New Advance Information Requirements for Private Aircraft Arriving or Departing the U.S. Are Put in Effect
February 24, 2009
The Bureau of Customs and Border Protection (CBP) recently issued a final rule1 modifying the regulations for all “private aircraft” arriving and departing the United States.2 The new rules require private aircraft pilots (or their designees) who are either (1) inbound to a U.S. airport or seaport from a foreign airport or seaport, or (2) departing from a U.S. airport or seaport to a foreign airport or seaport, to electronically transmit3 to CBP passenger manifest information for each individual traveling on board the aircraft. The rule further requires private aircraft pilots (or their designees) to submit a notice of arrival and a notice of departure through an electronic data exchange system in the same transmission as corresponding arrival and departure manifest information.4 The data must be received by the CBP no later than 60 minutes before a private aircraft departs a foreign airport or seaport for the U.S. or 60 minutes before a private aircraft departs a U.S. airport or seaport bound for a foreign country. The rule also expressly acknowledges that the CBP has authority to restrict aircraft from landing in the U.S. based on security and/or risk assessments or, based on such assessments, to specifically designate and limit the airport or seaport where an aircraft may land or depart. These new requirements took effect December 18, 2008.
The following are a series of questions and answers regarding the CBP’s final rule:
Why are these new requirements being implemented?
The new regulations are an effort by the Department of Homeland Security (DHS) to strengthen general aviation security and further minimize the vulnerability of private aircraft flights being used to deliver illicit materials, transport dangerous individuals, or employ private aircraft as weapons. As opposed to commercial airlines operations, private aircraft receive little screening or vetting of crew, passengers or the aircraft itself before entering or departing the U.S.
What is a “private aircraft”?
These new CBP regulations only apply to “private aircraft”5 as opposed to “commercial aircraft.”6 A private aircraft is generally any aircraft engaged in a personal or business flight to or from the U.S. which is not carrying passengers and/or cargo for commercial purposes. The term “general aviation” is usually used to describe “private aircraft.” Therefore, the regulations would apply also to all business/corporate aircraft that are operating under FAR Part 91, as well as personal/leisure aircraft.
What is required in the advance notice of arrival and departure and accompanying manifests?
Each notice of arrival and notice of departure must now be accompanied by manifest information regarding each individual on board the aircraft. Specifically, the following manifest data is now required for each individual on board an arriving or departing private aircraft:
- full name
- date of birth
- gender
- citizenship
- country of residence
- status on board the aircraft (passenger, crew, etc.)
- DHS-approved travel documentation type (e.g., passport, alien registration card, etc.), number, country of issuance, expiration date
- alien registration number, where applicable
- address while in U.S.
The following data is required in the notice of arrival and notice of departure:
- aircraft tail number
- type of aircraft and colors
- call sign (if available)
- CBP issued decal number (if available)
- place of last departure
- date of arrival (or departure)
- estimated time of travel
- estimated time of crossing U.S. boarder/coastline
- name of intended U.S. (or foreign) airport of first landing (ICAO airport code if available)
- owner/lessees name and contact information
- pilot name, license number and country of issuance, and contact information
- operator name and contact information
- complete itinerary
- 24-hour emergency point of contact (e.g., broker, dispatcher, repair shop, etc.)
The private aircraft pilot is responsible for the correctness, timelines, and completeness of the information submitted to the CBP, but may authorize another party to submit the information on his or her behalf.
When must the notices of arrival/departure and manifest information be submitted?
The notice of arrival and manifest information must be submitted to CBP at least 60 minutes prior to departure from the foreign airport/seaport. If a flight was not originally destined for the U.S. but needs to divert to a U.S. airport due to an emergency, then the notice and manifest information must be received by CBP at least 30 minutes prior to arrival. However, in cases of non-compliance, the CBP will take into consideration whether the aircraft was equipped to make the transmission in flight and the circumstances of the emergency. Notices of departure and accompanying manifest information must be received no later than 60 minutes prior to departure.
The 60-minute requirement is designed to give CBP adequate time to respond to the APIS transmission so that pilots will be able to make their scheduled departure time, as reported to the FAA. Pilots can submit the required information to CBP as early as they want, just no later than 60 minutes prior to departure. Once pilots have submitted their manifest and notice data and have received electronic clearance to depart from the CBP, they are free to depart in accordance with normal FAA regulations/procedures. Absent changes to the information previously transmitted to CBP, additional submissions are not required unless otherwise indicated by the CBP. However, a pilot may not depart without receiving a “cleared” message from CBP and complying with any other instructions provided by DHS/CBP. Clearance for a flight to or from the U.S. should never be assumed regardless of the amount of time that has elapsed since submission of the required data; only the pilot’s receipt of a cleared response from CBP ensures that the agency received the arrival and/or departure manifest submission. Pilots may contact the landing or departure airports by radio or telephone with updates of the expected time of arrival/departure information.
What happens if a pilot fails to submit the required notice and manifest data or departs without clearance?
Pilots departing the U.S. to a foreign country or departing a foreign country for the U.S. who fail to comply with the notice and manifest requirements will be subject to a civil penalty of $5,000 for the first violation and $10,000 for each subsequent violation. The pilot may also be subject to criminal penalties under 19 C.F.R. §1436(c). In addition, the U.S. government has established procedures and protocols to defend and protect its airspace against potential threats if it is unable to identify the intention of any aircraft.
Who is responsible for checking passenger travel documents?
The pilot is responsible for comparing the travel document(s) presented by each individual passenger with the travel document information that the pilot submits to the CPB to ensure that the information is correct, the documents appear to be valid for travel purposes and the passenger is the person to whom the travel document was issued. If a passenger shows up on a DHS “no-fly” watch list, DHS will make a determination whether to grant, restrict, or deny landing rights and the pilot will be advised accordingly. The pilot does not have any law enforcement authority or duties even if a passenger should appear on a “no-fly” list. Provided that the pilot correctly transmits the manifest data, checks and verifies the passengers travel documents, and follows the instructions provided by the CBP and/or TSA regarding the boarding or non-boarding of a particular passenger, the pilot should have no legal liability.
For more information, contact:
David Harrington
212.513.3512
david.harrington@hklaw.com
toll free: 1.888.688.8500
1 See http://edocket.access.gpo.gov/2008/pdf/E8-26621.pdf for the text of the Final Rule.
2 The rule does not affect domestic flights that take off and land within the U.S. but utilize foreign airspace. Correspondingly, the rule does not regulate foreign aircraft that take off and land in a foreign country but utilize U.S. airspace. The U.S. means the continental U.S., Alaska, Hawaii, Puerto Rico, the U.S. Virgin Islands, Guam and the Commonwealth of Northern Mariana Islands. Therefore, for example, flights between Puerto Rico and other locations in the U.S. are not subject to the requirements of this rule.
Additional requirements/rules exist for aircraft arriving from Cuba and from areas south of the U.S. See 19 C.F.R. §§ 122.23, 122.24, 122.154.
3 Data would be required to be transmitted through the electronic Advance Passenger Information System (eAPIS) web portal or through another CBP-approved electronic data interchange system. If the private aircraft pilot does not have access to eAPIS or other CBP-approved electronic data interchange systems, the CBP, on a limited case-by-case basis, may permit a pilot to submit or update notice of arrival/departure manifest information telephonically.
4 Prior to these new regulations, private aircraft entering the U.S. from a foreign area were required to give advance notice of arrival to the airport director at the place of first landing in the U.S. by radio, telephone, or other acceptable methods, or through the FAA’s flight notification procedure. See 19 C.F.R. §122.31. The advance notice was required to provide, inter alia, information about the number of alien passengers and number of U.S. citizen passengers but did not require any identifying information for the individual passengers. The advance notice of arrival was to be given far enough in advance to allow the inspecting officers to reach the place of first landing of the aircraft, but no specific minimum time requirements were mandated. Id.
5 19 C.F.R. §122.1(h) defines “private aircraft” as any aircraft (including hot air balloons) engaged in a personal or business flight to or from the U.S. which is not: (1) carrying passengers and/or cargo for commercial purposes; or (2) leaving the U.S. carrying neither passengers nor cargo in order to lade passengers and/or cargo in a foreign area for commercial purposes; or (3) returning to the U.S. carrying neither passengers nor cargo in ballast after leaving with passengers and/or cargo for commercial purposes.
6 19 C.F.R. §122.1(d) defines “commercial aircraft” as any aircraft transporting passengers and/or cargo for some payment or other consideration, including money or services rendered. If either the arrival or departure leg of an aircraft’s trip is commercial, then CBP considers both legs of the trip to be commercial.
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