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COPA succeeds in effecting important changes

U.S. CBP releases final rule for Electronic Manifest Requirements

By John Quarterman

 

Following several months of delay while the U.S. Customs and Border Protection (CBP) agency considered an unprecedented number of responses to its proposed new rule, the final rule has been released.

All private aircraft will be required to fill in a detailed online form that will provide the CBP with information on the aircraft, the exact trip and crossing point into or from the USA and considerable detail about the pilot and passengers on board.

The CBP will consider the information and issue either an acknowledgement with permission to travel or a denial of permission, which would most likely result from a person onboard being matched to the U.S. no-fly list. This list apparently has some 2,500 names; it is not known how many Canadians are on this list.

The new rule essentially mandates the filing of a report via the electronic Advance Passenger Information System (eAPIS). This web-based system is an extension of the existing system through which airline passengers are currently vetted.

COPA, working with other aviation organizations including AOPA, took part in the major effort to modify the onerous provisions in the draft rule. Many of our suggested changes were also suggested by others, but COPA was instrumental in obtaining one important change.

According to the CBP in its response to comments, only one commenter asked for the elimination of the CBP178 form that is currently used for reporting most of the same information in the eAPIS report. COPA asked specifically for the CBP to avoid this duplication of effort. The CBP responded as follows in the final rule:

Comment: One commenter stated that CBP should no longer require CBP Form 178 (Private Aircraft Enforcement System Arrival Report) as the included information will be electronically transmitted to CBP one hour prior to departure.

Response: CBP agrees. CBP Form 178 was created as an internal Customs form for the use by Customs inspectors. Because the information on the CBP Form 178 is now electronically available to CBP officers through eAPIS, CBP will no longer require the form.

Another draft provision that was eliminated because of COPA’s effort was a requirement to obtain a transponder code prior to completing the eAPIS report. We brought this to Nav Canada’s attention and they supported our concerns by providing us with input that we then submitted on their behalf as part of our comments. The CBP responded as follows:

Comment: Several commenter’s stated that submitting the transponder/beacon code and/or decal number in eAPIS was not possible because it was not available 60 minutes prior to takeoff. One commenter was concerned about supplying the CBP decal number as the decal may be purchased upon arrival in the United States.

Response: CBP agrees and is amending 19 CFR 122.22 (b)(4)(xviii) and (c)(4)(xix) so that the transponder code will no longer be listed as a required data element and the decal number will be required to be submitted if available.

Two complaints that COPA added to our comments to the CBP, and also asked the Canadian Government’s Department of Foreign Affairs and International Trade (DFAIT) to address, have also been satisfied.

The first extremely important issue is the overflight of the United States on the routes to and from the East Coast and on flights to the Western Canada from Central Canada. This will be allowed without needing to file an Electronic Manifest in either direction.

The second issue involved the timing of the filing of the manifests. The CBP has responded by allowing both manifests for an outgoing and return trip to be filed from home before the trip. There is no limit to how far in advance the manifests may be filed and most importantly, the timing may be adjusted with a telephone call to the CBP just before the trip, so that the exact timing need not be known in advance.

The response of the CBP to COPA’s comments is heartening and again outlines the importance of a vigorous aviation association with the resources to monitor and respond to such developments.

Government agencies, while well-meaning for the most part, have little expertise in our sector and often require guidance on the impact of their proposed rules. The successful outcome of our large effort to affect the rulemaking process to produce a positive result is proof of the necessity of COPA to provide advocacy for this sector of aviation.

The schedule for implementation of the final rule is Dec. 18, 2008 and the enforcement of the rule will start on May 18, 2009. Details of the new eAPIS requirement for private aircraft will be available at https://eapis.cbp.dhs.gov

The final rule points out that pilots who fail to comply with the terms of the rule are subject to a civil penalty of $5,000 for the first violation and $10,000 for each subsequent violation and may also be subject to criminal penalties for violations under 19 U.S.C. 1436(c).

In addition, the CBP response to comments makes the following statement: "the U.S. government has established protocols and procedures to defend and protect its airspace against potential threats if it is unable to identify the intention of any aircraft."; a reference to the potential for shooting down aircraft that are perceived as a threat.

The CBP had this to say about the effort and time required to enter data:

"Based on the current information collected and accounting for proposed changes in the data elements, CBP estimates that one submission, which includes the arrival information and the passenger manifest data, will require 15 minutes of time for the pilot to complete. Additionally, CBP estimates that it will require each of the 460,000 passengers one minute to provide the required data to the pilot. These data are all contained on a passenger’s passport or alien registration card and are thus simple to provide to the pilot."

The final rule lists the following required data:

For each individual onboard the aircraft:

Full name, date of birth, gender, citizenship, country of residence, status on board the aircraft, DHS-approved travel document type (e.g. passport; alien registration card, etc.), document number, country of issuance, expiration date, alien registration number (where applicable) and address while in the United States.

For the aircraft and the pilot:

Tail number, type of aircraft, call sign (if available), CBP-issued decal number (if available), place of last departure (for arriving aircraft), date of arrival or departure, estimated time of arrival or departure, estimated time and location of crossing U.S. border/coastline, name of intended U.S. airport of first landing for arrivals (or intended foreign airport of first landing for departures), Owner/Lessees name (if individual: last, first, and, if available, middle; or business entity name, if applicable), Owner/Lessees address, telephone number, fax number, and email address, pilot name license number, address, telephone number, fax number, and email address, country of issuance of pilot’s license, operator name or business entity (if applicable) name address,telephone number, fax number, and email address, aircraft color(s), 24-hour Emergency point of contact (e.g., broker, dispatcher, repair shop, or other third party contact or individual who is knowledgeable about this particular flight) name and phone number.

For arriving aircraft, complete Itinerary (foreign airports landed at within past 24 hours prior to landing in United States).

If any of the data elements change after the manifest is transmitted, the pilot must update the manifest and resubmit the amended manifest to CBP.

Only amendments regarding flight cancellation, expected time of departure or changes in departure location to an already transmitted manifest may be submitted telephonically, by radio, or through existing processes and procedures.

If an amended manifest is submitted less than 60 minutes prior to departure, the private aircraft pilot must receive approval from CBP for the amended manifest containing added passenger information and/or changes to information that were submitted regarding the aircraft before the aircraft is allowed to depart the U.S. location, or the aircraft may be denied clearance to depart from the United States.

The electronic manifest rule is sure to be one which causes major impact on our private-aircraft transportation patterns to and from the United States. Stand by for more COPA articles as more information and details become available.