Final Rule- Passenger Manifest Information 02/18/1998

federal register

Wednesday
February 18, 1998

Part II

Department of
Transportation
Office of the Secretary
14 CFR Part 243
Passenger Manifest Information; Final
Rule

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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 243
[Docket No. OST–95–950]
RIN 2105–AB78

Passenger Manifest Information
Office of the Secretary, DOT.
ACTION: Final rule.
AGENCY:

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 § 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

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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

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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

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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 newlyacquired 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 (§ 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

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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

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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 timeconsuming.
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.

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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-ofbirth digits are easier to comprehend
and are fewer in number than passport
number digits and recording them
would therefore be less tedious, timeconsuming and prone to error; that
collecting date of birth when booking a
seat would be easier than collecting
passport number because passengers

Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations
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 manifesthandling 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

8263

(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

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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 codeshares. The first is a marketing codeshare agreement, under which a U.S.

Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations
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 UAcode 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.

8265

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.

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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 turbinepowered 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

Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations
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

8267

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

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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. portsof-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. portsof-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

Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations
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 justcause to delete the requirement in the
proposed rule that airlines deny
boarding to a passenger who refuses to
provide full name and passport number

8269

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

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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 ninetyeighth meeting of the Directors General

Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations
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 timeconsuming and inconvenient
procedures causing extended check-in
times and a need for additional checkin 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

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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 onboard 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

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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 correctlyspelled, 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 § 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-aviationdisaster 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

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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

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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

Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations
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

8275

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

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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

Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations
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

8277

the NPRM, it was determined that air
carriers and travel agents, by and large,
today collect passengers first and last
names and passenger passport number
was dropped.
The amount of time that it is assumed
to take to solicit and collect passenger
manifest information (it is assumed that
all passengers provide voluntary contact
information in the Final Regulatory
Evaluation) was discussed at length in
the NPRM. The Department used a total
of 40 seconds in the NPRM as an
estimate of the amount of time it would
take to solicit and collect all four
elements of passenger manifest
information or, roughly, about 10
seconds per element. A sensitivity
analysis of the time to collect passenger
manifest information was also
performed that used a total of 60
seconds to collect all four elements of
passenger manifest information, or
roughly about 15 seconds per element.
In the Final Regulatory Evaluation, it
is estimated to take a total of 40 seconds
to solicit and collect the two voluntary
elements of passenger manifest
information. Thus, the Department has,
based on comments received to the
NPRM and other information, increased
its estimates (to 20 seconds each for
these two elements) of the amount of
time it would take to collect passenger
manifest information. It is estimated to
take two additional seconds to collect
middle initials from most passengers
who now give their first and last names
when they reserve, and 9 additional
seconds to collect first names from the
small number of passengers who now
give their last names and first initials
when they reserve. The Department,
moreover, believes that the time needed
to solicit and collect the voluntary
elements of passenger manifest
information, passenger contact name
and passenger contact telephone
number, likely will decrease over time
as passengers become accustomed to
providing the information.
In developing the estimates for the
amount of time it would take to solicit
and collect the information in the final
rule, the Department examined the
results of a survey of seven air carriers
that was included in the comments of
the Air Transport Association of
America to the Department’s advance
notice of proposed rulemaking
(ANPRM) on Domestic Passenger
Manifest Information. In the ANPRM, a
domestic passenger manifest
information requirement that paralleled
the passenger manifest information
requirement found in the NPRM that
preceded this final rule was postulated.
The Department found it necessary to
modify the ATA survey results to adjust

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them for, among other things, duplicate
information collections, unjustifiably
high-end results, passenger information
that is already today collected, and the
fact that passport number has been
dropped from the final rule (the
domestic counterpart to passport
number was social security number/date
of birth). As modified by the
Department, the ATA survey results are
not significantly different from the
estimates outlined above for the time
needed to solicit and collect the
elements of passenger manifest
information in the final rule.
The estimate used in the Final
Regulatory Evaluation for the total
hourly compensation (wage plus fringe)
of air carrier reservation agents and
travel agents is $15.07, which is taken
from a Bureau of Labor Statistics proxy
occupational category for these workers.
It is an update to 1996 of the $14.66
figure used in the NPRM. The estimate
used for the value of an hour of time
forgone by passengers while they are
being solicited for and providing
passenger manifest information is
$26.70. This figure is taken from recent
Departmental guidance on the valuation
of travel time in economic analysis. It
supplants a much-higher $48.00 per
hour figure for the valuation of
passenger time that was used in the
NPRM.
The Department estimates that the
annual recurring costs of the final rule,
which would be borne by covered air
carriers, travel agents, and U.S.-citizen
passengers (who forego time while being
asked for and providing the
information) would be about $22.1
million per year. These costs would
break out as follows: air carriers $1.9
million (U.S. air carriers $1.1 million
and foreign air carriers $0.8 million);
travel agents $5.8 million; and U.S.
citizen passengers on covered air
carriers ($14.3 million). The one-time
cost of the rule (primarily computer
reservations systems modification costs
that would be borne by air carriers and
also training costs) is estimated to be
about $15.0 million. The present value
of the total costs of the final rule over
ten years is estimated to be about $175.4
million.
There is one direct notification benefit
of the final rule: more prompt and
accurate initial notification to the
families of U.S.-citizen victims of an
aviation disaster that occurs on a
covered flight to or from the United
States (on a U.S. or foreign air carrier)
and outside the United States. This
benefit is available to the families of
those passengers that chose to provide
passenger manifest information. Based
on the recent fatal accident history on

the types of air carriers that would be
covered by the final rule (and assuming
that all passengers provide passenger
manifest information) the Department
estimates that, were the final rule in
effect over a recent ten-year period, a
total of 239 families of U.S. citizens
would have received such direct
notification benefits. Compared to the
present value of the total costs of the
proposed rule over ten years, the cost of
the more prompt and accurate initial
notification to these direct beneficiaries,
on a per victim basis, is $734,000.
No accounting is made in these
calculations for more prompt and
accurate initial notification of families
of U.S.-citizen victims of aviation
disasters that occur on covered flights to
and from the United States, and for
which the disaster occurs within the
United States (e.g., TWA flight 800 or
Korean Air flight 801). None was made
because the Department of State has no
responsibilities regarding the
notification of families of U.S.-citizen
victims of an aviation disaster that
occurs within the United States, even if
the flight involved is an international
flight. The primary focus of the statute
is to provide information to the
Department of State. However, since
under the final rule, passenger manifest
information would have to be collected
for all flights to and from the United
States for transmission to the
Department of State in the event of an
aviation disaster that occurred outside
of the United States, it is quite possible
that having it on-hand would also lead
to more prompt and accurate initial
notification of the families of U.S.citizen victims (assuming, again, that all
passengers provide passenger manifest
information) of an aviation disaster on
such a flight that occurs within the
territory of the United States. Such
families are considered to receive
indirect notification benefits from the
rule. If these families of U.S. citizens are
accounted for, in addition to the
families of U.S. citizens counted above,
then, were the rule in effect for a recent
ten-year period, the Department
estimates that more prompt and
accurate notification of the families of a
total of 443 U.S.-citizen victims of
aviation disasters would have taken
place. The cost of the more prompt and
accurate initial notification to these
direct and indirect beneficiaries, on a
per victim basis, now is about $396,000.
A different perspective on the cost of
the final rule can be gained from
assuming that the recurring annual costs
of the final rule to travel agents, air
carriers, and U.S.-citizen passengers on
covered trips are all paid by the U.S.citizen passengers, and then asking

what do they pay per trip. Employing
this line of reasoning (this is an ‘‘as if’’
analysis since who will be able, or not
be able, to pass along the costs of
imposing a passenger manifest
information requirement is not
calculated in the Final Regulatory
Evaluation) for the final rule requires us
to also identify and subtract from total
annual recurring costs of the final rule
those additional time costs that the final
rule imposes on passengers that make,
and then cancel, reservations (the
additional costs to travel agents and air
carriers from these individuals stay in
the calculation). Since the calculation is
based on cost per trip, we must also
identify the mix of passenger one-way
and round trips. The result of this
calculation is that for each of the 31.2
million passenger trips taken (where a
passenger trip is either a round trip or
a one-way trip), the U.S.-citizen
passengers that travel pay about $0.50
extra per trip because of the passenger
manifest information requirement in the
final rule.
The direct and indirect benefits of the
final rule regarding more prompt and
accurate initial notification of the
families of U.S.-citizen victims of an
aviation disaster on a flight to and from
the United States that occurs outside the
United States (direct) and within the
territory of the United States (indirect)
were outlined above. An idea of the
magnitude of the reduction in initial
notification time of families of U.S.citizen victims of aviation disasters that
occur outside the United States that
might occur under the rule may be
gained from examining the notification
experience in the Pan Am Flight 103
aviation disaster. There, according to
the Report of the President’s
Commission on Aviation Security and
Terrorism, some families of victims
were notified by Pan American within
about nine hours or less after the
disaster occurred, and all families were
notified by Pan American within about
43 hours or less after the disaster
occurred. Compliance with the final
rule in the case of Pan Am Flight 103
should have reduced notification times
(to the extent that passengers chose to
provide passenger contact information)
by a maximum of about six hours for the
first group of families of victims, and by
a maximum of about 40 hours for the
remainder of the families of victims.
A third direct benefit of the rule lies
outside the realm of notification benefits
and was not mentioned above. The third
direct benefit of the rule is an expected
general increase in the disaster response
capability of the Department of State
following an aviation disaster.
According to the Report of the

Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations
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

8279

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 § 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 noncertificated 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

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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 (oneway) 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
243.3

Purpose.
Definitions.

Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 / Rules and Regulations
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.)
§ 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.
§ 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).
§ 243.5

Applicability.

This part applies to covered flight
segments operated by covered airlines.
(See § 243.3 of this part)
§ 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.
§ 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.

8281

(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.
§ 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
§ 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 § 243.7 of this part to the
Director, Family Support Services,
National Transportation Safety Board.
§ 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

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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.
§ 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-todate 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.

§ 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