reworked. First, ATA was very said that ASIA 90 is structured such that that the proposed rule covers incidents concerned that the proposed rule would section 203 passenger manifest in which there appears to be no need to deny boarding to passengers who do not information requirements (49 U.S.C. contact the U.S. Government, and provide name and passport number. 44909) support Department of State suggested that the definition of an ATA said that the proposed rule did not family-assistance responsibilities aviation disaster be changed to cover justify such an action, and the elsewhere in Title II (22 U.S.C. 5503– only those instances where the death or underlying statute did not mandate it. 04). ATA said that there is no provision serious injury of a passenger occurs. ATA alternatively suggested that the in the law for DOT to get manifest TWA said that the proposed rule passenger should be allowed to decide information and DOT has no manifest- triggers the passenger manifest whether or not to provide this handling functions under the law. ATA production process too early. TWA said information. That is, passengers would added that there now exists a series of that DOT must realize that the manifest be given the option of providing all Memoranda of Understanding between is created as passengers turn in their categories of passenger manifest the National Transportation Safety boarding passes and their baggage is information. No passenger manifest Board (NTSB) and seven Executive confirmed for boarding on the aircraft. information would be mandated, Branch agencies regarding post-aviation TWA said that the airline cannot thus although air carriers would be obligated disaster procedures and that, moreover, have a complete manifest in the to solicit all categories of passenger under the Aviation Disaster Family instance of ‘‘an emergency in which all manifest information. On this point, Assistance Act of 1996, air carriers must passengers might not have boarded the United stated that if the purpose of submit to NTSB and DOT aviation aircraft’’ that is mentioned in the collecting passenger manifest disaster plans to address the needs of proposed rule since those passengers information was to enhance notification, families of passengers involved in that have not yet boarded the aircraft then the passenger should be allowed to aviation disasters. ATA said that what is will not be on the manifest. TWA opt out. United posed a situation where needed in the aftermath of an aviation suggested that DOT limit the definition an air carrier was collecting passenger accident are clear, predictable lines of of incident to one that occurs after the manifest information by having authority. ATA said that a clearer door is closed and the manifest created. passengers fill out boarding pass stubs, definition is needed of the ATA said that additional counter which the airline would then collect at Government’s role in notification and space at foreign airports would be the the gate, and asked if a flight should the purpose for which DOT would use biggest implementation problem. ATA have to be delayed for a passenger that passenger manifest information. ATA said that while the Preliminary refused to submit some of the required stated that a related concern is the need Regulatory Evaluation gave an information or to give up his place on to safeguard passenger manifest indication of the cost implications of the the flight. United pointed to the privacy information, and that multiple proposed rule, the costs there were rights of the passenger refusing to recipients of this information created understated because the estimate for the provide some of the passenger manifest the very real possibility of its time needed at check-in (40 seconds) information, and to the fact that many unauthorized or uncoordinated release, was very optimistic and the estimate of tickets would be non-refundable at that which could create confusion and be the time needed at reservation (40 point, a fact potentially contributing to especially harmful to family members. seconds) was too low because a disruption in the boarding process. American stated that it strongly believes passengers would pause to find their Second, ATA thought that air carriers that the information should only be passports or would have to call back should not be required to record those provided to State, and that it was deeply with passport numbers. ATA said that passengers who did not provide contact concerned that broadly disseminating passengers would be further delayed by 8264 Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations passenger manifest information compliance program. United said that change as updated information is processing problems at airports, this work could not begin until a final received from the site of the incident. especially overseas, where no additional rule was issued, and that it could not be While American listed reasons why it counter space was available. fully accomplished (including training thought that the air carrier was in the ATA said that the detailed passenger service personnel) in 90 days. best position to perform both levels of enforcement and penalty provisions in Northwest said that military air notification, it said that, at the same the proposed rule were extraordinary for charters should be specifically excluded time, it understood why some feel that a rulemaking under DOT’s economic from any passenger manifest the carrier is an inappropriate party to regulations, especially since the aviation requirements in a final rule because in have contact with families, given its industry had been developing an MOU these so-called ‘‘MAC charters,’’ which involvement in the incident, and that with State in this area. ATA asked DOT involve essentially a wetlease of aircraft American would not, therefore, fight for to take into account the fact that carriers and crew to the U.S. Government, the a role in the notification process if its would, in many cases, be relying on U.S. Government alone handles presence is not welcome. In that case, third parties to collect manifest passengers and is solely in possession however, American said that DOT must information, and said it believed that and control of all passenger and clarify whether it wants the carriers to any passenger manifest final rule should manifest information. Northwest stated cede the notification duty to a third be implemented cooperatively. ATA that one interpretation of the phrase in party, and, if so, identify that third said that, alternatively, if the detailed the proposed rule, ‘‘information on party. American said that it is enforcement and penalty provisions individual passenger shall be collected imperative that there be no confusion as were kept in a final rule, then DOT before each passenger boards the aircraft to where the notification duty lies; that needed to make clear that it would on a covered flight segment’’ was that otherwise the task of notification— apply a ‘‘reasonable person’’ standard in the proposed rule would require difficult under the best of enforcing the rule. TWA objected to collection of manifest information circumstances—will be confused and specific references in the proposed rule separately for each covered flight mishandled; that the confusion will to civil and criminal penalties. TWA segment, and asked for clarification in only inflict more pain on loved ones; noted the ambitious notification periods the final rule that passengers may and that without a clearly delineated in the underlying statute, advocated provide manifest information at the time duty, the notification process will not be industry and government cooperation in of booking for their entire one-way or accomplished with the compassion that developing procedures that will result round-trip itinerary, with updates made it deserves. in expedited notification of the relatives when checking in at the airport. TWA said charters and code-share of crash victims, said that the last thing In response to a DOT request for flights both present complex problems the airline needs is for DOT to bring an comment regarding the collection of regarding passenger manifest enforcement proceeding in the citizenship data for passengers aboard information. TWA said that while in the aftermath of an aviation accident when U.S. air carriers traveling to destinations proposed rule DOT would make all the carrier may already be receiving that did not require a passport, TWA direct and indirect air carriers involved adverse publicity that threatens its said that the collection of citizenship in either such arrangement responsible existence, and also said that there information on such flights would seem for providing the manifest, and would be no deterrent effect from an to be of marginal utility in the threatened that the carriers will have to after-the-fact enforcement proceeding notification process, and that DOT has be vigilant because they would be because airline crashes occur so rarely. neither explained what benefit the jointly and individually responsible for United also mentioned the detailed citizenship information would provide compliance, DOT cannot wash its hands enforcement and penalty provisions in when the airline does not have the full of the matter in this way. the proposed rule as a specific, name and passport number of the Regarding charters, TWA said that the particular concern and urged the passenger, nor why it proposed to charter operator may provide the carrier Department to emphasize cooperation impose this obligation only on U.S. with a manifest, but the airline has no between air carriers and the U.S. airlines. TWA noted that if DOT way of checking its accuracy; that for Government in fulfilling the decided to require citizenship many charter flights, airlines allow open requirements of the underlying information, it should be collected by seating for anyone who has legislation. both U.S. and foreign carriers. documentation from the charterer; and ATA urged that any final rule be Finally, American stated that since that the airline does not have the names implemented in 180 days (rather than the traveling public is sensitive to any of the charter passengers in its the 90 days in the proposed rule) changes that affect air travel, public computers, and would be most unlikely primarily because third parties would awareness of any new passenger to meet the 1-hour deadline for be involved and depended upon to manifest procedures adopted as part of providing the list to the government. handle booking and airport processing a final rule would be critical to their TWA said there would be special duties that encompass passenger successful implementation. American problems with military charters, where manifest information collection. ATA said it believes that DOT, together with the military undoubtedly want to noted that airlines would have to work the airline industry, would need to control the notification process. with the travel agent community to undertake a wide-ranging education TWA said that code-share flights develop procedures, create interline campaign on a final passenger manifest present more pervasive problems. TWA procedures to handle passengers rule. said that while DOT seems to believe connecting from other carriers (which American said that there are two that both code-share carriers would be could be especially demanding on levels of notification: (1) Notification as responsible for the flight, the language commuter air carriers), and develop new to whether a passenger was on board a of the proposed rule applies only to procedures for air carrier CRSs. United flight involved in an incident, and (2) ‘‘covered flights operated by air carriers noted that while a passenger manifest notification as to whether a passenger is and foreign air carriers.’’ requirement had been under alive, injured, deceased or unaccounted TWA identified two types of code- consideration for some time, each air for. American contended that the shares. The first is a marketing code- carrier would need to develop its own second level is particularly subject to share agreement, under which a U.S. Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations 8265 carrier code is placed on a foreign flag becomes out of date. North American North American said that charter air flight, only the foreign air carrier is the saw no need for collecting date of birth carriers were very concerned about a operator. The U.S. carrier has sold seats information. The carrier was skeptical possible perception by passengers that as agent (and receives a commission for that people would provide date-of-birth manual collection of passenger manifest doing so) for the other airline, and, with information, and believed that many information (that is, non-CRS collection respect to those sales, it is neither the people would view a request for it as an of this information) by a carrier could direct air carrier, nor an indirect air invasion of privacy, that asking for it somehow indicate that such a carrier carrier. (Example provided: Lufthansa would invite lawsuits based on age was unsafe. To allay such unfounded flight from New York to Frankfurt, discrimination (e.g., in the case of fears on the part of the public, North United is acting as agent for Lufthansa, people bumped from flights), and that American said that only bare bones receiving a commission on every UA- collecting it would unduly slow down absolute minimum essential information code ticket it sells. Lufthansa, as the airline ticketing and information should be gathered and that passenger operator, has the passenger name gathering processes. manifest information requirements records (PNRs) for all passengers, Carnival said that many passengers do should be widely publicized so that it including those traveling on United’s not have passports available when would not appear that one class of air code. Both carriers cannot be booking a trip or may not have yet carrier was being singled out over any responsible. United would have no obtained a passport. Carnival estimated other. records of passenger booked through that collecting the information in the Both North American and Carnival Lufthansa and cannot be responsible for proposed rule at time of check-in would suggested that implementation of a those it [United] booked either, since it increase its current check-in time of 4 passenger manifest information may not know if they showed up and minutes per passenger by 25 percent, or requirement should be delayed or boarded the Lufthansa flight.) TWA 60 seconds, to 5 minutes. Carnival said precluded based on the fact that they are concludes from this that Lufthansa that its associated check-in personnel not large air carriers. North American alone, as operator of the flight, should costs would increase by a like suggested delaying implementation of a be responsible for the manifest. percentage and that Carnival could not passenger manifest information The second type of code-share is a sustain such an increase in its low-fare requirement for an airline flying 10 or blocked-space flight, such as operated international operations. fewer large aircraft, regardless of the by Delta and Swissair. In that case, Delta North American said that charter airline’s revenues. Carnival said that may have blocked 100 seats on a airlines doing business with tour DOT should consider entirely Swissair flight, and may be an indirect operators are aware that a travel agent exempting smaller carriers, which it air carrier with regard to those seats. selling a ticket for a tour operator will defined as those transporting less than Delta would have PNRs for passengers likely refuse to reveal information about 250,000 international passengers it places in those seats, but it may not the passenger for fear that the tour annually, from the proposed have operational control of the check-in operator will try to sell direct to the requirements. Carnival said that, at the process, and, just like United, may not passenger in the future. North American very least, such smaller carriers should know if its passengers actually traveled. said that the result of this dynamic, in be given an implementation date of not Under these circumstances, it would be the case of a disaster, is that notification less than one year later than the unfair to impose the passenger manifest can take longer, because the travel effective date of any final rule. obligations on the code-share carrier that is not operating the aircraft. agency that has the passenger North American also said that the Two smaller air carriers that fly large information may be closed for the phrase ‘‘best efforts’’ should be defined jets, North American Airlines (North evening or weekend. in advance of a final rule because of the American) and Carnival Air Lines, filed North American said that the best way enforcement penalties contemplated in comments. North American, a charter across all types of air carriers to collect the NPRM (i.e., airlines must exercise airline with 3 large aircraft and about information would be along the lines of best efforts to get emergency contact 150 employees, said that charter carriers the Pan Am 103 family suggestion (i.e., information); that it makes sense to keep will be hardest hit by the proposed rule perforated stub on the boarding card passenger manifest information for 24 because a greater proportion of their that could be torn off upon boarding the hours after a covered flight, but not if flights are to international destinations. flight and kept by the airline). However, the flight was canceled or if boarded Carnival said that carriers that operate North American noted that this process passengers are deplaned without in limited international service, such as would be cumbersome and require more incident; that providing data within one itself, would be disproportionately time than the 40 seconds per passenger hour to the Department of State is affected by a passenger manifest at check-in found in the NPRM. (North simply not practical in the event of an information requirement because it American estimated at least a minute in aviation disaster aboard a small carrier, would require more extensive check-in processing, in addition to any particularly if the disaster happened information and changes in procedures time earlier that passengers needed to during a holiday or off hours; that small to accommodate only a small number of check in.) carriers should not be required to international passengers. North American said that all the extra provide a 24-hour phone number to the North American said that full name, boarding time needed to implement a DOT, only a phone number that is phone number (including area code), passenger manifest information operative when the carrier has aircraft and home city is all the data needed for requirement would eat into aircraft airborne; that DOT should provide a list notification, and that air carriers should utilization, and noted that while DOT of the foreign countries exempted under not be forced to collect more had in the NPRM calculated the costs, any passenger manifest information information, such as APIS data. North in terms of manpower, for a passenger requirement; and that the final rule American said that the proposed manifest system, the greatest cost, that should be drafted to state clearly that collection of passport numbers is a of tying up an expensive asset like a $60 none of the passenger manifest waste of time since a passport is valid million Boeing 757 jet due to the extra information collected by airlines should for ten years and the information on the time involved to collect passenger be provided to any government agency passport application often quickly manifest information, had been ignored. except in the case of a disaster. 8266 Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations

Finally, North American said that it and requiring Part 135 operators to noted that a travel agent has no way of would be wise for telephone companies provide the U.S. State Department with knowing if a passenger that it books to have a standby 800 number assigned a list of passengers within one hour of actually boards a flight since passengers to each airline that could be activated an aviation disaster would be routinely change travel plans at the last instantly in the case of an air disaster. impractical and unattainable since minute directly with the carrier); would North American also said that changes when an accident occurs on a Part 135 avoid the need to reprogram computers to the law were needed to require on-demand air charter flight, all carrier or establish hundreds of varying and telephone companies to waive the resources are usually needed for urgent confusing procedures to collect, privacy of unlisted phone numbers in lifesaving measures. centralize and reproduce the few pieces the case of an airline or government Finally, NATA said that none of the of passenger manifest information; agency trying to locate next-of-kin in the four ways to ameliorate the costs and would avoid the alternative of dozens of aftermath of an aviation disaster. potential burdens of the proposed rule different airline systems, many of them Gran-Aire, an individual air carrier, on small air carriers that are listed in the requiring some degree of involvement and the National Air Transportation NPRM apply to small, Part 135 from travel agencies, and resultant Association (NATA), a trade association, operators; that filing a MOU with the chaos; would result in one, simple rule filed comments regarding the proposed Department of State amounted to asking that the public could easily understand; rule and Part 135 on-demand air charter carriers to comply with the and would make enforcement easier. operators (Part 135 operators). Both said requirements of the proposed rule, but ASTA said that if, alternatively, there that the proposed rule should not apply through a different U.S. Government was an attempt to gather the information to Part 135 operators. agency; and that extending the effective using airline CRSs, some passengers NATA maintained that there was no date for compliance of Part 135 could not provide it because they would justification in the NPRM for including operators with a final rule was the only not have their passports with them, or Part 135 operators, that the Preliminary means by which DOT suggested would not yet have obtained passports. Regulatory Evaluation that accompanied addressing the huge costs on small ASTA said it believed that if passengers the NPRM had not included the costs of operators. had to be asked to provide passenger Part 135 operators, and that such The Air Line Pilots Association manifest information at airport check-in, operators had been excluded from (ALPA), representing 44,000 pilots who some would object on privacy grounds DOT’s ANPRM. NATA urged DOT to fly for 37 U.S. airlines, said that it had and that conflict, confusion and delay at reconsider the negative effects of reviewed the NPRM and concurred with the gate area would result. including nearly 3,000 Part 135 it as written. operators, who typically carry less than The American Society of Travel Passages said that the assumption of 9 passengers per flight and use turbine- Agents (ASTA), representing about 45 to 60 seconds to collect the powered aircraft that are less likely to be 16,000 U.S. agency locations and additional passenger information in involved in fatal accidents. NATA said members in about 168 foreign countries, DOT’s NPRM was in error. Passages said that Part 135 operators know their and American Express Travel Related about 70 percent of its reservations were passengers, who must arrange travel Services Company (American Express), made by secretaries of businessmen who privately (Part 135 operators do not one of the largest U.S. travel agencies call back several times because they lack publish schedules). NATA said that Part also with hundreds of travel locations complete information and their bosses 135 operators already have notification outside the United States, favored DOT are ‘‘on the fly’’ and unavailable, and and reporting mechanisms in place in imposing a single system for collecting said these secretaries would have no the unlikely event of an accident or passenger manifest information that idea of the particulars requested in the incident with the aircraft or passengers, would rely on a form for such proposed rule. Passages anticipated also and that compliance with the proposed information being made available at the that requests for the additional rule would do nothing to enhance these gate areas of airports. A passenger passenger manifest information in the mechanisms. NATA stated that Part 135 would fill out a form as he or she waited NPRM would be met with the response, operators currently are exempt from the for a flight, airlines would collect the ‘‘none of your business.’’ ASTA said need to have DOT economic authority forms, and gate attendants (who, that 40 seconds was a gross and asserted that imposing passenger according to ASTA, are typically underestimate of the average time that manifest requirements on them would engaged, anyway, in compiling ticket would be required to solicit, explain, fly in the face of sound rulemaking. coupons and boarding passes) would answer questions about, and collect the Regarding the specifics of the put them into an envelope labeled with additional passenger manifest proposed rule, NATA said that forcing the flight number and turn the envelope information in the NPRM. American a Part 135 operator to ask a business into a central airport depository. ASTA Express gave a figure of $1 million traveler to give the name of an said that in the event of a disaster, the annually as the cost of the proposed rule emergency contact at the beginning of a envelope for the flight could be quickly for its U.S. locations alone, and said that Part 135 flight (perhaps to the person retrieved and the needed information this was an unacceptably large amount who would eventually pilot the flight) copied and supplied to the U.S. given the erosion in travel agent margins would create an extremely Government. Passages, a travel agency that have occurred since imposition of uncomfortable situation; requiring air based in Los Angeles, said that given the airlines commission cap in 1995. carriers to make and keep records of rarity of air crashes it appeared to be a American Express said that it was safe those passengers unwilling to list an waste of time and computer space to to assume that if airlines were allowed emergency contact was unnecessary, collect the additional passenger to shift the burden of collecting the especially because Part 135 operators manifest information for every flight. mandated passenger manifest know their customers; soliciting date of ASTA and American Express said that information to travel agents, they would birth would be just another reporting employing a single system: was the only not offer to cover the additional travel burden and invasion of privacy that way to assure that the passenger agent costs. Regarding travel agent would serve no purpose in aiding manifest information collected would be wages, Passages said its principals earn notifying families of passengers in the complete and would match the actual $28,000 per year and ASTA mentioned, event of a disaster on a Part 135 flight; persons on a flight (American Express as a source for such data, the results of Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations 8267 a survey of travel agency compensation be collected by airlines at the time of indicate those passengers that had that appears annually in Travel boarding and the agent collecting them provided the necessary information: that Counselor magazine, a publication of would be responsible for verifying the is, the information itself should not the Institute of Certified Travel Agents. name on the card using a passenger’s appear. The American Association of Families picture identification. She noted that Caytano Alfonso, Norma Ramos, and of KAL 007 Victims supported the this verification procedure would Victoria Mendizabel filed comments as proposed rule with two further prevent any passengers attempting to fly a group. They said that air carriers were explanations. First, it said that in the under transferred tickets or false names in the best position to meet the goals face of world wide deregulation and from boarding the flight. She said the and objectives of the NPRM and should privatization of the air carrier industry, cards would be put into a box and kept be responsible for collecting passenger uniform standards on information confidential for 24 hours unless an manifest information. Because of their gathering should be developed either by aviation disaster occurred. Ms. Sheer concerns about the invasion of DOT or by the air carrier associations. said the benefit of such a plan for individual passenger privacy, however, Second, it said that information passengers was that they could feel they said that passenger manifest gathering enforcement provisions that secure that their families and loved ones information should be used only in the would apply to air carriers that did not would not have to experience additional event of an aviation disaster and that in adhere to the standards, rules and suffering in the event of a disaster; the no instance should it be kept for more regulations of the national or benefits of such a plan for airlines were than 24 hours or to create an ongoing international air carrier trade that additional staff would not be data base. They said that the basis for associations should be included in a needed and additional training would their concerns about personal privacy final rule. not be required to implement it. Ms. was the fact that regulations for Richard P. Kessler, whose wife, Sheer said that passengers would need passenger manifest information fall Kathleen, died on ValuJet Flight 592 on to have their information cards filled under 49 CFR 449 (Security), and that May 11, 1996, supported the proposed out and identification ready at the time elsewhere in 49 CFR 449 provision is rule and said that it should be of boarding, and that passenger and made for the sharing of information implemented for the good of the flying airline efforts would have to be among 10 separate intelligence units of public and their families. He said that coordinated, in order for the plan to the U.S. Government, DOT, and the his understandings were that passenger succeed. FAA. They believed that U.S. air manifest information was needed by the carriers as well as foreign air carriers Department of State since it was to Ms. Liana Ycikson supported should be equally burdened and be become the official point of contact for collecting passenger manifest responsible for collecting passenger families in the aftermath of an aviation information consisting of full name, manifest information from all disaster that occurred outside the date of birth, address, and emergency passengers. Finally, they said that DOB United States, and for aviation security, contact telephone number. She said should not be substituted for passport national security, and border control there needed to be an efficient way to number and should not be required as purposes. He noted that while section contact family members of the victims an additional data element because DOB 204 of P.L. 101–604 required the of an aviation disaster before their can be obtained from the Department of Department of State to ‘‘directly and names were announced by the media. State through passport-number-accessed promptly notify families of victims of She suggested not affiliating the records, and air carriers should not be aviation disasters * * * including collection of passenger manifest further burdened by having to collect timely written notice’’ and tasked the information with the U.S. Customs both types of information. Secretary of State with this Service because some people are Four students from Florida responsibility, families of victims of the uncomfortable dealing with the U.S. International University (My Trinh, December 1995 American Airlines’ Customs Service. She suggested that Chau Trinh, Walter Hernandez, and crash outside of Cali, Colombia, were passenger manifest information be kept Joanne Flores), who are frequent air forced to make first contact with the as part of frequent flyer information and travelers, said that they submitted Department of State. Mr. Kessler said he a passenger’s frequent flyer number be comments because of their concerns that found economic arguments in printed on boarding passes (the pulled the proposed rule would potentially opposition to the proposed rule to be boarding passes from a flight could then raise airline ticket prices substantially incredible and asked how one could serve as a record of who boarded the and cause passenger delays. They said place a dollar figure on the proposed flight). Alternatively, she suggested that that passengers should not have to be at rule. an automated flight activation system— the airport hours before they depart to Ms. Brenda Sheer stated that in light a system for flights designed to work in stand in lines to provide passenger of the experience following past a fashion similar to automated credit manifest information and thus delay aviation disasters, it was of the utmost card activation systems—could be set vacations and business trips, and that importance that airlines collect basic up to collect passenger manifest the costs of the proposed rule information on all passengers. She information. She envisioned that under outweighed its benefits. They said that proposed that airlines distribute such a system, each flight would have airlines should be required to collect information cards to all passengers at a unique number attached to it. A only passenger name and passport the time of check-in (parents and passenger would have to call a toll-free number, and should be held responsible guardians would be responsible for telephone number prior to the flight for quickly compiling a list of filling out cards for children under 13 and, in response to electronic voice passengers in the aftermath of aviation years of age) that would request full prompts, give passenger manifest disaster so that they could respond to name; passport number and issuing information in order to ‘‘activate’’ families that ‘‘called-in’’ to the airline. country code, if a passport is required himself for the flight. To safeguard the They stated that they did not believe for travel; either drivers license number personal nature of the passenger that airlines should be held responsible or social security number; and manifest information, Ms. Ycikson said for ‘‘calling-out’’ to a person listed on an emergency contact number of a person that only a check mark should show up emergency contact form. They believed or entity. She said that the cards would on airlines’ information screens to that if the proposed rule were 8268 Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations implemented, the U.S. Federal Aviation System (FIS) had since 1990 been Improvement Act of 1990 directed the Administration would need to assist actively utilizing APIS, a subsystem of Secretary of State to make improved airports through increased expenditures the mainframe-based Interagency Border availability of passenger manifest from the Airport Improvement Program Inspection System (IBIS); APIS had been information a principal objective of (AIP) to accommodate the increased designed to support the overlapping bilateral and multilateral negotiations passenger congestion at airports that information requirements of over twenty with foreign governments and ICAO. would result. They pointed out that the government agencies; and stand-alone, They said, in particular, that the additional time of 40 seconds per PC-based software [PCAPIS] was proposed rule raised major issues with passenger at check-in that is postulated available so that less-automated air respect to inappropriate unilateral in the proposed rule to provide carriers could participate in APIS. INS regulatory action on the part of the passenger manifest information does not said, furthermore, it foresaw that future United States because it: (1) Mandated take into account delays for passengers developments in automating arrival and a legally enforceable obligation, that need extra assistance, such as departure data collection at U.S. ports- collection of manifest data, be imposed disabled passengers, small children of-entry would involve electronic on airlines at points outside the United flying alone, passengers who need transmittal of manifest information States; (2) mandated that carriers (of any language translation services, and pets processed through APIS. INS pointed flag) refuse boarding to passengers of traveling unaccompanied by a out that the Illegal Immigration Reform certain nationalities who refuse to passenger. and Immigrant Responsibility Act of provide certain information at points The U.S. Department of Justice, 1996 (IIRAIRA) tasked INS with outside the United States; (3) obligated Immigration and Naturalization Service undertaking a study and developing a carriers (of any flag) to transmit and (INS), pointed out that DOT’s proposed plan for further automating arrival and disclose to U.S. authorities data held rule imposed one passenger data departure data collection at U.S. ports- outside the United States; (4) mandated collection standard on U.S. carriers of-entry and with developing an that carriers (of any flag) be able to (collection/solicitation of information automated entry-exit control system. produce a passenger manifest on from all passengers), and another Associations of foreign air carriers, demand by U.S. authorities at points passenger data collection standard on individual foreign air carriers, and outside the United States; (5) would foreign carriers (collection/solicitation foreign countries filed comments in impose civil and criminal penalties on of information from U.S. citizens). INS which they objected to the United States carriers of any flag, whose conduct at noted that nonimmigrant aliens were imposing a passenger manifest points outside the United States failed excluded completely from information requirement on foreign air carriers. to comply with U.S. law; and (6) would collection under this approach. INS Commenters included the International prohibit carriers from providing data proposed, instead, that a single Air Transport Association (IATA); the collected under the U.S. mandate to standard, based on the Advance Arab Air Carriers Organization (AACO); anyone other than U.S. authorities, Passenger Information System (APIS), the Orient Airlines Association (OAA); including the government of the country be established for satisfying Pub. L. Air Canada; Aerolineas Argentinas; where a flight originates, without 101–604 passenger manifest Qantas Airways; Scandinavian Airlines consent by DOT. requirements. INS noted that were this System; All Nippon Airways; Air New They said that the prohibition on to be done, the U.S. Department of State Zealand; Varig; Lauda Air; British supplying collected passenger manifest could access within seconds passenger Airways; Turkish Airlines; Swiss Air; information to anyone other than the manifest information for passengers on Lufthansa; Japan Airlines; Cathay U.S. Government in the aftermath of an a flight to or from the United States that Pacific Airways; Laker Airways; Air aviation disaster is contrary to certain ended in disaster. Pacific; the Embassy of Belgium; a provisions of ICAO Annex 17—Aviation As part of this approach, INS combined comment from the Embassies Security (RP 9.14 and the introductory proposed that both U.S. and foreign air of Austria, Belgium, Denmark, Finland, paragraph of Standard 9.1), which call carriers be required to collect basic France, Germany, Greece, Iceland, on States to cooperate with local information for all passengers consisting Ireland, Italy, Japan, Netherlands, New authorities. They also said that the of: (1) full name, (2) passport number Zealand, Norway, Portugal, Spain, European Union Common Data Privacy and issuing country code (if a passport Sweden, Switzerland, United Kingdom Directive of 24 October 1995, which is is required for travel), (3) date of birth, and the European Commission; and the to be adopted and implemented in EU and (4) gender. INS noted that the Embassy of the United Kingdom Member States’ national legislation by additional required data elements (Britannic Majesty’s). In general, these October 1998, provides: would further enable the law commenters shared similar views and, enforcement and intelligence therefore, to prevent duplication, we The Member States shall provide that the transfer to a 3rd country of personal data communities to perform database have summarized the foreign comments which is undergoing processing or are checks in support of any investigation as a whole. intended for processing after transfer may in the event of an aviation disaster. The foreign commenters said that take place only if, without prejudice or Regarding optional emergency contact foreign airlines have demonstrated compliance with the national provision information, INS proposed that the historically their concern regarding adopted pursuant to the other provisions of optional emergency contact information notification by constantly updating and this Directive, the 3rd country in question be limited to a U.S.-located emergency strengthening their own internal ensures an adequate level of protection. contact in order to conform with the emergency response guidelines, that the [Article 25] preexisting INS requirement to collect proposed rule was not achievable, and They said that the United States is the U.S. destination address for that it would disrupt and delay airport likely to be included on the EU’s list of nonimmigrant aliens at entry. operations worldwide. They said that countries without adequate levels of INS noted that: the APIS system passenger manifest requirements of any protection, and, therefore, transfer of provides enforcement, facilitation, and sort must be negotiated directly with data to the U.S. would violate the EU’s automation benefits to the Federal foreign governments bilaterally or Common Privacy Directive. In addition, Government, the air carriers and through ICAO and noted that section they said that the proposed rule was traveling public; the Federal Inspection 201 of the Aviation Security inconsistent with the U.S.-Austria Air Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations 8269

Services Agreement, Article 5, which worldwide (e.g., because the present and country of issue: (1) The Data provides that the law of each country system at many of the locations where Protection laws of many States, while shall be applied to aircraft of either the passenger will initially board an not expressly prohibiting collection or country when in that country’s territory; aircraft do not have the data fields transmission of personal data, offer the contrary to the U.S.-Turkey bilateral necessary for emergency contact parties individual the right to control how the agreement; potentially conflicted with and telephone numbers). data can or will be used; (2) airline the German Data Protection Act The foreign commenters said that they tickets represent a contract between the (Bundesdatenschutzgesetz—BDSG); objected to any effort to expand the traveler and the transportation provider would conflict with the laws of proposed rule beyond DOT and the that guarantees carriage, provided the Denmark, Norway, and Sweden, which Department of State to suit the purposes traveler complies with the rules and would prohibit furnishing collected of other, non-associated programs such regulations of the carrier as filed in its information to the U.S. Government; as the Advance Passenger Information tariff documents and, thus, denial of conflicted with U.K. law, which System (APIS) of the U.S. Customs boarding due to the passenger’s refusal prohibits the different treatment of U.S. Service. to comply with a law not recognized in citizens from other nationalities; They also said that the proposed rule the country of boarding cannot be conflicts with the Constitution of Japan, contravenes several Standards justified, and would likely result in which guarantees the right of privacy contained within Annex 9—Facilitation breach of contract lawsuits; (3) many and protects from mandatory disclosure of the Chicago Convention: (1) Standard airlines believe that a traveler’s decision exactly the type of personal information 2.1—Governmental regulations and to allow personal data and emergency that would be collected under the procedures applicable to the clearance data to be collected and forwarded to proposed rule; conflicts with Article 21 of aircraft shall be no less favorable than any government agency is a personal of the Swiss Criminal Code, which those applied to other forms of choice made after a careful would prohibit any carrier (Swiss or transportation; (2) Standard 2.6— consideration of the potential impact on other) from complying with any Contracting States shall not normally self and family and thus, instead of manifest rules that might be adopted require the presentation of a Passenger coercing compliance through threats of with respect to flights whose last point Manifest, but when this type of denial of boarding, the proposed rule of departure to the United States is information is required it may also be should, instead, focus on methods to Switzerland; and ignores the fact that provided in an alternative and encourage systems by which passengers foreign laws apply to foreign carriers in acceptable manner (IATA said that if the can voluntarily submit data prior to the event of an aviation catastrophe (i.e., type of information referred to in 2.6 is boarding any international flight, foreign laws may not authorize a foreign required, it should be limited to the regardless of origin or destination; and items shown in the format of a carrier to release any information on its (4) the rule, if implemented as currently Passenger Manifest set forth in passengers until it has coordinated with drafted, would have significant Appendix 2, which limits Passenger the regulatory bodies of its own country operational impact on both airline and Manifests to specific flight information: or of those in whose territory the event the traveling public, due to other related Operator, Marks of Nationality, Flight has occurred). They said that if victims’ requirements imposed under ICAO Number, Date of Flight, Point of families are unable to get accurate and Annex 17—Security (any individuals Embarkation and Disembarkation, and prompt information because of the denied boarding would require that any to the Surname and Initials of vagaries of the proposed rule’s baggage checked by that individual be individual passengers); and (3) Standard application, families will be removed from the aircraft as well, and 3.1—Regulations and procedures disappointed, and carriers and the U.S. doing so would involve significant flight applied to persons traveling by air shall delays since most baggage on authorities will be subject to renewed be no less favorable than those applied criticism. international flights is placed in to persons traveling by other means of containers and loaded well before the The commenters said that compliance transport. IATA said that it has no passenger boarding process with a passenger manifest information records that the United States has filed commences). requirement would have the following differences to Standards 2.1, 2.6, and The commenters were critical of the negative impacts: measurable delays for 3.1. fact that a description of the the traveling public; a loss of confidence The foreign commenters said they Memorandum of Understanding (MOU) in the safety of international civil anticipated that legal actions (individual that was mentioned in the NPRM was aviation precipitated by collecting next or group) would be brought against not included as part of the NPRM, and of kin information from passengers as carriers by passengers who had been said also that non-U.S. air carriers did they boarded their flight; slower denied boarding for refusing to allow not participate in the Working Group passenger processing times at mandated information to be collected that developed the MOU. They said that reservation and check-in; higher levels and that defending against such suits specific MOU language was needed so of congestion at already overtaxed would be time consuming and that it could be evaluated. airport terminals (where additional unnecessarily burdensome on the They said that it was in recognition of check-in desks are needed and space is aviation industry. They said that DOT the difficulties of implementing a available, they will be created, but should indemnify airlines that are found passenger manifest requirement that where space is not available, airport liable for damages to a passenger that Congress decided in section 704 of the operators will be forced to seek ways to has been queried and/or denied Aviation Disaster Family Assistance Act expand terminal capacity to deal with boarding in accordance with any of 1996 to create a task force to examine the increased congestion); and diversion Passenger Manifest Information final such issues, and DOT should await the of check-in agents’ attention away from rule. work of the task force before adopting security concerns due to additional They offered several points as just- any rules in this area. demands to collect passenger manifest cause to delete the requirement in the One small foreign air carrier said that information. They said, in particular, proposed rule that airlines deny the administrative burden of a passenger that the proposed rule was incompatible boarding to a passenger who refuses to manifest requirement would be too great with through check-in procedures provide full name and passport number and, therefore, small air carriers should 8270 Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations be exempted from any final rule. It to store in CRS/automated formats that carriers that transmit this suggested doing so by exempting air should not be required to maintain the information to U.S. Customs in advance carriers that meet the definition of information beyond the normal purging of the flight have enjoyed large ‘‘small business’’ in 13 CFR 121.201. cycle. In addition, these commenters reductions in inspection delays at major Air Canada recommended that U.S.- stated that requiring carriers who might ports of entry. Canada flights be exempt from any be collecting manually to hold beyond ICAO noted furthermore that under passenger manifest information completion of flight would be Article 22 of the Chicago Convention, requirement. Air Canada said that the impractical. contracting States are obligated to adopt U.S.-Canada aviation market was more The International Civil Aviation all measures to facilitate international like the intra-U.S. aviation market than Organization (ICAO) provided air navigation and prevent unnecessary other U.S.-foreign country aviation information on the applicability of delays, and that Article 13 requires markets: the U.S.-Canada market is articles of the Convention on compliance with a State’s laws and characterized by many transborder International Aviation (Chicago regulations’’ * * * related to entry, short-haul flights (often employing Convention) to the proposed rule. ICAO clearance, immigration, passports, commuter aircraft) whereas other U.S.- said that Article 29 of the Chicago customs, and quarantine * * * upon foreign country markets are Convention required every aircraft entrance into or departure from, or characterized by long-haul flights. It engaged in international navigation to while within the territory of that State.’’ said that imposing a passenger manifest carry certain documents, including, for ICAO said that in operational terms, a new procedure connected with arrival information requirement on shuttle-type passengers, ‘‘a list of their names and U.S.-Canada transborder operations or departure of a flight can be justified places of embarkation and destination,’’ would be overly burdensome because if it serves to improve productivity of and that Annex 9 to the Convention compliance could mean that pre-flight operations and if it improves stipulated, in Standard 2.6, that check-in times would be extended to the compliance with the above-mentioned presentation of the passenger manifest point that they would be longer than the laws and/or enhances aviation security. document shall not normally be duration of the flight itself. Air Canada ICAO noted that the new collection required, and if passenger manifest also pointed out that 96 percent of its requirements in the proposed rule— information is required, it should be U.S.-Canada passenger traffic was collecting the name and telephone limited to the data elements included in subject to INS and Customs number of an emergency contact for the format prescribed in Appendix 2 of preclearance, whereby passengers each passenger, and API and emergency submit Customs and INS documents to Annex 9, i.e., names, places of data for outbound flights—are not the U.S. Federal Inspection Services embarkation and destination, and flight designed to meet any of the objectives prior to a flight’s departure for the details. ICAO said that implied in of the Chicago Convention. Rather, United States. Air Canada said that Article 29 and Standard 2.6 are both the ICAO noted that the stated purpose of while this process requires it to ensure requirement to collect passenger the proposed rule is to enable the U.S. the collection of information similar to manifest information prior to the flight Government to notify families or foreign the information in the proposed rule, it and a limitation on the amount of governments more quickly in the event does not require Air Canada to collect information collected. ICAO noted that of an aviation disaster. ICAO noted also and maintain the information internally, the adoption of Standard 2.6 that the United States has not filed a as the proposed rule would. Air Canada contemplated a paper document that difference to Standard 2.6 for the said that it would be costly to develop would have to be delivered by hand. additional passenger information in the and maintain such a system for ICAO stated that the concept of a proposed rule. collection and storage of passenger limitation on the amount of information ICAO also stated that Article 37 of the manifest information, and that doing so to that which is essential to meet the Chicago Convention recognizes that would be superfluous to the extent that basic objectives of safety, efficiency, and standardization of regulations and similar passenger information is already regularity in international civil aviation procedures is vital to international civil supplied as part of the pre-clearance is also applicable to electronic data aviation and obligates contracting States program. interchange systems such as Advance to comply to the extent possible with On the details of the proposed rule, Passenger Manifest Information (API), in ICAO standards and recommended the foreign commenters said that the which additional (but not unlimited) practices. Specifically, ICAO stated that reporting obligation should apply only data may be transmitted to the facilitation standards have been in instances that occur as part of the authorities in exchange for a more developed because standardized aircraft airlines’ flight operation phase, which efficient inbound clearance operation. departure and arrival routines are commences when the aircraft door ICAO stated that it is widely recognized considered essential to the efficiency of closes upon completion of the boarding that in any system involving the aviation operations worldwide. ICAO process and ends when the aircraft is exchange of information (automated or said that implementation of the fully stopped at the flight segment’s not), it is the collection of data that is passenger manifest requirement as destination, and the cabin door opened the major expense, and that additional described in the proposed rule would prior to passenger disembarkation. data collection requirements should, represent a radical departure from Loosening the definition to when ‘‘any’’ therefore, result in benefits that exceed internationally accepted procedures for passengers have been boarded or who costs. ICAO stated that a ‘‘benefits departing flights and would set a still remain on the aircraft would exceeds costs’’ principle was inherent in precedent that could inspire similar potentially lead to reporting the adoption, by the Eleventh Session of variances in many other States, to the requirements for incidents that occur on the Facilitation Division of ICAO, of API detriment of the international aviation the ground in airport terminal systems as a Recommended Practice. system. environments. Such incidents should ICAO noted that the information The European Civil Aviation remain under the control of airport collected from inbound flights under the Conference (ECAC) submitted the text of operators and local authorities. API system consists of (and is limited a message from the President of ECAC In terms of recordkeeping, the foreign to) the data in machine readable lines of that had been adopted by the ninety- comments stated that carriers who opt the passport plus flight information, and eighth meeting of the Directors General Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations 8271 of Civil Aviation of the European Civil elimination of a MOU with the State notification to the families of the Aviation Conference. In the message, Department as an alternative means of victims of aviation disasters. Similarly, ECAC formally requested that the compliance. For clarity, we will discuss the Task Force found that the airlines proposed rule be withdrawn for legal the rule section-by-section and then are in the best position to notify families reasons (the proposed rule represents an address issues that do not fit into this in the immediate aftermath of an extraterritorial application of U.S. law; framework. aviation disaster. The purpose of the breaks the Chicago Convention, in rule is to allow the Department of State List of Subjects particular Articles 22 and 23, and to carry forward its legal obligation of Annex 9—Chapters 2 and 3; and is not Because of the concerns of some notifying, in a timely fashion, families compatible with legislation of Member commenters, we have eliminated the of U.S. citizens who die outside the States in the field of data protection) reference to security. This rule is a part United States. The Department of State and practical reasons (the proposed rule of the aviation economic regulations is required to do this regardless of any is contrary to ECAC goals of facilitating and is not a Federal Aviation previous notification received by a and expediting the passenger flow at Administration operational regulation. family. airports; creates a discrimination The rule has no direct bearing on Definitions between air carriers since some might be security. In the definition of ‘‘air piracy,’’ we exempted based on national laws Authority prohibiting them from collecting the made a minor grammatical correction required data; will not produce reliably We have added two statutes (Title VII for clarification. The term is now accurate data; and will result in time- of Pub. L. 104–264 and Pub. L. 105–148) defined as, ‘‘any seizure of or exercise consuming and inconvenient to the authority section to reflect recent of control over an aircraft, by force or procedures causing extended check-in Congressional enactments in this area. violence or threat of force or violence, times and a need for additional check- The primary authority for this rule, or by any other form of intimidation, in counters and staff). however, remains Pub. L. 101–604, and with wrongful intent.’’ British Airports Authority (BAA), the which was codified as 49 U.S.C. 44909. Several commenters asked us to owner and operator of seven airports in During the 1993 recodification of the modify the definition of ‘‘aviation the United Kingdom (Heathrow, Transportation laws, there was some disaster.’’ Several airlines commented Gatwick, Stansted, Glasgow, Edinburgh, reorganization and rewording of the that the rule should be triggered only Aberdeen, and Southampton) said that requirements. As noted by the after the plane’s doors have closed. it had strong reservations about the introductory material in the Although this makes sense from an practicality of the proposed rule and recodification, the rewording was not operational point of view, we are opposed it in its current form. BAA said intended to make any substantive concerned about the possibility of some that it was wholly impractical to require change. To avoid confusion and most terrorist act, that by design or mistake, carriers either to obtain or verify closely represent the drafters’ intent, we takes place during boarding or passenger manifest information at have chosen to use the Public Law disembarkation. If an aviation disaster airport check-in areas. BAA said that the version in our analysis and cite both the occurs during boarding, the airline average check-in time at present for Public Law and codified version in our would only be responsible for a passengers on U.S. services at its authority citation. manifest listing the passengers that have boarded, which would presumably be airports was 2.5 to 3.3 minutes, Purpose depending on the air carrier concerned. created from the boarding passes or BAA said that it could not provide the In response to the comments, this tickets lifted at the gateway. We do not additional check-in capacity that would section has been streamlined and the agree with IATA’s comments that the be required by the increased check-in references to DOT, DOS and the airport operator is responsible in such a times needed under the proposed rule statutory authority have been removed. case. An airport operator would have no (40 seconds or more) even if airlines The change acknowledges that federal way of knowing the names of passengers were prepared to pay for the extra costs agencies have a responsibility to who had boarded. of additional check-in capacity. BAA communicate among themselves, and to ATA objected to the inclusion of on- said that another means for collecting try to reduce the burden on the air board accidents and TWA objected to passenger manifest data needed to be carrier, at an exceptionally stressful situations only involving substantial found, perhaps one that would involve time, of communicating simultaneously damage to the aircraft. We have changed collecting the information at the point of with multiple federal agencies. While the rule accordingly. The definition of sale and then verifying it at the there are ancillary benefits, the purpose ‘‘aviation disaster,’’ is now, ‘‘ (1) An departure gate immediately before of the rule is to provide DOS with occurrence associated with the passengers board the aircraft. information which will enable them to operation of an aircraft that takes place notify the families of the U.S. citizens between the time any passengers have The Final Rule killed overseas. The section now boarded the aircraft with the intention In response to the comments, this provides, ‘‘[T]he purpose of this part is of flight and the time all such persons final rule adopts the proposal with a to ensure that the U.S. government have disembarked or have been number of significant changes. In receives prompt and adequate removed from the aircraft, and in which addition, we have made a number of information in case of an aviation any person suffers death or serious clarifications and minor changes disaster on specified international flight injury, and in which the death or injury throughout the rule. In almost all cases, segments.’’ The rule does not prohibit was caused by a crash, fire, collision, the changes reduce the regulatory airlines from providing initial sabotage or accident; (2) A missing burden. The most important changes are notification to family members aircraft; or (3) An act of air piracy. the exemption of most small U.S. and following an aviation disaster. The rule A new definition, ‘‘covered airline,’’ foreign air carriers from the coverage of itself is silent on the subject. The was added in the final rule in order to the rule, the simplification and Department of State and Transportation simplify references in the rule. A equalization of what information must have advocated in various fora that ‘‘covered airline’’ is defined as, ‘‘(a) be collected or solicited, and the airlines should provide the initial certificated air carriers, and (b) foreign 8272 Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations air carriers, except those that hold carrying’’ to make clear that the rule to record names consisting of first name, Department of Transportation authority does not apply to cargo or ferry flights. middle initial and last name. to conduct operations in foreign air The rule does not apply to flight In the past, many, if not most, airline transportation using only small aircraft segments between two foreign points. manifests included only the passenger’s (i.e., aircraft designed to have a As a practical matter, carriers may first-name initial and last name. In maximum passenger capacity of not voluntarily collect or maintain the addition, there was often not much more than 60 seats or a maximum information collected from covered emphasis placed on accurately spelling payload capacity of not more than flights for these foreign-to-foreign the passenger’s name. There have been 18,000 pounds).’’ This new definition segments, consistent with local law, in many operational changes in airline exempts the smallest airlines that order to have the same rule apply to all systems over the last decade that all operate aircraft with 60 or fewer seats or their operations. contribute to the collection of a full, and have a maximum payload capacity of We have changed the term accurate, name of the passenger. 18,000 pounds or less from the rule. If ‘‘emergency contact’’ to ‘‘contact’’ at the Between new federal security an airline operates both large and small request of a number of commenters. requirements and voluntary airline aircraft—that is, aircraft more than 60 Some airlines believe that passengers security procedures, most airlines seats and aircraft with 60 or fewer will be anxious if they are asked for an require a passenger to show photo seats—all covered flight segments of the emergency contact, and that the airline identification while checking in. On airline are covered regardless of the size will need to engage in a dialogue many international flights, this is of the aircraft used on a particular flight regarding whether there is a problem accomplished by requiring a passenger segment. involving the flight and the nature of the to show a valid passport before he or By definition, a certificated air carrier emergency. Comments and discussion she is allowed to board. For travel to does not include air taxi operators or of the Task Force indicate that use of the countries not requiring a passport, many commuter air carriers operating under term ‘‘contact name and phone number’’ passengers show a driver’s license or 14 CFR Part 298. Some air taxis and (as opposed to ‘‘emergency contact other government identification. commuters have voluntarily chosen to name and phone number’’) could make Similarly, in an effort to stem become certificated for a variety of the collection of the information less unauthorized transfer of airline tickets, reasons. In some cases, the certification burdensome but still provide the airlines have become much more careful was at the urging of larger, code-sharing Department of State with information about listing the full name of a passenger, including an appellation airline partners. In others, certification that will allow it to carry out its such as Mr. or Ms. Because of confers some operational, legal or public responsibilities. The air carrier must, notification problems experienced by relations advantage. If an air taxi however, make clear that the contact various airlines in the aftermath of operator or commuter air carrier is should be someone not traveling with aviation disasters, most airlines have certificated, it is covered by the rule. the passenger who can be reached in the paid much more attention to gathering event of an emergency. If an airline Our definition of foreign air carriers the full name of the passenger. Finally, prefers to use the term ‘‘emergency that are covered by the rule mirrors the many airlines are now using electronic contact’’ it is free to do so. U.S. definition as closely as possible ticketing on some or all of their flights considering the different legal authority In addition, we have added a and, as a result, are paying close applicable to foreign operators. The rule statement clarifying that the contact attention to collecting the correctly- exempts the smallest foreign air carriers should be a person not on the covered spelled, full name of the passenger. who are operating only small aircraft. flight. The definition of ‘‘contact’’ now We are aware that a dogmatic These airlines are primarily trans-border reads, ‘‘a person not on the covered insistence that an airline collect the full air taxis operating between the U.S. and flight or an entity that should be legal name of a passenger, and to deny Canada, and to a lesser extent between contacted in case of an aviation disaster. boarding to the passenger if the airline the U.S. and Mexico and the U.S. and The contact need not have any is unable to obtain it, would lead to the Caribbean. If an airline, such as Air particular relationship to a passenger.’’ unnecessary mischief and operational Canada, operates both large and small If an airline chooses to meet the confusion. As noted by some planes, the flights on the small planes requirements of this part by referencing commenters, some passengers have would still be covered because the on-going databases, such as frequent multi-part names, such as Mary Jo airline holds authority to fly large flyer accounts or an in-house frequent Smith-Jones. Others might have a legal airplanes. traveler computer profile, the airline name, but are known by a different There have been a number of needs to confirm that the listed contact name such as a nickname or a clarifications in the definition of is not a current traveling companion. combination of initial of the first name ‘‘covered flight’’ in the final rule. The In response to the many comments on and full middle name. The possibilities definition now reads: ‘‘[c]overed flight requirements connected to collecting seem as endless as the number of segment means a passenger-carrying the full name of the passenger, we have passengers. The purpose of this flight segment operating to or from the made an important modification to the definition is to obtain as full a name as United States (i.e., the flight segment definition of ‘‘full name.’’ The term is the passenger will voluntarily provide. where the last point of departure or the now defined as, ‘‘the given name, We have, therefore, added the qualifier first point of arrival is in the United middle initial or middle name, if any, to the definition, ‘‘as provided by the States). A covered flight segment does and family name or surname as passenger.’’ Based on the absence of not include a flight segment in which provided by the passenger.’’ (emphasis comments, we believe that all, or both the point of departure and point of added) This change lessens the burden virtually all, airlines currently collect arrival are in the United States.’’ We on the airlines by making it clear that first and last name. As a practical have added the term ‘‘segment’’ because the airline need not verify that the name matter, the rule merely requires airlines some flight numbers cover multiple provided by the passenger is the legal to collect, if provided, a middle initial flight segments. The rule only applies to name of the passenger. For the purposes or middle name. In addition, the airline the segment to or from the U.S. We have of the regulatory evaluation, we must provide the full name collected to also added the qualifier ‘‘passenger- assumed that most airlines will choose the Department of State. Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations 8273

We made only minor editorial either U.S. or foreign air carriers U.S. government is not responsible for changes to the definition of operating only small aircraft. notifying the families of the citizens of ‘‘passenger.’’ The primary change is to foreign countries upon the death of a Information Collection Requirements revise ‘‘person not occupying a seat’’ to foreign citizen. (In practice, the airline ‘‘person occupying a jumpseat.’’ The We have substantially reduced the involved in the aviation disaster notifies definition now reads, ‘‘every person information collection requirements and the families of all passengers.) aboard a covered flight segment equalized the treatment of U.S. and Accordingly, the rule does not require regardless of whether he or she paid for foreign air carriers in the final rule. In either U.S. or foreign air carriers to the transportation, had a reservation, or the NPRM, U.S. air carriers would have provide information on non-U.S. occupied a seat, except the crew. For the been required to collect the full name, citizens to the U.S. government for purposes of this part, passenger passport number and issuing country purposes of notifying the families of includes, but is not limited to, a revenue code for each passenger. Foreign air those foreign nationals of the death of a and non-revenue passenger, a person carriers, on the other hand, would have loved one. holding a confirmed reservation, a been required to collect only the full If a U.S. or foreign air carrier believes standby or walkup, a person rerouted name and passport number for U.S. that the public will not tolerate faster from another flight or airline, an infant citizens and lawful permanent residents notification by the air carrier about U.S. held upon a person’s lap and a person of the United States. In the final rule, citizen passengers than non-U.S. citizen occupying a jump seat. Airline both U.S. and foreign airlines are only passengers, the air carrier may extend personnel who are on board but not required to collect the full name (no the practice required by this rule to all working on that particular flight passport number or issuing country of their passengers. Likewise, if a segment would be considered code) for U.S. citizens. We eliminated foreign government wants to require air passengers for the purpose of this part.’’ the proposed coverage of other carriers flying to or from their country passengers because the purpose of the We removed the definition of to collect such information for its rule is to provide the Department of ‘‘passport issuing country code’’ citizens, the Department would fully State with information to notify the because passport information is no support such a requirement. families of U.S. citizens that die outside The rule also requires covered airlines longer required to be collected. We the United States. to solicit a contact name and telephone made no change to the definition of If the passenger provides a contact number. It is up to the passenger ‘‘United States.’’ name and phone number, the passport whether or not to provide it. Airlines In response to the comments and in number is not needed because the should not pressure the passenger; the consultation with the State Department, passport number was only being used to government requirement is only to ask we changed the definition of ‘‘U.S. get a contact name and phone number. for the information. Airlines should not citizen’’ to eliminate application of the In addition, obtaining the passport state or imply that it is a government rule to lawful U.S. permanent residents. number is unlikely to be effective in requirement. Similarly, an airline The rule envisions that it is up to obtaining contact information. Most cannot deny boarding under the passengers to identify whether they are passports are good for ten years, so that authority of this rule if a passenger U.S. citizens, either by presenting a U.S. any information that is voluntarily chooses not to provide a contact. As passport when travel documents are provided on the application may not be noted in the definition section, a contact required or used for travel, or in current. The passport contact may also can be whoever or whatever the response to the solicitation for be a traveling companion of the passenger wants it to be. There is no information. Airlines have no duty to passenger. The elimination of this data requirement that it be a family member, inquire beyond this self-identification. element will save time and money. With next-of-kin, a friend or a business or Applicability our more liberal definition of full name, social group. as a matter of practice all carriers should The requirement to solicit prior to This section was streamlined to already be in compliance, or close to boarding does not necessarily mean that incorporate the new definitions. It compliance, with this requirement. the airline needs to solicit before every provides, ‘‘[t]his part applies to covered The final rule provides that if a covered flight segment. For example, the flight segments operated by covered covered airline does not obtain the full airline could solicit prior to the first airlines. (See § 243.3 of this part).’’ The name of the passenger, the passenger covered flight segment, or through its Aviation Disaster Family Assistance Act should not be boarded. Some frequent flyer program. For multiple of 1996 exempted air taxis from having commenters were very concerned about segments, if each passenger is given the to file family assistance plans. We this provision in the NPRM, particularly opportunity to provide contact follow that Congressional lead in this when it applied to the additional data information prior to the first flight rule. Small airlines that code-share with elements. The airlines were concerned segment, and it is clear to the passenger large airlines, in general, have about angry passengers and unseemly that the contact should not be traveling voluntarily obtained DOT certification and unnecessary delays at the boarding with the passenger on any flight and, thus, will be covered by the rule. gate by requiring passport number as a segment, then the burden is upon the Air taxi operators that operate prerequisite for boarding. Our changes passenger to provide a contact not independently usually operate very have addressed these concerns. traveling with the passenger for any of locally and often only on demand. In Commenters stated that there will be those flight segments. The air carrier is case of an aviation disaster, they carry no public tolerance for a post-aviation- then not responsible for soliciting this few passengers and would find it less of disaster scenario in which there is more information prior to each flight segment. a burden to identify who is on board information available for the families of The rule requires covered airlines to and notify the families than a carrier U.S. citizen victims. The purpose of this maintain a record of the information operating a large jet. Because of this and rule is to provide the Department of collected pursuant to this section. We because applying the rule to these very State with information which enables it have deleted the specific requirement small carriers would result in relatively to meet its statutory responsibility of that an airline maintain a record of significant cost and operational burdens notifying the families of U.S. citizens those who decline to provide contact with fewer benefits, we are not covering who die outside the United States. The information. A covered airline is still 8274 Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations required to provide the Department with information need only be kept until all reached. We have eliminated the evidence, upon request, that all passengers have disembarked from the proposed requirement for routine passengers were solicited for contact plane. Airlines are, however, free to transmission of the information to DOT. information and that the airline collects keep the information longer. At least DOT’s role is now limited to and maintains the information provided one airline asked whether it might enforcement oversight of the rule. To by its passengers. retain the information for the return ensure that airlines are in compliance The most dramatic change in this flight on a round-trip ticket. The answer with the rule, DOT may request a section is the addition of a new is ‘‘yes,’’ given that the passenger manifest for a given flight, or check to paragraph dealing with code-share understands at the time of the see if the contact information is being operations. The provision provides, solicitation that the request covers the solicited. ‘‘[t]he covered airline operating the return portion of the trip. Because of the statutory flight segment shall be responsible for The final rule also clarifies who may responsibilities of the NTSB for aviation ensuring compliance with paragraph (a) receive the contact information under disasters occurring in the United States, of this section.’’ We have placed the the rule. The final rule provides, ‘‘the the section provides that the Director of responsibility on the operating air contact information collected pursuant Family Support Services at NTSB must carrier because the ticketing air carrier to section 243.7(a)(2) of this part shall be given a copy of the manifest upon would not know if a passenger actually be kept confidential and released only request. If the aviation disaster is clearly boarded the plane. We leave it up to the to the U.S. Department of State, the one in which the State Department will code-share partners, however, to work National Transportation Safety Board not have the lead responsibility (such as out a system that is most convenient (upon NTSB’s request), and the U.S. KAL Flight 801), the State Department and operationally effective for them in Department of Transportation pursuant may inform the airline to provide the markets served. If the flight segment to oversight of this part. This paragraph ongoing updates to NTSB rather than to is not operated by a covered airline, does not preempt other government or the State Department. In rare even though the ticketing carrier is a governmental agencies that have an circumstances, there may be duplicate covered airline, there is no duty to independent, legal right to obtain this transmission responsibilities, at least for collect the information or meet the other information.’’ The purpose of this a period of time. The purpose of this requirements of the new Part 243. rewording is to clarify the roles of the section is to provide, to the maximum various federal agencies under this part. extent possible, a single Federal Procedures for Collecting and Under the ADFAA, NTSB will only Government contact point. Maintaining the Information request the information when the Finally, the rule simplifies the NPRM Consistent with the proposal, the final aviation disaster occurs within the requirement concerning the speed with rule continues to permit covered United States. In addition, we want to which the information has to be airlines to use any method or procedure make it explicit that this rule does not transmitted. The statutory language to collect, store and transmit the prevent other governments, whether provides that, ‘‘[i]f it is not required information, subject to several foreign, state or local, or governmental technologically feasible or reasonable to listed conditions. We anticipate that agencies, such as law enforcement, from fulfill the [1-hour requirement,] then most scheduled airlines will use their obtaining this information under their [the information shall be transmitted] as computer reservation systems. Others own independent legal authority. expeditiously as possible, but not later may use a ‘‘shoebox’’ approach in which After further consideration, we than 3 hours after [the airline learns of passengers fill out a simple form that is decided to add an additional, explicit the disaster].’’ The final rule requires handed in at check-in or before provision banning covered airlines from transmission of the information, ‘‘as boarding. As the rule is implemented, using the contact information for any quickly as possible, but not later than 3 we expect other, creative solutions to be commercial or marketing purpose. hours after the carrier learns of an developed, including reference to an Contact information is personal and is aviation disaster involving a covered external database such as expanded provided by passengers with the flight segment operated by that carrier.’’ frequent flyer records. Thus, we expectation that it will not be used for This has the same effect as the disagree with the comments from ASTA other purposes The new paragraph Congressional standard: to get the and American Express Travel Related provides, ‘‘[t]he contact information information out as quickly as possible. Services Company that the rule should collected pursuant to section 243.7(a)(2) When the Family Assistance Task Force require a single system for collecting of this part shall only be used by considered this issue, it concluded that passenger manifest information. We are covered airlines for notification of transmission of a complete manifest trying to use as light a hand as possible family members or listed contacts within three hours would provide for as by setting a performance standard rather following an aviation disaster. The prompt notification of families as would than mandating how very different information shall not be used for transmission within 1-hour. In addition, types of airlines conducting very commercial or marketing purposes.’’ we have made a number of editorial different types of operations must clarifications throughout the section. comply. Transmission of Information After an As in the NPRM, the final rule Aviation Disaster Filing Requirements provides that the information on In response to the comments, the rule This section requires a covered airline individual passengers must be collected now provides that air carriers must to file with DOT a brief statement before each passenger boards the aircraft provide passenger manifest only to the summarizing how it will collect the on a covered flight segment. We State Department and, upon request, to passenger manifest information required anticipate that the information will be the NTSB. For airline convenience, we by this part and transmit the collected by whoever sells the ticket. In have provided the full title of the State information to the Department of State response to the comments, we have Department contact (the Managing following an aviation disaster. The eliminated the requirement that the Director of Overseas Citizen Services, description must include a contact at information be kept for at least 24 hours Bureau of Consular Affairs) as well as a the covered airline, available at any time after the completion or cancellation of telephone number that is staffed 24 the covered airline is operating a the covered flight segment. Instead, the hours a day at which he or she can be covered flight segment, who can be Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations 8275 consulted concerning information brief statement with DOT summarizing law (including a certified translation) gathered pursuant to this part. Each the airline’s program with a contact and opinions of appropriate legal covered airline must file any contact phone number at the airline, and experts setting forth the basis for the change as well as a description of any transmitting the manifest information to conclusion that collection would violate significant change in its means of the State Department following an such foreign law. (If several carriers are collecting or transmitting manifest aviation disaster on a covered flight. serving the same place, they are, of information on or before the date the Several foreign carriers alleged that course, free to file a single, joint waiver change is made. This brief statement the proposal was inconsistent with application.) The Department will also and the requirement to notify DOT of certain standards and recommended accept statements from foreign significant changes is designed to assist practices of Annex 9, the facilitation governments on the application of their DOT oversight of this part, as well as annex. Specifically, they alleged that the laws. allow DOS to anticipate how the rules are inconsistent with Annex 9, The final rule provides that DOT will information will be collected and how Standards 2.1 (regulations applicable to notify the covered airline of the extent it will be transmitted. clearance of aircraft shall be no less to which it has been satisfactorily We have made several substantive favorable than (applicable to other forms established that compliance with all or changes to the language in the NPRM. of transportation), 3.1 (regulations part of the data collection requirements In response to comments, we eliminated applied to persons traveling by air shall of this part would constitute a violation the requirement for a 24-hour contact at be no less favorable than applicable to of foreign law. The Department will the airline. Instead, the contact must be other forms of transportation), and 2.6 maintain an up-to-date listing in OST available at any time the covered airline (States should not normally require a Docket 98–3305 of countries where is operating a flight. Many charter passenger manifest, but may require adherence to all or a portion of this part operators and airlines operating only a such information in an alternative and is not required because of a conflict few airplanes do not have personnel on acceptable manner). with applicable foreign law. Carriers duty 24 hours a day. An aviation We do not believe that these rules are need not apply for a waiver to serve a disaster can only happen during the inconsistent with the provisions of country on this list. operation of the flight. The modification Annex 9. No specific documentation is In response to the comments, DOT is meets the regulatory purpose while required, absent an aviation disaster. In exploring whether to take the issue of avoiding undue burdens on these such a case, the required information is passenger manifests to ICAO to allow carriers. consistent with Article 26 of the for international deliberation on this The filings must be submitted to OST Convention relating to aircraft accident issue. That decision does not, however, Docket 98–3305 at the Department of investigation and notification of next of effect the provisions of this rulemaking. Transportation. All of the information kin. The information required to be Enforcement relating to this rule will be maintained collected or solicited by the rule is not in the docket and be available for public materially different from other The final rule provides that DOT inspection. (The Department retains the requirements applicable to customs, ‘‘may at any time require a covered right to redact non-procedural immigration and health on entry into airline to produce a passenger manifest information such as phone numbers of the United States. To the extent that the including contacts and phone numbers carrier contacts.) The summary solicitation of information may differ for a specified covered flight segment to statement must be filed by July 1, 1998. from that applicable to other forms of ascertain the effectiveness of the We have chosen this date so that we can transportation, e.g., international carrier’s system. In addition, it may ensure airline compliance and work passenger ships, the requirements apply require from any covered airline further with those who need additional specifically to situations peculiar to information about collection, storage guidance well in advance of the international aviation, and are more and transmission procedures at any effective date of the rule. New carriers favorable, rather than less favorable, at time. If the Department finds a covered must file this information before least in terms of notification of next of airline’s system to be deficient, it will beginning operations. Finally, there kin in the event of an aviation disaster. require appropriate modifications, were a number of editorial and The final rule provides a specific which must be implemented within the conforming changes throughout this exemption process so that covered period specified by the Department. In section. airlines will not be required to solicit, addition, a covered airline not in collect or transmit information under compliance with this part may be Conflict With Foreign Laws this part in countries where such subject to enforcement action by the As is apparent by the number of solicitation, collection, or transmission Department.’’ The changes in this comments on this issue, this topic would violate applicable foreign law. In section are merely editorial. generated intense controversy. We order to meet our statutory A number of carriers were offended believe that we have addressed virtually responsibilities, the carrier must file a by the section in the NPRM concerning all of these concerns with the changes petition requesting a waiver on or before civil and criminal penalties. The section in the regulatory requirements and the the effective date of this rule, or on or merely restates potential statutory exemption provisions for instances in before beginning service between that penalties for violation of any of the which our rule would conflict with country and the United States. These aviation economic regulations. It is foreign law. In terms of flexibility for issues will be decided by the DOT completely within DOT’s prosecutorial foreign air carriers, we note that we decisionmaker (see 14 CFR 302.22a) and discretion whether to take enforcement have exempted carriers operating small an order will be issued memorializing action in a given case, and what type, aircraft and maintained the applicability that decision, just like any other and amount, of penalty to seek. Our only to flight segments to or from the exemption application under 49 USC objective is compliance, not United States. As noted previously, we Subtitle VII. To expedite our review and enforcement. It is the Department’s believe most carriers are already to ensure that we have a complete intention to help the industry to come collecting full names. The additional understanding of the request, the rule into compliance with this part and to burden is simply soliciting (but not requires that the airline’s petition work with airlines that are trying to requiring) contact information, filing a include copies of the pertinent foreign comply. Because restating the penalty 8276 Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations provision added no legal authority and on a date calculated from publication in recognized by most as being best caused confusion about our intention, the Federal Register. because it lessens the possibility of we have eliminated it from the final congestion at the airport. Moreover, the Advance Passenger Information System rule. Our underlying statutory authority final rule applies only to certificated remains the same. When we issued the NPRM, we were U.S. air carriers and their foreign air exploring whether it would be carrier counterparts and these air Waivers appropriate to piggyback the passenger carriers and their travel agents are most The NPRM included a provision that manifest requirements onto existing likely to employ sophisticated if an airline entered into an acceptable federal systems. It was our hope to electronic systems for handling Memorandum of Understanding with avoid duplication of information and to passenger information. The final rule the Department of State concerning contribute to the efficient movement of eliminates passenger passport number cooperation and mutual assistance air passengers on flights to or from the as a required element of passenger following an aviation disaster, DOT United States. In particular, we were manifest information and puts nothing would waive compliance with certain exploring whether the Advance in its place. Passport number was cited parts of this rule. At the time we issued Passenger Information System (APIS) of above all else by air carriers and travel the NPRM, the MOU working group was the U.S. Customs Service could be used agents alike as making collecting still negotiating the terms of the MOU in conjunction with, or in place of, the passenger manifest information at the and, therefore, we did not include the requirements of this rule. After time of reservation impossible to exploring the issue thoroughly, we specific terms of the MOU. As noted achieve in a cost-effective manner. concluded that it could not for a number earlier, fourteen airlines to date have Commenters said that individuals might of reasons. APIS is used to expedite entered into a MOU with State. Contrary not have their passport with them or clearance of low risk passengers to our hopes at the time of the NPRM, might not yet have procured a passport entering the United States and is, the MOU does not cover all the statutory when reserving. Commenters also said therefore, only directly applicable to requirements and is viewed by the State that the individual reserving might not inbound flights to the U.S. Participation Department and DOT as a supplement be the passenger and thus would not is voluntary. APIS uses both full name to, rather than a replacement for, this know the passenger’s passport number. and date of birth, which is more than rule. We have, therefore, dropped this Commenters said that all of these our rule requires. section from the rule. We believe that situations would lead to call-backs. The the MOU process has been very helpful Economic Considerations final rule also allows passenger manifest in focusing attention on many of these information to be solicited and collected (Note: This section relies heavily upon the once from a passenger and held for the issues, facilitating communications Final Regulatory Evaluation that between the different parties, and passenger’s entire round trip. accompanies this final rule; a copy of the Second, as in the proposed rule, the ensuring that a process is in place so Final Regulatory Evaluation is available in final rule stipulates that passenger that all sides can respond quickly and the Docket.) contact name and telephone number effectively after an aviation disaster. In fashioning the final rule, the must be solicited, but not necessarily Effective Date Department has adopted an approach collected. While we would expect that that should result in the effective most passengers would choose to The final rule provides two effective transmission, by U.S. and foreign provide passenger contact information dates for different parts of the rule. As carriers alike, of information after an because they would realize that, in the noted above, a covered airline must file aviation disaster in the least costly event of an aviation disaster, their a summary in the DOT docket by July manner. This final rule is significant family members might be spared some 1, 1998, describing how it will collect under the Department of pain and suffering because they would and transmit the required information. Transportation’s regulatory policies and be notified more quickly, passengers are We are providing a very long leadtime procedures because of the public and not required to provide this information. (October 1, 1998) before carriers are Congressional interest associated with It is ultimately left up to the passenger required to solicit and collect the the rulemaking action. The final rule to decide whether to provide the contact information and meet the other was submitted to the Office of information. Since the passenger requirements of the rule. Earlier Management and Budget for review manifest information requirement is compliance is, however, authorized. under E.O. 12866. structured in this fashion, so long as an Although the final rule is not complex, The final rule takes the form of a air carrier can be assured that passenger it will require training of many airline performance specification, that is, it is contact information has been solicited at industry personnel, changes to structured to give those affected by it the time of reservation, we would not computer reservation systems, and/or the flexibility to minimize any expect that air carriers would need to printing and distribution of ‘‘shoebox’’ necessary costs of soliciting and verify this information at the airport. cards, depending on the method collecting passenger manifest Since the need to verify passenger selected by each airline to comply with information. In the final rule, the manifest information at the airport is the rule. In addition, we want to provide Department has attempted to minimized, the likelihood that the final adequate time for airlines to develop accommodate the major (sometimes rule will contribute to increased airport and implement innovative approaches conflicting) concerns voiced by air congestion is greatly reduced. to compliance. The airlines asked for carriers, travel agents, and others in Third, the final rule would 180 days to implement the rule. We are their comments to the ANPRM and accommodate a system whereby reluctant to have the rule go into effect NPRM regarding the ease and costs of passengers that join international flights in the summer, which is the busiest implementing a passenger manifest at an international gateway airport gate travel time. We have, therefore, decided information requirement. First, the final could be confronted with a sign or to provide more time than the airlines rule should eliminate barriers to notice at the gate informing them that, requested, so that the rule can be soliciting and collecting passenger if they are a U.S. citizen, they may wish implemented at a quieter travel time at manifest information at the time of to complete a form available at the desk the beginning of the month, rather than reservation, the method that has been that could be useful in case of an Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations 8277 emergency. The fact that transit and on each leg of a round trip, it is the NPRM, it was determined that air interline transfer passengers (or any obviously going to cost more than if carriers and travel agents, by and large, other passengers, for that matter) were passenger manifest information is today collect passengers first and last provided such a notice would constitute collected only once per round trip names and passenger passport number compliance with the final rule. journey. It is probably going to cost was dropped. Fourth, the requirement that U.S. air twice as much in the former, as The amount of time that it is assumed carriers solicit or collect passenger compared to the latter, case. to take to solicit and collect passenger manifest information from all The parameters used in the economic manifest information (it is assumed that passengers has been modified to a model are: passengers taking round trips all passengers provide voluntary contact requirement that U.S. air carriers solicit on scheduled air service for whom information in the Final Regulatory or collect passenger manifest from only passenger manifest information needs to Evaluation) was discussed at length in U.S. citizens. The effect of this only be collected one time per round the NPRM. The Department used a total modification is to substantially reduce trip (85 percent); the number of of 40 seconds in the NPRM as an the number of passengers from whom reservations made per passenger estimate of the amount of time it would information is required to be collected boarded (1.75:1); additional time to take to solicit and collect all four by U.S. air carriers. Moreover, in the collect passenger contact name (20 elements of passenger manifest final rule, both U.S. and foreign air seconds); additional time to collect information or, roughly, about 10 carriers must collect passenger manifest passenger contact telephone number (20 seconds per element. A sensitivity information from only U.S. citizens, and seconds); additional time to collect analysis of the time to collect passenger not (as in the proposed rule) from passenger middle initial (2 seconds)—it manifest information was also permanent legal residents of the United is assumed that, by and large, air performed that used a total of 60 States, as well. The effect of this change carriers are currently collecting seconds to collect all four elements of is to spare U.S. and foreign air carriers passengers first and last names; passenger manifest information, or alike the uncertainties and difficulties additional time to collect passenger first roughly about 15 seconds per element. surrounding trying to identify U.S. legal name (9 seconds)—assumed to be In the Final Regulatory Evaluation, it permanent residents, who, as pointed collected only from those few is estimated to take a total of 40 seconds out by many commenters, may not be passengers from whom first and last to solicit and collect the two voluntary traveling on U.S. passports. names are not currently collected. elements of passenger manifest Even with these cost saving features, Following comments received to the information. Thus, the Department has, we estimate (see below) that the annual NPRM and a presentation that took based on comments received to the recurring costs of implementing section place last summer before the DOT/ NPRM and other information, increased 203 of Pub. Law 101–604 will be $22.1 NTSB Task Force on Assistance to its estimates (to 20 seconds each for million. In calculating the costs of the Families of Aviation Disasters, in the these two elements) of the amount of final rule, the Department has made a model all charter air service passengers time it would take to collect passenger major methodological improvement to provide passenger manifest information manifest information. It is estimated to the simple economic model used in the by filling out a form at the airport at take two additional seconds to collect NPRM and has made more realistic the each end of their round-trip journeys. It middle initials from most passengers parameters used in the model. The is estimated that it will take a charter who now give their first and last names parameter changes often reflect passenger 30 seconds to fill out a form when they reserve, and 9 additional comments received in response to the at the airport that would request the seconds to collect first names from the NPRM. As result of the methodological scaled-back information found in the small number of passengers who now improvement, the model now represents final rule. give their last names and first initials more accurately the changing costs of The model parameters described when they reserve. The Department, air carriers and travel agents as above have been chosen to depict as moreover, believes that the time needed assumptions are changed regarding realistically as possible how passenger to solicit and collect the voluntary whether passenger manifest information manifest information will likely be elements of passenger manifest is collected once or twice per round trip solicited and collected under the information, passenger contact name journey. In the NPRM, air carrier and passenger manifest information and passenger contact telephone travel agent costs did not change as requirement in the final rule. They have number, likely will decrease over time assumptions were changed regarding important implications for the estimated as passengers become accustomed to whether passenger manifest information costs of the final rule as does the providing the information. was collected once or twice per round amount of additional information In developing the estimates for the trip journey. The model used in the required in the final rule. The estimates amount of time it would take to solicit NPRM did, however, take into account of the costs of the final rule are based and collect the information in the final changes in the value of time forgone by on an additional information rule, the Department examined the passengers depending on whether requirement in the final rule consisting results of a survey of seven air carriers passenger manifest information was of: (1) Passenger middle initial for most that was included in the comments of collected once or twice per round trip passengers (passenger first name for the Air Transport Association of journey. Air carrier and travel agent some passengers), (2) contact name, and America to the Department’s advance costs were constrained in this fashion in (3) contact telephone number. Estimates notice of proposed rulemaking the NPRM to accommodate the of the costs of the NPRM were based on (ANPRM) on Domestic Passenger statement in British Airways’ comments an additional information requirement Manifest Information. In the ANPRM, a to the ANPRM that the costs found in in the proposed rule of: (1) Passenger domestic passenger manifest its comments were the minimum first name, (2) passenger passport information requirement that paralleled needed to implement any passenger number, (3) contact name, and (4) the passenger manifest information manifest information requirement. But contact telephone number. The requirement found in the NPRM that constraining costs in this fashion is differences in the information preceded this final rule was postulated. obviously unrealistic. If passenger requirements for cost estimate purposes The Department found it necessary to manifest information is collected once derive from the facts that, subsequent to modify the ATA survey results to adjust 8278 Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations them for, among other things, duplicate the types of air carriers that would be what do they pay per trip. Employing information collections, unjustifiably covered by the final rule (and assuming this line of reasoning (this is an ‘‘as if’’ high-end results, passenger information that all passengers provide passenger analysis since who will be able, or not that is already today collected, and the manifest information) the Department be able, to pass along the costs of fact that passport number has been estimates that, were the final rule in imposing a passenger manifest dropped from the final rule (the effect over a recent ten-year period, a information requirement is not domestic counterpart to passport total of 239 families of U.S. citizens calculated in the Final Regulatory number was social security number/date would have received such direct Evaluation) for the final rule requires us of birth). As modified by the notification benefits. Compared to the to also identify and subtract from total Department, the ATA survey results are present value of the total costs of the annual recurring costs of the final rule not significantly different from the proposed rule over ten years, the cost of those additional time costs that the final estimates outlined above for the time the more prompt and accurate initial rule imposes on passengers that make, needed to solicit and collect the notification to these direct beneficiaries, and then cancel, reservations (the elements of passenger manifest on a per victim basis, is $734,000. additional costs to travel agents and air information in the final rule. No accounting is made in these carriers from these individuals stay in The estimate used in the Final calculations for more prompt and the calculation). Since the calculation is Regulatory Evaluation for the total accurate initial notification of families based on cost per trip, we must also hourly compensation (wage plus fringe) of U.S.-citizen victims of aviation identify the mix of passenger one-way of air carrier reservation agents and disasters that occur on covered flights to and round trips. The result of this travel agents is $15.07, which is taken and from the United States, and for calculation is that for each of the 31.2 from a Bureau of Labor Statistics proxy which the disaster occurs within the million passenger trips taken (where a occupational category for these workers. United States (e.g., TWA flight 800 or passenger trip is either a round trip or It is an update to 1996 of the $14.66 Korean Air flight 801). None was made a one-way trip), the U.S.-citizen figure used in the NPRM. The estimate because the Department of State has no passengers that travel pay about $0.50 used for the value of an hour of time responsibilities regarding the extra per trip because of the passenger forgone by passengers while they are notification of families of U.S.-citizen manifest information requirement in the being solicited for and providing victims of an aviation disaster that final rule. passenger manifest information is occurs within the United States, even if The direct and indirect benefits of the $26.70. This figure is taken from recent the flight involved is an international final rule regarding more prompt and Departmental guidance on the valuation flight. The primary focus of the statute accurate initial notification of the of travel time in economic analysis. It is to provide information to the families of U.S.-citizen victims of an supplants a much-higher $48.00 per Department of State. However, since aviation disaster on a flight to and from hour figure for the valuation of under the final rule, passenger manifest the United States that occurs outside the passenger time that was used in the information would have to be collected United States (direct) and within the NPRM. for all flights to and from the United territory of the United States (indirect) The Department estimates that the States for transmission to the were outlined above. An idea of the annual recurring costs of the final rule, Department of State in the event of an magnitude of the reduction in initial which would be borne by covered air aviation disaster that occurred outside notification time of families of U.S.- carriers, travel agents, and U.S.-citizen of the United States, it is quite possible citizen victims of aviation disasters that passengers (who forego time while being that having it on-hand would also lead occur outside the United States that asked for and providing the to more prompt and accurate initial might occur under the rule may be information) would be about $22.1 notification of the families of U.S.- gained from examining the notification million per year. These costs would citizen victims (assuming, again, that all experience in the Pan Am Flight 103 break out as follows: air carriers $1.9 passengers provide passenger manifest aviation disaster. There, according to million (U.S. air carriers $1.1 million information) of an aviation disaster on the Report of the President’s and foreign air carriers $0.8 million); such a flight that occurs within the Commission on Aviation Security and travel agents $5.8 million; and U.S. territory of the United States. Such Terrorism, some families of victims citizen passengers on covered air families are considered to receive were notified by Pan American within carriers ($14.3 million). The one-time indirect notification benefits from the about nine hours or less after the cost of the rule (primarily computer rule. If these families of U.S. citizens are disaster occurred, and all families were reservations systems modification costs accounted for, in addition to the notified by Pan American within about that would be borne by air carriers and families of U.S. citizens counted above, 43 hours or less after the disaster also training costs) is estimated to be then, were the rule in effect for a recent occurred. Compliance with the final about $15.0 million. The present value ten-year period, the Department rule in the case of Pan Am Flight 103 of the total costs of the final rule over estimates that more prompt and should have reduced notification times ten years is estimated to be about $175.4 accurate notification of the families of a (to the extent that passengers chose to million. total of 443 U.S.-citizen victims of provide passenger contact information) There is one direct notification benefit aviation disasters would have taken by a maximum of about six hours for the of the final rule: more prompt and place. The cost of the more prompt and first group of families of victims, and by accurate initial notification to the accurate initial notification to these a maximum of about 40 hours for the families of U.S.-citizen victims of an direct and indirect beneficiaries, on a remainder of the families of victims. aviation disaster that occurs on a per victim basis, now is about $396,000. A third direct benefit of the rule lies covered flight to or from the United A different perspective on the cost of outside the realm of notification benefits States (on a U.S. or foreign air carrier) the final rule can be gained from and was not mentioned above. The third and outside the United States. This assuming that the recurring annual costs direct benefit of the rule is an expected benefit is available to the families of of the final rule to travel agents, air general increase in the disaster response those passengers that chose to provide carriers, and U.S.-citizen passengers on capability of the Department of State passenger manifest information. Based covered trips are all paid by the U.S.- following an aviation disaster. on the recent fatal accident history on citizen passengers, and then asking According to the Report of the Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations 8279

President’s Commission on Aviation $15 million above), (4) the value of the comment, and with the concurrence of Security and Terrorism: time that passengers forego while being the Small Business Administration Failure to secure the [passenger] manifest solicited for and providing passenger (SBA), DOT’s predecessor in the area of quickly had a negative ripple effect on the manifest information is valued at $32.90 aviation economic regulation, the Civil State Department’s image in subsequent per hour (instead of $26.70 above), (5) Aeronautics Board, defined small entity activities. the time to collect passenger contact for the purpose of the aviation economic Thereafter, the Department appeared to information is 26 seconds each for regulations in 14 CFR § 399.73. The lack control over who should notify next of contact name and contact telephone definition states, in part, ‘‘a direct air kin, an accurate list of next of kin, and number (instead of 20 seconds each carrier * * * is a small business if it communications with the families. (p. 101) above) and other times to solicit and provides air transportation only with The final rule should provide the collect passenger manifest information small aircraft * * * (up to 60 seats/ Department of State with information on (e.g., the time needed to solicit and 18,000 pound payload capacity).’’ the families of victims of an aviation collect contact passenger middle initial Under 14 CFR Part 298, air taxi disaster soon after it occurs, so that the for most passengers and the time needed operators and commuter air carriers are Department of State can establish an to solicit and collect passenger first defined, among other things, as air early link with the families. name for some passengers) increase by carriers operating only small aircraft. Some idea of how much more quickly a factor of 1.3, and (6) the time it takes In its efforts both to comply with both the Department of State might, under charter passengers to provide passenger Pub. L. 101–604 and not to the rule, receive passenger manifest manifest information on a form at the disproportionately burden the smaller information following an aviation airport is 39 seconds (instead of 30 air carriers and travel agencies, the disaster may be gained from examining seconds above)—this is also an increase Department is: first, exempting non- the Pan Am Flight 103 aviation disaster by a factor of 1.3. certificated U.S. air carriers, which experience. There, the Department of The effect of these new assumptions consist of 909 air taxi operators and 22 State was given by Pan American an is to a little more than double the commuter carriers from the rule’s initial passenger manifest, consisting of Department’s estimates of the costs of requirements; second, it is allowing surnames and first initials, about 7 the final rule. The annual recurring those carriers subject to the rule the hours after the disaster occurred. A costs of the rule now become $45.4 flexibility to develop their own passenger manifest containing more million (instead of $22.1 million above) passenger manifest data collection complete passenger information and break out as follows: air carriers systems. This will allow them to choose together with contact information was ($3.5 million—instead of $1.9 million the most efficient process suitable to provided to the Department of State above)—split between U.S. air carriers their operations. about 43 hours after the disaster ($2.0 million—instead of $1.1 million Some air carriers that operate only occurred, and, at that time, Pan above) and foreign air carriers ($1.5 aircraft with up to 60 seats/18,000 American also notified the Department million—instead of $0.8 million above); pound payload capacity have of State that all families of victims had travel agents ($10.5 million—instead of voluntarily chosen to obtain a DOT been notified. The results of compliance $5.8 million above); and passengers’ certificate; if an air carrier is with the rule in the case of Pan Am time forgone ($31.3 million—instead of certificated, it will need to comply with Flight 103 should have resulted in the $14.3 million above). The present the rule. We estimate that 49 air taxis provision of a passenger manifest discounted value of the future cost and commuter carriers have voluntarily together with passenger contact stream for these outer bound estimates obtained a certificate. information (to the extent that over ten-years is now $359.7 million Since many commenters said that the passengers chose to provide passenger (instead of $175.4 million above). The optimal time to collect the passenger contact information) to the Department associated outer bound cost per manifest information is at the time of of State three hours after the disaster enhanced notification of the direct reservation, and travel agents account occurred. notification benefits of the final rule for most reservations on flights to and Finally, while the Department now becomes, on a per victim basis, from the United States, we expect that believes that the simple economic about $1.5 million (instead of $734,000 this rule will also indirectly affect travel model and parameters used above above) and the outer bound cost per agencies. In order to estimate this resulted in reasonable estimates of the enhanced notification of the final rule impact, the Department requested data costs of the final rule, the Department that takes into account both direct and on the number of small travel agencies has, as part of its examination of the indirect notification benefits is now, on from the U.S. Small Business cost of the final rule, relaxed several of a per victim basis, about $812,000 Administration (SBA). SBA’s Office of the assumptions used in the model in (instead of $396,000 above). The cost the Chief Counsel for Advocacy, with order to obtain ‘‘outer bound’’ estimates per passenger per trip now becomes the assistance of the SBA economic of the costs of the final rule. These outer about $0.94 (instead of $0.50 above). research office, kindly provided us with bound estimates are provided for estimates that showed that there were information purposes only. For Regulatory Flexibility Act 22,672 travel agencies in 1994 and that, purposes of deriving the outer bound The Regulatory Flexibility Act was of this total, 21,873 were considered estimates: (1) The ratio of reservations enacted by the United States Congress to small agencies. For this analysis, the made to passengers that actually board ensure that small entities are not SBA used its own data and Census data the aircraft is 2:1 (instead of 1.75:1 disproportionately burdened by rules to extrapolate the estimates with small above), (2) passenger manifest and regulations promulgated by the travel agencies defined as those with information not kept as part of frequent Government. At the same time, P.L. annual revenues of $1 million or less traveler information by travel agents or 101–604 mandates that ‘‘the Secretary of and with fewer than 25 employees. frequent flyer information by air carriers Transportation shall require all United Annual receipts for these small agencies (instead of passenger manifest States air carriers to provide a passenger were estimated at $4.3 billion (or 49 information being kept for 25 percent of manifest for any flight to appropriate percent) out of a total of $8.7 billion for passengers above), (3) fixed costs are representatives of the United States all travel agencies. Thus, even though assumed to be $30 million (instead of Department of State.’’ After notice and the small agencies account for 96 8280 Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations percent of the total agencies on the basis million for the travel agency industry. Title: Passenger Manifest Information; of number of agencies, they account for Alternatively, the average cost to a Need for Information: The a much smaller proportion of the travel agent for collecting the information is required by Pub. L. 101– receipts. Since receipts is a better information per reservation would be 604 (49 U.S.C. 44909) for use by the measure of the market share of the about $0.15. State Department; smaller agencies, it is not unreasonable The Department estimates that the Use of Information: The State to assume that the small travel agencies small U.S. travel agencies will incur a Department would use the information will incur a proportion of the recurring portion of total recurring costs similar to to inform passenger-designated contacts annual cost of this passenger manifest their proportion of receipts. Applying about aviation disasters; requirement that is similar to their share this factor to the total costs for travel Frequency: The manifests would be of receipts. agents, we calculate that these agencies collected and maintained for each In the regulatory evaluation, the will incur approximately 49 percent of covered flight; Department has calculated the total the total cost . We have calculated that Burden Estimate: 1.05 million hours annual recurring cost of the rule for the it will cost travel agents worldwide $5.8 and $22.1 million per annum for air travel agency industry at $5.8 million. million, but we do not know how much carriers, foreign air carriers, travel This estimate was based on several of this is attributable to foreign travel agents, and passengers; factors and assumptions. In 1996, there agents. Assuming that no cost is Respondents: Approximately 144 U.S. were approximately 54.6 million (one- attributable to foreign travel agencies, air carriers, 318 foreign air carriers, and way) trips by U.S. citizens on covered the maximum impact on small U.S. 22,672 U.S. travel agencies collecting flight segments, with 52.5 million trips travel agencies would be $2.8 million information from 53.8 million annual on scheduled flights and 2.1 million on annually. Therefore, for each of the respondents. We are unable to quantify charter flights. We estimate that about 21,873 small U.S. agencies, the the number of non-U.S. travel agents 85 percent of the passenger itineraries maximum average burden per U.S. that will be affected by this rule; on scheduled flights are roundtrip and, travel agency would be approximately Form(s): No particular format or form therefore, involve only one interaction $128 annually. would be required; between a travel agent or an airline. We The rule will affect a substantial Average burden hours per respondent: estimate that 25 percent of trips are by number of small entities. Based on the An average of about 35 seconds per frequent flyers, and for these trips, we previous information, however, we collection across travel agents and air assume that the information is already believe that there will not be a carriers. stored and requires less time for significant economic impact on any of The information collection and collection since it needs only to be them. We, therefore, certify that this recordkeeping requirements contained confirmed. Based on comments, various rule will not have a significant in this final rule are approved under trade publications, and surveys, we economic impact on a substantial OMB Control Number 2105–0534, estimate that about 75 percent of all number of small entities. expiration 2/2001. Requests for a copy airline tickets on the types of flights of this information collection should be covered by this rule are issued by travel International Trade Impact Statement directed to John Schmidt, DOT/OST (X– agents and that 95 percent of all travel This regulation applies to both U.S. 10), 400 Seventh St., SW., Washington, agency locations use computer air carriers and foreign air carriers that DC 20590: (202) 366–1053. Under the reservations systems. Also, for purposes choose to serve the United States. The Paperwork Reduction Act of 1995, no of this analysis, we assume that 1.75 rule should not affect either a U.S. air person is required to respond to an reservations are made for each carrier’s ability to compete in information collection unless it displays passenger that eventually boards, thus international markets or a foreign air a valid OMB number. allowing for cancellations of carrier’s efforts to compete in the United Federalism Implications reservations. As shown in more detail in States. Neither should the overall level the Final Regulatory Evaluation, we of travel to and from the United States The regulation has no direct impact estimate that the average time to solicit/ be affected. on the individual states, on the balance collect/confirm the passenger manifest of power in their respective information is 35 seconds for all Unfunded Mandates Act governments, or on the burden of scheduled trips. This rule does not impose any responsibilities assigned them by the Using these factors, we calculate that unfunded mandates as defined by the national government. In accordance the travel agency industry will solicit/ Unfunded Mandates Reform Act of with Executive Order 12612, collect/confirm passenger manifest 1995. preparation of a Federalism Assessment information for 39.6 million scheduled is, therefore, not required. Paperwork Reduction Act passengers annually. This represents List of Subjects in 14 CFR Part 243 collections of 29.3 million for roundtrip This final rule contains information flights and 10.3 million for one-way collections that were subject to review Air carriers, Aircraft, Air taxis, Air trips. From another perspective, it by OMB under the Paperwork transportation, Charter flights, Foreign includes 22.6 million collections from Reduction Act of 1995 (Public Law 104– air carriers, Foreign relations, Reporting those who actually complete their 13). The title, description, and and recordkeeping requirements. journeys and 17.0 million trips that are respondent description of the Accordingly, the Department is canceled following a reservation. Based information collections are shown adding a new part 243, in chapter II of on 39.6 million collections and 35 below as well as an estimate of the title 14 of the Code of Federal seconds per average collection, we annual recordkeeping and periodic Regulations that reads as follows: calculate the annual hourly burden for reporting burden. Included in the the travel agency industry at estimate is the time for reviewing PART 243ÐPASSENGER MANIFEST approximately 385,000 hours. instructions, searching existing data INFORMATION Multiplying these hours by an average sources, gathering and maintaining the Secs. salary per hour of $15.07, we estimate data needed, and completing and 243.1 Purpose. a total annual recurring cost $5.8 reviewing the collection of information. 243.3 Definitions. Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations 8281

243.5 Applicability. Full name means the given name, (c) The contact information collected 243.7 Information collection requirements. middle initial or middle name, if any, pursuant to section 243.7(a)(2) of this 243.9 Procedures for collecting and and family name or surname as part shall be kept confidential and maintaining the information. provided by the passenger. released only to the U.S. Department of 243.11 Transmission of information after an Passenger means every person aboard aviation disaster. State, the National Transportation 243.13 Filing requirements. a covered flight segment regardless of Safety Board (upon NTSB’s request), 243.15 Conflicts with foreign law. whether he or she paid for the and the U.S. Department of 243.17 Enforcement. transportation, had a reservation, or Transportation pursuant to oversight of Authority: 49 U.S.C. 40101, 40101nt., occupied a seat, except the crew. For the this part. This paragraph does not 40105, 40113, 40114, 41708, 41709, 41711, purposes of this part, passenger preempt other governments or 41501, 41702, 41712, 44909, 46301, 46310, includes, but is not limited to, a revenue governmental agencies that have an 46316; section 203 of Pub. L. 101–604, 104 and non-revenue passenger, a person independent, legal right to obtain this Stat. 3066 (22 U.S.C. 5501–5513), Title VII of holding a confirmed reservation, a information. Pub. L. 104–264, 110 Stat. 3213 (22 U.S.C. standby or walkup, a person rerouted (d) The contact information collected 5501–5513) and Pub. L. 105–148, 111 Stat. from another flight or airline, an infant pursuant to section 243.7(a)(2) of this 2681 (49 U.S.C. 41313.) held upon a person’s lap and a person part shall only be used by covered § 243.1 Purpose. occupying a jump seat. Airline airlines for notification of family The purpose of this part is to ensure personnel who are on board but not members or listed contacts following an that the U.S. government has prompt working on that particular flight aviation disaster. The information shall and adequate information in case of an segment would be considered not be used for commercial or marketing aviation disaster on covered flight passengers for the purpose of this part. purposes. segments. United States means the States comprising the United States of § 243.11 Transmission of information after § 243.3 Definitions. America, the District of Columbia, and an aviation disaster. Air piracy means any seizure of or the territories and possessions of the (a) Each covered airline shall inform exercise of control over an aircraft, by United States, including the territorial the Managing Director of Overseas force or violence or threat of force or sea and the overlying airspace. Citizen Services, Bureau of Consular violence, or by any other form of U.S. citizen means United States Affairs, U.S. Department of State intimidation, and with wrongful intent. nationals as defined in 8 U.S.C. immediately upon learning of an Aviation disaster means: 1101(a)(22). aviation disaster involving a covered (1) An occurrence associated with the flight segment operated by that carrier. operation of an aircraft that takes place § 243.5 Applicability. The Managing Director may be reached between the time any passengers have This part applies to covered flight 24 hours a day through the Department boarded the aircraft with the intention segments operated by covered airlines. of State Operations Center at (202) 647– of flight and the time all such persons (See § 243.3 of this part) 1512. (b) Each covered airline shall transmit have disembarked or have been § 243.7 Information collection removed from the aircraft, and in which requirements. a complete and accurate compilation of the information collected pursuant to any person suffers death or serious (a) For covered flight segments, each § 243.7 of this part to the U.S. injury, and in which the death or injury covered airline shall: was caused by a crash, fire, collision, (1) Collect, or cause to be collected, Department of State as quickly as sabotage or accident; the full name for each passenger who is possible, but not later than 3 hours, after (2) A missing aircraft; or a U.S. citizen. U.S.-citizen passengers the carrier learns of an aviation disaster (3) An act of air piracy. for whom this information is not involving a covered flight segment Contact means a person not on the obtained shall not be boarded; operated by that carrier. covered flight or an entity that should (2) Solicit, or cause to be solicited, a (c) Upon request, a covered airline be contacted in case of an aviation name and telephone number of a shall transmit a complete and accurate disaster. The contact need not have any contact from each passenger who is a compilation of the information collected particular relationship to a passenger. U.S. citizen; and pursuant to § 243.7 of this part to the Covered airline means: (3) Maintain a record of the Director, Family Support Services, (1) certificated air carriers, and National Transportation Safety Board. (2) foreign air carriers, except those information collected pursuant to this that hold Department of Transportation section. § 243.13 Filing requirements. (b) The covered airline operating the authority to conduct operations in (a) Each covered airline that operates flight segment shall be responsible for foreign air transportation using only one or more covered flight segments ensuring compliance with paragraph (a) small aircraft (i.e., aircraft designed to shall file with the U.S. Department of of this section. have a maximum passenger capacity of Transportation a brief statement not more than 60 seats or a maximum § 243.9 Procedures for collecting and summarizing how it will collect the payload capacity of not more than maintaining the information. passenger manifest information required 18,000 pounds). Covered airlines may use any method by this part and transmit the Covered flight segment means a or procedure to collect, store and information to the Department of State passenger-carrying flight segment transmit the required information, following an aviation disaster. This operating to or from the United States subject to the following conditions: description shall include a contact at (i.e., the flight segment where the last (a) Information on individual the covered airline, available at any time point of departure or the first point of passengers shall be collected before the covered airline is operating a arrival is in the United States). A each passenger boards the aircraft on a covered flight segment, who can be covered flight segment does not include covered flight segment. consulted concerning information a flight segment in which both the point (b) The information shall be kept until gathered pursuant to this part. of departure and point of arrival are in all passengers have disembarked from (b) Each covered airline shall file any the United States. the covered flight segment. contact change as well as a description 8282 Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations of any significant change in its means of foreign law in certain foreign countries § 243.17 Enforcement. collecting or transmitting manifest shall file a petition requesting a waiver The U.S. Department of information on or before the date the in the Docket Facility, on or before the Transportation may at any time require change is made. effective date of this rule, or on or before a covered airline to produce a passenger (c) All filings under this section beginning service between that country should be submitted to OST Docket 98– and United States. Such petition shall manifest including emergency contacts 3305, Dockets Facility (SVC–121.30), include copies of the pertinent foreign and phone numbers for a specified U.S. Department of Transportation, law, as well as a certified translation, covered flight segment to ascertain the Room PL–401, 400 Seventh Street, SW., and shall include opinions of effectiveness of the carrier’s system. In Washington, DC 20590. The statement appropriate legal experts setting forth addition, it may require from any shall be filed by July 1, 1998, or, for the basis for the conclusion that covered airline further information covered airlines beginning operations collection would violate such foreign about collection, storage and after July 1, 1998, prior to the date a law. Statements from foreign transmission procedures at any time. If covered airline operates a covered flight governments on the application of their the Department finds a covered airline’s segment. laws will also be accepted. system to be deficient, it will require (c) The U.S. Department of appropriate modifications, which must § 243.15 Conflict with foreign laws. Transportation will notify the covered be implemented within the period (a) If a covered airline obtains a airline of the extent to which it has been specified by the Department. In waiver in the manner described in this satisfactorily established that addition, a covered airline not in section, it will not be required to solicit, compliance with all or part of the data compliance with this part may be collect or transmit information under collection requirements of this part subject to enforcement action by the this part in countries where such would constitute a violation of foreign Department. solicitation or collection would violate law. applicable foreign law, but only to the (d) The U.S. Department of Issued in Washington, DC, on February 10, extent it is established by the carrier Transportation will maintain an up-to- 1998. that such solicitation or collection date listing in OST Docket 98–3305 of Rodney E. Slater, would violate applicable foreign law. countries where adherence to all or a Secretary of Transportation. (b) Covered airlines that claim that portion of this part is not required [FR Doc. 98–3769 Filed 2–12–98; 10:46 am] such solicitation, collection or because of a conflict with applicable transmission would violate applicable foreign law. BILLING CODE 4910±62±P