Pursuant to the APIS regulations governing travel on commercial air carriers (19 CFR 122.49a, 122.49b, 122.49c, 122.75a, and 122.75b), carriers are required to transmit certain passport information “if a passport is required”. These APIS regulations have been in effect since April 7, 2005, and carriers have complied with the rules for furnishing CBP with passport information on outbound non-immigrant passengers that have been required by law – 8 U.S.C. 1182(a)(7)(B) – to possess a passport at the time of application for admission to the United States. Moreover, historically, the requirement for carriers to provide passport data “if required for travel” was reflected in CBP regulations issued in 2001 as an interim rule in accordance with 49 U.S.C. 44909 and in the voluntary APIS program pre-dating the regulations.

Under section 7209 of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), as amended, the Departments of Homeland Security and State recently published final rules implementing WHTI with respect to air transportation. The WHTI implementing rules provide that documentary requirements for certain categories of travelers that were previously waived under section 212(d)(4)(B) of the Immigration and Nationality Act (INA) are no longer waived. Because WHTI now requires non-immigrant air travelers from countries previously excused from the passport requirement to have a passport for admission to the U.S., air carriers are obligated under existing APIS rules to transmit passport information at the time of their departure. Thus, the failure to transmit passport data “required for travel” for those persons subject to the WHTI requirements constitutes a violation of the requirements under APIS.

With respect to APIS for both incoming and departing flights, a passport is considered to be “required for travel” in any instance where the non-immigrant is required by law (including under the INA and WHTI) to present a passport at the time of application for admission to the United States. In other words, the passport is generally considered to be “required for travel” under the INA, and thus under APIS, whether the person is entering or departing the United States.

We note that in some instances documents other than a passport may be acceptable for travel (i.e., documents deemed acceptable for travel under WHTI, certain facilitation documents used by undocumented deportees, or aliens who have lost or had their passports stolen). U.S. Customs and Border Protection will be issuing additional guidance to airlines with international flights to clarify acceptable forms of travel documentation for such foreign nationals departing the United States.

On the issue of compliance with the Administrative Procedures Act (APA), both the WHTI and APIS rules were issued in strict compliance with its requirements. Notice and an opportunity to comment were provided via the publication of the Notices of Proposed Rulemaking for APIS and WHTI on separate occasions in the Federal Register. The APA, however, does not require notice of possible consequences for non-compliance, such as applicable sanctions. Notwithstanding that authority, CBP has implemented a period of informed compliance for the WHTI rules, as well as related APIS rules, to reduce the impact on carriers, as well as their passengers who may not yet be familiar with the requirements. For consistency purposes, CBP does not intend to issue penalties for violations of the APIS outbound passport requirement linked to the WHTI rules for non-immigrants until it begins enforcing the outbound passport requirements for U.S. citizens. CBP will provide the carriers 30 days’ notice before such enforcement will begin.