Passenger Manifest Information

SUMMARY: This rule requires that certificated air carriers and large

foreign air carriers collect the full name of each U.S.-citizen

traveling on flight segments to or from the United States and solicit a

contact name and telephone number. In case of an aviation disaster,

airlines would be required to provide the information to the Department

of State and, in certain instances, to the National Transportation

Safety Board. Each carrier would develop its own collection system. The

rule is adopted pursuant to the Aviation Security Improvement Act of

1990.

DATES: This rule is effective March 20, 1998. Compliance with this rule

is not required until October 1, 1998, except with respect to the plans

in Sec. 243.13, which must be filed by July 1, 1998.

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

airline practice, it included only the passengers' surnames and first

initials, which did not permit the Department of State to carry out

their legal responsibility of notifying the family members in a timely

fashion.

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. P.L. 101-604

(entitled the Aviation Security Improvement Act of 1990, or ``ASIA

90,'' and which was later codified as 49 U.S.C. 44909), which was

signed by President Bush on November 16, 1990, states:

SEC. 410. PASSENGER MANIFEST

(a) REQUIREMENT.--Not later than 120 days after the date of

enactment of this section, 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.

(b) CONTENTS.--For the purposes of this section, a passenger

manifest should include the following information:

(1) The full name of each passenger.

(2) The passport number of each passenger, if required for travel.

(3) The name and telephone number of a contact for each passenger.

In implementing the requirement pursuant to the amendment made by

subsection (a) of this section, 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 such requirement.

(c) FOREIGN AIR CARRIERS.--The Secretary of Transportation shall

consider a requirement for foreign air carriers comparable to that

imposed pursuant to the amendment made by subsection (a).

The ANPRM and Subsequent DOT Activity Leading to the NPRM

In order to implement the statutory requirements, the Department of

Transportation first 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 about privacy concerns, current practices

in the industry and potential impacts on day-to-day operations.

Twenty six comments were received in response to the ANPRM.

Commenters included the Air Transport Association of America (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 group ``Victims of Pan Am Flight

103,'' the Asociacion Internacional de Transporte Aereo Latinoamericano

(AITAL), a combined comment filed by four foreign air carriers and one

association of foreign air carriers (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, were included in the docket because

of a communication to a Department official after the ANPRM was issued.

The comments were summarized in the notice of proposed rulemaking

published in 61 FR 47692, September 10, 1996.

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

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

included the passenger manifest proposal among ten DOT and FAA

regulatory initiatives that, if implemented, would be the most onerous

for the airline industry. ATA (supported by Northwest) recommended that

if additional passenger manifest information were to be required, it

[[Page 8259]]

should be limited to the information that is required by the U.S.

Customs Service's APIS program. 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 the five subsequent DOT Appropriations through FY 1997. The

provision stated:

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.''

The 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 sufficient data. Department

of Transportation staff met with American Airlines to explore the

logistical, practical and legal problems that the airline 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. The events surrounding this crash led DOT to reconsider its

view that the passenger manifest requirements under ASIA 90 were

unnecessary.

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 Airlines 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 so. 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 an initial working group that consisted of

representatives of Families of Pan Am 103/Lockerbie, the American

Association for Families of KAL 007 Victims, the National Air Disaster

Alliance (a group representing families of victims of several aviation

disasters), the Department of State, and several U.S. airlines, with

IATA in attendance. DOT was not a participant in the group. The working

group made progress in facilitating communication among divergent

interests and in creating a workable system that should reduce

confusion and improve the efficiency of the efforts of both the airline

and the Federal Government following an airline crash.

As a result of the working group, the Department of State has

entered into Memoranda of Understanding (MOU) Reflecting Best Practices

and Procedures with 14 U.S. air carriers since November 1996. These

carriers are American, Continental, Delta, Northwest, Trans World,

United, US Airways, American Trans Air, Miami Air International,

Southern Air Transport, Tower Air, World Airways, North American and

Midwest Express. The MOUs provide a basis for cooperation and mutual

assistance in reacting to aviation disasters occurring outside the

United States with the goal of improving the treatment of victims'

families. The MOUs contain provisions relating to passenger manifests,

the exchange of liaison officers between the Department of State and

the air carrier, and crisis management training in which personnel are

exchanged between the parties so as to become more familiar with each

other's internal procedures. The Department of State regards the MOUs

as a cooperative effort that includes the issue of passenger manifests.

The Department of State does not regard the MOUs as a substitute for

the rulemaking process concerning passenger manifests because the MOUs

do not address collection of emergency contact name and phone number.

In addition, participation in the MOUs is voluntary and not every

airline will enter into an agreement. The MOU envisions that the

airlines are in the best position to provide initial notification to

family members of passengers who were involved in aviation disasters,

and that the airlines should provide the initial notification. The

Department of State is still responsible for providing notification,

even if the family has already been provided notification by the

airline.

TWA Flight 800

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

Paris, crashed 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

[[Page 8260]]

Department of State received inquiries from foreign governments

regarding the fate of their citizens, and worked closely with foreign

governments and foreign citizens in the aftermath of the crash. Family

notification was a problem following the disaster; indeed, some family

members stated that they never received notification from TWA that a

loved one was on board the aircraft, even after repeated phone calls to

the airline.

The Notice of Proposed Rulemaking

Taking into account the experiences of the airlines, family

members, and the government following American Airlines 965, TWA 800,

and the process leading to the MOU, the Department of Transportation

published a Notice of Proposed Rulemaking (NPRM) in 61 FR 47692,

September 10, 1996. This notice proposed 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 were required for travel. Carriers would be required to

deny boarding to passengers who did 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

declined to provide an emergency contact. Passengers who declined 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 proposed to allow each airline to develop its own

procedures for soliciting, collecting, maintaining and transmitting the

information. The notice requested 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).

Presidential Directive and Inter-Federal Government Memorandums of

Understanding for Domestic Aviation Disasters

On September 9, 1996, President Clinton issued a Presidential

Directive designating the National Transportation Safety Board (NTSB)

as the agency to coordinate the provision of federal services to the

families of victims following an aviation disaster in the United

States. Following issuance of the Presidential directive, the NTSB

entered into memorandums of understanding (MOUs) with the Departments

of Justice, Defense, Transportation, State, Health and Human Services

and the Federal Emergency Management Agency. In general, the MOUs

commit the agencies to provide the NTSB with whatever logistical and

personnel support is needed to fulfill the Board's newly-acquired

family support role. The MOU between the NTSB and DOS requires each to

maintain close liaison and coordination, including exchange of

information. Neither the Presidential Directive nor the above-

referenced MOUs alter State's role as the Federal Government's notifier

of the families of the U.S. citizens who are killed in aviation

disasters outside the United States.

The Aviation Disaster Family Assistance Act of 1996

On October 9, 1996, President Clinton signed Pub. L. 104-264. Title

VII, the ``Aviation Disaster Family Assistance Act of 1996'' (ADFAA),

was later codified as 49 U.S.C. 40101 note. The ADFAA pertains to

aviation disasters occurring within the United States and its

territories. It provides, in part:

Sec. 1136. Assistance to Families of Passengers Involved in Aircraft

Accidents

(a) In General.--As soon as practicable after being notified of

an aircraft accident within the United States involving an air

carrier or foreign air carrier and resulting in a major loss of life

the Chairman of the National Transportation Safety Board shall--

(1) designate and publicize the name and phone number of a

director of family support services who shall be an employee of the

Board and shall be responsible for acting as a point of contact

within the federal government for the families of the passengers

involved in the accident and a liaison between the air carrier or

foreign air carrier and the families;

(2) designate an independent nonprofit organization, with

experience in disasters and post trauma communication with families,

which shall have primary responsibility for coordinating the

emotional care and support of the families of passengers involved in

the accident.

(b) Responsibilities of the Board.--The Board shall have primary

Federal responsibility for facilitating the recovery and

identification of fatally injured passengers involved in an accident

described in subsection (a).

* * * * *

(d) Passenger lists.

(1) Requests for passenger lists.--

(A) Requests by director of family support services.--It shall

be the responsibility of the director of family support services

designated for an accident under subsection (a)(1) to request, as

soon as practicable, from the air carrier or foreign air carrier

involved in the accident a list, which is based on the best

available information at the time of the request, of the names of

the passengers that were aboard the aircraft involved in the

accident.

(B) Requests by designated organization.--The organization

designated for an accident under subsection (a)(2) may request from

the air carrier or foreign air carrier involved in the accident a

list described in subparagraph (A).

(2) Use of information.--The director of family support services

and the organizations may not release to any person information on a

list obtained under paragraph (1) but may provide information on the

list about a passenger to the family of the passenger to the extent

that the director of family support services or the organization

considers appropriate.

Section 703 of the Act (Sec. 41113) further requires each

certificated U.S. air carrier to file a plan to address the needs of

families of passengers involved in aircraft accidents. Among other

things, the plan must include ``[a] process for notifying the families,

before providing any public notice of the names of the passengers,''

``[a]n assurance that the notice * * * will be provided to the family

of a passenger as soon as the air carrier has verified that the

passenger was aboard the aircraft (whether or not the names of all of

the passengers have been verified)'', and ``[a]n assurance that the air

carrier will provide to the director of family support services * * *

immediately, upon request, a list (which is based on the best available

information at the time of the request) of the names of the passengers

aboard the aircraft (whether or not such names have been verified), and

will periodically update the list.

Finally, section 704 of the Act instructs the Secretary of

Transportation to appoint a Task Force comprised of the Federal

Government, the industry, as well as individuals representing the

families of the victims of aviation disasters to review how to improve

the assistance provided to families following an aviation disaster.

Section 704(b)(6) instructs the task force to develop:

[R]ecommendations on methods to improve the timeliness of the

notification provided by air carriers to the families of

[[Page 8261]]

passengers involved in an aircraft accident, including--

(A) An analysis of the steps that air carriers would have to

take to ensure that an accurate list of passengers on board the

aircraft would be available within 1 hour of the accident and an

analysis of such steps to ensure that such list would be available

within 3 hours of the accident;

(B) An analysis of the added costs to air carriers and travel

agents that would result if air carriers were required to take the

steps described in subparagraph (A);

(C) An analysis of any inconvenience to passengers, including

flight delays, that would result if air carriers were required to

take the steps described in subparagraph (A); and

(D) An analysis of the implications for personal privacy that

would result if air carriers were required to take the steps

described in subparagraph (A) .

The Domestic Passenger Manifest ANPRM

On March 13, 1997, DOT published an advance notice of proposed

rulemaking (62 FR 11789) on a potential passenger manifest requirement

for domestic air travel. The ANPRM was designed to solicit information

which could be used by the Task Force in assessing the costs and

benefits of a requirement for enhanced domestic passenger manifests.

The ANPRM requested information on operational and cost issues related

to U.S. air carriers collecting basic information (e.g., full name,

date of birth and/or social security number, emergency contact and

telephone number) from passengers traveling on flights within the

United States. The ANPRM discussed the problems experienced in the

aftermath of a crash, statutory authority for requiring passenger

manifest and emergency contact information, regulatory history, past

domestic aviation disasters, and economic considerations. It asked

commenters to respond to thirteen detailed questions on the following

topics: (1) Basic approach; (2) information requirements and the

capacity of computer reservations systems; (3) frequent flyer

information; (4) privacy considerations and fraud issues; (5) coverage

of potential domestic passenger manifest information requirements and

the differing implications, if any, for different types of air carriers

that might be covered; (6) sharing of domestic passenger manifest

information within and among air carriers; (7) implications for

different types of air carrier operations (point-to-point) and the

current frequency of flights; (8) interactions between domestic

positive baggage matches and a domestic passenger manifest information

requirement; (9) domestic passenger manifests and electronic tickets;

(10) implications for high frequency corridors, high frequency

facilities and peak load capacity; (11) recurring costs of such a

system; (12) fixed costs of such a system; and (13) integration of

manifest requirements with processes for expedited positive

identification and notification. Fifty-seven comments were filed in

response to the ANPRM from a wide variety of interests. We are

currently reviewing the comments. We will review the implementation of

the international passenger manifest requirements as we determine how

to proceed with this rulemaking.

The Task Force on Assistance to Families of Aviation Disasters

In March 1997, as requested in the ADFAA, Secretary Slater

appointed 22 people to serve on the Task Force on Assistance to

Families of Aviation Disasters. The Task Force, which was co-chaired by

DOT Secretary Slater and NTSB Chairman Jim Hall, issued 61

recommendations to the Congress on October 29, 1997. Four of those

recommendations concerned how to improve the passenger manifests used

by the airlines to establish points of contact with the families of

passengers. Pursuant to the ADFAA, the Task Force also issued findings

on the cost of implementing a passenger manifest system. These

recommendations and findings were based, in part, on the comments to

the ANPRM.

The Task Force recommended that airlines have readily available for

every flight, either in a passenger manifest or through some other

system, the following data: the full name for each passenger; a contact

phone number for each passenger; and a contact name for each passenger.

The Task Force recommended that while each passenger should be

encouraged to provide the information, furnishing contact name and

phone number would not be a prerequisite to boarding the flight.

Further, the Task Force recommended that all information provided by a

passenger for passenger manifest reasons must only be used in the case

of an emergency. DOT abstained from voting on these recommendations due

to the ongoing rulemakings.

All members of the Task Force, including the Air Transport

Association (ATA), found that the full name of every passenger should

be included on the manifest. The Task Force as a whole also agreed

that, in conjunction with the passenger's name, a contact phone number

is the second most important data element in the notification process.

It was also recognized that a contact name would aid the notification

process. Task Force members representing the ATA, the Regional Airline

Association (RAA) and the National Air Carrier Association (NACA),

which represents charter carriers, stated that the increased costs of

obtaining the contact name data element were not justified by the

benefit this data element provided. The remainder of the Task Force

disagreed, finding that with only a contact phone number, awkward

situations could result, thereby making the notification process more

difficult and time-consuming.

The Task Force reviewed the costs of implementing a system

requiring full name, contact name and phone number. First, the Task

Force found that an air carrier should be able to ``verify'' a

passenger manifest within three hours of beginning the verification

process. The Task Force did not find it possible or beneficial,

however, to require an airline to have a manifest ``verified'' within

one hour. The Task Force deliberations did not find significant costs

to air carriers to ``verify'' a manifest within three hours. Second,

the Task Force found that the annual cost of implementing a passenger

manifest as outlined in the recommendation would be between $32 and $64

million for both air carriers and travel agents if it took 40 seconds

to collect the additional data elements, and between $48 and $96

million if it took an additional 60 seconds. The Task Force did not

address the issue of passengers who booked reservations and then,

subsequently, did not board the flight.

Korean Air Flight 801

On August 6, 1997, Korean Air Flight 801, a flight between Seoul,

Korea and Guam, a territory of the United States, crashed about 5 miles

southwest of the Guam International Airport. There were 231 passengers,

20 flight attendants and 3 flight deck crew members on board. Twenty-

nine people survived the crash. There were many problems encountered by

anxious and worried family members because Korean Air did not have

prompt, complete and accurate flight manifest information and

procedures to notify the families. For example, there were significant

delays in providing information to concerned families at Seoul's Kimpo

Airport, in both responding to callers and notifying the families.

The Foreign Air Carrier Family Support Act

The Foreign Air Carrier Family Support Act (Pun. L. 105-148,111

Stat.

[[Page 8262]]

2681) was signed into law by President Clinton on December 16, 1997.

The legislation was prompted by the Korean Air Flight 801 disaster. The

Act requires foreign air carriers to develop family assistance plans

comparable to that required by the Aviation Disaster Family Assistance

Act for U.S. air carriers. The new requirements have been carefully

drafted to apply to accidents that occur within the United States

jurisdiction. The existing requirements for U.S. air carriers were

adjusted for the foreign air carriers to be consistent with our

international obligations. For example, foreign air carriers may

provide substitute measures for certain provisions of the Act, such as

compensation to an organization designated by the NTSB for services and

direct assistance provided to families as a result of the aviation

disaster.

Comments to the International NPRM

Forty six comments were received in response to the NPRM.

Commenters included the Air Transport Association of America (ATA); the

National Air Transportation Association (NATA); American Airlines;

Northwest Airlines; Trans World Airlines; United Air Lines; North

American Airlines; Carnival Air Lines; Gran-Aire; Hawaiian Airlines;

the Air Line Pilots Association (ALPA); the American Society of Travel

Agents (ASTA); Passages: A Travel Company; American Express Travel

Related Services; the American Association for Families of KAL 007

Victims; the U.S. Department of Justice (Immigration and Naturalization

Service); ; Mr. Richard P. Kessler, Jr.; Ms. Brenda Sheer; Ms. Liana

Ycikson; a group of three individual citizens (Cayetano Alfonso; Nora

Ramos; and Victoria Mendizabel); and a group of four students from

Florida International University (My Trinh; Chau Trinh; Walter

Hernandez; and Joanne Flores); the International Air Transport

Association (IATA); the Arab Air Carriers Organization; the Orient

Airlines Association; the European Civil Aviation Conference (ECAC);

Air Canada; Aerolineas Argentinas; Qantas Airways; Scandinavian

Airlines System; All Nippon Airways; Air New Zealand; Varig; Lauda Air;

British Airways; Turkish Airlines; Swiss Air; Lufthansa; Japan

Airlines; Cathay Pacific Airways; Laker Airways; Air Pacific; the

Embassy of Belgium; a combined comment from the Embassies of Austria,

Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Ireland,

Italy, Japan, Netherlands, New Zealand, Norway, Portugal, Spain,

Sweden, Switzerland, United Kingdom and the European Commission; the

Embassy of the United Kingdom (Britannic Majesty's); the British

Airports Authority; and the International Civil Aviation Organization

(ICAO).

In addition, as noted above, the Department received valuable

testimony and advice from the Family Assistance Task Force meetings.

Although their focus was on the passenger manifest issue on domestic

flights, many of the issues and persons affected by this international

rule are identical. The meetings of the Task Force were tape recorded

and several written comments were filed.

Summary of Comments

The Air Transport Association of America (ATA) filed comments on

behalf of its members (Alaska Airlines, Aloha Airlines, America West

Airlines, American Airlines, American Trans Air, Continental Airlines,

Delta Air Lines, DHL Airways, Emery Worldwide Airlines, Evergreen

International Airlines, Federal Express, Hawaiian Airlines, KIWI

International Air Lines, Midwest Express, Northwest Airlines, Polar Air

Cargo, Reeve Aleutian Airways, Southwest Airlines, Trans World

Airlines, United Airlines, United Parcel Service, and US Air [now US

Airways]). American Airlines, Northwest Airlines, Trans World Airlines,

and United Air Lines filed individual comments, as well.

ATA stated that its members stood ready to fulfill their

responsibilities to collect and transmit passenger manifest

information. ATA said that based on lessons learned during recent

negotiations of a voluntary Memorandum of Understanding (MOU) between

U.S. air carriers and the Department of State on cooperation and mutual

assistance following air disasters outside the United States, any

passenger manifest information requirement must: (1) apply to all

carriers on all flights to and from the United States, and (2)

delineate clearly U.S. Government agency responsibilities in handling

passenger manifest information.

ATA stated that for legal and practical reasons passenger manifest

information requirements must apply to all passengers on all flights,

and not just to U.S. citizens and permanent legal residents on foreign

air carrier flights. First, there will be no public tolerance for a

post-aviation-disaster scenario in which more information is available

to family members inquiring about passengers with a U.S. tie, either

due to travel on a U.S. airline or U.S. citizenship or permanent

residency, as compared to family members whose loved ones have no such

tie.

Second, such a distinction contradicts the equality-of-treatment

policy that the Department has expressed in Agreements Relating to

Liability Limitations of the Warsaw Convention Show-Cause Order (Order

96-10-7 (Oct. 7, 1996)). Third, the proposed rule's U.S. and foreign

carrier provisions are not ``comparable,'' the standard found in the

underlying statutory language. Fourth, uniformity will result in

properly assigning information collection responsibilities for code-

share flights that foreign-flag carriers operate to and from the U.S.

On these points, American Airlines said that: whereas the proposed rule

omits coverage of some foreign passengers on the basis of privacy

considerations, there is no citizenry to whom privacy is more sacred

than U.S. citizens; the Department is legally able under the

International Security and Development Cooperation Act of 1985 (Pub. L.

99-83) to impose a passenger manifest information requirement covering

all carriers and all passengers; and while the nationality of

passengers is not always clear due to dual citizenship and mixed-

nationality families, in the event of an aviation disaster the

Department of State would want to know about all U.S. citizens aboard

the flight, including those with multiple passports and nationalities.

ATA further stated that disparate U.S. Government information

requirements impose unnecessary compliance costs on air carriers (and

thereby passengers), and there is thus a need for U.S. Government

agencies to coordinate current and contemplated information

requirements with customer convenience and carrier operational

practices. ATA stated that first and last name should be acceptable in

any passenger manifest information requirement, as they are in the U.S.

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

noted that international travelers, in particular, could have long last

names or multiple middle names. Northwest noted that the advantages of

collecting only first and last names would be reduced collection times

and minimized demands on computer data fields. ATA said that date of

birth should be able to be used as a substitute for passport number.

Northwest said that date-of-birth digits are easier to comprehend and

are fewer in number than passport number digits and recording them

would therefore be less tedious, time-consuming and prone to error;

that collecting date of birth when booking a seat would be easier than

collecting passport number because passengers

[[Page 8263]]

know their dates of birth, whereas most do not know their passport

numbers and rarely have their passports with them when they book a

flight; and that unless date of birth is sufficient compliance,

passengers and carriers will be greatly inconvenienced by the need to

have a second conversation, whether over the telephone or at the

airport, to provide passport information. United said that the use of

date-of-birth information, rather than passport number information,

would avoid the problem of collecting identification data from

passengers on international flights to points where passports were not

required; would facilitate the identification of passengers on such

flights; and would simplify the development of programs and personnel

training for collection of data by assuring that all international

flights are subject to the same passenger manifest information

requirement.

ATA stated that the treatment of two related areas of passenger

response to requests for information should be reworked. First, ATA was

very concerned that the proposed rule would deny boarding to passengers

who do not provide name and passport number. ATA said that the proposed

rule did not justify such an action, and the underlying statute did not

mandate it. ATA alternatively suggested that the passenger should be

allowed to decide whether or not to provide this information. That is,

passengers would be given the option of providing all categories of

passenger manifest information. No passenger manifest information would

be mandated, although air carriers would be obligated to solicit all

categories of passenger manifest information. On this point, United

stated that if the purpose of collecting passenger manifest information

was to enhance notification, then the passenger should be allowed to

opt out. United posed a situation where an air carrier was collecting

passenger manifest information by having passengers fill out boarding

pass stubs, which the airline would then collect at the gate, and asked

if a flight should have to be delayed for a passenger that refused to

submit some of the required information or to give up his place on the

flight. United pointed to the privacy rights of the passenger refusing

to provide some of the passenger manifest information, and to the fact

that many tickets would be non-refundable at that point, a fact

potentially contributing to a disruption in the boarding process.

Second, ATA thought that air carriers should not be required to record

those passengers who did not provide contact information. United said

that the carrier's responsibility should be met by offering the

passenger the opportunity to participate, and that the absence of

contact information would be sufficient evidence that the passenger has

declined to provide it.

ATA then stated that the information requirements in the proposed

rule raised two other significant issues that were unrelated to the

content of the categories of data to be collected. First, ATA said that

there is a clear difference between collecting information from

passengers and verifying the information that passengers provided; that

verification would be intrusive and time-consuming; and that carriers

should not have to ``police'' the collection of information from

passengers. Second, ATA said that the fact that the proposed rule would

have passenger manifest information go to State and DOT raised

important questions about the roles of government entities and the

appropriate use of such information. On the latter point, ATA said that

ASIA 90 is structured such that section 203 passenger manifest

information requirements (49 U.S.C. 44909) support Department of State

family-assistance responsibilities elsewhere in Title II (22 U.S.C.

5503-04). ATA said that there is no provision in the law for DOT to get

manifest information and DOT has no manifest-handling functions under

the law. ATA added that there now exists a series of Memoranda of

Understanding between the National Transportation Safety Board (NTSB)

and seven Executive Branch agencies regarding post-aviation disaster

procedures and that, moreover, under the Aviation Disaster Family

Assistance Act of 1996, air carriers must submit to NTSB and DOT

aviation disaster plans to address the needs of families of passengers

involved in aviation disasters. ATA said that what is needed in the

aftermath of an aviation accident are clear, predictable lines of

authority. ATA said that a clearer definition is needed of the

Government's role in notification and the purpose for which DOT would

use passenger manifest information. ATA stated that a related concern

is the need to safeguard passenger manifest information, and that

multiple recipients of this information created the very real

possibility of its unauthorized or uncoordinated release, which could

create confusion and be especially harmful to family members. American

stated that it strongly believes that the information should only be

provided to State, and that it was deeply concerned that broadly

disseminating (to State, to DOT, and, per recent legislative and

regulatory decisions, perhaps to the NTSB) passenger manifest data that

is sensitive, and may change repeatedly as information is updated from

the site of an incident, could only consume valuable time and might

well lead to inconsistent and confusing communications to the next of

kin and the public. ATA said that another issue requiring attention is

that of how an air carrier is to respond to demands for passenger

manifest information from other Federal Government agencies or other

levels of government. ATA said that a final rule should provide

thoughtful and clear guidance regarding such requests.

ATA said that the triggering event for transmission of a passenger

manifest needed to be clarified. ATA noted that section 44909 was

traceable to recommendations related to acts of terrorism and not to

isolated on-board accidents, and suggested redefining ``aviation

disaster'' as: ``loss of life due to crash, fire, collision, or

sabotage/missing aircraft/air piracy.'' TWA said that the proposed rule

covers incidents in which there appears to be no need to contact the

U.S. Government, and suggested that the definition of an aviation

disaster be changed to cover only those instances where the death or

serious injury of a passenger occurs. TWA said that the proposed rule

triggers the passenger manifest production process too early. TWA said

that DOT must realize that the manifest is created as passengers turn

in their boarding passes and their baggage is confirmed for boarding on

the aircraft. TWA said that the airline cannot thus have a complete

manifest in the instance of ``an emergency in which all passengers

might not have boarded the aircraft'' that is mentioned in the proposed

rule since those passengers that have not yet boarded the aircraft will

not be on the manifest. TWA suggested that DOT limit the definition of

incident to one that occurs after the door is closed and the manifest

created.

ATA said that additional counter space at foreign airports would be

the biggest implementation problem. ATA said that while the Preliminary

Regulatory Evaluation gave an indication of the cost implications of

the proposed rule, the costs there were understated because the

estimate for the time needed at check-in (40 seconds) was very

optimistic and the estimate of the time needed at reservation (40

seconds) was too low because passengers would pause to find their

passports or would have to call back with passport numbers. ATA said

that passengers would be further delayed by

[[Page 8264]]

passenger manifest information processing problems at airports,

especially overseas, where no additional counter space was available.

ATA said that the detailed enforcement and penalty provisions in

the proposed rule were extraordinary for a rulemaking under DOT's

economic regulations, especially since the aviation industry had been

developing an MOU with State in this area. ATA asked DOT to take into

account the fact that carriers would, in many cases, be relying on

third parties to collect manifest information, and said it believed

that any passenger manifest final rule should be implemented

cooperatively. ATA said that, alternatively, if the detailed

enforcement and penalty provisions were kept in a final rule, then DOT

needed to make clear that it would apply a ``reasonable person''

standard in enforcing the rule. TWA objected to specific references in

the proposed rule to civil and criminal penalties. TWA noted the

ambitious notification periods in the underlying statute, advocated

industry and government cooperation in developing procedures that will

result in expedited notification of the relatives of crash victims,

said that the last thing the airline needs is for DOT to bring an

enforcement proceeding in the aftermath of an aviation accident when

the carrier may already be receiving adverse publicity that threatens

its existence, and also said that there would be no deterrent effect

from an after-the-fact enforcement proceeding because airline crashes

occur so rarely. United also mentioned the detailed enforcement and

penalty provisions in the proposed rule as a specific, particular

concern and urged the Department to emphasize cooperation between air

carriers and the U.S. Government in fulfilling the requirements of the

underlying legislation.

ATA urged that any final rule be implemented in 180 days (rather

than the 90 days in the proposed rule) primarily because third parties

would be involved and depended upon to handle booking and airport

processing duties that encompass passenger manifest information

collection. ATA noted that airlines would have to work with the travel

agent community to develop procedures, create interline procedures to

handle passengers connecting from other carriers (which could be

especially demanding on commuter air carriers), and develop new

procedures for air carrier CRSs. United noted that while a passenger

manifest requirement had been under consideration for some time, each

air carrier would need to develop its own compliance program. United

said that this work could not begin until a final rule was issued, and

that it could not be fully accomplished (including training passenger

service personnel) in 90 days.

Northwest said that military air charters should be specifically

excluded from any passenger manifest requirements in a final rule

because in these so-called ``MAC charters,'' which involve essentially

a wetlease of aircraft and crew to the U.S. Government, the U.S.

Government alone handles passengers and is solely in possession and

control of all passenger and manifest information. Northwest stated

that one interpretation of the phrase in the proposed rule,

``information on individual passenger shall be collected before each

passenger boards the aircraft on a covered flight segment'' was that

the proposed rule would require collection of manifest information

separately for each covered flight segment, and asked for clarification

in the final rule that passengers may provide manifest information at

the time of booking for their entire one-way or round-trip itinerary,

with updates made when checking in at the airport.

In response to a DOT request for comment regarding the collection

of citizenship data for passengers aboard U.S. air carriers traveling

to destinations that did not require a passport, TWA said that the

collection of citizenship information on such flights would seem to be

of marginal utility in the notification process, and that DOT has

neither explained what benefit the citizenship information would

provide when the airline does not have the full name and passport

number of the passenger, nor why it proposed to impose this obligation

only on U.S. airlines. TWA noted that if DOT decided to require

citizenship information, it should be collected by both U.S. and

foreign carriers.

Finally, American stated that since the traveling public is

sensitive to any changes that affect air travel, public awareness of

any new passenger manifest procedures adopted as part of a final rule

would be critical to their successful implementation. American said it

believes that DOT, together with the airline industry, would need to

undertake a wide-ranging education campaign on a final passenger

manifest rule.

American said that there are two levels of notification: (1)

Notification as to whether a passenger was on board a flight involved

in an incident, and (2) notification as to whether a passenger is

alive, injured, deceased or unaccounted for. American contended that

the second level is particularly subject to change as updated

information is received from the site of the incident. While American

listed reasons why it thought that the air carrier was in the best

position to perform both levels of notification, it said that, at the

same time, it understood why some feel that the carrier is an

inappropriate party to have contact with families, given its

involvement in the incident, and that American would not, therefore,

fight for a role in the notification process if its presence is not

welcome. In that case, however, American said that DOT must clarify

whether it wants the carriers to cede the notification duty to a third

party, and, if so, identify that third party. American said that it is

imperative that there be no confusion as to where the notification duty

lies; that otherwise the task of notification--difficult under the best

of circumstances--will be confused and mishandled; that the confusion

will only inflict more pain on loved ones; and that without a clearly

delineated duty, the notification process will not be accomplished with

the compassion that it deserves.

TWA said charters and code-share flights both present complex

problems regarding passenger manifest information. TWA said that while

in the proposed rule DOT would make all direct and indirect air

carriers involved in either such arrangement responsible for providing

the manifest, and threatened that the carriers will have to be vigilant

because they would be jointly and individually responsible for

compliance, DOT cannot wash its hands of the matter in this way.

Regarding charters, TWA said that the charter operator may provide

the carrier with a manifest, but the airline has no way of checking its

accuracy; that for many charter flights, airlines allow open seating

for anyone who has documentation from the charterer; and that the

airline does not have the names of the charter passengers in its

computers, and would be most unlikely to meet the 1-hour deadline for

providing the list to the government. TWA said there would be special

problems with military charters, where the military undoubtedly want to

control the notification process.

TWA said that code-share flights present more pervasive problems.

TWA said that while DOT seems to believe that both code-share carriers

would be responsible for the flight, the language of the proposed rule

applies only to ``covered flights operated by air carriers and foreign

air carriers.''

TWA identified two types of code-shares. The first is a marketing

code-share agreement, under which a U.S.

[[Page 8265]]

carrier code is placed on a foreign flag flight, only the foreign air

carrier is the operator. The U.S. carrier has sold seats as agent (and

receives a commission for doing so) for the other airline, and, with

respect to those sales, it is neither the direct air carrier, nor an

indirect air carrier. (Example provided: Lufthansa flight from New York

to Frankfurt, United is acting as agent for Lufthansa, receiving a

commission on every UA-code ticket it sells. Lufthansa, as operator,

has the passenger name records (PNRs) for all passengers, including

those traveling on United's code. Both carriers cannot be responsible.

United would have no records of passenger booked through Lufthansa and

cannot be responsible for those it [United] booked either, since it may

not know if they showed up and boarded the Lufthansa flight.) TWA

concludes from this that Lufthansa alone, as operator of the flight,

should be responsible for the manifest.

The second type of code-share is a blocked-space flight, such as

operated by Delta and Swissair. In that case, Delta may have blocked

100 seats on a Swissair flight, and may be an indirect air carrier with

regard to those seats. Delta would have PNRs for passengers it places

in those seats, but it may not have operational control of the check-in

process, and, just like United, may not know if its passengers actually

traveled. Under these circumstances, it would be unfair to impose the

passenger manifest obligations on the code-share carrier that is not

operating the aircraft.

Two smaller air carriers that fly large jets, North American

Airlines (North American) and Carnival Air Lines, filed comments. North

American, a charter airline with 3 large aircraft and about 150

employees, said that charter carriers will be hardest hit by the

proposed rule because a greater proportion of their flights are to

international destinations. Carnival said that carriers that operate in

limited international service, such as itself, would be

disproportionately affected by a passenger manifest information

requirement because it would require more extensive information and

changes in procedures to accommodate only a small number of

international passengers.

North American said that full name, phone number (including area

code), and home city is all the data needed for notification, and that

air carriers should not be forced to collect more information, such as

APIS data. North American said that the proposed collection of passport

numbers is a waste of time since a passport is valid for ten years and

the information on the passport application often quickly becomes out

of date. North American saw no need for collecting date of birth

information. The carrier was skeptical that people would provide date-

of-birth information, and believed that many people would view a

request for it as an invasion of privacy, that asking for it would

invite lawsuits based on age discrimination (e.g., in the case of

people bumped from flights), and that collecting it would unduly slow

down the airline ticketing and information gathering processes.

Carnival said that many passengers do not have passports available

when booking a trip or may not have yet obtained a passport. Carnival

estimated that collecting the information in the proposed rule at time

of check-in would increase its current check-in time of 4 minutes per

passenger by 25 percent, or 60 seconds, to 5 minutes. Carnival said

that its associated check-in personnel costs would increase by a like

percentage and that Carnival could not sustain such an increase in its

low-fare international operations.

North American said that charter airlines doing business with tour

operators are aware that a travel agent selling a ticket for a tour

operator will likely refuse to reveal information about the passenger

for fear that the tour operator will try to sell direct to the

passenger in the future. North American said that the result of this

dynamic, in the case of a disaster, is that notification can take

longer, because the travel agency that has the passenger information

may be closed for the evening or weekend.

North American said that the best way across all types of air

carriers to collect information would be along the lines of the Pan Am

103 family suggestion (i.e., perforated stub on the boarding card that

could be torn off upon boarding the flight and kept by the airline).

However, North American noted that this process would be cumbersome and

require more time than the 40 seconds per passenger at check-in found

in the NPRM. (North American estimated at least a minute in check-in

processing, in addition to any time earlier that passengers needed to

check in.)

North American said that all the extra boarding time needed to

implement a passenger manifest information requirement would eat into

aircraft utilization, and noted that while DOT had in the NPRM

calculated the costs, in terms of manpower, for a passenger manifest

system, the greatest cost, that of tying up an expensive asset like a

$60 million Boeing 757 jet due to the extra time involved to collect

passenger manifest information, had been ignored.

North American said that charter air carriers were very concerned

about a possible perception by passengers that manual collection of

passenger manifest information (that is, non-CRS collection of this

information) by a carrier could somehow indicate that such a carrier

was unsafe. To allay such unfounded fears on the part of the public,

North American said that only bare bones absolute minimum essential

information should be gathered and that passenger manifest information

requirements should be widely publicized so that it would not appear

that one class of air carrier was being singled out over any other.

Both North American and Carnival suggested that implementation of a

passenger manifest information requirement should be delayed or

precluded based on the fact that they are not large air carriers. North

American suggested delaying implementation of a passenger manifest

information requirement for an airline flying 10 or fewer large

aircraft, regardless of the airline's revenues. Carnival said that DOT

should consider entirely exempting smaller carriers, which it defined

as those transporting less than 250,000 international passengers

annually, from the proposed requirements. Carnival said that, at the

very least, such smaller carriers should be given an implementation

date of not less than one year later than the effective date of any

final rule.

North American also said that the phrase ``best efforts'' should be

defined in advance of a final rule because of the enforcement penalties

contemplated in the NPRM (i.e., airlines must exercise best efforts to

get emergency contact information); that it makes sense to keep

passenger manifest information for 24 hours after a covered flight, but

not if the flight was canceled or if boarded passengers are deplaned

without incident; that providing data within one hour to the Department

of State is simply not practical in the event of an aviation disaster

aboard a small carrier, particularly if the disaster happened during a

holiday or off hours; that small carriers should not be required to

provide a 24-hour phone number to the DOT, only a phone number that is

operative when the carrier has aircraft airborne; that DOT should

provide a list of the foreign countries exempted under any passenger

manifest information requirement; and that the final rule should be

drafted to state clearly that none of the passenger manifest

information collected by airlines should be provided to any government

agency except in the case of a disaster.

[[Page 8266]]

Finally, North American said that it would be wise for telephone

companies to have a standby 800 number assigned to each airline that

could be activated instantly in the case of an air disaster. North

American also said that changes to the law were needed to require

telephone companies to waive the privacy of unlisted phone numbers in

the case of an airline or government agency trying to locate next-of-

kin in the aftermath of an aviation disaster.

Gran-Aire, an individual air carrier, and the National Air

Transportation Association (NATA), a trade association, filed comments

regarding the proposed rule and Part 135 on-demand air charter

operators (Part 135 operators). Both said that the proposed rule should

not apply to Part 135 operators.

NATA maintained that there was no justification in the NPRM for

including Part 135 operators, that the Preliminary Regulatory

Evaluation that accompanied the NPRM had not included the costs of Part

135 operators, and that such operators had been excluded from DOT's

ANPRM. NATA urged DOT to reconsider the negative effects of including

nearly 3,000 Part 135 operators, who typically carry less than 9

passengers per flight and use turbine-powered aircraft that are less

likely to be involved in fatal accidents. NATA said that Part 135

operators know their passengers, who must arrange travel privately

(Part 135 operators do not publish schedules). NATA said that Part 135

operators already have notification and reporting mechanisms in place

in the unlikely event of an accident or incident with the aircraft or

passengers, and that compliance with the proposed rule would do nothing

to enhance these mechanisms. NATA stated that Part 135 operators

currently are exempt from the need to have DOT economic authority and

asserted that imposing passenger manifest requirements on them would

fly in the face of sound rulemaking.

Regarding the specifics of the proposed rule, NATA said that

forcing a Part 135 operator to ask a business traveler to give the name

of an emergency contact at the beginning of a Part 135 flight (perhaps

to the person who would eventually pilot the flight) would create an

extremely uncomfortable situation; requiring air carriers to make and

keep records of those passengers unwilling to list an emergency contact

was unnecessary, especially because Part 135 operators know their

customers; soliciting date of birth would be just another reporting

burden and invasion of privacy that would serve no purpose in aiding

notifying families of passengers in the event of a disaster on a Part

135 flight; and requiring Part 135 operators to provide the U.S. State

Department with a list of passengers within one hour of an aviation

disaster would be impractical and unattainable since when an accident

occurs on a Part 135 on-demand air charter flight, all carrier

resources are usually needed for urgent lifesaving measures.

Finally, NATA said that none of the four ways to ameliorate the

costs and potential burdens of the proposed rule on small air carriers

that are listed in the NPRM apply to small, Part 135 operators; that

filing a MOU with the Department of State amounted to asking carriers

to comply with the requirements of the proposed rule, but through a

different U.S. Government agency; and that extending the effective date

for compliance of Part 135 operators with a final rule was the only

means by which DOT suggested addressing the huge costs on small

operators.

The Air Line Pilots Association (ALPA), representing 44,000 pilots

who fly for 37 U.S. airlines, said that it had reviewed the NPRM and

concurred with it as written.

The American Society of Travel Agents (ASTA), representing about

16,000 U.S. agency locations and members in about 168 foreign

countries, and American Express Travel Related Services Company

(American Express), one of the largest U.S. travel agencies also with

hundreds of travel locations outside the United States, favored DOT

imposing a single system for collecting passenger manifest information

that would rely on a form for such information being made available at

the gate areas of airports. A passenger would fill out a form as he or

she waited for a flight, airlines would collect the forms, and gate

attendants (who, according to ASTA, are typically engaged, anyway, in

compiling ticket coupons and boarding passes) would put them into an

envelope labeled with the flight number and turn the envelope into a

central airport depository. ASTA said that in the event of a disaster,

the envelope for the flight could be quickly retrieved and the needed

information copied and supplied to the U.S. Government. Passages, a

travel agency based in Los Angeles, said that given the rarity of air

crashes it appeared to be a waste of time and computer space to collect

the additional passenger manifest information for every flight.

ASTA and American Express said that employing a single system: was

the only way to assure that the passenger manifest information

collected would be complete and would match the actual persons on a

flight (American Express noted that a travel agent has no way of

knowing if a passenger that it books actually boards a flight since

passengers routinely change travel plans at the last minute directly

with the carrier); would avoid the need to reprogram computers or

establish hundreds of varying and confusing procedures to collect,

centralize and reproduce the few pieces of passenger manifest

information; would avoid the alternative of dozens of different airline

systems, many of them requiring some degree of involvement from travel

agencies, and resultant chaos; would result in one, simple rule that

the public could easily understand; and would make enforcement easier.

ASTA said that if, alternatively, there was an attempt to gather the

information using airline CRSs, some passengers could not provide it

because they would not have their passports with them, or would not yet

have obtained passports. ASTA said it believed that if passengers had

to be asked to provide passenger manifest information at airport check-

in, some would object on privacy grounds and that conflict, confusion

and delay at the gate area would result.

Passages said that the assumption of 45 to 60 seconds to collect

the additional passenger information in DOT's NPRM was in error.

Passages said about 70 percent of its reservations were made by

secretaries of businessmen who call back several times because they

lack complete information and their bosses are ``on the fly'' and

unavailable, and said these secretaries would have no idea of the

particulars requested in the proposed rule. Passages anticipated also

that requests for the additional passenger manifest information in the

NPRM would be met with the response, ``none of your business.'' ASTA

said that 40 seconds was a gross underestimate of the average time that

would be required to solicit, explain, answer questions about, and

collect the additional passenger manifest information in the NPRM.

American Express gave a figure of $1 million annually as the cost of

the proposed rule for its U.S. locations alone, and said that this was

an unacceptably large amount given the erosion in travel agent margins

that have occurred since imposition of airlines commission cap in 1995.

American Express said that it was safe to assume that if airlines were

allowed to shift the burden of collecting the mandated passenger

manifest information to travel agents, they would not offer to cover

the additional travel agent costs. Regarding travel agent wages,

Passages said its principals earn $28,000 per year and ASTA mentioned,

as a source for such data, the results of

[[Page 8267]]

a survey of travel agency compensation that appears annually in Travel

Counselor magazine, a publication of the Institute of Certified Travel

Agents.

The American Association of Families of KAL 007 Victims supported

the proposed rule with two further explanations. First, it said that in

the face of world wide deregulation and privatization of the air

carrier industry, uniform standards on information gathering should be

developed either by DOT or by the air carrier associations. Second, it

said that information gathering enforcement provisions that would apply

to air carriers that did not adhere to the standards, rules and

regulations of the national or international air carrier trade

associations should be included in a final rule.

Richard P. Kessler, whose wife, Kathleen, died on ValuJet Flight

592 on May 11, 1996, supported the proposed rule and said that it

should be implemented for the good of the flying public and their

families. He said that his understandings were that passenger manifest

information was needed by the Department of State since it was to

become the official point of contact for families in the aftermath of

an aviation disaster that occurred outside the United States, and for

aviation security, national security, and border control purposes. He

noted that while section 204 of P.L. 101-604 required the Department of

State to ``directly and promptly notify families of victims of aviation

disasters * * * including timely written notice'' and tasked the

Secretary of State with this responsibility, families of victims of the

December 1995 American Airlines' crash outside of Cali, Colombia, were

forced to make first contact with the Department of State. Mr. Kessler

said he found economic arguments in opposition to the proposed rule to

be incredible and asked how one could place a dollar figure on the

proposed rule.

Ms. Brenda Sheer stated that in light of the experience following

past aviation disasters, it was of the utmost importance that airlines

collect basic information on all passengers. She proposed that airlines

distribute information cards to all passengers at the time of check-in

(parents and guardians would be responsible for filling out cards for

children under 13 years of age) that would request full name; passport

number and issuing country code, if a passport is required for travel;

either drivers license number or social security number; and emergency

contact number of a person or entity. She said that the cards would be

collected by airlines at the time of boarding and the agent collecting

them would be responsible for verifying the name on the card using a

passenger's picture identification. She noted that this verification

procedure would prevent any passengers attempting to fly under

transferred tickets or false names from boarding the flight. She said

the cards would be put into a box and kept confidential for 24 hours

unless an aviation disaster occurred. Ms. Sheer said the benefit of

such a plan for passengers was that they could feel secure that their

families and loved ones would not have to experience additional

suffering in the event of a disaster; the benefits of such a plan for

airlines were that additional staff would not be needed and additional

training would not be required to implement it. Ms. Sheer said that

passengers would need to have their information cards filled out and

identification ready at the time of boarding, and that passenger and

airline efforts would have to be coordinated, in order for the plan to

succeed.

Ms. Liana Ycikson supported collecting passenger manifest

information consisting of full name, date of birth, address, and

emergency contact telephone number. She said there needed to be an

efficient way to contact family members of the victims of an aviation

disaster before their names were announced by the media. She suggested

not affiliating the collection of passenger manifest information with

the U.S. Customs Service because some people are uncomfortable dealing

with the U.S. Customs Service. She suggested that passenger manifest

information be kept as part of frequent flyer information and a

passenger's frequent flyer number be printed on boarding passes (the

pulled boarding passes from a flight could then serve as a record of

who boarded the flight). Alternatively, she suggested that an automated

flight activation system--a system for flights designed to work in a

fashion similar to automated credit card activation systems--could be

set up to collect passenger manifest information. She envisioned that

under such a system, each flight would have a unique number attached to

it. A passenger would have to call a toll-free telephone number prior

to the flight and, in response to electronic voice prompts, give

passenger manifest information in order to ``activate'' himself for the

flight. To safeguard the personal nature of the passenger manifest

information, Ms. Ycikson said that only a check mark should show up on

airlines' information screens to indicate those passengers that had

provided the necessary information: that is, the information itself

should not appear.

Caytano Alfonso, Norma Ramos, and Victoria Mendizabel filed

comments as a group. They said that air carriers were in the best

position to meet the goals and objectives of the NPRM and should be

responsible for collecting passenger manifest information. Because of

their concerns about the invasion of individual passenger privacy,

however, they said that passenger manifest information should be used

only in the event of an aviation disaster and that in no instance

should it be kept for more than 24 hours or to create an ongoing data

base. They said that the basis for their concerns about personal

privacy was the fact that regulations for passenger manifest

information fall under 49 CFR 449 (Security), and that elsewhere in 49

CFR 449 provision is made for the sharing of information among 10

separate intelligence units of the U.S. Government, DOT, and the FAA.

They believed that U.S. air carriers as well as foreign air carriers

should be equally burdened and be responsible for collecting passenger

manifest information from all passengers. Finally, they said that DOB

should not be substituted for passport number and should not be

required as an additional data element because DOB can be obtained from

the Department of State through passport-number-accessed records, and

air carriers should not be further burdened by having to collect both

types of information.

Four students from Florida International University (My Trinh, Chau

Trinh, Walter Hernandez, and Joanne Flores), who are frequent air

travelers, said that they submitted comments because of their concerns

that the proposed rule would potentially raise airline ticket prices

substantially and cause passenger delays. They said that passengers

should not have to be at the airport hours before they depart to stand

in lines to provide passenger manifest information and thus delay

vacations and business trips, and that the costs of the proposed rule

outweighed its benefits. They said that airlines should be required to

collect only passenger name and passport number, and should be held

responsible for quickly compiling a list of passengers in the aftermath

of aviation disaster so that they could respond to families that

``called-in'' to the airline. They stated that they did not believe

that airlines should be held responsible for ``calling-out'' to a

person listed on an emergency contact form. They believed that if the

proposed rule were

[[Page 8268]]

implemented, the U.S. Federal Aviation Administration would need to

assist airports through increased expenditures from the Airport

Improvement Program (AIP) to accommodate the increased passenger

congestion at airports that would result. They pointed out that the

additional time of 40 seconds per passenger at check-in that is

postulated in the proposed rule to provide passenger manifest

information does not take into account delays for passengers that need

extra assistance, such as disabled passengers, small children flying

alone, passengers who need language translation services, and pets

traveling unaccompanied by a passenger.

The U.S. Department of Justice, Immigration and Naturalization

Service (INS), pointed out that DOT's proposed rule imposed one

passenger data collection standard on U.S. carriers (collection/

solicitation of information from all passengers), and another passenger

data collection standard on foreign carriers (collection/solicitation

of information from U.S. citizens). INS noted that nonimmigrant aliens

were excluded completely from information collection under this

approach. INS proposed, instead, that a single standard, based on the

Advance Passenger Information System (APIS), be established for

satisfying Pub. L. 101-604 passenger manifest requirements. INS noted

that were this to be done, the U.S. Department of State could access

within seconds passenger manifest information for passengers on a

flight to or from the United States that ended in disaster.

As part of this approach, INS proposed that both U.S. and foreign

air carriers be required to collect basic information for all

passengers consisting of: (1) full name, (2) passport number and

issuing country code (if a passport is required for travel), (3) date

of birth, and (4) gender. INS noted that the additional required data

elements would further enable the law enforcement and intelligence

communities to perform database checks in support of any investigation

in the event of an aviation disaster. Regarding optional emergency

contact information, INS proposed that the optional emergency contact

information be limited to a U.S.-located emergency contact in order to

conform with the preexisting INS requirement to collect the U.S.

destination address for nonimmigrant aliens at entry.

INS noted that: the APIS system provides enforcement, facilitation,

and automation benefits to the Federal Government, the air carriers and

traveling public; the Federal Inspection System (FIS) had since 1990

been actively utilizing APIS, a subsystem of the mainframe-based

Interagency Border Inspection System (IBIS); APIS had been designed to

support the overlapping information requirements of over twenty

government agencies; and stand-alone, PC-based software [PCAPIS] was

available so that less-automated air carriers could participate in

APIS. INS said, furthermore, it foresaw that future developments in

automating arrival and departure data collection at U.S. ports-of-entry

would involve electronic transmittal of manifest information processed

through APIS. INS pointed out that the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRAIRA) tasked INS with

undertaking a study and developing a plan for further automating

arrival and departure data collection at U.S. ports-of-entry and with

developing an automated entry-exit control system.

Associations of foreign air carriers, individual foreign air

carriers, and foreign countries filed comments in which they objected

to the United States imposing a passenger manifest requirement on

foreign air carriers. Commenters included the International Air

Transport Association (IATA); the Arab Air Carriers Organization

(AACO); the Orient Airlines Association (OAA); Air Canada; Aerolineas

Argentinas; Qantas Airways; Scandinavian Airlines System; All Nippon

Airways; Air New Zealand; Varig; Lauda Air; British Airways; Turkish

Airlines; Swiss Air; Lufthansa; Japan Airlines; Cathay Pacific Airways;

Laker Airways; Air Pacific; the Embassy of Belgium; a combined comment

from the Embassies of Austria, Belgium, Denmark, Finland, France,

Germany, Greece, Iceland, Ireland, Italy, Japan, Netherlands, New

Zealand, Norway, Portugal, Spain, Sweden, Switzerland, United Kingdom

and the European Commission; and the Embassy of the United Kingdom

(Britannic Majesty's). In general, these commenters shared similar

views and, therefore, to prevent duplication, we have summarized the

foreign comments as a whole.

The foreign commenters said that foreign airlines have demonstrated

historically their concern regarding notification by constantly

updating and strengthening their own internal emergency response

guidelines, that the proposed rule was not achievable, and that it

would disrupt and delay airport operations worldwide. They said that

passenger manifest requirements of any sort must be negotiated directly

with foreign governments bilaterally or through ICAO and noted that

section 201 of the Aviation Security Improvement Act of 1990 directed

the Secretary of State to make improved availability of passenger

manifest information a principal objective of bilateral and

multilateral negotiations with foreign governments and ICAO.

They said, in particular, that the proposed rule raised major

issues with respect to inappropriate unilateral regulatory action on

the part of the United States because it: (1) Mandated a legally

enforceable obligation, collection of manifest data, be imposed on

airlines at points outside the United States; (2) mandated that

carriers (of any flag) refuse boarding to passengers of certain

nationalities who refuse to provide certain information at points

outside the United States; (3) obligated carriers (of any flag) to

transmit and disclose to U.S. authorities data held outside the United

States; (4) mandated that carriers (of any flag) be able to produce a

passenger manifest on demand by U.S. authorities at points outside the

United States; (5) would impose civil and criminal penalties on

carriers of any flag, whose conduct at points outside the United States

failed to comply with U.S. law; and (6) would prohibit carriers from

providing data collected under the U.S. mandate to anyone other than

U.S. authorities, including the government of the country where a

flight originates, without consent by DOT.

They said that the prohibition on supplying collected passenger

manifest information to anyone other than the U.S. Government in the

aftermath of an aviation disaster is contrary to certain provisions of

ICAO Annex 17--Aviation Security (RP 9.14 and the introductory

paragraph of Standard 9.1), which call on States to cooperate with

local authorities. They also said that the European Union Common Data

Privacy Directive of 24 October 1995, which is to be adopted and

implemented in EU Member States' national legislation by October 1998,

provides:

The Member States shall provide that the transfer to a 3rd

country of personal data which is undergoing processing or are

intended for processing after transfer may take place only if,

without prejudice or compliance with the national provision adopted

pursuant to the other provisions of this Directive, the 3rd country

in question ensures an adequate level of protection. [Article 25]

They said that the United States is likely to be included on the

EU's list of countries without adequate levels of protection, and,

therefore, transfer of data to the U.S. would violate the EU's Common

Privacy Directive. In addition, they said that the proposed rule was

inconsistent with the U.S.-Austria Air

[[Page 8269]]

Services Agreement, Article 5, which provides that the law of each

country shall be applied to aircraft of either country when in that

country's territory; contrary to the U.S.-Turkey bilateral agreement;

potentially conflicted with the German Data Protection Act

(Bundesdatenschutzgesetz--BDSG); would conflict with the laws of

Denmark, Norway, and Sweden, which would prohibit furnishing collected

information to the U.S. Government; conflicted with U.K. law, which

prohibits the different treatment of U.S. citizens from other

nationalities; conflicts with the Constitution of Japan, which

guarantees the right of privacy and protects from mandatory disclosure

exactly the type of personal information that would be collected under

the proposed rule; conflicts with Article 21 of the Swiss Criminal

Code, which would prohibit any carrier (Swiss or other) from complying

with any manifest rules that might be adopted with respect to flights

whose last point of departure to the United States is Switzerland; and

ignores the fact that foreign laws apply to foreign carriers in the

event of an aviation catastrophe (i.e., foreign laws may not authorize

a foreign carrier to release any information on its passengers until it

has coordinated with the regulatory bodies of its own country or of

those in whose territory the event has occurred). They said that if

victims' families are unable to get accurate and prompt information

because of the vagaries of the proposed rule's application, families

will be disappointed, and carriers and the U.S. authorities will be

subject to renewed criticism.

The commenters said that compliance with a passenger manifest

information requirement would have the following negative impacts:

measurable delays for the traveling public; a loss of confidence in the

safety of international civil aviation precipitated by collecting next

of kin information from passengers as they boarded their flight; slower

passenger processing times at reservation and check-in; higher levels

of congestion at already overtaxed airport terminals (where additional

check-in desks are needed and space is available, they will be created,

but where space is not available, airport operators will be forced to

seek ways to expand terminal capacity to deal with the increased

congestion); and diversion of check-in agents' attention away from

security concerns due to additional demands to collect passenger

manifest information. They said, in particular, that the proposed rule

was incompatible with through check-in procedures worldwide (e.g.,

because the present system at many of the locations where the passenger

will initially board an aircraft do not have the data fields necessary

for emergency contact parties and telephone numbers).

The foreign commenters said that they objected to any effort to

expand the proposed rule beyond DOT and the Department of State to suit

the purposes of other, non-associated programs such as the Advance

Passenger Information System (APIS) of the U.S. Customs Service.

They also said that the proposed rule contravenes several Standards

contained within Annex 9--Facilitation of the Chicago Convention: (1)

Standard 2.1--Governmental regulations and procedures applicable to the

clearance of aircraft shall be no less favorable than those applied to

other forms of transportation; (2) Standard 2.6--Contracting States

shall not normally require the presentation of a Passenger Manifest,

but when this type of information is required it may also be provided

in an alternative and acceptable manner (IATA said that if the type of

information referred to in 2.6 is required, it should be limited to the

items shown in the format of a Passenger Manifest set forth in Appendix

2, which limits Passenger Manifests to specific flight information:

Operator, Marks of Nationality, Flight Number, Date of Flight, Point of

Embarkation and Disembarkation, and to the Surname and Initials of

individual passengers); and (3) Standard 3.1--Regulations and

procedures applied to persons traveling by air shall be no less

favorable than those applied to persons traveling by other means of

transport. IATA said that it has no records that the United States has

filed differences to Standards 2.1, 2.6, and 3.1.

The foreign commenters said they anticipated that legal actions

(individual or group) would be brought against carriers by passengers

who had been denied boarding for refusing to allow mandated information

to be collected and that defending against such suits would be time

consuming and unnecessarily burdensome on the aviation industry. They

said that DOT should indemnify airlines that are found liable for

damages to a passenger that has been queried and/or denied boarding in

accordance with any Passenger Manifest Information final rule.

They offered several points as just-cause to delete the requirement

in the proposed rule that airlines deny boarding to a passenger who

refuses to provide full name and passport number and country of issue:

(1) The Data Protection laws of many States, while not expressly

prohibiting collection or transmission of personal data, offer the

individual the right to control how the data can or will be used; (2)

airline tickets represent a contract between the traveler and the

transportation provider that guarantees carriage, provided the traveler

complies with the rules and regulations of the carrier as filed in its

tariff documents and, thus, denial of boarding due to the passenger's

refusal to comply with a law not recognized in the country of boarding

cannot be justified, and would likely result in breach of contract

lawsuits; (3) many airlines believe that a traveler's decision to allow

personal data and emergency data to be collected and forwarded to any

government agency is a personal choice made after a careful

consideration of the potential impact on self and family and thus,

instead of coercing compliance through threats of denial of boarding,

the proposed rule should, instead, focus on methods to encourage

systems by which passengers can voluntarily submit data prior to

boarding any international flight, regardless of origin or destination;

and (4) the rule, if implemented as currently drafted, would have

significant operational impact on both airline and the traveling

public, due to other related requirements imposed under ICAO Annex 17--

Security (any individuals denied boarding would require that any

baggage checked by that individual be removed from the aircraft as

well, and doing so would involve significant flight delays since most

baggage on international flights is placed in containers and loaded

well before the passenger boarding process commences).

The commenters were critical of the fact that a description of the

Memorandum of Understanding (MOU) that was mentioned in the NPRM was

not included as part of the NPRM, and said also that non-U.S. air

carriers did not participate in the Working Group that developed the

MOU. They said that specific MOU language was needed so that it could

be evaluated.

They said that it was in recognition of the difficulties of

implementing a passenger manifest requirement that Congress decided in

section 704 of the Aviation Disaster Family Assistance Act of 1996 to

create a task force to examine such issues, and DOT should await the

work of the task force before adopting any rules in this area.

One small foreign air carrier said that the administrative burden

of a passenger manifest requirement would be too great and, therefore,

small air carriers should

[[Page 8270]]

be exempted from any final rule. It suggested doing so by exempting air

carriers that meet the definition of ``small business'' in 13 CFR

121.201.

Air Canada recommended that U.S.-Canada flights be exempt from any

passenger manifest information requirement. Air Canada said that the

U.S.-Canada aviation market was more like the intra-U.S. aviation

market than other U.S.-foreign country aviation markets: the U.S.-

Canada market is characterized by many transborder short-haul flights

(often employing commuter aircraft) whereas other U.S.-foreign country

markets are characterized by long-haul flights. It said that imposing a

passenger manifest information requirement on shuttle-type U.S.-Canada

transborder operations would be overly burdensome because compliance

could mean that pre-flight check-in times would be extended to the

point that they would be longer than the duration of the flight itself.

Air Canada also pointed out that 96 percent of its U.S.-Canada

passenger traffic was subject to INS and Customs preclearance, whereby

passengers submit Customs and INS documents to the U.S. Federal

Inspection Services prior to a flight's departure for the United

States. Air Canada said that while this process requires it to ensure

the collection of information similar to the information in the

proposed rule, it does not require Air Canada to collect and maintain

the information internally, as the proposed rule would. Air Canada said

that it would be costly to develop and maintain such a system for

collection and storage of passenger manifest information, and that

doing so would be superfluous to the extent that similar passenger

information is already supplied as part of the pre-clearance program.

On the details of the proposed rule, the foreign commenters said

that the reporting obligation should apply only in instances that occur

as part of the airlines' flight operation phase, which commences when

the aircraft door closes upon completion of the boarding process and

ends when the aircraft is fully stopped at the flight segment's

destination, and the cabin door opened prior to passenger

disembarkation. Loosening the definition to when ``any'' passengers

have been boarded or who still remain on the aircraft would potentially

lead to reporting requirements for incidents that occur on the ground

in airport terminal environments. Such incidents should remain under

the control of airport operators and local authorities.

In terms of recordkeeping, the foreign comments stated that

carriers who opt to store in CRS/automated formats should not be

required to maintain the information beyond the normal purging cycle.

In addition, these commenters stated that requiring carriers who might

be collecting manually to hold beyond completion of flight would be

impractical.

The International Civil Aviation Organization (ICAO) provided

information on the applicability of articles of the Convention on

International Aviation (Chicago Convention) to the proposed rule. ICAO

said that Article 29 of the Chicago Convention required every aircraft

engaged in international navigation to carry certain documents,

including, for passengers, ``a list of their names and places of

embarkation and destination,'' and that Annex 9 to the Convention

stipulated, in Standard 2.6, that presentation of the passenger

manifest document shall not normally be required, and if passenger

manifest information is required, it should be limited to the data

elements included in the format prescribed in Appendix 2 of Annex 9,

i.e., names, places of embarkation and destination, and flight details.

ICAO said that implied in Article 29 and Standard 2.6 are both the

requirement to collect passenger manifest information prior to the

flight and a limitation on the amount of information collected. ICAO

noted that the adoption of Standard 2.6 contemplated a paper document

that would have to be delivered by hand. ICAO stated that the concept

of a limitation on the amount of information to that which is essential

to meet the basic objectives of safety, efficiency, and regularity in

international civil aviation is also applicable to electronic data

interchange systems such as Advance Passenger Manifest Information

(API), in which additional (but not unlimited) data may be transmitted

to the authorities in exchange for a more efficient inbound clearance

operation. ICAO stated that it is widely recognized that in any system

involving the exchange of information (automated or not), it is the

collection of data that is the major expense, and that additional data

collection requirements should, therefore, result in benefits that

exceed costs. ICAO stated that a ``benefits exceeds costs'' principle

was inherent in the adoption, by the Eleventh Session of the

Facilitation Division of ICAO, of API systems as a Recommended

Practice. ICAO noted that the information collected from inbound

flights under the API system consists of (and is limited to) the data

in machine readable lines of the passport plus flight information, and

that carriers that transmit this information to U.S. Customs in advance

of the flight have enjoyed large reductions in inspection delays at

major ports of entry.

ICAO noted furthermore that under Article 22 of the Chicago

Convention, contracting States are obligated to adopt all measures to

facilitate international air navigation and prevent unnecessary delays,

and that Article 13 requires compliance with a State's laws and

regulations'' * * * related to entry, clearance, immigration,

passports, customs, and quarantine * * * upon entrance into or

departure from, or while within the territory of that State.'' ICAO

said that in operational terms, a new procedure connected with arrival

or departure of a flight can be justified if it serves to improve

productivity of operations and if it improves compliance with the

above-mentioned laws and/or enhances aviation security.

ICAO noted that the new collection requirements in the proposed

rule--collecting the name and telephone number of an emergency contact

for each passenger, and API and emergency data for outbound flights--

are not designed to meet any of the objectives of the Chicago

Convention. Rather, ICAO noted that the stated purpose of the proposed

rule is to enable the U.S. Government to notify families or foreign

governments more quickly in the event of an aviation disaster. ICAO

noted also that the United States has not filed a difference to

Standard 2.6 for the additional passenger information in the proposed

rule.

ICAO also stated that Article 37 of the Chicago Convention

recognizes that standardization of regulations and procedures is vital

to international civil aviation and obligates contracting States to

comply to the extent possible with ICAO standards and recommended

practices. Specifically, ICAO stated that facilitation standards have

been developed because standardized aircraft departure and arrival

routines are considered essential to the efficiency of aviation

operations worldwide. ICAO said that implementation of the passenger

manifest requirement as described in the proposed rule would represent

a radical departure from internationally accepted procedures for

departing flights and would set a precedent that could inspire similar

variances in many other States, to the detriment of the international

aviation system.

The European Civil Aviation Conference (ECAC) submitted the text of

a message from the President of ECAC that had been adopted by the

ninety-eighth meeting of the Directors General

[[Page 8271]]

of Civil Aviation of the European Civil Aviation Conference. In the

message, ECAC formally requested that the proposed rule be withdrawn

for legal reasons (the proposed rule represents an extraterritorial

application of U.S. law; breaks the Chicago Convention, in particular

Articles 22 and 23, and Annex 9--Chapters 2 and 3; and is not

compatible with legislation of Member States in the field of data

protection) and practical reasons (the proposed rule is contrary to

ECAC goals of facilitating and expediting the passenger flow at

airports; creates a discrimination between air carriers since some

might be exempted based on national laws prohibiting them from

collecting the required data; will not produce reliably accurate data;

and will result in time-consuming and inconvenient procedures causing

extended check-in times and a need for additional check-in counters and

staff).

British Airports Authority (BAA), the owner and operator of seven

airports in the United Kingdom (Heathrow, Gatwick, Stansted, Glasgow,

Edinburgh, Aberdeen, and Southampton) said that it had strong

reservations about the practicality of the proposed rule and opposed it

in its current form. BAA said that it was wholly impractical to require

carriers either to obtain or verify passenger manifest information at

airport check-in areas. BAA said that the average check-in time at

present for passengers on U.S. services at its airports was 2.5 to 3.3

minutes, depending on the air carrier concerned. BAA said that it could

not provide the additional check-in capacity that would be required by

the increased check-in times needed under the proposed rule (40 seconds

or more) even if airlines were prepared to pay for the extra costs of

additional check-in capacity. BAA said that another means for

collecting passenger manifest data needed to be found, perhaps one that

would involve collecting the information at the point of sale and then

verifying it at the departure gate immediately before passengers board

the aircraft.

The Final Rule

In response to the comments, this final rule adopts the proposal

with a number of significant changes. In addition, we have made a

number of clarifications and minor changes throughout the rule. In

almost all cases, the changes reduce the regulatory burden. The most

important changes are the exemption of most small U.S. and foreign air

carriers from the coverage of the rule, the simplification and

equalization of what information must be collected or solicited, and

the elimination of a MOU with the State Department as an alternative

means of compliance. For clarity, we will discuss the rule section-by-

section and then address issues that do not fit into this framework.

List of Subjects

Because of the concerns of some commenters, we have eliminated the

reference to security. This rule is a part of the aviation economic

regulations and is not a Federal Aviation Administration operational

regulation. The rule has no direct bearing on security.

Authority

We have added two statutes (Title VII of Pub. L. 104-264 and Pub.

L. 105-148) to the authority section to reflect recent Congressional

enactments in this area. The primary authority for this rule, however,

remains Pub. L. 101-604, which was codified as 49 U.S.C. 44909. During

the 1993 recodification of the Transportation laws, there was some

reorganization and rewording of the requirements. As noted by the

introductory material in the recodification, the rewording was not

intended to make any substantive change. To avoid confusion and most

closely represent the drafters' intent, we have chosen to use the

Public Law version in our analysis and cite both the Public Law and

codified version in our authority citation.

Purpose

In response to the comments, this section has been streamlined and

the references to DOT, DOS and the statutory authority have been

removed. The change acknowledges that federal agencies have a

responsibility to communicate among themselves, and to try to reduce

the burden on the air carrier, at an exceptionally stressful time, of

communicating simultaneously with multiple federal agencies. While

there are ancillary benefits, the purpose of the rule is to provide DOS

with information which will enable them to notify the families of the

U.S. citizens killed overseas. The section now provides, ``[T]he

purpose of this part is to ensure that the U.S. government receives

prompt and adequate information in case of an aviation disaster on

specified international flight segments.'' The rule does not prohibit

airlines from providing initial notification to family members

following an aviation disaster. The rule itself is silent on the

subject. The Department of State and Transportation have advocated in

various fora that airlines should provide the initial notification to

the families of the victims of aviation disasters. Similarly, the Task

Force found that the airlines are in the best position to notify

families in the immediate aftermath of an aviation disaster. The

purpose of the rule is to allow the Department of State to carry

forward its legal obligation of notifying, in a timely fashion,

families of U.S. citizens who die outside the United States. The

Department of State is required to do this regardless of any previous

notification received by a family.

Definitions

In the definition of ``air piracy,'' we made a minor grammatical

correction for clarification. The term is now defined as, ``any seizure

of or exercise of control over an aircraft, by force or violence or

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

with wrongful intent.''

Several commenters asked us to modify the definition of ``aviation

disaster.'' Several airlines commented that the rule should be

triggered only after the plane's doors have closed. Although this makes

sense from an operational point of view, we are concerned about the

possibility of some terrorist act, that by design or mistake, takes

place during boarding or disembarkation. If an aviation disaster occurs

during boarding, the airline would only be responsible for a manifest

listing the passengers that have boarded, which would presumably be

created from the boarding passes or tickets lifted at the gateway. We

do not agree with IATA's comments that the airport operator is

responsible in such a case. An airport operator would have no way of

knowing the names of passengers who had boarded.

ATA objected to the inclusion of on-board accidents and TWA

objected to situations only involving substantial damage to the

aircraft. We have changed the rule accordingly. The definition of

``aviation disaster,'' is now, `` (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,

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

collision, sabotage or accident; (2) A missing aircraft; or (3) An act

of air piracy.

A new definition, ``covered airline,'' was added in the final rule

in order to simplify references in the rule. A ``covered airline'' is

defined as, ``(a) certificated air carriers, and (b) foreign

[[Page 8272]]

air carriers, except those that hold Department of Transportation

authority to conduct operations in foreign air transportation using

only small aircraft (i.e., aircraft designed to have a maximum

passenger capacity of not more than 60 seats or a maximum payload

capacity of not more than 18,000 pounds).'' This new definition exempts

the smallest airlines that operate aircraft with 60 or fewer seats or

have a maximum payload capacity of 18,000 pounds or less from the rule.

If an airline operates both large and small aircraft--that is, aircraft

more than 60 seats and aircraft with 60 or fewer seats--all covered

flight segments of the airline are covered regardless of the size of

the aircraft used on a particular flight segment.

By definition, a certificated air carrier does not include air taxi

operators or commuter air carriers operating under 14 CFR Part 298.

Some air taxis and commuters have voluntarily chosen to become

certificated for a variety of reasons. In some cases, the certification

was at the urging of larger, code-sharing airline partners. In others,

certification confers some operational, legal or public relations

advantage. If an air taxi operator or commuter air carrier is

certificated, it is covered by the rule.

Our definition of foreign air carriers that are covered by the rule

mirrors the U.S. definition as closely as possible considering the

different legal authority applicable to foreign operators. The rule

exempts the smallest foreign air carriers who are operating only small

aircraft. These airlines are primarily trans-border air taxis operating

between the U.S. and Canada, and to a lesser extent between the U.S.

and Mexico and the U.S. and the Caribbean. If an airline, such as Air

Canada, operates both large and small planes, the flights on the small

planes would still be covered because the airline holds authority to

fly large airplanes.

There have been a number of clarifications in the definition of

``covered flight'' in the final rule. The definition now reads:

``[c]overed flight segment means a passenger-carrying 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 segment does not include a flight

segment in which both the point of departure and point of arrival are

in the United States.'' We have added the term ``segment'' because some

flight numbers cover multiple flight segments. The rule only applies to

the segment to or from the U.S. We have also added the qualifier

``passenger-carrying'' to make clear that the rule does not apply to

cargo or ferry flights.

The rule does not apply to flight segments between two foreign

points. As a practical matter, carriers may voluntarily collect or

maintain the information collected from covered flights for these

foreign-to-foreign segments, consistent with local law, in order to

have the same rule apply to all their operations.

We have changed the term ``emergency contact'' to ``contact'' at

the request of a number of commenters. Some airlines believe that

passengers will be anxious if they are asked for an emergency contact,

and that the airline will need to engage in a dialogue regarding

whether there is a problem involving the flight and the nature of the

emergency. Comments and discussion of the Task Force indicate that use

of the term ``contact name and phone number'' (as opposed to

``emergency contact name and phone number'') could make the collection

of the information less burdensome but still provide the Department of

State with information that will allow it to carry out its

responsibilities. The air carrier must, however, make clear that the

contact should be someone not traveling with the passenger who can be

reached in the event of an emergency. If an airline prefers to use the

term ``emergency contact'' it is free to do so.

In addition, we have added a statement clarifying that the contact

should be a person not on the covered flight. The definition of

``contact'' now reads, ``a person not on the covered flight or an

entity that should be contacted in case of an aviation disaster. The

contact need not have any particular relationship to a passenger.'' If

an airline chooses to meet the requirements of this part by referencing

on-going databases, such as frequent flyer accounts or an in-house

frequent traveler computer profile, the airline needs to confirm that

the listed contact is not a current traveling companion.

In response to the many comments on requirements connected to

collecting the full name of the passenger, we have made an important

modification to the definition of ``full name.'' The term is now

defined as, ``the given name, middle initial or middle name, if any,

and family name or surname as provided by the passenger.'' (emphasis

added) This change lessens the burden on the airlines by making it

clear that the airline need not verify that the name provided by the

passenger is the legal name of the passenger. For the purposes of the

regulatory evaluation, we assumed that most airlines will choose to

record names consisting of first name, middle initial and last name.

In the past, many, if not most, airline manifests included only the

passenger's first-name initial and last name. In addition, there was

often not much emphasis placed on accurately spelling the passenger's

name. There have been many operational changes in airline systems over

the last decade that all contribute to the collection of a full, and

accurate, name of the passenger. Between new federal security

requirements and voluntary airline security procedures, most airlines

require a passenger to show photo identification while checking in. On

many international flights, this is accomplished by requiring a

passenger to show a valid passport before he or she is allowed to

board. For travel to countries not requiring a passport, many

passengers show a driver's license or other government identification.

Similarly, in an effort to stem unauthorized transfer of airline

tickets, airlines have become much more careful about listing the full

name of a passenger, including an appellation such as Mr. or Ms.

Because of notification problems experienced by various airlines in the

aftermath of aviation disasters, most airlines have paid much more

attention to gathering the full name of the passenger. Finally, many

airlines are now using electronic ticketing on some or all of their

flights and, as a result, are paying close attention to collecting the

correctly-spelled, full name of the passenger.

We are aware that a dogmatic insistence that an airline collect the

full legal name of a passenger, and to deny boarding to the passenger

if the airline is unable to obtain it, would lead to unnecessary

mischief and operational confusion. As noted by some commenters, some

passengers have multi-part names, such as Mary Jo Smith-Jones. Others

might have a legal name, but are known by a different name such as a

nickname or a combination of initial of the first name and full middle

name. The possibilities seem as endless as the number of passengers.

The purpose of this definition is to obtain as full a name as the

passenger will voluntarily provide. We have, therefore, added the

qualifier to the definition, ``as provided by the passenger.'' Based on

the absence of comments, we believe that all, or virtually all,

airlines currently collect first and last name. As a practical matter,

the rule merely requires airlines to collect, if provided, a middle

initial or middle name. In addition, the airline must provide the full

name collected to the Department of State.

[[Page 8273]]

We made only minor editorial changes to the definition of

``passenger.'' The primary change is to revise ``person not occupying a

seat'' to ``person occupying a jumpseat.'' The definition now reads,

``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. 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 a person occupying a jump 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.''

We removed the definition of ``passport issuing country code''

because passport information is no longer required to be collected. We

made no change to the definition of ``United States.''

In response to the comments and in consultation with the State

Department, we changed the definition of ``U.S. citizen'' to eliminate

application of the rule to lawful U.S. permanent residents. The rule

envisions that it is up to passengers to identify whether they are U.S.

citizens, either by presenting a U.S. passport when travel documents

are required or used for travel, or in response to the solicitation for

information. Airlines have no duty to inquire beyond this self-

identification.

Applicability

This section was streamlined to incorporate the new definitions. It

provides, ``[t]his part applies to covered flight segments operated by

covered airlines. (See Sec. 243.3 of this part).'' The Aviation

Disaster Family Assistance Act of 1996 exempted air taxis from having

to file family assistance plans. We follow that Congressional lead in

this rule. Small airlines that code-share with large airlines, in

general, have voluntarily obtained DOT certification and, thus, will be

covered by the rule. Air taxi operators that operate independently

usually operate very locally and often only on demand. In case of an

aviation disaster, they carry few passengers and would find it less of

a burden to identify who is on board and notify the families than a

carrier operating a large jet. Because of this and because applying the

rule to these very small carriers would result in relatively

significant cost and operational burdens with fewer benefits, we are

not covering either U.S. or foreign air carriers operating only small

aircraft.

Information Collection Requirements

We have substantially reduced the information collection

requirements and equalized the treatment of U.S. and foreign air

carriers in the final rule. In the NPRM, U.S. air carriers would have

been required to collect the full name, passport number and issuing

country code for each passenger. Foreign air carriers, on the other

hand, would have been required to collect only the full name and

passport number for U.S. citizens and lawful permanent residents of the

United States. In the final rule, both U.S. and foreign airlines are

only required to collect the full name (no passport number or issuing

country code) for U.S. citizens. We eliminated the proposed coverage of

other passengers because the purpose of the rule is to provide the

Department of State with information to notify the families of U.S.

citizens that die outside the United States.

If the passenger provides a contact name and phone number, the

passport number is not needed because the passport number was only

being used to get a contact name and phone number. In addition,

obtaining the passport number is unlikely to be effective in obtaining

contact information. Most passports are good for ten years, so that any

information that is voluntarily provided on the application may not be

current. The passport contact may also be a traveling companion of the

passenger. The elimination of this data element will save time and

money. With our more liberal definition of full name, as a matter of

practice all carriers should already be in compliance, or close to

compliance, with this requirement.

The final rule provides that if a covered airline does not obtain

the full name of the passenger, the passenger should not be boarded.

Some commenters were very concerned about this provision in the NPRM,

particularly when it applied to the additional data elements. The

airlines were concerned about angry passengers and unseemly and

unnecessary delays at the boarding gate by requiring passport number as

a prerequisite for boarding. Our changes have addressed these concerns.

Commenters stated that there will be no public tolerance for a

post-aviation-disaster scenario in which there is more information

available for the families of U.S. citizen victims. The purpose of this

rule is to provide the Department of State with information which

enables it to meet its statutory responsibility of notifying the

families of U.S. citizens who die outside the United States. The U.S.

government is not responsible for notifying the families of the

citizens of foreign countries upon the death of a foreign citizen. (In

practice, the airline involved in the aviation disaster notifies the

families of all passengers.) Accordingly, the rule does not require

either U.S. or foreign air carriers to provide information on non-U.S.

citizens to the U.S. government for purposes of notifying the families

of those foreign nationals of the death of a loved one.

If a U.S. or foreign air carrier believes that the public will not

tolerate faster notification by the air carrier about U.S. citizen

passengers than non-U.S. citizen passengers, the air carrier may extend

the practice required by this rule to all of their passengers.

Likewise, if a foreign government wants to require air carriers flying

to or from their country to collect such information for its citizens,

the Department would fully support such a requirement.

The rule also requires covered airlines to solicit a contact name

and telephone number. It is up to the passenger whether or not to

provide it. Airlines should not pressure the passenger; the government

requirement is only to ask for the information. Airlines should not

state or imply that it is a government requirement. Similarly, an

airline cannot deny boarding under the authority of this rule if a

passenger chooses not to provide a contact. As noted in the definition

section, a contact can be whoever or whatever the passenger wants it to

be. There is no requirement that it be a family member, next-of-kin, a

friend or a business or social group.

The requirement to solicit prior to boarding does not necessarily

mean that the airline needs to solicit before every covered flight

segment. For example, the airline could solicit prior to the first

covered flight segment, or through its frequent flyer program. For

multiple segments, if each passenger is given the opportunity to

provide contact information prior to the first flight segment, and it

is clear to the passenger that the contact should not be traveling with

the passenger on any flight segment, then the burden is upon the

passenger to provide a contact not traveling with the passenger for any

of those flight segments. The air carrier is then not responsible for

soliciting this information prior to each flight segment.

The rule requires covered airlines to maintain a record of the

information collected pursuant to this section. We have deleted the

specific requirement that an airline maintain a record of those who

decline to provide contact information. A covered airline is still

[[Page 8274]]

required to provide the Department with evidence, upon request, that

all passengers were solicited for contact information and that the

airline collects and maintains the information provided by its

passengers.

The most dramatic change in this section is the addition of a new

paragraph dealing with code-share operations. The provision provides,

``[t]he covered airline operating the flight segment shall be

responsible for ensuring compliance with paragraph (a) of this

section.'' We have placed the responsibility on the operating air

carrier because the ticketing air carrier would not know if a passenger

actually boarded the plane. We leave it up to the code-share partners,

however, to work out a system that is most convenient and operationally

effective for them in the markets served. If the flight segment is not

operated by a covered airline, even though the ticketing carrier is a

covered airline, there is no duty to collect the information or meet

the other requirements of the new Part 243.

Procedures for Collecting and Maintaining the Information

Consistent with the proposal, the final rule continues to permit

covered airlines to use any method or procedure to collect, store and

transmit the required information, subject to several listed

conditions. We anticipate that most scheduled airlines will use their

computer reservation systems. Others may use a ``shoebox'' approach in

which passengers fill out a simple form that is handed in at check-in

or before boarding. As the rule is implemented, we expect other,

creative solutions to be developed, including reference to an external

database such as expanded frequent flyer records. Thus, we disagree

with the comments from ASTA and American Express Travel Related

Services Company that the rule should require a single system for

collecting passenger manifest information. We are trying to use as

light a hand as possible by setting a performance standard rather than

mandating how very different types of airlines conducting very

different types of operations must comply.

As in the NPRM, the final rule provides that the information on

individual passengers must be collected before each passenger boards

the aircraft on a covered flight segment. We anticipate that the

information will be collected by whoever sells the ticket. In response

to the comments, we have eliminated the requirement that the

information be kept for at least 24 hours after the completion or

cancellation of the covered flight segment. Instead, the information

need only be kept until all passengers have disembarked from the plane.

Airlines are, however, free to keep the information longer. At least

one airline asked whether it might retain the information for the

return flight on a round-trip ticket. The answer is ``yes,'' given that

the passenger understands at the time of the solicitation that the

request covers the return portion of the trip.

The final rule also clarifies who may receive the contact

information under the rule. The final rule provides, ``the contact

information collected pursuant to section 243.7(a)(2) of this part

shall be kept confidential and released only to the U.S. Department of

State, the National Transportation Safety Board (upon NTSB's request),

and the U.S. Department of Transportation pursuant to oversight of this

part. This paragraph does not preempt other government or governmental

agencies that have an independent, legal right to obtain this

information.'' The purpose of this rewording is to clarify the roles of

the various federal agencies under this part. Under the ADFAA, NTSB

will only request the information when the aviation disaster occurs

within the United States. In addition, we want to make it explicit that

this rule does not prevent other governments, whether foreign, state or

local, or governmental agencies, such as law enforcement, from

obtaining this information under their own independent legal authority.

After further consideration, we decided to add an additional,

explicit provision banning covered airlines from using the contact

information for any commercial or marketing purpose. Contact

information is personal and is provided by passengers with the

expectation that it will not be used for other purposes The new

paragraph provides, ``[t]he contact information collected pursuant to

section 243.7(a)(2) of this part shall only be used by covered airlines

for notification of family members or listed contacts following an

aviation disaster. The information shall not be used for commercial or

marketing purposes.''

Transmission of Information After an Aviation Disaster

In response to the comments, the rule now provides that air

carriers must provide passenger manifest only to the State Department

and, upon request, to the NTSB. For airline convenience, we have

provided the full title of the State Department contact (the Managing

Director of Overseas Citizen Services, Bureau of Consular Affairs) as

well as a telephone number that is staffed 24 hours a day at which he

or she can be reached. We have eliminated the proposed requirement for

routine transmission of the information to DOT. DOT's role is now

limited to enforcement oversight of the rule. To ensure that airlines

are in compliance with the rule, DOT may request a manifest for a given

flight, or check to see if the contact information is being solicited.

Because of the statutory responsibilities of the NTSB for aviation

disasters occurring in the United States, the section provides that the

Director of Family Support Services at NTSB must be given a copy of the

manifest upon request. If the aviation disaster is clearly one in which

the State Department will not have the lead responsibility (such as KAL

Flight 801), the State Department may inform the airline to provide

ongoing updates to NTSB rather than to the State Department. In rare

circumstances, there may be duplicate transmission responsibilities, at

least for a period of time. The purpose of this section is to provide,

to the maximum extent possible, a single Federal Government contact

point.

Finally, the rule simplifies the NPRM requirement concerning the

speed with which the information has to be transmitted. The statutory

language provides that, ``[i]f 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 airline learns of the disaster].'' The final rule

requires transmission of the information, ``as quickly as possible, but

not later than 3 hours after the carrier learns of an aviation disaster

involving a covered flight segment operated by that carrier.'' This has

the same effect as the Congressional standard: to get the information

out as quickly as possible. When the Family Assistance Task Force

considered this issue, it concluded that transmission of a complete

manifest within three hours would provide for as prompt notification of

families as would transmission within 1-hour. In addition, we have made

a number of editorial clarifications throughout the section.

Filing Requirements

This section requires a covered airline to file with DOT a brief

statement summarizing how it will collect the passenger manifest

information required by this part and transmit the information to the

Department of State following an aviation disaster. The description

must include a contact at the covered airline, available at any time

the covered airline is operating a covered flight segment, who can be

[[Page 8275]]

consulted concerning information gathered pursuant to this part. Each

covered airline must file any contact change as well as a description

of any significant change in its means of collecting or transmitting

manifest information on or before the date the change is made. This

brief statement and the requirement to notify DOT of significant

changes is designed to assist DOT oversight of this part, as well as

allow DOS to anticipate how the information will be collected and how

it will be transmitted.

We have made several substantive changes to the language in the

NPRM. In response to comments, we eliminated the requirement for a 24-

hour contact at the airline. Instead, the contact must be available at

any time the covered airline is operating a flight. Many charter

operators and airlines operating only a few airplanes do not have

personnel on duty 24 hours a day. An aviation disaster can only happen

during the operation of the flight. The modification meets the

regulatory purpose while avoiding undue burdens on these carriers.

The filings must be submitted to OST Docket 98-3305 at the

Department of Transportation. All of the information relating to this

rule will be maintained in the docket and be available for public

inspection. (The Department retains the right to redact non-procedural

information such as phone numbers of carrier contacts.) The summary

statement must be filed by July 1, 1998. We have chosen this date so

that we can ensure airline compliance and work with those who need

additional guidance well in advance of the effective date of the rule.

New carriers must file this information before beginning operations.

Finally, there were a number of editorial and conforming changes

throughout this section.

Conflict With Foreign Laws

As is apparent by the number of comments on this issue, this topic

generated intense controversy. We believe that we have addressed

virtually all of these concerns with the changes in the regulatory

requirements and the exemption provisions for instances in which our

rule would conflict with foreign law. In terms of flexibility for

foreign air carriers, we note that we have exempted carriers operating

small aircraft and maintained the applicability only to flight segments

to or from the United States. As noted previously, we believe most

carriers are already collecting full names. The additional burden is

simply soliciting (but not requiring) contact information, filing a

brief statement with DOT summarizing the airline's program with a

contact phone number at the airline, and transmitting the manifest

information to the State Department following an aviation disaster on a

covered flight.

Several foreign carriers alleged that the proposal was inconsistent

with certain standards and recommended practices of Annex 9, the

facilitation annex. Specifically, they alleged that the rules are

inconsistent with Annex 9, Standards 2.1 (regulations applicable to

clearance of aircraft shall be no less favorable than (applicable to

other forms of transportation), 3.1 (regulations applied to persons

traveling by air shall be no less favorable than applicable to other

forms of transportation), and 2.6 (States should not normally require a

passenger manifest, but may require such information in an alternative

and acceptable manner).

We do not believe that these rules are inconsistent with the

provisions of Annex 9. No specific documentation is required, absent an

aviation disaster. In such a case, the required information is

consistent with Article 26 of the Convention relating to aircraft

accident investigation and notification of next of kin. The information

required to be collected or solicited by the rule is not materially

different from other requirements applicable to customs, immigration

and health on entry into the United States. To the extent that the

solicitation of information may differ from that applicable to other

forms of transportation, e.g., international passenger ships, the

requirements apply specifically to situations peculiar to international

aviation, and are more favorable, rather than less favorable, at least

in terms of notification of next of kin in the event of an aviation

disaster.

The final rule provides a specific exemption process so that

covered airlines will not be required to solicit, collect or transmit

information under this part in countries where such solicitation,

collection, or transmission would violate applicable foreign law. In

order to meet our statutory responsibilities, the carrier must file a

petition requesting a waiver on or before the effective date of this

rule, or on or before beginning service between that country and the

United States. These issues will be decided by the DOT decisionmaker

(see 14 CFR 302.22a) and an order will be issued memorializing that

decision, just like any other exemption application under 49 USC

Subtitle VII. To expedite our review and to ensure that we have a

complete understanding of the request, the rule requires that the

airline's petition include copies of the pertinent foreign law

(including a certified translation) and opinions of appropriate legal

experts setting forth the basis for the conclusion that collection

would violate such foreign law. (If several carriers are serving the

same place, they are, of course, free to file a single, joint waiver

application.) The Department will also accept statements from foreign

governments on the application of their laws.

The final rule provides that DOT will notify the covered airline of

the extent to which it has been satisfactorily established that

compliance with all or part of the data collection requirements of this

part would constitute a violation of foreign law. The Department will

maintain an up-to-date listing in OST Docket 98-3305 of countries where

adherence to all or a portion of this part is not required because of a

conflict with applicable foreign law. Carriers need not apply for a

waiver to serve a country on this list.

In response to the comments, DOT is exploring whether to take the

issue of passenger manifests to ICAO to allow for international

deliberation on this issue. That decision does not, however, effect the

provisions of this rulemaking.

Enforcement

The final rule provides that DOT ``may at any time require a

covered airline to produce a passenger manifest including contacts and

phone numbers for a specified covered flight segment to ascertain the

effectiveness of the carrier's system. In addition, it may require from

any covered airline further information about collection, storage and

transmission procedures at any time. If the Department finds a covered

airline's system to be deficient, it will require appropriate

modifications, which must be implemented within the period specified by

the Department. In addition, a covered airline not in compliance with

this part may be subject to enforcement action by the Department.'' The

changes in this section are merely editorial.

A number of carriers were offended by the section in the NPRM

concerning civil and criminal penalties. The section merely restates

potential statutory penalties for violation of any of the aviation

economic regulations. It is completely within DOT's prosecutorial

discretion whether to take enforcement action in a given case, and what

type, and amount, of penalty to seek. Our objective is compliance, not

enforcement. It is the Department's intention to help the industry to

come into compliance with this part and to work with airlines that are

trying to comply. Because restating the penalty

[[Page 8276]]

provision added no legal authority and caused confusion about our

intention, we have eliminated it from the final rule. Our underlying

statutory authority remains the same.

Waivers

The NPRM included a provision that if an airline entered into an

acceptable Memorandum of Understanding with the Department of State

concerning cooperation and mutual assistance following an aviation

disaster, DOT would waive compliance with certain parts of this rule.

At the time we issued the NPRM, the MOU working group was still

negotiating the terms of the MOU and, therefore, we did not include the

specific terms of the MOU. As noted earlier, fourteen airlines to date

have entered into a MOU with State. Contrary to our hopes at the time

of the NPRM, the MOU does not cover all the statutory requirements and

is viewed by the State Department and DOT as a supplement to, rather

than a replacement for, this rule. We have, therefore, dropped this

section from the rule. We believe that the MOU process has been very

helpful in focusing attention on many of these issues, facilitating

communications between the different parties, and ensuring that a

process is in place so that all sides can respond quickly and

effectively after an aviation disaster.

Effective Date

The final rule provides two effective dates for different parts of

the rule. As noted above, a covered airline must file a summary in the

DOT docket by July 1, 1998, describing how it will collect and transmit

the required information. We are providing a very long leadtime

(October 1, 1998) before carriers are required to solicit and collect

the information and meet the other requirements of the rule. Earlier

compliance is, however, authorized. Although the final rule is not

complex, it will require training of many airline industry personnel,

changes to computer reservation systems, and/or printing and

distribution of ``shoebox'' cards, depending on the method selected by

each airline to comply with the rule. In addition, we want to provide

adequate time for airlines to develop and implement innovative

approaches to compliance. The airlines asked for 180 days to implement

the rule. We are reluctant to have the rule go into effect in the

summer, which is the busiest travel time. We have, therefore, decided

to provide more time than the airlines requested, so that the rule can

be implemented at a quieter travel time at the beginning of the month,

rather than on a date calculated from publication in the Federal

Register.

Advance Passenger Information System

When we issued the NPRM, we were exploring whether it would be

appropriate to piggyback the passenger manifest requirements onto

existing federal systems. It was our hope to avoid duplication of

information and to contribute to the efficient movement of air

passengers on flights to or from the United States. In particular, we

were exploring whether the Advance Passenger Information System (APIS)

of the U.S. Customs Service could be used in conjunction with, or in

place of, the requirements of this rule. After exploring the issue

thoroughly, we concluded that it could not for a number of reasons.

APIS is used to expedite clearance of low risk passengers entering the

United States and is, therefore, only directly applicable to inbound

flights to the U.S. Participation is voluntary. APIS uses both full

name and date of birth, which is more than our rule requires.

Economic Considerations

(Note: This section relies heavily upon the Final Regulatory

Evaluation that accompanies this final rule; a copy of the Final

Regulatory Evaluation is available in the Docket.)

In fashioning the final rule, the Department has adopted an

approach that should result in the effective transmission, by U.S. and

foreign carriers alike, of information after an aviation disaster in

the least costly manner. This final rule is significant under the

Department of Transportation's regulatory policies and procedures

because of the public and Congressional interest associated with the

rulemaking action. The final rule was submitted to the Office of

Management and Budget for review under E.O. 12866.

The final rule takes the form of a performance specification, that

is, it is structured to give those affected by it the flexibility to

minimize any necessary costs of soliciting and collecting passenger

manifest information. In the final rule, the Department has attempted

to accommodate the major (sometimes conflicting) concerns voiced by air

carriers, travel agents, and others in their comments to the ANPRM and

NPRM regarding the ease and costs of implementing a passenger manifest

information requirement. First, the final rule should eliminate

barriers to soliciting and collecting passenger manifest information at

the time of reservation, the method that has been recognized by most as

being best because it lessens the possibility of congestion at the

airport. Moreover, the final rule applies only to certificated U.S. air

carriers and their foreign air carrier counterparts and these air

carriers and their travel agents are most likely to employ

sophisticated electronic systems for handling passenger information.

The final rule eliminates passenger passport number as a required

element of passenger manifest information and puts nothing in its

place. Passport number was cited above all else by air carriers and

travel agents alike as making collecting passenger manifest information

at the time of reservation impossible to achieve in a cost-effective

manner. Commenters said that individuals might not have their passport

with them or might not yet have procured a passport when reserving.

Commenters also said that the individual reserving might not be the

passenger and thus would not know the passenger's passport number.

Commenters said that all of these situations would lead to call-backs.

The final rule also allows passenger manifest information to be

solicited and collected once from a passenger and held for the

passenger's entire round trip.

Second, as in the proposed rule, the final rule stipulates that

passenger contact name and telephone number must be solicited, but not

necessarily collected. While we would expect that most passengers would

choose to provide passenger contact information because they would

realize that, in the event of an aviation disaster, their family

members might be spared some pain and suffering because they would be

notified more quickly, passengers are not required to provide this

information. It is ultimately left up to the passenger to decide

whether to provide the contact information. Since the passenger

manifest information requirement is structured in this fashion, so long

as an air carrier can be assured that passenger contact information has

been solicited at the time of reservation, we would not expect that air

carriers would need to verify this information at the airport. Since

the need to verify passenger manifest information at the airport is

minimized, the likelihood that the final rule will contribute to

increased airport congestion is greatly reduced.

Third, the final rule would accommodate a system whereby passengers

that join international flights at an international gateway airport

gate could be confronted with a sign or notice at the gate informing

them that, if they are a U.S. citizen, they may wish to complete a form

available at the desk that could be useful in case of an

[[Page 8277]]

emergency. The fact that transit and interline transfer passengers (or

any other passengers, for that matter) were provided such a notice

would constitute compliance with the final rule.

Fourth, the requirement that U.S. air carriers solicit or collect

passenger manifest information from all passengers has been modified to

a requirement that U.S. air carriers solicit or collect passenger

manifest from only U.S. citizens. The effect of this modification is to

substantially reduce the number of passengers from whom information is

required to be collected by U.S. air carriers. Moreover, in the final

rule, both U.S. and foreign air carriers must collect passenger

manifest information from only U.S. citizens, and not (as in the

proposed rule) from permanent legal residents of the United States, as

well. The effect of this change is to spare U.S. and foreign air

carriers alike the uncertainties and difficulties surrounding trying to

identify U.S. legal permanent residents, who, as pointed out by many

commenters, may not be traveling on U.S. passports.

Even with these cost saving features, we estimate (see below) that

the annual recurring costs of implementing section 203 of Pub. Law 101-

604 will be $22.1 million. In calculating the costs of the final rule,

the Department has made a major methodological improvement to the

simple economic model used in the NPRM and has made more realistic the

parameters used in the model. The parameter changes often reflect

comments received in response to the NPRM. As result of the

methodological improvement, the model now represents more accurately

the changing costs of air carriers and travel agents as assumptions are

changed regarding whether passenger manifest information is collected

once or twice per round trip journey. In the NPRM, air carrier and

travel agent costs did not change as assumptions were changed regarding

whether passenger manifest information was collected once or twice per

round trip journey. The model used in the NPRM did, however, take into

account changes in the value of time forgone by passengers depending on

whether passenger manifest information was collected once or twice per

round trip journey. Air carrier and travel agent costs were constrained

in this fashion in the NPRM to accommodate the statement in British

Airways' comments to the ANPRM that the costs found in its comments

were the minimum needed to implement any passenger manifest information

requirement. But constraining costs in this fashion is obviously

unrealistic. If passenger manifest information is collected once on

each leg of a round trip, it is obviously going to cost more than if

passenger manifest information is collected only once per round trip

journey. It is probably going to cost twice as much in the former, as

compared to the latter, case.

The parameters used in the economic model are: passengers taking

round trips on scheduled air service for whom passenger manifest

information needs to only be collected one time per round trip (85

percent); the number of reservations made per passenger boarded

(1.75:1); additional time to collect passenger contact name (20

seconds); additional time to collect passenger contact telephone number

(20 seconds); additional time to collect passenger middle initial (2

seconds)--it is assumed that, by and large, air carriers are currently

collecting passengers first and last names; additional time to collect

passenger first name (9 seconds)--assumed to be collected only from

those few passengers from whom first and last names are not currently

collected. Following comments received to the NPRM and a presentation

that took place last summer before the DOT/NTSB Task Force on

Assistance to Families of Aviation Disasters, in the model all charter

air service passengers provide passenger manifest information by

filling out a form at the airport at each end of their round-trip

journeys. It is estimated that it will take a charter passenger 30

seconds to fill out a form at the airport that would request the

scaled-back information found in the final rule.

The model parameters described above have been chosen to depict as

realistically as possible how passenger manifest information will

likely be solicited and collected under the passenger manifest

information requirement in the final rule. They have important

implications for the estimated costs of the final rule as does the

amount of additional information required in the final rule. The

estimates of the costs of the final rule are based on an additional

information requirement in the final rule consisting of: (1) Passenger

middle initial for most passengers (passenger first name for some

passengers), (2) contact name, and (3) contact telephone number.

Estimates of the costs of the NPRM were based on an additional

information requirement in the proposed rule of: (1) Passenger first

name, (2) passenger passport number, (3) contact name, and (4) contact

telephone number. The differences in the information requirements for

cost estimate purposes derive from the facts that, subsequent to the

NPRM, it was determined that air carriers and travel agents, by and

large, today collect passengers first and last names and passenger

passport number was dropped.

The amount of time that it is assumed to take to solicit and

collect passenger manifest information (it is assumed that all

passengers provide voluntary contact information in the Final

Regulatory Evaluation) was discussed at length in the NPRM. The

Department used a total of 40 seconds in the NPRM as an estimate of the

amount of time it would take to solicit and collect all four elements

of passenger manifest information or, roughly, about 10 seconds per

element. A sensitivity analysis of the time to collect passenger

manifest information was also performed that used a total of 60 seconds

to collect all four elements of passenger manifest information, or

roughly about 15 seconds per element.

In the Final Regulatory Evaluation, it is estimated to take a total

of 40 seconds to solicit and collect the two voluntary elements of

passenger manifest information. Thus, the Department has, based on

comments received to the NPRM and other information, increased its

estimates (to 20 seconds each for these two elements) of the amount of

time it would take to collect passenger manifest information. It is

estimated to take two additional seconds to collect middle initials

from most passengers who now give their first and last names when they

reserve, and 9 additional seconds to collect first names from the small

number of passengers who now give their last names and first initials

when they reserve. The Department, moreover, believes that the time

needed to solicit and collect the voluntary elements of passenger

manifest information, passenger contact name and passenger contact

telephone number, likely will decrease over time as passengers become

accustomed to providing the information.

In developing the estimates for the amount of time it would take to

solicit and collect the information in the final rule, the Department

examined the results of a survey of seven air carriers that was

included in the comments of the Air Transport Association of America to

the Department's advance notice of proposed rulemaking (ANPRM) on

Domestic Passenger Manifest Information. In the ANPRM, a domestic

passenger manifest information requirement that paralleled the

passenger manifest information requirement found in the NPRM that

preceded this final rule was postulated. The Department found it

necessary to modify the ATA survey results to adjust

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them for, among other things, duplicate information collections,

unjustifiably high-end results, passenger information that is already

today collected, and the fact that passport number has been dropped

from the final rule (the domestic counterpart to passport number was

social security number/date of birth). As modified by the Department,

the ATA survey results are not significantly different from the

estimates outlined above for the time needed to solicit and collect the

elements of passenger manifest information in the final rule.

The estimate used in the Final Regulatory Evaluation for the total

hourly compensation (wage plus fringe) of air carrier reservation

agents and travel agents is $15.07, which is taken from a Bureau of

Labor Statistics proxy occupational category for these workers. It is

an update to 1996 of the $14.66 figure used in the NPRM. The estimate

used for the value of an hour of time forgone by passengers while they

are being solicited for and providing passenger manifest information is

$26.70. This figure is taken from recent Departmental guidance on the

valuation of travel time in economic analysis. It supplants a much-

higher $48.00 per hour figure for the valuation of passenger time that

was used in the NPRM.

The Department estimates that the annual recurring costs of the

final rule, which would be borne by covered air carriers, travel

agents, and U.S.-citizen passengers (who forego time while being asked

for and providing the information) would be about $22.1 million per

year. These costs would break out as follows: air carriers $1.9 million

(U.S. air carriers $1.1 million and foreign air carriers $0.8 million);

travel agents $5.8 million; and U.S. citizen passengers on covered air

carriers ($14.3 million). The one-time cost of the rule (primarily

computer reservations systems modification costs that would be borne by

air carriers and also training costs) is estimated to be about $15.0

million. The present value of the total costs of the final rule over

ten years is estimated to be about $175.4 million.

There is one direct notification benefit of the final rule: more

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

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

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

outside the United States. This benefit is available to the families of

those passengers that chose to provide passenger manifest information.

Based on the recent fatal accident history on the types of air carriers

that would be covered by the final rule (and assuming that all

passengers provide passenger manifest information) the Department

estimates that, were the final rule in effect over a recent ten-year

period, a total of 239 families of U.S. citizens would have received

such direct notification benefits. 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, is $734,000.

No accounting is made in these calculations for more prompt and

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

aviation disasters that occur on covered flights to and from the United

States, and for which the disaster occurs within the United States

(e.g., TWA flight 800 or Korean Air flight 801). 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. The primary focus of the statute

is to provide information to the Department of State. However, since

under the final 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

(assuming, again, that all passengers provide passenger manifest

information) 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 rule. If these

families of U.S. citizens are accounted for, in addition to the

families of U.S. citizens counted above, then, were the rule in effect

for a recent ten-year period, the Department estimates that more prompt

and accurate notification of the families of a total of 443 U.S.-

citizen 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 is about

$396,000.

A different perspective on the cost of the final rule can be gained

from assuming that the recurring annual costs of the final rule to

travel agents, air carriers, and U.S.-citizen passengers on covered

trips are all paid by the U.S.-citizen passengers, and then asking what

do they pay per trip. Employing this line of reasoning (this is an ``as

if'' analysis since who will be able, or not be able, to pass along the

costs of imposing a passenger manifest information requirement is not

calculated in the Final Regulatory Evaluation) for the final rule

requires us to also identify and subtract from total annual recurring

costs of the final rule those additional time costs that the final rule

imposes on passengers that make, and then cancel, reservations (the

additional costs to travel agents and air carriers from these

individuals stay in the calculation). Since the calculation is based on

cost per trip, we must also identify the mix of passenger one-way and

round trips. The result of this calculation is that for each of the

31.2 million passenger trips taken (where a passenger trip is either a

round trip or a one-way trip), the U.S.-citizen passengers that travel

pay about $0.50 extra per trip because of the passenger manifest

information requirement in the final rule.

The direct and indirect benefits of the final rule 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) were outlined above. 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 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 occurred, and all families were notified by Pan American

within about 43 hours or less after the disaster occurred. Compliance

with the final rule in the case of Pan Am Flight 103 should have

reduced notification times (to the extent that passengers chose to

provide passenger contact information) by a maximum of about six hours

for the first group of families of victims, and by a maximum of about

40 hours for the remainder of the families of victims.

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

notification benefits and was not mentioned above. The third direct

benefit of the 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

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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)

The final rule should provide the Department of State with

information on the families of victims of an aviation disaster soon

after it occurs, so that the Department of State can establish an early

link with the families.

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

under the 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 occurred. 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 occurred, 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 rule in

the case of Pan Am Flight 103 should have resulted i

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