INS Proposes Rule to Collect More Information on Passengers from All Commercial Carriers

As a result of a mandate in the Enhanced Border Security and Visa Entry Reform Act, the INS issued a proposed rule published in the Federal Register on January 3^rd laying out the requirements for electronic transmission of more in-depth passenger manifests from all commercial carriers entering and departing the U.S. This regulation would apply only to carriers entering and departing the U.S. and not to domestic carriers. However, unlike in the past the list now includes information on all passengers, including U.S. citizens, U.S. Permanent residents and in-transit passengers.

In the past only information on non-immigrants was given to the INS. In addition, the proposed regulation brings up some privacy concerns regarding the required release of this information and the type of information that is requested. In particular, there is no indication how the INS will use this information, who will have access to it, or if this information can somehow be used to track individuals travel patterns. In addition, there is a requirement that airlines would also have to collect "other information" as required by the Attorney General, Treasury Secretary and Secretary of State. This requirement in particular is troublingly vague and open-ended on what type of information a passenger would have to submit in order to be able to board a commercial carrier and travel internationally. According to the an INS News Release on the Passenger manifest requirements, this information is supposed to "help INS verify the identities of individuals being transported, while ensuring enforcement of U.S. immigration laws" but it is unclear how getting this information, especially from U.S. Citizens, would help enforce immigration laws.

Under the current rule, passenger manifests are submitted in the form of individual I-94 forms from each passenger not exempt from manifest requirements. The I-94 Card consists of one portion that is collected by the INS at the time of arrival and another portion that the departure carrier completes at the time of departure and submits to the Service. Departing carriers currently have 48 hours to submit I-94 forms to the INS. Currently U.S. citizens, U.S. lawful permanent resident aliens, immigrants to the U.S. and specific in-transit passengers are not subject to the manifest regulations and do not have to complete I-94s. Aircraft and vessels arriving directly from the U.S. from Canada, or departing to Canada, and aircraft and vessels arriving in the U.S. Virgin Islands directly from the British Virgin Islands or departing from the U.S. Virgin Islands directly to the British Virgin Islands, also do not have to submit any information on passengers. Finally, for crewmembers, arrival and departure manifests may be submitted for vessels and aircrafts.

Under the proposed rule, commercial carriers would be required to submit electronically an in-depth passenger manifest on ALL PASSENGERS and CREWMEMBERS to the INS before arrival to the U.S. regardless of where they are coming from. In addition, except in certain cases, carriers would also be required to provide manifest information before departing the U.S. The following information would be required to be collected from all passengers:

1. complete name
2. date of birth
3. citizenship
4. sex
5. passport number and country of issuance
6. country of residence
7. if applicable, U.S. visa number, date and place of issuance
8. if applicable, alien registration number (A-number)
9. address while in the U.S.
10. other information that the U.S. Attorney General, in consultation with the Secretary of Treasury and the Secretary of State determine necessary.

For arrival manifests, this information would have to be submitted to the INS no later than 15 minutes after an airplane departs from the last foreign port or place while the crewmember manifest would have to be submitted in advance of departure. For vessels on a voyage 96 hours or more, they must submit the crewmember manifest and passenger manifest at least 96 hours before entering the U.S. port or place of destination. For vessels on voyages less than 96 hours but not less than 24 hours, crewmember manifests and passenger manifests must be submitted not less than 24 hours before entering port. For vessels on a voyage less than 24 hours, crewmember manifests and passenger manifests must be submitted before departure from the port.

For departure manifests, carriers would have to submit passenger manifests and crewmember manifests no later than 15 minutes before the flight or vessel departs the U.S. In cases where additional crewmembers or passengers board after the original manifests are sent, an updated manifest must be transmitted to the INS no later than 15 minutes after the flight or vessel has departed from the U.S.

INS may impose fines on carriers for submitting incomplete or inaccurate arrival or departure manifests or for refusal or failure to provide manifest information as required. Fines are $1,000 per person for whom inaccurate information is provided or for each person for whom the manifest information is not prepared as described by the regulations. In addition, the INS may impose fines and if manifests are not submitted in a timely manner as prescribed in the regulations.

Interestingly, during meetings with the Washington D.C. area Port Director it was confirmed that all passengers arriving on international flights into Dulles currently undergo information checks prior to landing. Fully passenger manifests are provided to the Inspections team before arrival. Namechecks are ran through various databases which should reveal a criminal history, outstanding warrants, as well as prior immigration history. We assume that this procedure is in place at all U.S. Port of Entries.

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