New Department of Homeland Security Rules for Electronic Transmission of Passenger and Crew Manifest for Vessels and Aircraft

As of June 6, 2005, air carriers and vessels must comply with Bureau of Customs & Border Protection’s (CBP) Advanced Passenger Information System (APIS) Final Rule. Specifically, all aircraft and vessels arriving and departing the United States, including all aircraft overflying the United States are now required to comply with the recently published CBP rule regarding APIS (the "Rule"). The Rule codifies current Transportation Security Administration ("TSA"), Immigration and Naturalization ("INS") and CBP regulations, and introduces some additional reporting requirements. Failure to follow applicable federal regulations can result in significant and often embarrassing consequences and, therefore, we urge businesses to discuss any questions they may have regarding APIS information submission with knowledgeable Travel, Airline and Transportation Security attorneys. This Client Alert highlights a few of the key issues.

The Rule imposes on commercial air and vessel carriers additional electronic manifest transmission requirements relative to passengers, crew members, and non-crew members in several circumstances, including (1) arrival in, departure from, or overflying the United States, and (2) a foreign air carrier arriving at a U.S. port and then continuing domestically within the United States to a second U.S. port. The manifest information requires disclosure of certain travel itinerary data, aircraft/flight or vessel/ voyage data, and personal identification information, including name, gender, date of birth, citizenship, travel document data, and status onboard the vessel or aircraft. Air carriers are also required to submit added information for crew members, such as place of birth; address of permanent residence; and pilot certificate number and country of issuance, if applicable. The data submission requirement also applies to crew members and, for all-cargo flights only, non-crew members, onboard flights continuing within (foreign air carriers only) and overflying the United States.

The Rule exempts private vessels and aircraft not engaged directly or indirectly in the carrying of persons or cargo for hire. In other words, the Rule does not apply to flights conducted under Part 91 of the Federal Aviation Regulations (e.g., general aviation).

The Rule codifies and in some instances revises various TSA, CBP, and INS reporting requirements applicable to United States arrivals and departures.

• Passengers: Passenger arrival information needs to be submitted no later than 15 minutes after departure of the aircraft, and passenger departure information needs to be submitted no later than 15 minutes prior to departure of the aircraft. There is no departure manifest updating provision for passengers.

• Crew Member and Non-Crew Members: Information associated with arrivals to and departures from the U.S. needs to be submitted no later than 60 minutes prior to departure of the aircraft. Last minute crew changes (updating manifests within 60 minutes of departure) require prior TSA approval. Without prior TSA approval, the flight may be denied clearance, diverted to another port, or denied clearance to enter U.S. airspace.

• Diversions to the United States: Passenger, crew member and non-crew member information must be submitted for flights not originally intended for U.S. but diverted, no later than 30 minutes prior to arrival to the United States.

• Foreign aircraft or vessels continuing within the United States: Crew Member and non-crew member information must be submitted for flights continuing within the U.S., no later than 60 minutes prior to departure from the U.S. port of arrival.

• Overflying the United States: Crew Member and non-crew member information must be submitted no later than 60 minutes prior to departure from foreign airport or place of departure.

Commercial carriers must also make a reasonable effort to ensure the information on the manifest appears valid. While the CBP will not hold carriers liable for the accuracy of the U.S. address information provided by the traveler, a carrier may be held liable for a failure to provide the information or for providing information it knows or should have known was incorrect. For example, the CBP expects carriers to identify and correct an address lacking credibility, such as one using obviously incomplete or fictitious address or a post office box, which is unacceptable. Failure to comply with the above reporting requirements or, more specifically, failure to make a reasonable effort to comply, may result in a civil penalty of $5,000 for each violation and will likely result in a divert to another destination due to the presence of a passenger on the "No Fly" list.

According to the CBP, it has fully complied with, and will continue to ensure compliance with, all requirements of the Privacy Act of 1974, 5 U.S.C. 552a. The CBP stresses that it uses the APIS data primarily for law enforcement purposes and in accordance with all applicable U.S. laws. The CBP explains that it takes various measures to protect against misuse of, or unauthorized access to, the information in the system and that the APIS data primarily consists of travel document information, including passports issued by governments worldwide. The CBP also notes that the collection of APIS data is generally consistent with International Civil Aviation Organization practices and such data have been collected routinely by governments of countries into which a traveler seeks entry.

In the Rule’s introduction, the CBP explains that it has the statutory authority to require presentation of the information by travelers upon their arrival at the U.S. border. APIS will allow the CBP to efficiently and effectively conduct its necessary traveler risk assessment, while facilitating travel and avoiding substantial delays in the processing of travelers. Therefore, the CBP does not believe that APIS will give rise to any new or increased threats to personal privacy interests.

The new standard for aircraft APIS reporting is United Nations Electronic Data Interchange for Administration, Commerce, and Trade ("UN EDIFACT") and the Rule establishes a conversion deadline of October 4, 2005. In the interim, if APIS transmission is in US EDIFACT format, the passenger and crew member manifest must be transferred separately. While some carriers have concerns regarding UN EDIFACT, CBP notes in the Rule that the format serves several useful purposes for the air carrier industry. First, UN EDIFACT was approved as the global standard for APIS messaging by the World Customs Organization in March 2003 and as a result, after the initial systems re-program, carriers will not have to continue to reprogram to meet other governments’ specific APIS requirements. Second, UN EDIFACT is much more flexible than US EDIFACT and will allow the carriers to comply with the new data element requirements and make minor adjustments to accommodate modifications without major reprogramming.

The new standard for vessel APIS transmission is eNOA/D, a web-based application that has been developed by the USCG and the CBP. CBP adopted the USCG’s eNOA/D transmission format or the XML transmission format. eNOA/D became available to the vessel carrier industry at the end of January 2005. Vessels can access eNOA/D through the USCG’s National Movement Vessel Center web site: www.nvmc.uscg.gov. CBP is adopted the method following comments received by the industry calling for a consolidated manifesting requirement that would provide the industry a "single-window" for manifest transmissions, which was responsive to the industry. The XML format allows transmission of required information by attachment to an email message. CBP determined that the eNOA/D and XML methods (not UN EDIFACT) are the most compatible and easy to implement methods for this purpose.

For cargo vessel carriers, using eNOA/D or XML will constitute transmission to CBP through an electronic data interchange system approved by CBP. Cargo vessel carriers are required to comply with these transmission requirements earlier than passenger vessels since they do not currently submit data and have not previously implemented the US EDIFACT transmission format. Cargo vessel carriers must make transmissions through one of these media as of May 30, 2005. Passenger vessel carriers must make transmissions through one of these media by October 4, 2005.

Fortunately, CBP has developed its own "eAPIS Online Transmission System" that is currently available for use at https://eapis.cbp.dhs.gov for commercial operators to submit APIS data and Master Crew Lists (MCLs).

CBP’s eAPIS requires new commercial air carriers and/or air APIS transmitters to register and confirm their registration information. Once registered, the system automatically issues a unique APIS sender identification code and, if required, assigns an APIS airline or carrier code. Previously registered commercial air carriers and/or APIS transmitters with issued codes will need to confirm their registration information for data security and integrity purposes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.