Passenger Manifest Information

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 243

RIN 2105-AB78

[Docket No. OST-95-950, Notice No. 96-23]

Passenger Manifest Information

AGENCY: Office of the Secretary (OST), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This document proposes to require that each air carrier and

foreign air carrier collect basic information from specified passengers

traveling on flight segments to or from the United States. U.S.

carriers would collect the information from all passengers and foreign

air carriers would collect the information for U.S. citizens and lawful

permanent residents of the United States. The information would include

the passenger's full name and passport number and issuing country code,

if a passport is required for travel. In addition, airlines would be

required to solicit the name and telephone number of a person or entity

to be contacted in case of emergency. Airlines would be required to

make a record of passengers who decline to provide an emergency

contact. The information would be provided to the Department of

Transportation and the Department of State in case of an aviation

disaster. The Department proposes to allow each airline to develop its

own collection system, a description of which would be filed with the

Department. Alternatively, the rule would provide that DOT may waive

compliance with certain requirements of the part if an air carrier or

foreign carrier has in effect a signed Memorandum of Understanding with

the Department of State concerning cooperation and mutual assistance

following aviation disasters abroad.

DATES: Comments must be received November 12, 1996.

ADDRESSES: Comments on this notice of proposed rulemaking should be

filed with: Docket Clerk, U.S. Department of Transportation, Room PL-

401, Docket No. OST-95-950, 400 7th Street, SW, Washington, DC 20590.

Five copies are requested, but not required.

FOR FURTHER INFORMATION CONTACT: Dennis Marvich, Office of

International Transportation and Trade, DOT, (202) 366-4398; or, for

legal questions, Joanne Petrie, Office of the General Counsel, DOT,

(202) 366-9306.

SUPPLEMENTARY INFORMATION:

Background

During the immediate aftermath of the tragic bombing of Pan

American Flight 103 over Lockerbie, Scotland on December 21, 1988, the

Department of State experienced difficulties in securing complete and

accurate passenger manifest information and in notifying the families

of the Pan American 103 victims. The Department of State did not

receive the information for ``more than seven hours after the tragedy''

(Report of the President's Commission on Aviation Security and

Terrorism, p. 100). When the Department of State did acquire the

passenger manifest information from Pan American, in accordance with

current airline practice, it included only

[[Page 47693]]

the passengers' surnames and first initials, which was insufficient

information to permit notification of the victims' families in a timely

manner.

Statutory Requirements

In response to the Report of the President's Commission on Aviation

Security and Terrorism, Congress and the Administration acted swiftly

to amend Section 410 of the Federal Aviation Act (now 49 USC 44909). PL

101-604, which was signed by President Bush on November 16, 1990,

mandates that,

the Secretary of Transportation shall require all United States air

carriers to provide a passenger manifest for any flight to

appropriate representatives of the United States Department of State

(1) not later than 1 hour after any such carrier is notified of an

aviation disaster outside the United States which involves such

flight; or (2) if it is not technologically feasible or reasonable

to fulfill the requirement of this subsection within 1 hour, then as

expeditiously as possible, but not later than 3 hours after such

notification.

The statute requires that the passenger manifest information

include the full name of each passenger, the passport number of each

passenger, if a passport is required for travel, and the name and

telephone number of an emergency contact for each passenger. The

statute further notes that the Secretary of Transportation shall

consider the necessity and feasibility of requiring United States

carriers to collect passenger manifest information as a condition for

passenger boarding of any flight subject to the passenger manifest

requirements. Finally, the statute provides that the Secretary of

Transportation shall consider a requirement for foreign air carriers

comparable to that imposed on U.S. air carriers. The statute provided

120 days after the date of enactment for the Secretary of

Transportation to require all United States air carriers to provide the

passenger manifest information to the Department of State.

The ANPRM

In order to implement the statutory requirements, the Department of

Transportation published an advance notice of proposed rulemaking

(ANPRM) on January 31, 1991 (56 FR 3810). The ANPRM requested comments

on how best to implement the statutory requirements. Among possible

approaches, the ANPRM noted that the Department might require airlines

to collect the data at the time of reservation and maintain it in

computer reservations systems. Alternatively, the ANPRM noted that the

Department might require each airline to develop its own data

collection system, which would be approved by the Department. The ANPRM

posed a series of questions concerning privacy concerns, current

practices in the industry and potential impacts on day-to-day

operations.

Comments to the ANPRM

Twenty-six comments were filed in response to the ANPRM. Commenters

included the Air Transport Association (ATA), the National Air Carrier

Association (NACA), the Regional Airline Association (RAA), Alaska

Airlines, American Trans Air, the American Society of Travel Agents

(ASTA), the ``Victims of Pan Am Flight 103'', the Asociacion

Internacional de Transporte Aereo Latinoamericano (AITAL), a combined

comment (filed by Air Canada, Air Jamaica, Balair, Condor Flugdienst

GmbH, and the Orient Airlines Association), Aerocancun, Air-India,

British Airways, Japan Airlines, Lineas Aereas Paraguayas, Nigeria

Airways, Royal Air Maroc, Swissair, the Embassy of Switzerland, the

Embassy of the Philippines, the United States Department of State

(Assistant Secretary for Consular Affairs), the U.S. Department of the

Treasury (U.S. Customs Service), the Commissioner of Customs, the

United States Government Interagency Border Inspection System (IBIS),

System One Corporation, and two individuals, Ms. Edwina M. Caldwell and

Ms. Kathleen R. Flynn. In addition, the views of Meetings and

Incentives in Latin America, an Illinois travel and tour company, are

included in the docket because of a communication to a Department

official after the ANPRM was issued.

The U.S. carriers shared similar concerns. They argued that the

requirements should be imposed equally upon U.S. and foreign airlines

in order to maintain a ``level playing field.'' To the extent

collecting the information causes passenger delays, it will degrade the

service of U.S. airlines and result in loss of business to foreign

competitors. Second, they argued that the information collection

requirements must be designed to minimize additional passenger

processing time. Those with automated reservations systems recognized

that additional passenger processing time would be minimized if

passenger manifest information is given at the time a reservation is

booked. ATA, for example, stated that it believed that airlines cannot

effectively collect this information at airport check-in because to do

so would require at least an extra 60 seconds per passenger. Thus, if

200 people on a given flight arrived at the airport without previously

having given passenger manifest information, such a requirement could

prolong processing by 3.3 person-hours.

ATA stated that to implement a passenger manifest information

requirement, airlines would need to augment personnel, reservation

systems, equipment and counter space. The last requirement, augmenting

counter space, is not possible at all airports, and is especially

difficult at foreign airports. In addition, ATA noted that intercarrier

information exchange procedures would have to be developed. ATA stated

that it is currently working on these procedures and asked that they

not be addressed by regulation. Further, ATA noted that the passenger

manifest requirement would mean that computer reservation systems,

carrier reservation and customer service/check-in, and travel agency

personnel would need training in new procedures. Finally, it stated

that it was unrealistic to expect airlines to produce a complete

manifest within one to three hours.

ATA also noted that three-quarters of international journeys are

booked through travel agents and stated that any rule issued by the

Department should assign travel agents responsibility for collecting

manifest information from the passengers who book through them. It

believed that some passengers will refuse to provide emergency contact

information and airlines, therefore, should only be required to solicit

the information rather than collect it. It stated that the Department

of State should treat the information as confidential and that the

information in the manifest should only be provided to family members.

ATA vigorously defended the airlines' historic role in having primary

responsibility for informing victims' families and argued that nothing

should be done to usurp that role.

ATA also provided detailed comments on specific issues raised in

the ANPRM. It stated that the definition of an aviation disaster was

both too narrow and too broad. It suggested that although carriers

should be responsible for obtaining the manifest information, they

should not be responsible for verifying its accuracy, and that if a

passenger declines to provide an emergency contact, the passenger

should not be refused transportation. It noted that charter and tour

operators, air taxi operators and commuter airlines should also be

required to collect information to the extent they are providing

foreign air transportation. ATA further argued that the information

should be required only for U.S. citizens based on the legislative

history of the

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law and the need to minimize burdens on the carriers. ATA expressed

concern that the provision of manifest information by foreign air

carriers and foreign travel agents to U.S. air carriers could become a

very serious issue for U.S. air carrier operations at foreign

locations. If the information were not provided in advance, carriers

would have to collect it at check-in, which would seriously degrade the

competitiveness of U.S. carriers. It urged the U.S. Government to

negotiate with foreign governments assurances that such information

would be provided by foreign air carriers and foreign travel agents.

ATA also argued that, to the extent that foreign law prohibits

collection of this information, carriers should not be required to

collect it. ATA believed that the information collection requirement

should be applicable to all international flight segments (including

flights between two foreign points), except for flights between the

U.S. and Canada, Mexico, or the Caribbean. It argued that an exemption

for these latter flights is justified because of the proximity of these

nations, the lack of a passport requirement for travel to and from

them, the communities of interest between the countries, and the great

volume of transborder and Caribbean traffic.

Finally, ATA argued that in order to ameliorate delays, the State

Department should purchase, and distribute to carriers, automated

passport readers. It argued that any rule should be compatible with the

Advance Passenger Information System (APIS) program and that the

Department of State should create and maintain a data base of the

statutorily-required information.

The Regional Airline Association, whose members carry approximately

1.5 million passengers internationally per year, was concerned about

the potential costs associated with its members' inclusion in a rule.

It favored a system whereby carriers could adopt whatever data

collection system would work best. It questioned whether requiring

travel agents to collect the information would be practical. It

believed that foreign air carriers should be subject to the rule to

alleviate any possible competitive impact.

The comments of the National Air Carrier Association focused on

modifications to computer reservation system software. It proposed that

inclusion of passenger contact, passport number, etc. be a mandatory

element required to exit from a computerized passenger reservation

record. Second, it suggested that the ``passenger name list manifest''

should automatically access this information from the passenger name

record in case of an emergency. NACA also stated that the information

should be obtained on a ``best efforts'' basis, and that the U.S.

carriers should not be legally responsible for collecting or verifying

the information. It believed this caveat to be important particularly

for travel to countries not requiring passports and travel to countries

where applicable foreign law prohibits collection of personal

information. NACA further argued that tour operators should collect the

data for charter flights. Finally, it suggested that the data be

collected by both U.S. and foreign carriers for all passengers,

regardless of citizenship.

American Trans Air argued that the information collection request

should be applicable to all passengers traveling internationally, and

that if a passenger refused to provide the required information, the

carrier should have the option of refusing transportation or requiring

the passenger to sign a waiver. It noted concern over the high cost of

the rule relative to the benefit to U.S. carriers, and the potential

competitive impacts if foreign carriers were not required to collect

the information. In an attached letter, American Trans Air indicated

that for the 13 percent of its business for which it processed its own

reservations (American Trans Air is primarily engaged in charter

operations), it would not be that difficult a task to maintain

passenger manifest information in its reservations system, although

additional computer storage space would be required. It was concerned,

however, about the potential impacts of any regulation on its other

operations in which it does not directly handle reservations. These

operations include wholesale charters, wetleases/subservice, military

passengers, and incentive passenger charters.

Alaska Airlines was concerned that the rule might be applied to

domestic flights that traverse foreign or international airspace

enroute. It noted many practical difficulties in determining which

flights might be covered and the need to restructure domestic travel in

order to collect this information. Finally, like ATA, it argued that

the rules should only apply to international flights that require a

passport.

The foreign air carriers were unanimous in their opposition to

having the rule apply to them. Most noted the legislative history of

P.L 101-604 and the specific language in the statute directing the

Secretary to consider, not mandate, application to foreign air

carriers. Most discussed the principle of comity and argued that

application of the rule to foreign carriers, foreign citizens and

flights between two foreign points would be inappropriate and contrary

to international law. Several of the foreign carriers (Japan Airlines,

Royal Air Maroc, and Swissair) stated that collection of the

information would violate the law of their home country or at least be

restricted under foreign law. Others focused on practical difficulties

relating to lack of automation (which would mean that passenger

manifest information could only be collected at check-in), limited

telecommunication facilities, language barriers, and the excessive cost

and administrative burden that would result.

Japan Airlines also believed that its passengers would be reluctant

to provide personal information that might be turned over to the U.S.

Department of State, and which might be available to a range of other

persons. It noted that travel agents would likely not wish information

revealing the names of their clients placed in a computer reservation

system accessible to their competitors. Royal Air Maroc was concerned

that collection of the information would generally be by telephone

conversations between their reservations staff or travel agents and

individual passengers, and would be prone to error. Royal Air Maroc

asserted that this would impose an unacceptable burden because the

carrier would be forced to verify the information at check-in.

The Embassy of Switzerland stated that if the regulation were

extended to foreign air carriers, it would be contrary to Article 23 of

the Convention on International Civil Aviation and to Chapter 2 of

Annex 9 of the Convention. It further stated that Swiss law makes

unlawful, and subjects to criminal sanctions, the performance in

Switzerland of an act for a foreign state which by its nature is an act

performed by a public authority or a public officer. It stated that

this law would apply to any data collection performed in Switzerland by

Swissair pursuant to a Department of Transportation requirement under

consideration in this rulemaking. The comments of Swissair reiterated

these concerns and went on to argue that comity dictates that the

regulation not be applied to foreign air carriers. To the extent that

the Department is exploring foreign air carrier application, Swissair

believed such consideration should take place within the context of

bilateral negotiations or through the International Civil Aviation

Organization.

British Airways objected to the application of passenger manifest

requirements to foreign carriers, and argued that they were unnecessary

to achieve the objective of ensuring that a

[[Page 47695]]

foreign carrier is able to identify all affected passengers in the

event of an aviation disaster. It stated that it would even more

strongly object to the extent that passenger manifest requirements were

applied to foreign flight segments operated by foreign carriers.

British Airways believed that passenger manifest requirements would

result in immense administrative and operational burdens and would

increase passenger delay and inconvenience at already overtaxed

international airports. While it recognized that, under optimal

circumstances, the passenger manifest information would be provided at

the time the reservation is made, it said that, in practice, some or

all of the required information would need to be obtained during check-

in, thereby significantly increasing the required check-in time for

flights to and from the United States. It estimated the increased

check-in time needed to collect passenger manifest information for its

flights to and from the United States to be a minimum of 40 seconds per

passenger. Using scenarios of one-half of all passengers and all

passengers arriving at check-in without having provided passenger

manifest information, British Airways calculated that this would

translate into 2 to 4 hours of additional check-in processing time for

a 360 seat airplane.

British Airways also believed that passenger manifest requirements,

such as those set out in the ANPRM, would impose excessive and

unnecessary financial costs. It estimated its minimum costs for any

passenger manifest requirement to be: (1) Onetime costs of about

$100,000 for reprogramming of its Departure Control System; (2) onetime

costs of about $1 million for changes to its computer reservations

system; and (3) annual charges of (conservatively) about $500,000 for

additional reservations and check-in staff in the United States and the

United Kingdom.

The joint comment representing eighteen foreign carriers (Air

Canada, Air Jamaica, Balair, Condor Flugdienst GmbH, and the Orient

Airlines Association, which includes, Air New Zealand, Air Niugini, All

Nippon Airways, Cathay Pacific Airways, China Airlines, Garuda

Indonesia, Japan Airlines, Korean Air, Malaysia Airlines, Philippine

Airlines, Qantas Airways, Royal Brunei Airlines, Singapore Airlines,

and Thai Airways International) objected to application of the rule to

foreign air carriers and made three main arguments. First, the joint

commenters argued that application to foreign carriers would not result

in competitive balance, but instead would tip the scales further in

favor of U.S. carriers because foreign carriers are excluded from the

U.S. cabotage market. Second, the joint commenters argued that

unilateral regulation of foreign carriers by the Department would

conflict with the intent of other provisions of P.L. 101-604 that

committed the United States to pursue its aviation security objectives

through accepted multilateral and bilateral channels. In addition, they

argued that unilateral regulation of foreign air carriers conflicts

with the Chicago Convention and with the principles of comity and

reciprocity. Finally, the joint commenters perceived little or no

relationship between the collection of the specified passenger

information and enhanced aviation security. They argued that compliance

with the regulation would divert airline resources from enhanced

aviation security and improvements to facilitate efficient air

transportation, and would, at best, only marginally improve the State

Department's ability to quickly notify victims' families in the very

infrequent event of an air disaster. They argued that compliance would

involve significant costs in the areas of automation and additional

personnel, equipment, and airport counter space. In addition, they

stated that foreign carriers would have higher compliance costs than

U.S. airlines because foreign airlines are less automated, and because

conforming interline ticketing procedures to accommodate passenger

manifest information would be more expensive than conforming computer

reservations systems to do the same. They concluded that the excessive

costs of foreign carrier compliance are unreasonable.

AITAL, which represents 25 Latin American airlines, noted the heavy

workload that might be required by this rule, particularly since many

Latin American agencies and airport check-in counters are not

automated. In addition, it noted potential difficulties in

communicating this information promptly to the State Department in the

event of a disaster.

Aerocancun and Lineas Aereas Paraguay questioned whether many, if

any, concerned relatives would expect the U.S. State Department to have

immediate passenger information in the event of an aviation disaster

involving a foreign carrier. Aerocancun, which operates only charter

service, also noted that it has little or no contact with passengers

prior to their arrival at the departure airport. All of its sales and

solicitation activities are performed by travel agents (who are the

primary point of contact with the traveling public) and/or tour

operators. It stated that, as is customary in the charter market, it is

not given a copy of the passenger manifest until 48 hours before flight

departure and does not know of last-minute passengers until just prior

to departure. Moreover, Aerocancun does not have a computerized

reservation system. Both Aerocancun and Lineas Aereas Paraguay stated

that the passenger manifest requirements would lead to delays and

crowding at international airports.

The Embassy of the Philippines commented that Philippines Airlines

was concerned that a passenger manifest requirement would force it to

conduct tedious airport check-in procedures. Philippines Airlines also

anticipated that gathering of additional information from passengers

would require costly modifications to its computerized Departure

Control System.

ASTA, which represents approximately 15,000 travel agents, argued

that the Department should not require travel agents to collect and

report passport numbers and emergency contact information. ASTA

suggested that passengers complete a form similar to the Custom

Declaration at the time of departure and that the stack of forms should

constitute the manifest for a particular flight. If DOT did require

travel agents to collect information, it argued that the agent should

not be required to refuse to write a ticket if a passenger could not or

would not provide the requisite information. It noted that as a

practical matter, this information generally would need to be processed

through computer reservations systems, which not all agents can access.

It suggested that agents who do not have computer reservations systems

should be exempt from the rules. Failing that, it argued that these

agents should be permitted to satisfy the statute by delivering

whatever information is available to the airline by telephone when the

booking is made. In all cases, ASTA said that the compilation of an

actual ``manifest'' for each flight must be accomplished by the

airlines.

The Customs Service and the Interagency Border Inspection System

(which is comprised of the U.S. Customs Service, the Immigration and

Naturalization Service and the Departments of State and Agriculture)

urged the Department to design the passenger manifest requirements to

support the Advance Passenger Information System (APIS). APIS is an

existing, voluntary program that allows airlines to transmit the full

name, passport number, country of issuance, and date of birth for each

passenger

[[Page 47696]]

prior to arrival in the U.S. APIS data are used to identify high-risk

passengers and to facilitate the processing of low-risk passengers. The

facilitation benefits of APIS accrue to passengers, airlines, airport

operators, and government agencies. The U.S. Customs Service asked that

DOT require the collection of passengers' dates of birth, and said that

if this was done, airlines would possess all the necessary data to

participate in APIS. The Interagency Border Inspection System (IBIS)

suggested using the APIS system to fulfill DOT's passenger manifest

requirement and specified a comprehensive list of data elements that

should be included. At a minimum, IBIS would like the following

information for each passenger: last name, first name, date of birth,

nationality, travel document number, issuing country code for travel

document, passenger's travel origination point (country code), contact

name, and contact telephone number. Some of the agencies involved in

IBIS would also like to collect additional passenger information

consisting of visa issuing post, date of visa issuance and intended

destination (U.S. address or ``in transit'').

The Assistant Secretary of State for Consular Affairs suggested

that the rule cover U.S. citizens flying on U.S. or foreign air

carriers. The Assistant Secretary noted that the Department of State

has the responsibility to inform the families of U.S. citizens who are

victims of aviation disasters regardless of the nationality of the

airline. In addition, the Assistant Secretary noted that inclusion of

foreign air carriers would satisfy the concerns of certain U.S.

carriers that believe that application of such a regulation only to

them would imply that U.S. carriers are less safe than foreign

carriers. Finally, the Assistant Secretary noted that possible foreign

government objections to passenger manifest requirements on the basis

of their extraterritorial application would be lessened if the

information collection were limited to U.S. citizens on flights to and

from the United States.

The group, ``Victims of Pan Am Flight 103'' proposed a specific

method to collect passenger manifest information. It suggested that

boarding passes be redesigned to have a detachable stub that could be

filled out by passengers and dropped in a box just before boarding a

flight. It argued that such a method would require little work for the

airlines; would not violate privacy laws in foreign countries; would

allow medical personnel to obtain medical histories for survivors;

would give an accurate count of passengers so that rescuers would know

when to stop searching; and would allow airlines to deliver a correct

manifest to the State Department within one hour using a scanner on the

stubs.

Meetings and Incentives in Latin America stated that passport

numbers should be collected for all passengers, that collection of a

work or home telephone number for each passenger should be mandatory,

and that the party that makes the first contact with the passengers

should be the one responsible for collecting the information.

Of the two individuals who provided comments, Ms. Caldwell, a

former travel consultant, suggested that, to the extent possible, the

travel agent or airline reservation agent should collect the required

information. She suggested that the airport agent should check the

record to ensure that the information is in the record. She further

suggested that if a passenger refused to provide an emergency contact,

the passenger should sign or initial some document prior to boarding.

Finally, Ms. Caldwell stated that the rule should apply to all

passengers on both U.S. and foreign air carriers for all international

flights. Ms. Flynn, the mother of a passenger killed on Pan Am Flight

103, noted the hardships endured by the families and her belief that

the traveling public would prefer to have passenger manifest

information available in spite of some of the difficulties in

implementing P.L. 101-604. She stated her belief that this additional

information would deter certain terrorist activities.

System One, a computer reservations system provider, stated that

although most of the issues related to the collection of passenger

manifest data are airline issues, as a computer reservations systems

provider, it would have no problem complying with any proposed

regulations requiring data collection. It stated its willingness to

participate in any industry effort to automate the transmission and

collection of desired passenger data once agreed to by the Department

and the airlines. Finally, it stated that automated handling of this

type of information would improve compliance and facilitate the

participation of U.S. and foreign airlines.

Subsequent DOT Activity

In January 1992, President Bush announced a ``Regulatory Moratorium

and Review'' during which federal agencies were instructed to issue

only rules that addressed a pressing health or public safety concern.

During the course of the moratorium, the Department asked for comments

on its regulatory program. Comments that addressed the passenger

manifest information statutory requirement were filed by ATA,

Northwest, American, Air Canada, and Japan Airlines. ATA included

passenger manifest among ten DOT and FAA regulatory initiatives that,

if implemented, would be the most onerous for the airline industry. ATA

recommended that if additional passenger manifest information was to be

required, it should be limited to the information that is required by

the U.S. Custom Service's APIS program. Northwest supported the ATA

proposals and said they were part of an industry-wide effort to

identify significant regulatory impediments. American Airlines listed

the passenger manifest rulemaking in its top five (out of over 100)

pending aviation rulemakings that should be eliminated/substantially

revised. Air Canada said that if air carriers were required to adopt

the APIS standard advocated by ATA, its costs (and those of other

foreign air carriers) would be unnecessarily raised. Japan Airlines

said that any requirement to collect personal data from air passengers

would conflict with the Constitution of Japan, would be costly, and, to

the extent that it was anticipated that such data would be shared with

the APIS program, should be the subject of prior public discussion.

In the FY 1993 DOT Appropriations Act, Congress provided that none

of the FY 1993 appropriation could be used for a passenger manifest

requirement that only applies to U.S.-flag carriers. This provision was

repeated in subsequent DOT Appropriations. For the current year,

section 319 of the DOT FY 1996 Appropriation Act states:

None of the funds provided in this Act shall be made available

for planning and executing a passenger manifest program by the

Department of Transportation that only applies to United States flag

carriers.

In light of the totality of comments and the fact that aviation

disasters occur so rarely, DOT continued to examine whether there was a

low-cost way to implement a passenger manifest requirement. In 1995,

DOT considered seeking legislative repeal or modification of the

statutory requirements. In the November 28, 1995, Unified Agenda of

Federal Regulations, the passenger manifest entry stated that DOT ``is

recommending legislation to repeal the requirement [of passenger

manifests] because of the high costs and small benefits that would

result.''

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Cali Crash

On December 20, 1995, American Airlines Flight 965, which was

flying from Miami to Cali, Colombia, crashed near Cali. There were

significant delays in providing the State Department with a complete

passenger manifest. Even when it was provided, the manifest was of

limited utility to State because it lacked the passport numbers of the

passengers. (The State Department did successfully carry out its other

post-crash responsibilities.) Department of Transportation staff met

with American Airlines to explore the logistical, practical and legal

problems that they encountered in the aftermath of the crash, and ways

these problems could be ameliorated in the future. We also met with

high level representatives of the State Department to discuss State's

needs and concerns on this matter.

Public Meeting

On March 29, 1996, DOT held a public meeting on implementing a

passenger manifest requirement. The notice announcing the public

meeting (61 FR 10706, March 15, 1996) noted that a long period of time

had passed since the 1991 advance notice of proposed rulemaking, and

that a public meeting during which stakeholders could exchange views

and update knowledge on implementing such a requirement was necessary

as a prelude to DOT proposing a passenger manifest information

requirement. The notice enumerated ten questions concerning information

availability and current notification practices, privacy

considerations, similar information requirements, information

collection techniques, and costs of collecting passenger manifest

information.

The meeting was attended by approximately 80 people. To facilitate

discussion, representatives of three family survivor groups (The

American Association for Families of KAL 007 Victims, Families of Pan

Am 103/Lockerbie, and Justice for Pan Am 103), the Air Transport

Association, the Regional Air Transport Association, the National Air

Carrier Association, the International Air Transport Association, the

American Society of Travel Agents, U.S. Department of State, U.S.

Customs Service, and DOT formed a panel. Members of the audience, who

included representatives of foreign governments, were invited to

participate in the discussion and did. The discussion lasted nearly 5

hours and covered a wide variety of topics. At the end of the meeting,

it was the consensus that one or more working groups headed by the Air

Transport Association would be formed to further explore some of the

issues raised.

Memorandum of Understanding

ATA convened a first working group that consisted of

representatives of two family groups (Families of Pan Am 103/Lockerbie

and American Association for Families of KAL 007 Victims), the National

Air Disaster Alliance, the Department of State, and several U.S.

airlines, with IATA in attendance. DOT was not a participant in the

group. The working group is negotiating a voluntary Memorandum of

Understanding (MOU) to be signed by individual airlines and the

Department of State. The MOU is expected to set forth a series of

procedures to facilitate smooth communication and prompt and accurate

notification of family members, including designation of points of

contact, information sharing, exchange of liaison officers,

specification of duties of liaison officers, cross-training and prompt

transmittal of accurate and useful passenger manifest information.

ATA also plans to integrate data issues into the work of this first

working group by expanding it. (Alternatively, a second working group

on data issues could be convened.) The expanded group is expected to

include, in addition to the first working group participants,

additional industry representatives and, perhaps, others who have data

bases that might provide quick access to information that might help in

the notification process.

TWA Flight 800

On July 17, 1996, TWA Flight 800, which was flying from New York to

Paris, went down off Long Island, New York. Local government officials

publicly commented on difficulties in determining exactly who was on

board the flight and in compiling a complete, verified manifest. (TWA

caregivers were generally praised for their efforts in the crash

aftermath.) Although this was an international flight, the crash

occurred in U.S. territorial waters and, therefore, the Department of

State had no specific role in family notification and facilitation for

U.S. citizens. The Department of State received inquiries from foreign

governments regarding the fates of their citizens, however, and DOT

also received such inquiries. In general, the TWA Flight 800 accident

dramatized the problems related to prompt notification.

The Notice of Proposed Rulemaking

This notice proposes to require that each air carrier and foreign

air carrier collect basic information from specified passengers

traveling on flight segments to or from the United States (``covered

flights''). U.S. carriers would collect the information from all

passengers and foreign air carriers would only be required to collect

the information for U.S. citizens and lawful permanent residents of the

United States. The information would include the passenger's full name

and passport number and issuing country code, if a passport is required

for travel. Carriers would be required to deny boarding to passengers

who do not provide this information. In addition, airlines would be

required to solicit the name and telephone number of a person or entity

to be contacted in case of an aviation disaster. Airlines would be

required to make a record of passengers who decline to provide an

emergency contact. Passengers who decline to provide emergency contact

information would not, however, be denied boarding. In the event of an

aviation disaster, the information would be provided to DOT and the

Department of State to be used for notification. DOT proposes to allow

each airline to develop its own procedures for soliciting, collecting,

maintaining and transmitting the information. The notice requests

comment on whether passenger date of birth should be collected, either

as additional information or as a substitute for required information

(e.g. passport number).

Section-by-Section Analysis

The authority for the rule would primarily be based on P.L. 101-

604, which was codified as 49 USC 44909. In addition, the Department

has broad authority under Subtitle XII (Transportation) of Title 49 of

the U.S. Code (``Transportation Code'') for rulemaking, security,

information collection and assessment of civil and criminal penalties.

Section 243.1 of the proposed rule notes that the purpose of the

part is to ensure that the U.S. Department of Transportation and the

U.S. Department of State have prompt and adequate information in case

of an aviation disaster on specified international flights. In

addition, it notes that the regulation is mandated by 49 USC 44909.

The definition section, Sec. 243.3, incorporates a number of

statutory definitions for the reader's convenience and clarifies the

use of various important terms used in the substantive requirements of

the proposed rule. In response to a number of comments on this issue,

the definition of aviation disaster has been tightened to follow more

closely the statutory requirements. ``Aviation Disaster'' would be

defined as

[[Page 47698]]

1) an occurrence associated with the operation of an aircraft that

takes place between the time any passengers have boarded the aircraft

with the intention of flight and all such persons have disembarked or

have been removed from the aircraft, and in which any person suffers

death or serious injury or in which the aircraft receives substantial

damage, and in which the death, injury or damage was caused by a crash,

fire, collision, sabotage, or accident; 2) a missing aircraft; or 3) an

act of air piracy. We tentatively conclude the first part of this

definition is vital because it relates to an objective occurrence that

serves as the basis for determining the timing of the actions

subsequently required. We request comments on whether the carrier

should have the duty to present the manifest when ``any'' passenger has

boarded the plane, or only when ``all'' passengers have boarded. The

proposed definition would require that carriers have information on

each passenger by the time each boards the airplane, rather than

waiting until all passengers have boarded. Although ATA objected to

this timeframe, it takes into account the possibility of an emergency

in which all passengers might not have boarded the aircraft.

The term ``U.S. citizen'' includes U.S. nationals as defined in 8

USC 1101(a). ``Lawful permanent resident'' includes those defined in 8

USC 1101(a)(20). In simpler terms, U.S. citizen means a person holding

a U.S. passport and a lawful permanent resident is a holder of a so-

called ``Green Card.''

In order to clarify which flight segments are subject to the rule,

the NPRM includes a definition for ``covered flight.'' In the NPRM,

covered flight means a flight segment operating to or from the United

States. It does not include any flight segment in which both the origin

and destination point are in the United States, even though some

portion of the flight may be over territory not belonging to the United

States. The definition also excludes any flight in which both the

origin and destination point are outside of the United States. There

would be many practical difficulties in getting foreign travel agents

to collect this information in foreign countries. Some countries would

certainly object to such a proposal on the grounds of

extraterritoriality. We tentatively find that the costs and legal

questions raised would far outweigh by the marginal benefit and,

therefore, are not proposing to extend the rule to these flights. We

request comments, however, on whether these flights should be covered.

A number of commenters raised privacy concerns related to providing

an emergency contact. In order to encourage passengers to provide the

information, the NPRM proposes to allow the emergency contact to be

either a person or an entity. The contact need not have any particular

relationship to a passenger. We tentatively believe that this flexible

approach will meet the needs of the State Department with the least

possible intrusion into the private lives of passengers. Passengers

that are uncomfortable, for whatever reason, with providing the name of

a particular person can provide the name of an entity such as a

business or other organization that should be contacted.

The term ``passenger'' is defined to include any person on board a

covered flight with the exception of the flight crew assigned to that

flight. In the past, there has been some confusion concerning the

number and identity of certain categories of passengers, particularly

non-revenue passengers, standbys and infants. The flight crew is

excluded from the definition because the carrier knows their identity

and has ready access to emergency information. Airline personnel who

are on board but not working on that particular flight segment (e.g.

``deadheads'' and spare crews for onward flight segments) would be

considered passengers for the purpose of this rule in order to ensure

their accountability. Standby passengers, by definition, board at the

last minute, when there is pressure on the airline to move the flight

away from the gate. In the past, there have been problems with

identifying standby passengers. Similarly, many airlines have not kept

records of infants under two years old who are traveling for free on

the lap of a passenger. In the case of an aviation disaster, we believe

it is important to have a complete manifest, even if this requires a

change of current airline practice.

Section 243.5, Applicability, states that this part applies to

covered flights operated by air carriers and foreign air carriers.

Under the Transportation Code, ``air carrier'' includes any citizen of

the United States who undertakes, whether directly or indirectly or by

a lease or any other arrangement, to engage in air transportation. For

example, air carriers include air taxis, commuter carriers, and charter

operators. Similarly, ``foreign air carrier'' is defined in the statute

to include any person, not a citizen of the United States, who

undertakes, whether directly or indirectly or by lease or any other

arrangement, to engage in foreign air transportation. In some

instances, there may be two or more air carriers or foreign air

carriers involved (e.g., a charter operator, which is an indirect air

carrier, selling transportation on a flight actually flown by an

unaffiliated direct air carrier or a carrier operating under a code

share agreement in which the service is held out under the name of one

carrier but actually provided by another carrier). In each example, the

two entities would have the legal responsibility for meeting the

requirements of this part. As a practical matter, we would anticipate

that the involved carriers would agree, by contract, which one would

collect, maintain and transmit the data. So long as the information is

collected, we would not require duplication of effort. The parties to

the contract would have to be vigilant, however, because they would be

jointly and individually responsible for compliance. A likely scenario

is that carriers will delegate some of the responsibility for

soliciting and collecting the information to travel agents. The same

admonition concerning ultimate responsibility would apply in that case.

In the comments, there was vigorous disagreement as to whether

foreign air carriers should be covered by the regulation. The

Department proposes to include foreign air carrier flight segments to

or from the United States. The State Department's responsibilities in

case of an aviation disaster apply to all U.S. citizens regardless of

the nationality of the carrier on which the citizen flies. Indeed,

since approximately one-half of all U.S. citizens who travel outside

the U.S. choose foreign carriers, failure to include foreign airlines

would severely hamper the ability of the State Department to carry out

its duties under 49 USC 44909. The failure to include foreign air

carriers could lead to disparate treatment of U.S. citizen passengers.

Finally, the language in the DOT Appropriations Act precludes the

Department from adopting a rule applicable only to U.S. carriers.

In order to ameliorate potential costs and other burdens, the

Department is proposing to limit the impact of the proposed rule in

four important ways. First, foreign air carriers would only be required

to collect information on U.S. citizens and lawful permanent residents

of the United States. Foreign air carriers would, of course, be free to

solicit the information from all its passengers if it chose to do so

and was not prohibited by applicable foreign law. Second, the rule

would only apply to flight segments to or from the U.S. Third, as

discussed below, we are proposing that carriers need not comply with

the regulation in places where solicitation or collection of the

information would be contrary to applicable foreign law, and carriers

(or the foreign government) notify DOT of

[[Page 47699]]

that fact. Finally, in order to provide even greater flexibility, we

are proposing that DOT may waive compliance with certain requirements

of this part if a carrier has in effect a signed Memorandum of

Understanding with the State Department.

The heart of the proposal, Sec. 243.7, Information Collection

Requirements, has two data collection requirements. The first requires

U.S. air carriers to collect the full name and passport number and

issuing country code for each passenger. U.S. air carriers are being

required to collect information for each passenger because the statute

speaks in terms of passengers. The two letter passport issuing country

code is being required, as an additional element beyond the information

specified in the statute, because having it broadens and enhances the

usefulness of having passport number alone. In the instance of an

aviation disaster that occurs on a U.S. air carrier on a covered

flight, collecting passport issuing country, in addition to passport

number for non-U.S. citizens and lawful permanent residents, will allow

the Department of State to respond more rapidly than has been possible

in the past to inquiries from foreign governments regarding their

citizens. It will also allow the response to be targeted to the

specific government, a desirable alternative to providing several

foreign governments each with an entire passenger manifest. Finally,

collecting issuing country code would eliminate possible confusion in

the aftermath of an aviation disaster that could result from two

passengers having the same passport number. It would only require

foreign air carriers to collect the full name and passport number for

each passenger who is a U.S. citizen or lawful permanent resident of

the United States. As collection of a passport number/passport number

and issuing country code is not required if the passenger is not

required to present his or her passport for travel to or from the

foreign point involved, we request comment as to whether U.S. airlines

should be required to collect country of citizenship from all

passengers on flights when a passport is not required for travel. The

second part of the rule would require each air carrier and foreign air

carrier to solicit from each covered passenger the name and telephone

number of a person or entity that should be contacted in the event of

an aviation disaster.

We request comment on whether we should require solicitation of

date of birth, either as a voluntary or required data element, and

whether this data element could substitute for the passport number/

passport number and issuing country code. Passenger first and last name

and date of birth, taken together, constitute the minimal passenger

information needed for participation in the Advance Passenger

Information System (APIS) of the U.S. Custom Service, and U.S.

government commenters raised the possibility that, once modified to

accommodate passenger emergency contact information, APIS could itself

fulfill all requirements of 49 USC 44909. Having the date of birth

would allow U.S. Customs to expedite clearance of low risk passengers

entering the United States and would facilitate the operations of air

carriers, airports and other government agencies. We request comment

generally regarding how APIS information can best be used to satisfy,

within the bounds of the statute, the information requirements in this

proposed rule. For those destinations where passports are not required,

collecting the date of birth would aid identification. Finally, in the

event of an aviation disaster, knowing the ages of passengers could aid

local jurisdictions in their emergency responses.

The carrier's duty is to solicit the information concerning

emergency contacts, and maintain it, if it is provided, for 24 hours

after completion or cancellation of the flight. To be sure that every

passenger is accounted for, the NPRM proposes that each carrier shall

maintain a record for each passenger who declines to provide this

information. No specific format for the record is proposed in order to

give carriers' maximum flexibility.

Although the proposed rule does not specify that the information

must be verified by the carrier, we would anticipate using a

``reasonable person'' standard before bringing enforcement action for

information that is inaccurate. We would not envision having carriers

check that the emergency contact is an actual person or entity or that

the phone number is accurate. The passenger's name should, however,

match that on the passport, if the passenger is required to present a

passport for travel or the photo identification presented for security

for travel where a passport is not required. 49 USC 44909 requires the

Secretary of Transportation to consider whether the collection of this

information should be a condition for boarding a flight. Because this

information is necessary for the Department of State to carry out its

responsibilities in notifying the families of victims of aviation

disasters overseas, we propose that the collection of the name and

passport number/passport number and issuing country code, if required

for travel, for each covered passenger be mandatory for boarding the

flight.

Another important provision of the proposal concerns the procedures

for collecting and maintaining the information. In response to the

nearly unanimous comments on this point, the Department is proposing to

allow carriers to use any method or procedure to collect, store and

transmit the required information, subject to three conditions. First,

information on individual passengers shall be collected before each

passenger boards the airplane. Some carriers might enlist travel agents

in collecting the information, others might use airport check-in, while

others might have passengers complete a form prior to boarding. Other,

equally acceptable, methods are certainly possible. Proposing a

performance-oriented standard rather than mandating exactly how the

information should be solicited, collected, maintained, and transmitted

should allow for innovation, efficiency, convenience, and cost-

consciousness.

Second, the information shall be kept for at least 24 hours after

the completion or cancellation of the covered flight in case there is

some problem that is not immediately discoverable. A collateral benefit

of this approach is that the information would be available for many

connecting flights between two foreign points. We request comments,

however, on what, if any, time should we require this information to be

retained. Carriers would not be required to destroy the information

after 24 hours, but could purge their files in their normal course of

business. It is our understanding that, as a practical matter, most air

carriers would probably keep the information in their computers until

passengers completed their itineraries. Information would, therefore,

be accessible for some international flight segments between two

foreign points on multi-leg journeys to or from the United States. We

request comments if our understanding is incorrect.

Third, to the extent that the information is otherwise

confidential, the information shall be kept confidential and shall be

released only to the U.S. Department of State or U.S. Department of

Transportation in the event of an aviation disaster or pursuant to U.S.

Department of Transportation oversight of this part. The only exception

to this requirement is that the information may be provided for use in

the Advance Passenger Information System, and to other U.S. or foreign

governmental entities as may be authorized by the Department of

[[Page 47700]]

Transportation. We envision that airline employees who have access to

passenger records would have access to this information, and that no

special handling would be required. Carriers currently have access to

potentially sensitive information, such as credit card numbers, special

medical needs, and religious dietary restrictions. If the information

is collected and maintained in the professional manner we have

experienced from airlines in the past, we do not anticipate serious

concerns regarding invasion of passenger privacy. We would, however,

deal strictly with unauthorized release of this information to any

third party, including the press.

The airline involved would be required to inform the U.S.

Departments of Transportation and State as soon as it learned of an

aviation disaster. Pursuant to the statutory mandate, the regulation

proposes that carriers shall transmit a complete and accurate

compilation of information to DOT and the Department of State within 1

hour. If it is not technologically feasible or reasonable to fulfill

the 1-hour requirement, then the information must be transmitted as

expeditiously as possible, but not later than 3 hours after the carrier

learns of the disaster. We are aware that some carriers believe that

this time frame is ambitious, if not impossible. The statute is very

clear on this point, however.

The NPRM would also require each air carrier to file with DOT a

statement summarizing how it will transmit and collect the passenger

manifest data. The purpose of the requirement is to provide important

information to the Departments of Transportation and State for planning

and response in case of an aviation disaster. The purpose is, as well,

to allow basic DOT oversight of the regulation. Given these purposes,

it is envisioned that the summary statements would include a complete

description of how the data will be transmitted, which we anticipate

could be accommodated in one typewritten page or less, and a very brief

description of how the data would be collected, which we anticipate

could be accommodated in most cases in one typewritten paragraph.

Carriers would be required to file their summary statements on or

before the date they begin collection of passenger manifest

information. The summary statements should also include a 24-hour

contact at the carrier to which a request from the Departments of State

or Transportation could be directed. Changes in how the information

would be transmitted and collected would also be required to be filed

on or before the date those changes were implemented. The

responsibility remains with the carrier to ensure that its procedures

meet the statutory and regulatory requirements.

The NPRM proposes that carriers not be required to solicit or

collect information in countries where such solicitation or collection

would violate applicable foreign law. Carriers that can support such a

claim are asked to inform the Department on or before the effective

date of this rule, or on or before beginning service to the United

States. The Department intends to maintain an up-to-date listing of

countries where adherence to all or a portion of this part would not be

required because of conflict with applicable foreign law. We are

hopeful that in the rare instances where this regulation may violate

applicable foreign law, the Department, the Department of State, and

carriers can work with the jurisdiction involved and agree to other

methods to achieve the same results. In some countries, it may be

illegal to require passengers to provide the information, but not

illegal to simply request it. In such instances, carriers might ask for

the information while making clear that it is up to the passenger

whether to provide it. We will work with foreign governments to address

any concerns.

Section 243.17 makes clear that the Department may exercise its

enforcement authority by requesting a carrier to produce a manifest for

a specified flight to ascertain the effectiveness of the carrier's

system. In addition, it may request further information about

collection, storage and transmission procedures at any time. If the

Department finds the carrier's system to be deficient, it may order

appropriate modifications. Section 243.19 notes that violations of the

provisions of this part are subject to civil and/or criminal penalties

for each violation as provided by 49 U.S.C. 46301, 46310 and 46316.

Section 243.21 provides that the Department may waive compliance

with certain requirements of this part if an air carrier or foreign air

carrier has in effect a signed Memorandum of Understanding with the

Department of State concerning cooperation and mutual assistance

following aviation disasters abroad. Carriers that have signed such a

Memorandum and that wish to take advantage of this shall submit two

copies of the signed Memorandum to the Assistant Secretary for Aviation

and International Affairs, U.S. Department of Transportation. The

carrier will be informed by the Assistant Secretary for Aviation and

International Affairs, or his or her designee, of the provisions of

this part, if any, that are waived by the Department based on the

Memorandum. Such determination will be made in writing to the carrier.

It is the Department's expectation that each carrier would still be

required to file a summary description of its collection and

transmission process and 24-hour contact number as required in

Sec. 243.13, and would be subject to the enforcement and penalty

provisions of Secs. 243.17 and 243.19.

Implementation Date

The Department proposes to make the final rule effective 90 days

after publication in the Federal Register. Carriers, particularly U.S.

airlines, have been on notice of the requirements in 49 U.S.C. 44909

since November 16, 1990. Because of the disproportionate burden that

this rule may place on small air carriers, we will consider delaying

the effective date for those carriers for a reasonable amount of time.

Economic Considerations

(Note: this section relies heavily on the Preliminary Regulatory

Evaluation that accompanies this NPRM; a copy of the Preliminary

Regulatory Evaluation is available in the Docket)

The Department is most interested in how it can fashion a final

rule so that U.S. and foreign carriers alike can achieve the most

effective transmission of information after an aviation disaster at

least cost. This proposal, if adopted as a final rule, would be

significant under E.O. 12866 and the Department of Transportation's

regulatory policies and procedures because of the public and

Congressional interest associated with the proposed rulemaking action.

The Department will make every effort to make the final rule as cost-

effective as possible, consistent with the clear-cut statutory

requirements (e.g., a phase-in period for small air carriers). The

proposed rule has been reviewed by the Office of Management and Budget.

As currently proposed, the total costs of implementing 49 U.S.C.

44909 are potentially large. Based on ANPRM comments (especially those

of British Airways, which provided the most detailed cost information

regarding implementing a passenger manifest requirement along the lines

of the statute), reasonable assumptions about the economics of

implementing a passenger manifest information requirement, and other

generally available information, the Department estimates that the

annual recurring costs of the proposed rule (which would be borne by

air carriers, travel agents, and covered passengers, who forego time

while being asked for and providing the information) would range

between about $27.6 and $44.8 million per year.

[[Page 47701]]

These costs would break out as follows: air carriers $6.2 million (U.S.

air carriers $4.4 million and foreign air carriers $1.8 million);

travel agents $4.3 million; and covered passengers $17.2 million to

$34.3 million. The one-time cost of the proposed rule (which would be

borne by air carriers) is estimated to be about $30.5 million and

includes the costs of modifying air carriers' departure control

systems, computer reservations systems, and interfaces with other

computer reservation systems to accommodate passenger manifest

information. The present value of the total costs of the proposed rule

over ten years is estimated to range between about $208.9 and $319.6

million.

There are two direct notification benefits of the proposed rule: 1)

More prompt and accurate initial notification to the families of U.S.-

citizen victims of an aviation disaster that occurs on a flight to or

from the United States (on a U.S. or foreign air carrier) and outside

the United States, and 2) more prompt and accurate initial notification

of the host governments of foreign-citizen passenger victims of an

aviation disaster that occurs on a flight to or from the United States

(on a U.S. air carrier) either outside or within the territory of the

United States. The Department estimates that were the proposed rule in

effect over ten years a total of 595 families and host governments

would have received such direct notification benefits. That is, the

Department estimates that over ten years there have been a total of 595

victims of aviation disasters in the two circumstances described above.

Compared to the present value of the total costs of the proposed rule

over ten years, the cost of the more prompt and accurate initial

notification to these direct beneficiaries, on a per victim basis,

ranges between about $350,000 and $540,000.

No accounting is made in the calculations above for more prompt and

accurate initial notification of families of U.S.-citizen victims of

aviation disasters that occur on flights to and from the United States,

and for which the disaster occurs within the United States (e.g., TWA

flight 800). None was made because the Department of State has no

responsibilities regarding the notification of families of U.S.-citizen

victims of an aviation disaster that occurs within the United States,

even if the flight involved is an international flight. And, the

primary focus of the statute is to provide information to the

Department of State. However, since, under the proposed rule, passenger

manifest information would have to be collected for all flights to and

from the United States for transmission to the Department of State in

the event of an aviation disaster that occurred outside of the United

States, it is quite possible that having it on-hand would also lead to

more prompt and accurate initial notification of the families of U.S.-

citizen victims of an aviation disaster on such a flight that occurs

within the territory of the United States. Such families are considered

to receive indirect notification benefits from the proposed rule. If

such families are accounted for, in addition to the families and host

governments counted above, then, were the rule in effect for a ten-year

period, the Department estimates that more prompt and accurate

notification of the families and host governments of 877 victims of

aviation disasters would have taken place. The cost of the more prompt

and accurate initial notification to these direct and indirect

beneficiaries, on a per victim basis, now ranges between about $238,000

and $364,500.

A different perspective on the cost of the proposed rule can be

gained from assuming that all recurring annual costs of the proposed

rule are paid by the passengers that provide passenger manifest

information. Employing this line of reasoning (this is an ``as if''

analysis since the Preliminary Regulatory Evaluation that accompanies

the NPRM in the docket does not calculate who will be able, or not

able, to pass along the costs of imposing a passenger manifest

information requirement), were the proposed rule in effect in 1994 when

about 71.5 million passenger (one-way) trips to and from the United

States would have been covered, the estimated cost per passenger per

one-way trip would have ranged between about $0.39 and $0.63. The

estimated cost per passenger per round-trip would have been double

these amounts, and would have ranged between about $0.77 and $1.25.

(Numbers may not add exactly due to rounding.)

To summarize the above, direct and indirect benefits of the

proposed rule accrue regarding more prompt and accurate initial

notification of the families of U.S.-citizen victims of an aviation

disaster on a flight to and from the United States that occurs outside

the United States (direct) and within the territory of the United

States (indirect). Direct notification benefits also accrue to the host

governments of foreign citizens of aviation disasters that occur

anywhere (outside or within the territory of the United States) on U.S.

air carriers, since the Department of State is able to respond to the

inquiries of these governments more quickly.

An idea of the magnitude of the reduction in initial notification

time of families of U.S.-citizen victims of aviation disasters that

occur outside the United States that might occur under the proposed

rule may be gained from examining the notification experience in the

Pan Am Flight 103 aviation disaster. There, according to the Report of

the President's Commission on Aviation Security and Terrorism, some

families of victims were notified by Pan American within about nine

hours or less after the disaster was learned of, and all families were

notified by Pan American within about 43 hours or less after the

disaster was learned of. Compliance with the proposed rule in the case

of Pan Am Flight 103 should have reduced notification times (to the

extent that passengers chose to provide emergency contact information)

by a maximum of about six to eight hours for the first group of

families of victims, and by a maximum of about 40 to 42 hours for the

remainder of the families of victims.

A third direct benefit of the proposed rule lies outside the realm

of notification benefits and was not mentioned above. This third direct

benefit of the proposed rule is an expected general increase in the

disaster response capability of the Department of State following an

aviation disaster. According to the Report of the President's

Commission on Aviation Security and Terrorism:

Failure to secure the [passenger] manifest quickly had a

negative ripple effect on the State Department's image in subsequent

activities. Thereafter, the Department appeared to lack control over

who should notify next of kin, an accurate list of next of kin, and

communications with the families. (p. 101)

Some idea of how much more quickly the Department of State might,

under the proposed rule, receive passenger manifest information

following an aviation disaster may be gained from examining the Pan Am

Flight 103 aviation disaster experience. There, the Department of State

was given by Pan American an initial passenger manifest, consisting of

surnames and first initials, about 7 hours after the disaster was

learned of. A passenger manifest containing more complete passenger

information together with contact information was provided to the

Department of State about 43 hours after the disaster was learned of,

and, at that time, Pan American also notified the Department of State

that all families of victims had been notified. The results of

compliance with the proposed rule in the case of Pan Am Flight 103

should have resulted in the provision of a

[[Page 47702]]

passenger manifest together with emergency contact information (to the

extent that passengers chose to provide emergency contact information)

to the Department of State in one to three hours after the disaster was

learned of.

The Department seeks, within present authority, to achieve more

prompt provision of manifest information and initial notification of

families of victims in the most cost effective way that is possible.

How to achieve this result is open to a good deal of uncertainty and

potential controversy. In order to reduce the potential costs of the

proposed rule, the Department could reduce passenger manifest

requirements to the absolute minimums required by 49 USC 44909. The

Department could, for example, not cover foreign carriers. However,

elimination of the coverage of foreign carriers from the proposed rule

would mean that about one half (40 percent) of all U.S. citizens

traveling between the United States and foreign countries would be

exempt from providing the passenger manifest information that is

required by 49 USC 44909. Omission of this large a portion of U.S.

citizens traveling between the United States and foreign countries

would severely limit the ability of the Department of State to comply

with the notification responsibilities that it is assigned by P.L. 101-

604.

In requesting comment on requiring carriers to collect passenger

date of birth (DOB) as an element of passenger manifest information,

either in addition to those required by 49 USC 44909, or as a

substitute for passport number/passport number and issuing country

code, the Department is exploring what are the best types of

information that are available to be collected in order to insure more

prompt and accurate initial notification. Collecting DOB may encourage

wider participation in the U.S. Customs Service's Advance Passenger

Information System (APIS), which has offsetting benefits to air

carriers and passengers in the form of better passenger facilitation.

Moreover, as is explained more fully in the Preliminary Regulatory

Evaluation, the incremental burden of a rule based on the statutorily-

required information could be reduced by as much as 50 percent for any

APIS-covered flight, since the information requirements of APIS and the

proposed rule overlap. Since DOB is recorded for more APIS-covered

passengers than is passport number, and DOB is known by passengers,

whereas passengers do not usually know their passport number,

collecting DOB may be, as well, less burdensome overall than collecting

passport number/passport number and issuing country code. This may even

be the case if DOB is collected for all locations, whereas passport

number/passport number and issuing country code is only envisioned to

be collected for countries that require a passport for travel to them.

As is mentioned in the proposed rule, the Department seeks to the

extent possible within statutory constraints to not unduly burden

smaller air carriers. Our decision to allow all air carriers to choose

the method of meeting the requirements of the proposed rule should

benefit small air carriers who may wish to use low-technology methods,

such as the approach suggested in ANPRM comments by the group,

``Victims of Pan Am Flight 103,'' which proposed that boarding passes

be redesigned to have a detachable stub that could be filled out by

passengers and dropped in a box just before boarding a flight. In these

comments, it was argued that such a method would require little work

for the airlines and, among other things, would allow an air carrier to

deliver a correct manifest to the State Department quickly by using a

scanner on the stubs.

Moreover, as was stated above, the Department will consider

delaying the effective date of the proposed rule for small air carriers

for a reasonable amount of time.

The actual costs of a passenger manifest requirement will depend on

a number of critical implementation and cost assumptions. With regard

to carrier participation in the APIS program, for example, it is a goal

of the U.S. Customs Service to have APIS cover 55 percent of all U.S.-

arriving passengers by the end of FY 1996, and we assume that for these

passengers the incremental costs of the manifest requirement could be

relatively low. As is mentioned in the Preliminary Regulatory

Evaluation, two U.S. air carriers have gone to the collection of APIS

information for outbound passengers (``Outbound API''). The information

is collected for the outbound passenger and then stored for input into

the APIS system when the passenger returns to the United States. These

carriers should have available for many passengers' round trips,

information that duplicates some of the information that is required in

the proposed rule. More air carriers may collect Outbound API once DOT

implements a passenger manifest requirement. Nevertheless, subject to

how air carriers participating in the APIS program choose generally to

implement the overlapping passenger manifest requirement, participation

in the APIS program may not influence the incremental costs of a

passenger manifest requirement on U.S. departing passengers. Thus, even

if a carrier participates in APIS, passenger manifest information

requirements applied to its outbound flights may still create

potentially high incremental costs.

The Department is also somewhat uncertain as to the final choice of

technique that carriers will choose in fulfilling their statutory

obligation to collect passenger manifest information. The choice could

affect our calculation of the actual economic impact of a passenger

manifest requirement. Smaller carriers could have more flexibility in

their choice of technique. As is explained in the Preliminary

Regulatory Evaluation, air carriers that use smaller aircraft, and

whose smaller passenger loads would be less likely to cause congestion

at the airport, would seem to be most able to take advantage of lower

technology or manual methods of collecting passenger manifest

information that might take place at the airport. Doing so could result

in small costs to the carriers and virtually no time forgone on the

part of the passengers from whom the information was collected, if the

collection was structured to occupy already available time. One such

method was mentioned above and would require passengers to submit

passenger manifest information on a portion of the boarding pass that

is collected by air carriers prior to boarding. However, we believe

that only a small portion of U.S.-citizen trips between the United

States and foreign countries take place on air carriers using smaller

aircraft. And, moreover, most ANPRM commenters indicated that passenger

manifest information would be collected using Computer Reservation

Systems (CRSs). Nonetheless, if further comment suggests that a

substantial number of carriers would use low technology methods of

collecting passenger manifest information, some downward adjustment of

the cost estimates of proposed rule could be warranted.

Finally, the Department is concerned about the reasonableness of

some of the analytical underpinnings of the comments that were

submitted in response to the ANPRM and the President's Regulatory

Moratorium and Review. In developing estimates of the cost of the

proposed rule, the Department has relied upon these comments generally

but has made adjustments to them. While the passenger manifest

information collection time estimates that appear in comments seem to

be plausible, the Department is very concerned about the accuracy of

the (implied) cost estimates for air carrier reservation and check-in

[[Page 47703]]

personnel compensation. As is gone into in detail in the Preliminary

Regulatory Evaluation, wages imputed from the cost estimates submitted

in response to the ANPRM work out to be far higher than would have been

expected. In the most extreme case, they work out to be about $44.00

per hour or $91,500.00 per annum. Such wage rates are difficult to

reconcile and have been adjusted downward in the DOT estimates of the

cost of the proposed rule. In place of them the Department has used a

yearly total compensation (salary plus fringe benefits) figure based on

a Bureau of Labor Statistics (BLS) proxy occupational category. This

figure, in 1994 dollars, is about $30,500.00.

However, as was shown at the beginning of this section, even using

the BLS total compensation figures, Departmental estimates of the cost

of the proposed rule continue to indicate a large cost of implementing

the passenger manifest information requirement in 49 USC 44909.

Moreover, the Departmental estimates are based on the 40 second

estimate given in the ANPRM comments of British Airways for the

additional time it would take to solicit and collect, at the time of

airport check-in, the passenger manifest information specified in the

statute. It was also assumed in the Departmental estimates that it

would take this same amount of time to solicit and collect passenger

manifest information at the time of reservation.

Adding seconds to or subtracting seconds from the 40 second

estimate has substantial implications for the estimates of the cost of

the proposed rule. For example, a one-second increase in the amount of

time that it is expected to take to solicit/collect all passenger

manifest information increases the estimated overall annual recurring

costs of the proposed rule by between about $691,000 to $1.1 million,

broken down by: U.S. air carriers $109,900; foreign air carriers

$44,900; travel agents $107,200; and passengers time forgone between

about $429,000 and $858,000. A sensitivity analysis of the economic

model that is used to estimate the costs of the proposed rule using

values of 40, 45, 50, 55, and 60 seconds (that is, the case presented

at the beginning of this section and then adding 5, 10, 15, and 20

additional seconds) as the amount of overall additional time that it is

assumed to take to solicit and collect passenger manifest information

yields the following results:

--------------------------------------------------------------------------------------------------------------------------------------------------------

Number of seconds to solicit and collect passenger manifest information

Type of cost --------------------------------------------------------------------------------------------------------------------

40 sec. 45 sec. 50 sec. 55 sec. 60 sec.

--------------------------------------------------------------------------------------------------------------------------------------------------------

Annual Recurring (low)............. $27.6 mil............. $31.1 mil............. $34.6 mil............ $38.0 mil............ $41.5 mil.

Annual Recurring (high)............ $44.8 mil............. $50.4 mil............. $56.0 mil............ $61.6 mil............ $67.2 mil.

--U.S. Carriers.................... $4.4 mil.............. $4.9 mil.............. $5.5 mil............. $6.0 mil............. $6.6 mil.

--Foreign Carriers................. $1.8 mil.............. $2.0 mil.............. $2.2 mil............. $2.5 mil............. $2.7 mil.

--Travel Agents.................... $4.3 mil.............. $4.8 mil.............. $5.4 mil............. $5.9 mil............. $6.4 mil.

--Passeng. time (low).............. $17.2 mil............. $19.3 mil............. $21.5 mil............ $23.6 mil............ $25.7 mil.

--Passeng. time (high)............. $34.3 mil............. $38.6 mil............. $42.9 mil............ $47.2 mil............ $51.5 mil.

Per enhanced notification (low).... $238,200.............. $263,600.............. $289,000............. $314,500............. $339,900.

Per enhanced notification (high)... $364,400.............. $405,700.............. $446,900............. $488,100............. $529,300.

Per one-way trip (low)............. $0.39................. $0.43................. $0.48................ $0.53................ $0.58.

Per one-way trip (high)............ $0.63................. $0.71................. $0.78................ $0.86................ $0.94.

--------------------------------------------------------------------------------------------------------------------------------------------------------

The Department seeks to derive final estimates of the cost of the

proposed rule that are as accurate as possible. Toward this end, the

Department invites general comments on any and all aspects of the

methods used to estimate the costs of the proposed rule that are

contained in the Preliminary Regulatory Evaluation. In addition, the

Department invites comments on the following six questions:

1. On average, what is the dollar amount for hourly total

compensation for air carrier reservations personnel, who would be

collecting passenger manifest information? What portion of the total

compensation figure is for salary and for fringe benefits?

2. On average, what is the dollar amount for hourly total

compensation for air carrier check-in personnel, who would be

collecting passenger manifest information? What portion of the total

compensation figure is for salary and for fringe benefits?

3. On average, what is the dollar amount for hourly total

compensation for travel agents, who would be collecting passenger

manifest information? What portion of the total compensation figure is

for salary and for fringe benefits?

4. What percentage of reservations for a flight are subsequently

canceled and then the same seat is resold to someone who actually

boards the flight? That is, on average, for every 100 persons that

eventually board an aircraft, from the time that the flight was

available to be booked how many persons have made reservations?

5. Comments received by the Department in response to the ANPRM and

otherwise have indicated that, were a passenger manifest information

requirement to be implemented, at many airports it would not be

possible for air carriers to expand counter space and employ more

check-in personnel in order to maintain existing check-in times. All

other things being equal, if this is the case, and other methods can

not be found for collecting additional passenger manifest information

more quickly at check-in or beforehand, congestion could result at

airports. Such congestion could cause an individual passenger to suffer

delays as he or she waits for other passengers to provide information,

in addition to the amount of time it takes for the individual passenger

to provide information. The comments received, however, offered no

guidance on how to quantify these congestion costs. The Department

solicits comment on how, were they to occur, such congestion costs

could be integrated into the economic model in the Preliminary

Regulatory Evaluation that underlies the Departmental estimates of the

costs of the proposed rule. How could sensitivity analyses be performed

on the congestion aspects of the resulting model?

6. The Department requests comments on the amount of fixed, one-

time costs associated with the rule. From ANPRM comments, these costs

would include primarily the cost of programmers' time (salaries and

benefits). We ask that commenters provide information in as much detail

as possible on the one-time costs associated with the proposed rule, as

well as all supporting explanations of the source and derivation of the

data. We specifically invite comments regarding the possible use of

computer

[[Page 47704]]

reservations systems or other current data systems to meet the goals of

the proposed rule and the estimated cost of changes to these systems.

Regulatory Flexibility Act

The Regulatory Flexibility Act was enacted by the United States

Congress to ensure that small businesses are not disproportionately

burdened by rules and regulations promulgated by the Government. At the

same time, 49 USC 44909 mandates that ``the Secretary of Transportation

shall require all United States air carriers to provide a passenger

manifest for any flight to appropriate representatives of the United

States Department of State.'' In its efforts both to comply with 49 USC

44909 and not to disproportionately burden the smaller air carriers and

travel agents, the Department proposes to allow the carriers to develop

their own passenger manifest data collection systems. Smaller air

carriers will be free to adopt a system that minimizes the burden on

them, so long as that system is capable of meeting the requirements set

out in the statute. If adopted, the rule would affect air taxi

operators, commuter carriers, charter operators, and possibly travel

agents. Some of these entities may be ``small entities'' within the

meaning of the Regulatory Flexibility Act. Although the rule might

affect a substantial number of small entities if it is adopted as

proposed, we do not believe that there would be a significant economic

impact because of the flexibility provided by the proposal. We

specifically request comments on whether there are significant economic

impacts on small entities that we have not identified or that we should

consider differently. In addition, we request comments on whether this

rule would have any disproportionate impact on travel agents. Based on

the information available at this time, I certify that this rule would

not, if adopted as proposed, have a significant economic impact on a

substantial number of small entities.

International Trade Impact Statement

This regulation would apply to all air carriers and foreign air

carriers that choose to serve the United States. The rule should not

affect either a U.S. air carrier's ability to compete in international

markets or a foreign air carrier's efforts to compete in the United

States. Neither should the overall level of travel to and from the

United States be affected.

Paperwork Reduction Act

This NPRM contains information collections that are subject to

review by OMB under the Paperwork Reduction Act of 1995 (P.L 104-13).

The title, description, and respondent description of the information

collections are show below and an estimate of the annual recordkeeping

and periodic reporting burden. Included in the estimate is the time for

reviewing instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information.

Title: Passenger Manifest Information.

Need for Information: The information is required by 49 USC 44909

for use by the State Department;

Proposed Use of Information: The State Department would use the

information to inform passenger-designated emergency contacts about

aviation disasters and to answer inquiries from foreign governments

regarding aviation disasters. The information may be input into the

U.S. Customs Service's Advance Passenger Information System (APIS)

where it would be used to facilitate the processing of low-risk

passengers, identify high-risk passengers, and facilitate the

operations of air carriers, airports, and other government agencies.

Frequency: The manifests would be collected and maintained for each

covered flight;

Burden Estimate: Between $27.6 and 44.8 million per annum for air

carriers, foreign air carriers, travel agents, and passengers;

Respondents: About 71.5 million passengers per year at a rate of

between one or two collections per passenger; at least 1,074 U.S. air

carriers, and 493 foreign air carriers. We are unable to quantify the

number of travel agents that will be affected by this rule at this

time;

Form(s): No particular format or form would be required;

Average burden hours per respondent; An average of about 36 seconds

per collection.

Individuals and organizations may submit comments on the

information collection requirements by [insert date 60 days after

publication in the Federal Register] and should direct them to the

docket for this proceeding and the Office of Management and Budget, New

Executive Office Building, Room 10202, Washington, DC 20503, Attention:

Desk Officer for DOT/OST. Persons are not required to respond to a

collection of information unless it displays a currently valid OMB

control number.

Federalism Implications

The regulation proposed herein has no direct impact on the

individual states, on the balance of power in their respective

governments, or on the burden of responsibilities assigned them by the

national government. In accordance with Executive Order 12612,

preparation of a Federalism Assessment is, therefore, not required.

List of Subjects in 14 CFR Part 243

Air carriers, Aircraft, Air taxis, Air transportation, Charter

flights, Foreign air carriers, Foreign relations, Reporting and

recordkeeping requirements, Security.

Accordingly, the Department proposes to add a new part 243, in

chapter II of title 14 of the Code of Federal Regulations that would

read as follows:

PART 243--PASSENGER MANIFEST INFORMATION

Secs.

243.1 Purpose.

243.3 Definitions.

243.5 Applicability.

243.7 Information collection requirements.

243.9 Procedures for collecting and maintaining the information.

243.11 Transmission of information after an aviation disaster.

243.13 Filing requirements.

243.15 Conflicts with foreign law.

243.17 Enforcement.

243.19 Civil and criminal penalties.

243.21 Waivers.

Authority: 49 U.S.C. 40101, 40105, 40113, 40114, 41708, 41709,

41711 , 41501, 41702, 41712, 44909, 46301, 46310, 46316.

Sec. 243.1 Purpose.

The purpose of this part is to ensure that the U.S. Department of

Transportation and the U.S. Department of State have prompt and

adequate information in case of an aviation disaster on specified

international flights. This part is mandated by 49 U.S.C. 44909.

Sec. 243.3 Definitions.

Air piracy means any seizure or exercise of control, by force or

violence or threat of force or violence, or by any other form of

intimidation, and with wrongful intent, of an aircraft.

Aviation disaster means:

(1) An occurrence associated with the operation of an aircraft that

takes place between the time any passengers have boarded the aircraft

with the intention of flight and the time all such persons have

disembarked or have been removed from the aircraft, and in which any

person suffers death or serious injury or in which the aircraft

receives substantial damage, and in which the death, injury or damage

was caused by a crash, fire, collision, sabotage or accident;

(2) A missing aircraft; or

(3) An act of air piracy.

[[Page 47705]]

Covered flight means a flight segment operating to or from the

United States (i.e., the flight segment where the last point of

departure or the first point of arrival is in the United States.) A

covered flight does not include a flight in which both the origin and

destination points are in the United States, nor does it include

segments between U.S. cities of flights originating or terminating in a

foreign country, even though some portion of the flight segment is over

territory not belonging to the United States.

Emergency contact means a person or entity that should be contacted

in case of an aviation disaster. The contact need not have any

particular relationship to a passenger.

Full name means given name, middle name or initial, if any, and

family name or surname.

Passenger means every person aboard a covered flight segment

regardless of whether he or she paid for the transportation, had a

reservation, or occupied a seat, except the crew operating the flight.

For the purposes of this part, passenger includes, but is not limited

to, a revenue and non-revenue passenger, a person holding a confirmed

reservation, a standby or walkup, a person rerouted from another flight

or airline, an infant held upon a person's lap and any other person not

occupying a seat. Airline personnel who are on board but not working on

that particular flight segment would be considered passengers for the

purpose of this part.

Passport Issuing Country Code means the standard two-letter

designation for the country that issued the passport.

United States means the States comprising the United States of

America, the District of Columbia, and the territories and possessions

of the United States, including the territorial sea and the overlying

airspace.

U.S. citizen includes United States nationals as defined in 8

U.S.C. 1101(a)(22) and lawful permanent residents of the United States.

U.S. lawful permanent resident includes those defined in 8 U.S.C.

1101(a)(20).

Sec. 243.5 Applicability.

This part applies to covered flights operated by air carriers and

foreign air carriers.

Sec. 243.7 Information collection requirements.

(a) For covered flights, each U.S. air carrier shall:

(1) collect the full name and passport number and issuing country

code for each passenger. Collection of a passport number and issuing

country code is not required if the passenger is not required to

present his or her passport for travel to the foreign point involved.

Passengers for whom this information is not obtained shall not be

boarded;

(2) solicit a name and telephone number of an emergency contact

from each passenger; and

(3) maintain a record of the information collected pursuant to this

section as well as a record of each passenger who declines to provide

an emergency contact.

(b) For covered flights, each foreign air carrier shall:

(1) collect the full name and passport number for each passenger

who is a U.S. citizen or a U.S. lawful permanent resident. Collection

of a passport number is not required if the passenger is not required

to present his or her passport for travel to the foreign point

involved. U.S.-citizen passengers or U.S. lawful permanent residents

for whom this information is not obtained shall not be boarded;

(2) solicit a name and telephone number of an emergency contact

from each passenger who is a U.S. citizen or a U.S. lawful permanent

resident; and

(3) maintain a record of the information collected pursuant to this

section as well as a record of each passenger who declines to provide

an emergency contact.

Sec. 243.9 Procedures for collecting and maintaining the information.

Air carriers and foreign air carriers may use any method or

procedure to collect, store and transmit the required information,

subject to the following conditions:

(a) Information on individual passengers shall be collected before

each passenger boards the aircraft on a covered flight segment.

(b) The information shall be kept for at least 24 hours after the

completion or cancellation of the covered flight.

(c) To the extent that such information would otherwise be

confidential, the information shall be kept confidential and shall be

released only to the U.S. Department of State or U.S. Department of

Transportation in the event of an aviation disaster or pursuant to U.S.

Department of Transportation oversight of this part. The only exception

to this requirement is that the information may be provided for use in

the Advance Passenger Information System, and to other U.S. or foreign

governmental entities as may be authorized by the Department of

Transportation.

Sec. 243.11 Transmission of information after an aviation disaster.

(a) Each air carrier and foreign air carrier shall inform the

Director, Office of Intelligence and Security, U.S. Department of

Transportation, and the Director of American Citizen Services, Bureau

of Consular Affairs, U.S. Department of State immediately upon learning

of an aviation disaster involving a covered flight segment operated by

that carrier.

(b) Each air carrier and foreign air carrier shall transmit a

complete and accurate compilation of the information collected pursuant

Sec. 243.7 of this part to the U.S. Department of Transportation and

the U.S. Department of State within 1 hour after the carrier learns of

the disaster. If it is not technologically feasible or reasonable to

fulfill the 1-hour requirement, then the information shall be

transmitted as expeditiously as possible, but not later than 3 hours

after the carrier learns of the disaster.

Sec. 243.13 Filing requirements.

(a) Each air carrier and foreign air carrier that operates one or

more covered flights shall file with the U.S. Department of

Transportation a statement summarizing how it will transmit and collect

the passenger manifest information required by this part on or before

the date it begins collection. This description shall include a 24-hour

contact at the carrier who can be consulted concerning information to

be provided to the U.S. Department of State or U.S. Department of

Transportation and shall include sufficient detail to permit these

Departments to develop appropriate methods of receiving the

information.

(b) Each air carrier and foreign air carrier shall notify the DOT

of any contact change and shall file a description of any significant

change in its means of transmitting or collecting manifest information

on or before the date the change is made.

(c) All filings under this section should be submitted to the

Office of Intelligence and Security (S-60), Office of the Secretary,

U.S. Department of Transportation, 400 Seventh Street, SW., Washington,

DC 20590.

Sec. 243.15 Conflict with foreign laws.

(a) Air carriers and foreign air carriers are not required to

solicit or collect information under this part in countries where such

solicitation or collection would violate applicable foreign law, but

only to the extent that such solicitation or collection would violate

applicable foreign law.

(b) Air carriers and foreign air carriers that claim that such a

solicitation or

[[Page 47706]]

collection would violate applicable foreign law in certain foreign

countries shall inform the Office of Intelligence and Security (S-60),

U.S. Department of Transportation, 400 Seventh Street, SW., Washington,

DC 20590 of that claim on or before the effective date of this rule, or

on or before beginning service between that country and United States.

Such notification shall include copies of the pertinent foreign law as

well as a certified translation. Notifications will also be accepted

directly from foreign governments.

(c) The U.S. Department of Transportation shall maintain an up-to-

date listing of countries where adherence to all or a portion of this

part is not required because of a conflict with applicable foreign law.

Sec. 243.17 Enforcement.

The U.S. Department of Transportation may at any time require an

air carrier or foreign air carrier to produce a passenger manifest for

a specified flight segment to ascertain the effectiveness of the

carrier's system. In addition, it may require from any air carrier or

foreign air carrier further information about collection, storage and

transmission procedures at any time. If the Department finds an air

carrier's or foreign air carrier's system to be deficient, it will

require appropriate modifications, which must be implemented within a

specified period. In addition, the offending air carrier or foreign air

carrier may be subject to enforcement action.

Sec. 243.19 Civil and criminal penalties.

Each air carrier or foreign air carrier that violates the

provisions of this part is subject to civil and/or criminal penalties

for each violation as provided by 49 U.S.C. 46301, 46310 and 46316.

Sec. 243.21 Waivers.

The Department may waive compliance with certain requirements of

this part if an air carrier or foreign air carrier has in effect a

signed Memorandum of Understanding with the Department of State

concerning cooperation and mutual assistance following aviation

disasters abroad. Carriers that have signed such a Memorandum and that

wish to take advantage of this shall submit two copies of the signed

Memorandum to the Assistant Secretary for Aviation and International

Affairs, U.S. Department of Transportation. The carrier will be

informed by the Assistant Secretary for Aviation and International

Affairs, or his or her designee, of the provisions of this part, if

any, that are waived by the Department based on the Memorandum. Such

determination will be confirmed in writing to the carrier.

Issued in Washington, DC, on September 4, 1996.

Federico Pena,

Secretary.

[FR Doc. 96-23072 Filed 9-9-96; 8:45 am]

BILLING CODE 4910-62-P