New requirement for private aircraft arriving, departing U.S. - Update

By Kevin Psutka 

New US CBP Proposed Electronic Manifest Requirement for US Border Crossing

The U.S. Department of Homeland Security, Bureau of Customs and Border Protection (CBP) is fast-tracking a proposed Notice of Proposed Rulemaking, that all general aviation aircraft operators, including Canadian private aircraft, electronically submit (via Internet) advanced notice and a passenger manifest before entering or leaving the United States.

The only method for notification is proposed to be the CBP's electronic Advance Passenger Information System (eAPIS), which is currently used by the airlines and charter operators.

Also, private aircraft would not be permitted to enter or leave until confirmation or approval is received by the pilot, no later than 60 minutes prior to their departure.

Current US Border Crossing Requirement

General aviation pilots arriving in the United States currently must provide U.S. CBP with 60 minutes notice of their arrival and there is no requirement to provide any notice for leaving the U.S. or to wait for any approval before commencing a cross-border flight. As explained in the COPA/AOPA Guide to Cross-border Operations, COPA recommends that at least two hours advance notice be given by phone directly to CBP officials. The agent normally requests information during the telephone call about each person on board.

Upon arrival, a CBP form 178 is completed, which includes information about the flight, the crew and it serves as a passenger manifest.

COPA Reaction to US CBP Proposed Electronic Manifest Border Crossing Requirement

The proposal to require notification solely by electronic means places an additional burden on pilots and it may be impossible for pilots to comply, for example, when departing from locations where no Internet access is available and there is no certainty that other airports will have internet access available.

The proposal also does not explain what pilots should do if a passenger is flagged as being on a "no fly list." The proposal provides no "real time" means to clear up an issue when, for example, there may be a mistaken identity.

COPA opposes electronic filing as sole means of compliance. We believe that pilots must have alternatives for filing their arrival/departure information and passenger manifest such as the existing procedure for filing via phone and using the CBP form 178.

It should also be acceptable to return to the pre-9/11 ability to provide notice through FSS by radio to address departing from remote areas or airports that do not have Internet access. Use of the FSS system is especially important for last-minute changes to arrival/departure times or locations due to weather or other operational considerations.

COPA also opposes the new requirement for giving notice when leaving the U.S. The proposal provides no justification for how this level of scrutiny of people leaving the U.S. would enhance U.S. security.

COPA officials met with AOPA and other foreign interested parties, including representatives from the Caribbean and Mexico, at the recent AOPA convention to map out a strategy for our official responses.  This led in turn to a formal response letter to the CBP.

Ø       COPA has filed a formal comment letter with the CBP as follows:

November 30, 2007                                                                                       File: 9.62.1.1 (JQ07038)


NPRM Comments Office

Federal Register

Agency: US CBP (Customs and Border Protection)

Docket: USCBP-2007-0064


 Dear Sirs:

The Canadian Owners and Pilots Association (COPA) is aware of the Notice or Proposed Rulemaking regarding filing of passenger manifests for pilots crossing the US / Canadian border in GA aircraft. As the largest aviation Association in Canada, representing tens of thousands of people who own and fly aircraft for personal travel and recreation, COPA is filing this response to the NPRM.

  1. The current CBP procedures and Canada Border Protection Agency (CBSA) border security procedures in place at this time provide excellent security commensurate with the risk presented by small personal aircraft of 12,500 pounds and less crossing the USA-Canada border.  

The NPRM does not discriminate between very small aircraft used for personal use and larger corporate aircraft of airliner size.  A reasonable change would be to exempt the small aircraft from the provisions of the NPRM, based on a weight of 12,500 pounds or less in recognition of the lower level of security risk that these aircraft represent.

  1. The current CBP procedures allow use of telephones and other legacy communications systems, for which there is ample support in Canada.  

The NPRM proposal to make computers and the Internet the only means to file a mandatory aircraft manifest is an onerous and impractical requirement for pilots departing from many smaller airports or relatively remote locations in Canada and the USA. Even if there is internet access at an airport, pilots cannot be assured that they will be permitted access thereby forcing them either to fly to other airports in search of such access or otherwise preventing them from crossing the border.

  1. The current CBP procedures require pilots to contact a CBP agent by phone prior to entering the US to give them information about the aircraft, time and location of arrival and information, including citizenship, on every occupant of the aircraft. The CBP form 178 also contains this information and it is presented to the agent upon arrival or completed at the time of arrival.

The NPRM duplicates this entire existing reporting requirement.  If you insist on implementing the NPRM, the prior-manifest requirement should REPLACE the existing procedures, not duplicate to them.

The 19 CFR 122 procedures referenced in the NPRM for advanced notification are effectively out of date. The only reliable way to inform CBP is by telephone. We are aware of several cases when pilots who did not contact agents by phone prior to entry were fined $5000. If the CFR procedures were amended to require the PIC notify the CBP by telephone a minimum of 60 minutes prior to entry, it would ensure that advanced notice is received by CBP in time for processing of passengers.

  1. The current CBP National Security Entry Exit Registration System (NSEERS) program requires pilots to identify any people on the aircraft who may be subject to this program.  If any of the intended passengers are of questionable status, this program detects this, and requires the aircraft to be landed at a port of entry designated by the CBP for processing.

The NPRM is a duplication of existing checks and balances in the system.

  1. The existing Air Traffic Services (ATS) provided by Nav Canada and the FAA in each country assign the relatively few available transponder codes as required on a regional basis.  Because these codes are parcelled out in small collections to each ATS unit, aircraft can be requested to change transponder codes many times during a flight, including just prior to crossing the border.

The NPRM requires the pilot to file a transponder code at the time of filing the manifest.  Although it may theoretically be possible to receive a code well in advance of the flight, reserving a large number of these codes may deplete the available codes at any given time. There is also no guarantee that the code will not change before the actual border crossing because of how they are managed. A further explanation of this problem from NAV CANADA’s perspective (the Canadian ATS provider) is attached.  

  1. The current CBP procedures allow the aircraft Pilot-In-Command (PIC) a flexible border crossing time and location at the discretion of the PIC.  The PIC or ATS may change this time and place, based on weather, air-traffic, IFR route, NOTAM or other last-minute information and this does regularly occur in practice.  On IFR flights the PIC does not know the exact time and place because the route is assigned by ATC as part of the IFR clearance, and this route may change at any time at the discretion of ATS for safety or other traffic management considerations.  The aircraft may also be issued a holding pattern based on traffic concerns which could delay it well beyond the margins of the border crossing time expected.   The ability and flexibility to divert around problematic or marginal weather is an important safety consideration of each flight.

The NPRM requires the pilot to file the exact route and time of border penetration.  This is impossible in the current ATS system and would be an unsafe practice because it would, for example, prevent the aircraft from diverting around marginal or dangerous weather.

In summary, given the questionable security value of the NPRM and the difficulty it creates for pilots in private aviation operations crossing the border, COPA opposes this NPRM.

Yours truly,


Kevin Psutka
President and CEO


Kevin Psutka
President and CEO