[Federal Register Volume 63, Number 32 (Wednesday, February 18, 1998)]
[Rules and Regulations]
[Pages 8258-8282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3769]
[[Page 8257]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
14 CFR Part 243
Passenger Manifest Information; Final Rule
Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 /
Rules and Regulations
[[Page 8258]]
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 243
[Docket No. OST-95-950]
RIN 2105-AB78
Passenger Manifest Information
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule.
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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.
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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
[[Page 8278]]
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
[[Page 8279]]
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 in the provision of
a passenger manifest together with passenger contact information (to
the extent that passengers chose to provide passenger contact
information) to the Department of State three hours after the disaster
occurred.
Finally, while the Department believes that the simple economic
model and parameters used above resulted in reasonable estimates of the
costs of the final rule, the Department has, as part of its examination
of the cost of the final rule, relaxed several of the assumptions used
in the model in order to obtain ``outer bound'' estimates of the costs
of the final rule. These outer bound estimates are provided for
information purposes only. For purposes of deriving the outer bound
estimates: (1) The ratio of reservations made to passengers that
actually board the aircraft is 2:1 (instead of 1.75:1 above), (2)
passenger manifest information not kept as part of frequent traveler
information by travel agents or frequent flyer information by air
carriers (instead of passenger manifest information being kept for 25
percent of passengers above), (3) fixed costs are assumed to be $30
million (instead of $15 million above), (4) the value of the time that
passengers forego while being solicited for and providing passenger
manifest information is valued at $32.90 per hour (instead of $26.70
above), (5) the time to collect passenger contact information is 26
seconds each for contact name and contact telephone number (instead of
20 seconds each above) and other times to solicit and collect passenger
manifest information (e.g., the time needed to solicit and collect
contact passenger middle initial for most passengers and the time
needed to solicit and collect passenger first name for some passengers)
increase by a factor of 1.3, and (6) the time it takes charter
passengers to provide passenger manifest information on a form at the
airport is 39 seconds (instead of 30 seconds above)--this is also an
increase by a factor of 1.3.
The effect of these new assumptions is to a little more than double
the Department's estimates of the costs of the final rule. The annual
recurring costs of the rule now become $45.4 million (instead of $22.1
million above) and break out as follows: air carriers ($3.5 million--
instead of $1.9 million above)--split between U.S. air carriers ($2.0
million--instead of $1.1 million above) and foreign air carriers ($1.5
million--instead of $0.8 million above); travel agents ($10.5 million--
instead of $5.8 million above); and passengers' time forgone ($31.3
million--instead of $14.3 million above). The present discounted value
of the future cost stream for these outer bound estimates over ten-
years is now $359.7 million (instead of $175.4 million above). The
associated outer bound cost per enhanced notification of the direct
notification benefits of the final rule now becomes, on a per victim
basis, about $1.5 million (instead of $734,000 above) and the outer
bound cost per enhanced notification of the final rule that takes into
account both direct and indirect notification benefits is now, on a per
victim basis, about $812,000 (instead of $396,000 above). The cost per
passenger per trip now becomes about $0.94 (instead of $0.50 above).
Regulatory Flexibility Act
The Regulatory Flexibility Act was enacted by the United States
Congress to ensure that small entities are not disproportionately
burdened by rules and regulations promulgated by the Government. At the
same time, P.L. 101-604 mandates that ``the Secretary of Transportation
shall require all United States air carriers to provide a passenger
manifest for any flight to appropriate representatives of the United
States Department of State.'' After notice and comment, and with the
concurrence of the Small Business Administration (SBA), DOT's
predecessor in the area of aviation economic regulation, the Civil
Aeronautics Board, defined small entity for the purpose of the aviation
economic regulations in 14 CFR Sec. 399.73. The definition states, in
part, ``a direct air carrier * * * is a small business if it provides
air transportation only with small aircraft * * * (up to 60 seats/
18,000 pound payload capacity).'' Under 14 CFR Part 298, air taxi
operators and commuter air carriers are defined, among other things, as
air carriers operating only small aircraft.
In its efforts both to comply with both Pub. L. 101-604 and not to
disproportionately burden the smaller air carriers and travel agencies,
the Department is: first, exempting non-certificated U.S. air carriers,
which consist of 909 air taxi operators and 22 commuter carriers from
the rule's requirements; second, it is allowing those carriers subject
to the rule the flexibility to develop their own passenger manifest
data collection systems. This will allow them to choose the most
efficient process suitable to their operations.
Some air carriers that operate only aircraft with up to 60 seats/
18,000 pound payload capacity have voluntarily chosen to obtain a DOT
certificate; if an air carrier is certificated, it will need to comply
with the rule. We estimate that 49 air taxis and commuter carriers have
voluntarily obtained a certificate.
Since many commenters said that the optimal time to collect the
passenger manifest information is at the time of reservation, and
travel agents account for most reservations on flights to and from the
United States, we expect that this rule will also indirectly affect
travel agencies. In order to estimate this impact, the Department
requested data on the number of small travel agencies from the U.S.
Small Business Administration (SBA). SBA's Office of the Chief Counsel
for Advocacy, with the assistance of the SBA economic research office,
kindly provided us with estimates that showed that there were 22,672
travel agencies in 1994 and that, of this total, 21,873 were considered
small agencies. For this analysis, the SBA used its own data and Census
data to extrapolate the estimates with small travel agencies defined as
those with annual revenues of $1 million or less and with fewer than 25
employees. Annual receipts for these small agencies were estimated at
$4.3 billion (or 49 percent) out of a total of $8.7 billion for all
travel agencies. Thus, even though the small agencies account for 96
[[Page 8280]]
percent of the total agencies on the basis of number of agencies, they
account for a much smaller proportion of the receipts. Since receipts
is a better measure of the market share of the smaller agencies, it is
not unreasonable to assume that the small travel agencies will incur a
proportion of the recurring annual cost of this passenger manifest
requirement that is similar to their share of receipts.
In the regulatory evaluation, the Department has calculated the
total annual recurring cost of the rule for the travel agency industry
at $5.8 million. This estimate was based on several factors and
assumptions. In 1996, there were approximately 54.6 million (one-way)
trips by U.S. citizens on covered flight segments, with 52.5 million
trips on scheduled flights and 2.1 million on charter flights. We
estimate that about 85 percent of the passenger itineraries on
scheduled flights are roundtrip and, therefore, involve only one
interaction between a travel agent or an airline. We estimate that 25
percent of trips are by frequent flyers, and for these trips, we assume
that the information is already stored and requires less time for
collection since it needs only to be confirmed. Based on comments,
various trade publications, and surveys, we estimate that about 75
percent of all airline tickets on the types of flights covered by this
rule are issued by travel agents and that 95 percent of all travel
agency locations use computer reservations systems. Also, for purposes
of this analysis, we assume that 1.75 reservations are made for each
passenger that eventually boards, thus allowing for cancellations of
reservations. As shown in more detail in the Final Regulatory
Evaluation, we estimate that the average time to solicit/collect/
confirm the passenger manifest information is 35 seconds for all
scheduled trips.
Using these factors, we calculate that the travel agency industry
will solicit/collect/confirm passenger manifest information for 39.6
million scheduled passengers annually. This represents collections of
29.3 million for roundtrip flights and 10.3 million for one-way trips.
From another perspective, it includes 22.6 million collections from
those who actually complete their journeys and 17.0 million trips that
are canceled following a reservation. Based on 39.6 million collections
and 35 seconds per average collection, we calculate the annual hourly
burden for the travel agency industry at approximately 385,000 hours.
Multiplying these hours by an average salary per hour of $15.07, we
estimate a total annual recurring cost $5.8 million for the travel
agency industry. Alternatively, the average cost to a travel agent for
collecting the information per reservation would be about $0.15.
The Department estimates that the small U.S. travel agencies will
incur a portion of total recurring costs similar to their proportion of
receipts. Applying this factor to the total costs for travel agents, we
calculate that these agencies will incur approximately 49 percent of
the total cost . We have calculated that it will cost travel agents
worldwide $5.8 million, but we do not know how much of this is
attributable to foreign travel agents. Assuming that no cost is
attributable to foreign travel agencies, the maximum impact on small
U.S. travel agencies would be $2.8 million annually. Therefore, for
each of the 21,873 small U.S. agencies, the maximum average burden per
U.S. travel agency would be approximately $128 annually.
The rule will affect a substantial number of small entities. Based
on the previous information, however, we believe that there will not be
a significant economic impact on any of them. We, therefore, certify
that this rule will not have a significant economic impact on a
substantial number of small entities.
International Trade Impact Statement
This regulation applies to both U.S. air carriers and foreign air
carriers that choose to serve the United States. The rule should not
affect either a U.S. air carrier's ability to compete in international
markets or a foreign air carrier's efforts to compete in the United
States. Neither should the overall level of travel to and from the
United States be affected.
Unfunded Mandates Act
This rule does not impose any unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995.
Paperwork Reduction Act
This final rule contains information collections that were subject
to review by OMB under the Paperwork Reduction Act of 1995 (Public Law
104-13). The title, description, and respondent description of the
information collections are shown below as well as an estimate of the
annual recordkeeping and periodic reporting burden. Included in the
estimate is the time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information.
Title: Passenger Manifest Information;
Need for Information: The information is required by Pub. L. 101-
604 (49 U.S.C. 44909) for use by the State Department;
Use of Information: The State Department would use the information
to inform passenger-designated contacts about aviation disasters;
Frequency: The manifests would be collected and maintained for each
covered flight;
Burden Estimate: 1.05 million hours and $22.1 million per annum for
air carriers, foreign air carriers, travel agents, and passengers;
Respondents: Approximately 144 U.S. air carriers, 318 foreign air
carriers, and 22,672 U.S. travel agencies collecting information from
53.8 million annual respondents. We are unable to quantify the number
of non-U.S. travel agents that will be affected by this rule;
Form(s): No particular format or form would be required;
Average burden hours per respondent: An average of about 35 seconds
per collection across travel agents and air carriers.
The information collection and recordkeeping requirements contained
in this final rule are approved under OMB Control Number 2105-0534,
expiration 2/2001. Requests for a copy of this information collection
should be directed to John Schmidt, DOT/OST (X-10), 400 Seventh St.,
SW., Washington, DC 20590: (202) 366-1053. Under the Paperwork
Reduction Act of 1995, no person is required to respond to an
information collection unless it displays a valid OMB number.
Federalism Implications
The regulation has no direct impact on the individual states, on
the balance of power in their respective governments, or on the burden
of responsibilities assigned them by the national government. In
accordance with Executive Order 12612, preparation of a Federalism
Assessment is, therefore, not required.
List of Subjects in 14 CFR Part 243
Air carriers, Aircraft, Air taxis, Air transportation, Charter
flights, Foreign air carriers, Foreign relations, Reporting and
recordkeeping requirements.
Accordingly, the Department is adding a new part 243, in chapter II
of title 14 of the Code of Federal Regulations that reads as follows:
PART 243--PASSENGER MANIFEST INFORMATION
Secs.
243.1 Purpose.
243.3 Definitions.
[[Page 8281]]
243.5 Applicability.
243.7 Information collection requirements.
243.9 Procedures for collecting and maintaining the information.
243.11 Transmission of information after an aviation disaster.
243.13 Filing requirements.
243.15 Conflicts with foreign law.
243.17 Enforcement.
Authority: 49 U.S.C. 40101, 40101nt., 40105, 40113, 40114,
41708, 41709, 41711, 41501, 41702, 41712, 44909, 46301, 46310,
46316; section 203 of Pub. L. 101-604, 104 Stat. 3066 (22 U.S.C.
5501-5513), Title VII of Pub. L. 104-264, 110 Stat. 3213 (22 U.S.C.
5501-5513) and Pub. L. 105-148, 111 Stat. 2681 (49 U.S.C. 41313.)
Sec. 243.1 Purpose.
The purpose of this part is to ensure that the U.S. government has
prompt and adequate information in case of an aviation disaster on
covered flight segments.
Sec. 243.3 Definitions.
Air piracy means 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.
Aviation disaster means:
(1) An occurrence associated with the operation of an aircraft that
takes place between the time any passengers have boarded the aircraft
with the intention of flight and the time all such persons have
disembarked or have been removed from the aircraft, and in which any
person suffers death or serious injury, 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.
Contact means 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.
Covered airline means:
(1) certificated air carriers, and
(2) foreign 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).
Covered 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.
Full name means the given name, middle initial or middle name, if
any, and family name or surname as provided by the passenger.
Passenger means every person aboard a covered flight segment
regardless of whether he or she paid for the transportation, had a
reservation, or occupied a seat, except the crew. 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.
United States means the States comprising the United States of
America, the District of Columbia, and the territories and possessions
of the United States, including the territorial sea and the overlying
airspace.
U.S. citizen means United States nationals as defined in 8 U.S.C.
1101(a)(22).
Sec. 243.5 Applicability.
This part applies to covered flight segments operated by covered
airlines. (See Sec. 243.3 of this part)
Sec. 243.7 Information collection requirements.
(a) For covered flight segments, each covered airline shall:
(1) Collect, or cause to be collected, the full name for each
passenger who is a U.S. citizen. U.S.-citizen passengers for whom this
information is not obtained shall not be boarded;
(2) Solicit, or cause to be solicited, a name and telephone number
of a contact from each passenger who is a U.S. citizen; and
(3) Maintain a record of the information collected pursuant to this
section.
(b) The covered airline operating the flight segment shall be
responsible for ensuring compliance with paragraph (a) of this section.
Sec. 243.9 Procedures for collecting and maintaining the information.
Covered airlines may use any method or procedure to collect, store
and transmit the required information, subject to the following
conditions:
(a) Information on individual passengers shall be collected before
each passenger boards the aircraft on a covered flight segment.
(b) The information shall be kept until all passengers have
disembarked from the covered flight segment.
(c) 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 governments or governmental agencies that have an independent,
legal right to obtain this information.
(d) The 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.
Sec. 243.11 Transmission of information after an aviation disaster.
(a) Each covered airline shall inform the Managing Director of
Overseas Citizen Services, Bureau of Consular Affairs, U.S. Department
of State immediately upon learning of an aviation disaster involving a
covered flight segment operated by that carrier. The Managing Director
may be reached 24 hours a day through the Department of State
Operations Center at (202) 647-1512.
(b) Each covered airline shall transmit a complete and accurate
compilation of the information collected pursuant to Sec. 243.7 of this
part to the U.S. Department of State 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.
(c) Upon request, a covered airline shall transmit a complete and
accurate compilation of the information collected pursuant to
Sec. 243.7 of this part to the Director, Family Support Services,
National Transportation Safety Board.
Sec. 243.13 Filing requirements.
(a) Each covered airline that operates one or more covered flight
segments shall file with the U.S. Department of Transportation 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. This description
shall include a contact at the covered airline, available at any time
the covered airline is operating a covered flight segment, who can be
consulted concerning information gathered pursuant to this part.
(b) Each covered airline shall file any contact change as well as a
description
[[Page 8282]]
of any significant change in its means of collecting or transmitting
manifest information on or before the date the change is made.
(c) All filings under this section should be submitted to OST
Docket 98-3305, Dockets Facility (SVC-121.30), U.S. Department of
Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC
20590. The statement shall be filed by July 1, 1998, or, for covered
airlines beginning operations after July 1, 1998, prior to the date a
covered airline operates a covered flight segment.
Sec. 243.15 Conflict with foreign laws.
(a) If a covered airline obtains a waiver in the manner described
in this section, it will not be required to solicit, collect or
transmit information under this part in countries where such
solicitation or collection would violate applicable foreign law, but
only to the extent it is established by the carrier that such
solicitation or collection would violate applicable foreign law.
(b) Covered airlines that claim that such solicitation, collection
or transmission would violate applicable foreign law in certain foreign
countries shall file a petition requesting a waiver in the Docket
Facility, on or before the effective date of this rule, or on or before
beginning service between that country and United States. Such petition
shall include copies of the pertinent foreign law, as well as a
certified translation, and shall include opinions of appropriate legal
experts setting forth the basis for the conclusion that collection
would violate such foreign law. Statements from foreign governments on
the application of their laws will also be accepted.
(c) The U.S. Department of Transportation 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.
(d) The U.S. Department of Transportation 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.
Sec. 243.17 Enforcement.
The U.S. Department of Transportation may at any time require a
covered airline to produce a passenger manifest including emergency
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.
Issued in Washington, DC, on February 10, 1998.
Rodney E. Slater,
Secretary of Transportation.
[FR Doc. 98-3769 Filed 2-12-98; 10:46 am]
BILLING CODE 4910-62-P
