[Federal Register: December 5, 2003 (Volume 68, Number 234)]
[Rules and Regulations]
[Page 68139-68177]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de03-15]
[[Page 68139]]
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Part II
Department of Homeland Security
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Bureau of Customs and Border Protection
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19 CFR Parts 4, 103, et al.
Required Advance Electronic Presentation of Cargo Information; Final
Rule
[[Page 68140]]
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DEPARTMENT OF HOMELAND SECURITY
Bureau of Customs and Border Protection
19 CFR Parts 4, 103, 113, 122, 123, 178 and 192
[CBP Dec. 03-32]
RIN 1651-AA49
Required Advance Electronic Presentation of Cargo Information
AGENCY: Customs and Border Protection, Homeland Security.
ACTION: Final rule.
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SUMMARY: This document amends the Customs Regulations to provide that
the Bureau of Customs and Border Protection (CBP) must receive, by way
of a CBP-approved electronic data interchange system, information
pertaining to cargo before the cargo is either brought into or sent
from the United States by any mode of commercial transportation (sea,
air, rail or truck). The cargo information required is that which is
reasonably necessary to enable high-risk shipments to be identified for
purposes of ensuring cargo safety and security and preventing smuggling
pursuant to the laws enforced and administered by CBP. These
regulations are specifically intended to effectuate the provisions of
section 343(a) of the Trade Act of 2002, as amended by the Maritime
Transportation Security Act of 2002.
DATES: Effective Date: This rule is effective January 5, 2004.
Compliance Dates: The various compliance dates for these
regulations are set forth, as applicable, in Sec. Sec. 4.7(b)(5),
122.48a(e), 123.91(e), 123.92(e), and 192.14(e).
FOR FURTHER INFORMATION CONTACT: Legal matters: Glen E. Vereb, Office
of Regulations and Rulings, 202-572-8724; Trade compliance issues:
Inbound vessel cargo: Kimberly Nott, Field Operations, 202-927-0042;
Inbound air cargo: David M. King, Field Operations, 202-927-1133;
Inbound truck cargo: Enrique Tamayo, Field Operations, 202-927-3112;
Inbound rail cargo: Juan Cancio-Bello, Field Operations, 202-927-3459;
Outbound cargo, all modes: Robert Rawls, Field Operations, 202-927-
5301.
SUPPLEMENTARY INFORMATION:
Background
Section 343(a) of the Trade Act of 2002 (Pub. L. 107-210, 116 Stat.
933, enacted on August 6, 2002), as amended by section 108 of the
Maritime Transportation Security Act of 2002 (Pub. L. 107-295, 116
Stat. 2064, enacted on November 25, 2002), required that the Secretary
endeavor to promulgate final regulations not later than October 1,
2003, providing for the mandatory collection of electronic cargo
information by the Customs Service (now the Bureau of Customs and
Border Protection (CBP)), either prior to the arrival of the cargo in
the United States or its departure from the United States by any mode
of commercial transportation (sea, air, rail or truck). Under section
343(a), as amended (codified at 19 U.S.C. 2071 note), the information
required must consist of that information about the cargo which is
determined to be reasonably necessary to enable CBP to identify high-
risk shipments so as to ensure cargo safety and security and prevent
smuggling pursuant to the laws that are enforced and administered by
CBP.
Proposed Rulemaking
Consequently, in accordance with the parameters set forth in
section 343(a), as amended, a document was published in the Federal
Register (68 FR 43574) on July 23, 2003, proposing to amend the Customs
Regulations in order to require the advance electronic transmission of
information pertaining to cargo prior to its being brought into, or
sent from, the United States by sea, air, rail or truck.
In part, section 343(a), as amended, required that a broad range of
parties likely to be affected by the regulations be consulted and their
comments be taken into consideration in developing these regulations.
For this reason, separate public meetings were held in January 2003 to
address specific issues, and to obtain public input, related to the
advance electronic presentation of information, respectively, for sea,
air, rail or truck cargo. The CBP also received numerous public
comments via e-mail. In addition, extensive meetings were held with
workgroups of the subcommittee on advance cargo information
requirements of the Treasury Advisory Committee on the Commercial
Operations of the U.S. Customs Service (COAC). For a detailed
discussion of the development of the proposed rule, and the evaluation
of the comments received as the result of the consultation process, see
68 FR 43574-43592.
Discussion of Comments
A total of 128 commenters responded in timely manner to the July
23, 2003, notice of proposed rulemaking. What follows is a review of,
and CBP's response to, the issues and questions that were presented by
these commenters concerning the proposed regulations. The CBP also
received comments pertaining to the preliminary regulatory impact
analysis which was published as an appendix to the proposed rule. Those
comments, and the corresponding CBP response, have been addressed
separately immediately following this section under the heading,
``Comments on Economic Analysis''. In addition, a summary of the
findings contained in the regulatory impact analysis for this rule can
be found in the ``REGULATORY ANALYSES'' section of this document. For
more detailed information, the complete regulatory impact analysis is
available on the following Web site, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cbp.gov
General; Issues Affecting Multiple Modes; Issuance of Separate House
Bills of Lading
Comment: The requirement that a separate house bill of lading be
issued for each shipper/consignee relationship imposed significant
costs upon commerce. Carriers would now have to issue multiple bills of
lading for each container of consolidated cargo, and they would charge
a fee for each additional bill of lading, where the consolidated goods
were tendered for shipment by a single freight forwarder and were
destined to a single consignee in the United States. It was stated that
CBP should modify AMS (the Automated Manifest System) so that it could
receive vendor information for consolidated shipments without requiring
the entry of entirely separate bills of lading.
CBP Response: The CBP reasonably needs detailed shipper information
on the house bill of lading because this information is critical for
targeting purposes under section 343(a)(2) of the Trade Act of 2002, as
amended (19 U.S.C. 2071 note, section (a)(2)). Thus, where a freight
forwarder or other consolidator receives goods from several foreign
vendors (shippers) for consolidation and shipment to a single consignee
in the United States, listing the freight forwarder or other
consolidator, instead of the foreign vendor, as the shipper on the
house bill of lading would be at odds with the intent of section
343(a). It is, of course, a business decision as to whether a forwarder
or consolidator would choose to charge for any additional bill(s) of
lading issued.
However, at the present time, the AMS system generally lacks the
capability to process data for multiple shippers/consignees from a
single house
[[Page 68141]]
bill of lading. The AMS systems were built with a one-to-one
relationship--one shipper to one consignee. To alter this would require
a complete redesign of the system for all modes of transportation. In
addition, it would also force the entire bill of lading to be placed on
hold rather than one specific shipment. This is not a programming
process that CBP can undertake at this time and, more specifically,
detailed communication with the trade community would be required.
Confidentiality
Comment: Proposed Sec. 103.31a should be revised to indicate that
advance cargo information which contained classified or sensitive
unclassified information would be released only in accordance with
applicable regulations, statutes, and orders. Also, it was believed
that the vessel cargo declaration information required to be reported
in advance could be different from the manifest information envisioned
in 19 U.S.C. 1431.
CBP Response: Section 103.31a, as proposed pursuant to section
343(a)(3)(G), as amended (19 U.S.C. 2071 note, section (a)(3)(G)),
exempts from disclosure advance cargo data for all inbound and outbound
air, rail, or truck cargo unless the owner of the information expressly
agrees in writing to its release. In addition, as far as vessel cargo
data collected under 19 U.S.C. 1431 is concerned, section 1431 already
adequately addresses the conditions under which such information may
not be disclosed, including where the information is authorized to be
kept secret in the interest of national defense, as provided in 5
U.S.C. 552(b)(1); or where disclosure of the information would pose a
threat of personal injury or property damage (see 19 U.S.C.
1431(c)(2)(A) & (B)).
Comment: One commenter discussed the matter of public disclosure of
outbound cargo information which would be required to be submitted to
CBP electronically. It was stated that since cargo information on
outbound ocean shipments would rely upon Automated Export System (AES)
submissions and not upon vessel cargo manifests, such information
should not be subject to the public disclosure provisions of 19 U.S.C.
1431. Another commenter, however, fully supported the release of cargo
data from outward vessel cargo manifests pursuant to the disclosure
provisions of section 1431.
CBP Response: The underlying cargo manifest statute in question, 19
U.S.C. 1431, applies to both inbound and outbound cargoes. Although
manifests are actually comprised of numerous documents, including the
Shipper's Export Declaration (SED), the SED document itself is exempt
from public disclosure pursuant to 13 U.S.C. 301(g) unless the
Secretary of Commerce determines that such exemption would be contrary
to the national interest.
Also appearing in existing Customs Regulations (19 CFR 103.31) is a
provision making available for copying and publication certain
information and data appearing on outward manifests. The scope of that
information is described and limited in Sec. 103.31. As in the case of
inward vessel cargo manifest information, Sec. 103.31 also provides
that certain parties may file certifications with CBP to request
confidentiality for outward vessel cargo manifest information (19 CFR
103.31(d)(2)).
Automated Manifest System (AMS)
Comment: The CBP did not provide an updated response to the
question of what carriers should do when the Automated Manifest System
(AMS) was not functioning.
CBP Response: The CBP currently has procedures in place for the
processing of cargo when automated systems have experienced a level of
failure. The CBP offices routinely accept voluntary submissions of
paper documents during this time from trade members looking for
immediate release. The CBP's automated systems are designed to queue
transmissions sent from the trade during downtime, and the system
automatically begins to issue status and release messages when service
is restored.
For the purposes of the 24-Hour rule, the trade has been instructed
to present paper manifests to CBP in either the appropriate Container
Security Initiative (CSI) port of departure, or at the Domestic port of
arrival in order to allow for advance targeting. The CBP anticipates
instructing the trade the same for the purposes of section 343(a) of
the Trade Act of 2002. It will admittedly be difficult and not all
submissions will be made promptly. The CBP will then use informed,
considered judgement in the issuance of penalties, the mitigation of
penalties and other possible action against particular shipments.
If downtime is identified as severe and anticipated to last a
significant period, the trade is notified and instructed to present
papers entries, in-bond transportation documents and other release
paperwork to the CBP offices. Carriers are instructed to present paper
manifests for their arriving conveyances. As CBP manually processes the
release and other paperwork, determining risk and satisfaction of all
requirements to the best of the inspector's ability, copies of those
documents are presented to the carriers to gain release of the cargo,
or to demonstrate authorization for it to move in-bond or within the
port.
When the automated system resumes service, CBP policy is to enter
the information about paper processing into the system to generate
corresponding electronic release messages and to also ensure that
historical records are updated, and the clocks for duties, taxes and
fees are correctly started.
Over the last years, the Automated Commercial System (ACS) has been
very reliable in its processing and suffered very little unscheduled
downtime. The CBP has made downtime requirements available on its Web
site for the enforcement of the 24-Hour rule and will also do the same
for the purposes of section 343(a) of the Trade Act of 2002.
Comment: For ABI (Automated Broker Interface) filers (importer or
brokers) that transmitted advance air or truck cargo data, it was asked
whether their ABI Filer Codes would qualify as their unique
identification code, or whether CBP would require that they obtain
another code, such as an IATA (International Air Transport Association)
code or a SCAC code (Standard Carrier Alpha Code).
CBP Response: The ABI filer that transmits advance cargo data would
be identified by its 3-digit ABI Filer Code. However, in the air
environment, since the Air Automated Manifest System (Air AMS) requires
a 7-character code to identify parties transmitting house air waybill
level information, ABI filers electing to transmit such advance cargo
data will be assigned codes in the format ``BCBPXXX'', where, in place
of the ``XXX'', the ABI filer would insert its own unique 3-digit ABI
filer code.
Comment: Under the 24-hour rule for incoming vessel cargo, Non
Vessel Operating Common Carriers (NVOCCs) had to apply for approval to
become a Vessel AMS filer. The question was raised, in the context of
other modes of inbound transportation (air and truck), as to whether an
ABI filer of information would have to go through the same approval
process, including some form of application and qualification testing,
before being allowed to file advance cargo data with CBP for incoming
shipments.
CBP Response: ABI transmission capabilities are available to all
entry filers who handle truck entries and that have been authorized to
participate in ABI under the procedures prescribed in part 143, subpart
A, Customs Regulations (19 CFR part 143, subpart
[[Page 68142]]
A). In this context, it is the carrier's responsibility to ensure that
the ABI transmitter of cargo data (broker or importer) receives the
appropriate corresponding transportation information via fax or other
means.
However, each new participant in the Air Automated Manifest System
(Air AMS) will be required to undergo certification testing prior to
full participation. Certification/authorization to participate in ABI
will not, by itself, be sufficient to satisfy this requirement. The CBP
will provide updated lists of approved Air AMS participants.
Comment: Under the 24-hour rule, where an NVOCC filed the advance
vessel cargo data, the NVOCC then had to perform other duties otherwise
undertaken by the incoming ocean carrier for the arriving cargo, such
as handling the arrival of the cargo, obtaining permits for its
transfer, and coordinating any in-bond movements. However, as to
incoming air cargo, provided that accurate links existed between the
house and master bills of lading, the issue arose as to whether the
incoming air carrier would be responsible for all of the documentary
transactions related to the arrival and movement of the air freight
once it had landed at the port of arrival.
CBP Response: With consolidated shipments, given that an air
carrier would transmit information for the incoming cargo at the master
air waybill level, the carrier would be responsible for handling those
transactions related to the arrival and movement of such cargo
following its landing at the port of arrival. Coincident with this, any
other eligible party transmitting (house bill) information for the
incoming cargo would need to associate the house bill number with the
master air waybill pertaining to such cargo (see Sec. 122.48a(d)(2)(i)
in this final rule).
Furthermore, CBP is currently working on additional programming
changes to the Vessel Automated Manifest System (Vessel AMS) which
would allow the incoming ocean carrier, after the cargo is landed at
the port of arrival, to handle the movement of the cargo, and its
clearance, etc., on the master bill of lading.
Comment: It was remarked that all CBP automated systems in place
had to be able to accommodate the required manifest reporting
sufficiently for legitimate trade to continue to flow smoothly.
CBP Response: The requirement that cargo information be
electronically presented in advance allows CBP to effectively target
any cargo that may need to be held for further examination prior to the
arrival of the vessel or other conveyance, which thereby enables
legitimate cargo to move smoothly through the chain of commerce.
C-TPAT Exemption
Comment: It was proposed that ``low-risk'' companies and those who
were engaged in supply-chain security programs, such as the Customs-
Trade Partnership Against Terrorism (C-TPAT), should be given a
preference that would let such parties file their cargo declarations
after, rather than prior to, the arrival of the cargo, or be subject to
various relaxed restrictions in cargo information reporting. It was
also suggested that CBP allow C-TPAT participants to use ``Buyers
Consolidation'' (where multiple shippers/consignees were listed on a
single bill of lading, instead of each shipper/consignee having to be
included on a separate bill of lading). Otherwise, CBP was asked to
explain what benefits accrued to C-TPAT members.
CBP Response: The CBP will not allow exemption from, or alteration
of, the requirement that C-TPAT partners submit cargo information in
advance of arrival under these regulations, which includes the
requirement that each shipper/consignee relationship be documented by a
separate house bill of lading; and, moreover, CBP believes that
compliance with these regulations complements supply chain security and
efficiency procedures being implemented by C-TPAT partners.
Furthermore, it is again emphasized that C-TPAT membership will
continue to be viewed in a positive light for targeting purposes. It is
more likely that shipments made by C-TPAT members will be readily and
expeditiously cleared, and not be delayed for greater CBP scrutiny.
Other related perquisites of C-TPAT partnership may include essential
security benefits for suppliers, employees, and customers, such as a
reduction in the number and extent of border inspections, an
opportunity for self-policing rather than Customs verifications, and
eligibility for account-based processes.
Account-based processing is only offered to importers at this time.
Account-based processing provides advantages to importers such as web-
based views into their importing history with CBP, the important
elements of their bond sufficiency records, and the future ability to
make periodic payments of the their duty statements. Each transaction
is still reviewed as part of the manifest processing; while there may
be a reduced number of trade compliance examinations, no account is
exempt from enforcement or security screening.
Comment: It was asked whether CBP would take into consideration
low-risk status and participation in programs, such as C-TPAT, when
minor reporting discrepancies occurred.
CBP Response: While participants in programs such as C-TPAT will
not be exempt from electronically filing their cargo information in
advance, as noted above, such participation will also be taken into
account in connection with the occurrence of minor discrepancies in the
advance reporting of cargo data.
Exemption; U.S. Department of Defense (DoD)
Comment: Concern was expressed about the movement of military cargo
on U.S. Department of Defense (DoD)-chartered aircraft, vessels, or
trucks where DoD had exclusive use and control of the conveyance. The
revised advance reporting time standards could adversely affect transit
time for DoD cargo in the commercial transportation system. Exemptions
were requested from advance cargo information reporting for DoD-
chartered vessels, aircraft, and trucks.
CBP Response: In the proposed rule, CBP agreed that an exemption
from the requirement of entry would be extended to certain DoD-
chartered vessels or aircraft (see 68 FR at 43577 and 43579,
respectively). To accomplish this, Sec. Sec. 4.5 and 122.41, Customs
Regulations (19 CFR 4.5 and 122.41), are amended in this final rule
document to exempt from entry requirements (but not from clearance
requirements) any vessel or aircraft that is chartered by and
exclusively carrying cargo, the property of the U.S. Department of
Defense (DoD), where the DoD-chartered vessel or aircraft is manned
entirely by the civilian crew of the vessel or air carrier under
contract to DoD. Any vessel or aircraft exempt from entry would, of
course, also be exempt from advance cargo information filing under this
final rule.
However, concerning trucks chartered by DoD, CBP has at least
provisionally concluded that, balancing the potential risks posed
against the costs at issue, an exemption from advance filing is not
needed in this case. The advance filing time frame is sufficiently
abbreviated that it should not have a negative effect on the transit
time for military cargo moving in the commercial transportation chain
(e.g., a mere 30 minutes advance notice in the case of Free And Secure
Trade (FAST) trade participants) (see the discussion for incoming truck
cargo, infra).
[[Page 68143]]
Other Government Agencies; Single Portal for Collecting Data
Comment: It was advocated that CBP and the U.S. Food and Drug
Administration (FDA) should harmonize the data elements and time frames
for advance information that both agencies would now require. A single
integrated computer system should be developed for the submission of
advance information.
CBP Response: The CBP is working diligently with the FDA towards
integrated filing and risk management mechanisms. In fact, an agreement
was reached in May 2003 between CBP and FDA to modify CBP's Automated
Commercial System (ACS) to enable importers, in most cases, to use this
system to satisfy the advance informational requirements of the Public
Health Security and Bioterrorism Preparedness and Response Act of 2002
(Public Law 107-188) (the Bioterrorism Act) and implementing
regulations. In the Federal Register of October 10, 2003 (68 FR 58974),
FDA, in conjunction with CBP, issued an interim final rule requiring
prior notice of food imported into the United States, beginning on
December 12, 2003. The interim final rule requires that the prior
notice be submitted to FDA electronically via either the CBP's
Automated Broker Interface (ABI)/ACS Interface or the FDA's Prior
Notice System Interface. The interim final rule on prior notice of
imported food shipments is available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cfsan.fda.gov/[sim
]lrd/fr03o10b.html. The CBP is also making modifications to ACS to
allow ACS to be used to satisfy the prior notice requirements of the
Bioterrorism Act.
The CBP's Automated Commercial Environment (ACE) is intended to
operate as a single window for the submission of import information to
the Government, once it is developed and implemented as part of the
International Trade Data System (ITDS). Nevertheless, in light of the
urgent need, in particular, to implement both section 343(a), as
amended, and the Bioterrorism Act, the Government cannot delay such
implementation until a fully-interfaced, multi-agency electronic data
interchange system is in place, either within ACS or ACE.
The Automated Commercial Environment (ACE)
By way of additional perspective on the Automated Commercial
Environment (ACE), CBP Modernization began in 2001, with the ACE
focusing on import and export cargo operations. The ACE, as just noted,
along with other entities will ultimately form one system providing a
``single screen'' for the international business community to interact
with CBP and other government agencies on import/export requirements.
The ACE will power an expedited release process for carriers and
shippers that have prefiled, been pre-approved, and have been subject
to enforcement prescreening and targeting. An integrated risk
management and targeting system will implement all types of enforcement
and selectivity screening for commercial shipments. The ACE will
provide both CBP and the business community with the tools and
technology to ensure secure supply-chain management. The program will
include tools that will provide for: advanced manifesting system for
all modes of transportation; tracking of intermodal shipment movements
and cargo moving in-bound; enhanced conveyance and transit cargo
tracking for shipments from origin to destination. Finally, when
exports are processed in ACE, CBP will have a complete end-to-end
record of cross-border processing and international supply chain
information.
To date, ACE has provided the infrastructure to support the
establishment of 41 Importer Accounts. These accounts have access to a
quick view of their importing and compliance history as well as the
functionality to print numerous reports. This functionality also
provides for interaction between the Accounts and CBP in the form of an
Action Plan and a Significant Activity Log. Both the Trade Community
and CBP now have access to an electronic automated Harmonized Tariff
Schedule. Near term functionality for ACE will include the
establishment of 1100 Accounts to include brokers, importers and truck
carriers. The establishment of these accounts will allow the account
holders to pay duties and fees on a Monthly Periodic Statement (April
2004) and provide for the capability of truck carriers to file an
advanced electronic Truck Manifest (October 2004), which will support
the legislative requirements of the Trade Act of 2002.
Time Period for Implementing Advance Cargo Data Reporting
Comment: Consideration should be given to making the advance
reporting provisions operational on a region-by-region ``roll out.''
There should also be a liberal ``grace period'' permitted prior to
enforcement of the new regulations so that both Government and the
trade would have sufficient time to adjust to the new security
requirements without disorganization or disruption.
CBP Response: It is stressed that the differing effective dates of
these regulations may be further delayed for the several modes, both
inbound and outbound, as already provided variously in Sec. Sec.
122.48a(e) (for inbound air cargo), 123.91(e) (for inbound rail cargo),
123.92(e) (for inbound truck cargo), and 192.14(e) (for outbound cargo,
all modes). Only as to incoming vessel cargo is there a firm effective
date of March 4, 2004, by which time all participating advance cargo
data filers must be operational on the Vessel Automated Manifest System
(Vessel AMS).
However, no matter when the various regulations in this final rule
go into effect, CBP will adopt a phased-in enforcement process for
these Trade Act Regulations similar to that which was utilized when the
24-Hour Rule was implemented. Depending on the circumstances, CBP may
take an ``informed compliance'' approach during a short period
following the effective date of the rule. In appropriate circumstances,
this approach would consist of performing audits of the carriers' and
NVOCCs' (Non Vessel Operating Common Carriers') submissions and
advising their owners or operators of problem areas that could have
been subject to enforcement action.
Following an initial 2-month period after issuance of the 24-Hour
rule, CBP created an enforcement approach that focused first on
egregious violations. The CBP experienced an enormous decrease in the
instances of such problem submissions immediately before, and after,
expiration of the initial period when the ``informed compliance''
approach was implemented.
Therefore, in implementing these Trade Act Regulations, CBP has
demonstrated experience in implementing a phased-in enforcement
strategy and expects to develop similar plans with respect to these new
advance cargo reporting requirements.
Furthermore, as with the 24-hour rule, CBP intends to continue to
work with the trade to achieve compliance with the requirements of
these regulations. However, CBP does not believe that a region-by-
region implementation of the regulations would be either advantageous
or advisable under the circumstances.
Comment: Two commenters wanted a uniform advance notification
enforcement date for all modes to include both outbound and inbound
shipments.
CBP Response: The implementation dates for all modes will vary, due
to the readiness and availability of the
[[Page 68144]]
automated systems that support each mode and the degree to which the
necessary technology is available to particular modes of
transportation. This fully comports with the mandate of section
343(a)(3)(D) and (E), as amended.
Bond Issues
Comment: A question was presented as to whether electronic filers
of advance cargo data through the Automated Manifest System (AMS) would
need to possess an international carrier bond.
CBP Response: Other than Automated Broker Interface (ABI) filers in
the air environment (consisting of importers and brokers) (see Sec.
122.48a(c)(2) in this final rule), electronic filers through AMS
(whether Vessel, Air or Rail AMS) must possess an international carrier
bond under 19 CFR 113.64. By contrast, an ABI filer of advance cargo
data, that is an importer, would need to possess an amended basic
importation and entry bond, as described in Sec. 113.62(j)(2) in this
final rule; and an ABI broker who files advance cargo data would be
obligated under 19 U.S.C. 1641 and 19 CFR part 111 to do so in the
manner and in the time period prescribed in Sec. 122.48a in this final
rule.
Comment: A Customs bond could be written as a single transaction
bond or as a continuous bond. It was recommended that CBP provide in
the regulations that any bond needed for reporting cargo information
prior to arrival be a continuous bond.
CBP Response: The CBP does not agree with the commenter. The
commenter suggests that the rule be amended to state that all bonds
required in support of presentation of advanced manifest information
must be continuous bonds. Continuous bonds are bonds taken out by
principals that are in effect for a period of time (usually 1 year,
with automatic renewal unless terminated) and insure all relevant
transactions occurring in that period of time. In contrast, single
transaction bonds are bonds that are taken out one at a time and are
presented to insure only a single transaction or arrival. The rule only
requires that a bond be posted. It does not matter whether that bond is
continuous or single transaction and there is no need to provide for a
bond type restriction.
Liability Concerns
Comment: Where the party presenting information to CBP had acquired
this information from another, and the information was determined to be
false, clarification was requested as to how this would play a role in
the penalty/liquidated damage process.
CBP Response: Mindful of the requirements of section 343(a)(3)(B),
as amended (19 U.S.C. 2071 note, section (a)(3)(B)), CBP will take the
facts and circumstances of any such situation into account in
determining whether a penalty/liquidated damages claim should be
initiated and whether and/or to what extent such a claim should be
mitigated. The CBP intends to issue mitigation guidelines in this
matter.
Submission of Cargo Data in Advance of Arrival or Departure
Comment: Having to present cargo information in advance for both
exports and imports would add severely to port congestion in the U.S.,
and thus raise the costs and burdens of both types of trade.
CBP Response: The CBP disagrees. The receipt of advance electronic
information will reduce port congestion because CBP can make
enforcement decisions before conveyances arrive in the United States.
This has been true in the vessel environment for some time, and has
been improved upon under the 24-hour rule because CBP can perform
examinations overseas via the Container Security Initiative (CSI).
Furthermore, CBP will use in implementing this final rule a phased-in
compliance program, similar to that described above for the 24-Hour
Rule, in order to make sure that technical violations do not
unnecessarily disrupt the flow of goods across the U.S. border.
Therefore, there is no compelling reason to conclude that congestion at
U.S. ports will result.
Comment: Further explanation was sought as to the basis for the
differences among the time-frame reporting requirements for inbound and
outbound shipments in all modes of transportation.
CBP Response: Generally speaking, and as further discussed for each
individual mode, infra, in determining the timing for transmittal of
advance cargo data, CBP, as directed by the statute, took into account
the differences existing among the different modes of transportation,
both inbound and outbound, including differences in commercial
practices, operational characteristics, and the technological capacity
to collect and transmit information electronically; and, as the law
also directed for each mode, CBP undertook to balance the likely impact
on the flow of commerce with the impact on cargo safety and security.
Miscellaneous Issues
Comment: Concern was expressed about information security
requirements associated with advance notifications for shipments of
radioactive material.
CBP Response: Advance cargo information is transmitted to and
received by CBP on a secure and encrypted data line. As for cargo
arriving by vessel, manifest information for such cargo is not
available for public disclosure until after the vessel has arrived;
and, as previously indicated, in accordance with 19 U.S.C.
1431(c)(2)(A) & (B), such information may be exempted from disclosure
in the interest of national defense pursuant to 5 U.S.C. 552(b)(1), or
where the disclosure would pose a threat of personal injury or property
damage.
Comment: In the future, CBP should allow the electronic submission
of comments.
CBP Response: Requiring written comments in response to a notice of
proposed rulemaking is a matter of agency policy that is beyond the
scope of this particular rulemaking. However, it is observed that
comments via e-mail were invited and accepted regarding the development
of the proposed rulemaking in this case (68 FR at 43575).
Comment: A format for Frequently Asked Questions (FAQs) should be
established for each mode of transportation on the CBP Web site, which
should be regularly updated with new or revised questions.
CBP Response: CBP intends to post FAQs for each mode of
transportation on the CBP Web site (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cbp.gov), which will be
updated as necessary.
Comment: One commenter offered to provide, at no cost to the
Government, cargo inspections at the point of origin and then transmit
the results of the inspections by way of a CBP-approved electronic data
interchange system. The commenter requested only that CBP accept such
inspected shipments as ``low risk'' and thus eligible for expedited
clearance upon arrival.
CBP Response: In effect, CBP believes that the same results would
be achievable by joining the C-TPAT program (The Customs-Trade
Partnership Against Terrorism). As already explained, participation in
C-TPAT is considered as a positive factor in targeting shipments to
determine whether cargo needs to be held at the port of arrival for
examination or receipt of further information.
Comment: Additional instruction was sought as to what terms would
satisfy the requirement for a precise description for incoming cargo
(Sec. 4.7a(c)(4)(vii); and proposed Sec. Sec. 122.48a(d)(1)(ix) and
(d)(2)(iii), 123.91(d)(5), and 123.92(d)(9)). In
[[Page 68145]]
particular, for automotive producers, it was stated that obtaining a
complete and correct list of the Harmonized Tariff Schedule (HTS)
numbers for all exports of automotive parts and components could be a
daunting task. One shipment could contain many types of original
equipment manufacturer (OEM) or replacement parts; it was instead urged
that CBP accept a generic cargo description such as ``New Autoparts''
regardless of the mode of transportation involved.
CBP Response: CBP will issue an Acceptable and Non-Acceptable cargo
description list as was done with the 24-Hour Rule for incoming vessel
cargo. This list will be the same for all modes of transportation.
Generally speaking, CBP has defined a precise cargo description as
a description precise enough for CBP to be able to identify the shapes,
physical characteristics, and likely packaging of the manifested cargo
so that CBP can discern any anomalies in the cargo when a container is
run through imaging equipment. Also, the description must be precise
enough to identify any goods which may emit radiation.
The requirement that a carrier/filer use cargo descriptions that
would not be considered vague should not be overly burdensome. The CBP
has undertaken continuous efforts prior to and since the promulgation
of the 24-hour Advance Manifest Rule in the sea environment to educate
all filers on cargo descriptions that would be considered vague as well
as on issues raised by trade representatives. The cargo descriptions
that are considered vague have been posted on the CBP Web site
(Frequently Asked Questions) since March 2003. The descriptions were
not designed to force carriers/filers to achieve entry level
descriptions. In most cases, the descriptions require only one or two
further qualification descriptors.
Comment: Participation in such an electronic data interchange as
the Automated Manifest System (AMS) should be covered by regulations
pursuant to the Administrative Procedure Act that provide uniform
requirements for enrollment and acceptance into these electronic filing
programs, and that govern the suspension, revocation or modification of
participation in these programs.
CBP Response: Participation in the electronic systems described in
this rulemaking was formerly voluntary as part of the National Customs
Automation Program (NCAP) described in 19 U.S.C. 1411(a). As part of
the Trade Act of 2002, Congress amended section 1411 to permit CBP to
mandate use of the electronic systems of NCAP. To effectuate the
requirement in section 343 of the Trade Act of 2002 for the electronic
transmission of section 343 cargo information in compliance with
Congress's timetable, CBP is mandating use of several of these existing
NCAP electronic systems.
The criteria for establishing connection with these systems were
set forth in the notices of the tests of these systems (e.g., for the
Vessel Automated Manifest System (Vessel AMS) program, see 61 FR 47782
(September 10, 1996), and 67 FR 77318 (December 17, 2002)); the
eligibility criteria for these programs also appear on the CBP Web
site: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cbp.gov/xp/cgov/import/operations_support/automated_systems/ams/
.
Because electronic filing is now mandatory, CBP will not prohibit
or restrict use of the required systems by filers as it might under a
voluntary test program. The CBP does reserve the right to take
necessary technical steps to deny connections in the event of
electronic attacks (e.g., denial of service attacks), but otherwise
access will be available. Therefore, no procedures regarding suspension
or revocation of access to these systems are required. Instead, CBP
will ensure compliance with mandatory electronic filing requirements
through monitoring by account managers, penalty assessments or claims
for liquidated damages, as appropriate to the circumstances.
Vessel Cargo Destined to the United States
Submission Time Frames
Comment: Seven commenters advocated that the pre-arrival and post-
loading data submissions acceptable for the other modes should also be
acceptable for maritime cargo. There should be no significant
differences in risk between air and maritime cargoes. The 24-hour pre-
loading requirement could disrupt ``Just In Time'' (JIT) delivery
systems.
CBP Response: As explained in the 24-hour rule (67 FR at 66319) and
as reiterated in the proposed rule in this case (68 FR at 43577), the
24-hour pre-lading requirement for vessel cargo, especially
containerized vessel cargo, is tied inextricably to the Container
Security Initiative (CSI), a core element of which is to pre-screen
vessel cargo containers at the foreign port of departure before they
are loaded onto the vessel for shipment to the United States. To enable
such pre-screening to be done fully and successfully, it is essential
that the related cargo data be transmitted to CBP at least 24 hours
prior to lading the cargo aboard the vessel.
In relation to JIT deliveries, CBP requires the electronic
transmission of cargo declaration information 24 hours in advance; CBP
is not requiring that the cargo be ready for inspection or that the
cargo be at the dock. However, CBP recognizes the 24-hour pre-lading
reporting may occasion some changes in the practice of sometimes adding
last minute loads to vessels, but only if such loads were not
manifested 24 hours prior to their lading.
Exemption From Advance Filing
Bulk/Break Bulk Cargo
Comment: It was requested that consideration be given to exempting
bulk cargoes from the requirement of electronically having to submit
cargo declarations.
CBP Response: CBP has given bulk, and some break-bulk shipments,
exemptions from the requirement to file 24-hours prior to loading, but
these entities will still be required to file their cargo declarations
electronically.
Comment: Section 4.7(b)(2), Customs Regulations (19 CFR 4.7(b)(2)),
implied, erroneously, that only vessels exclusively carrying bulk or
break bulk cargo could be exempted from having to report such cargo 24
hours prior to loading the cargo aboard the vessel in the foreign port.
CBP Response: The CBP agrees. Section 4.7(b)(2) will be revised to
make it clear, in agreement with Sec. 4.7(b)(4), that for vessels that
carry both non-exempt cargo and exempt bulk/break bulk cargo, only the
non-exempt cargo must be reported on the electronic cargo declaration
24 hours prior to loading such cargo in a foreign port.
Data Elements
Precise Cargo Description; 6-Digit HTS Number
Comment: Section 4.7a(c)(4)(vii) stated that either a precise cargo
description or the 6-digit Harmonized Tariff Schedule (HTS) number for
the cargo had to be provided. However, the Vessel AMS system in fact
required a narrative cargo description and (if desired) an HTSUS 6-
digit number for the cargo, or the transmitted bill of lading would be
rejected.
CBP Response: Currently, AMS does require text in the description
field of the electronic transmission, or AMS will reject the
transmission, even though a 6-digit HTSUS number is also provided in
the appropriate field of the transmission. The CBP intends shortly to
effect programming changes to allow for either a precise cargo
description or
[[Page 68146]]
the 6-digit HTSUS number; but until such time as these programming
changes are adopted, AMS participants which provide the HTSUS number
will also have to enter a cargo description in the description field of
the electronic transmission. However, as an alternative to providing a
precise cargo description in the description field of the transmission,
the applicable 6-digit HTSUS number may instead be included in the
description field to satisfy the current programming requirement that
some text appear in this field.
Comment: In light of the recent final rule regarding corporate
compliance activity (CBP Dec. 03-15, 68 FR 47455; August 11, 2003), the
question arose as to whether the submission by the electronic filer of
the 6-digit HTSUS number via AMS would fall within the purview of
``Customs business'' under 19 CFR part 111.
CBP Response: ``Customs business'' does not involve the mere
electronic transmission of data received for transmission to CBP (19
CFR 111.1). Moreover, the 6-digit HTSUS number is intended exclusively
for ensuring cargo safety and security, and not for determining
merchandise entry or for any other commercial admissibility or
enforcement purposes which fall within the scope of Customs business.
An 8-digit HTSUS number is needed and is used for merchandise entry
purposes.
The ``corporate compliance activity'' rule dealt with the conduct
of ``Customs Business'' as established by statute (19 U.S.C. 1641). The
activities covered under that rule all relate to the entry of
merchandise, not its manifesting. Reporting commodity identification by
use of 6-digit HTSUS numbers, rather than the more specific 8- or 10-
digit designations, was included because there is international
agreement and uniformity at the 6-digit level. Use of HTSUS
designations is merely offered by CBP as an option to be used in place
of a precise narrative description of cargo content.
Definition of Shipper; Consignee
Comment: A number of questions were raised with respect to the
provision in proposed Sec. 4.7a(c)(4)(viii) that, for consolidated
shipments, the shipper listed on the house bill of lading be the owner
and exporter of the goods from the foreign country. In sum, it was
basically asserted that this would be inconsistent with the commercial
practice of the transportation trade which essentially identified the
shipper as the party with whom the carrier had a contractual
relationship, and that it was improper for the U.S. Government to
unilaterally change this practice. It was also said to be at odds with
the prevailing requirement that the foreign vendor or manufacturer be
listed as the shipper on a house bill.
CBP Response: In light of the above comments, CBP has closely
reviewed what shipper information must be listed on a house bill of
lading for a consolidated shipment. Cargo information collected under
this rule is not intended for commercial purposes, but rather for
purposes of ensuring cargo safety and security as part of an
antiterrorism national security initiative (see 19 U.S.C. 2071 note,
section (a)(3)(F)). Otherwise stated, it is essential that CBP receive
house level information on the identity of the shipper that will enable
an accurate national-security risk assessment concerning the related
cargo. To this specific end, CBP will thus accept as the shipper on a
house bill of lading the identity of the foreign vendor, supplier,
manufacturer, or other similar party. Also, the shipper's address must
be a foreign address. By contrast, CBP will not accept the carrier,
NVOCC, freight forwarder or consolidator as valid house level
information on the identity of the shipper.
Accordingly, proposed Sec. 4.7a(c)(4)(viii), as well as proposed
Sec. Sec. 122.48a(d)(1)(x), 122.48a(d)(2)(vi), 123.91(d)(6) and
123.92(d)(11), are thus revised in this final rule.
Comment: Greater guidance was requested as to what would be
acceptable in the Notify Party field of the electronic transmission
(proposed Sec. 4.7a(c)(4)(ix)). It was thought that if there was any
other commercial party listed in the bill of lading, such party would
be included in the Notify Party field; otherwise, this field would be
left blank.
CBP Response: The CBP requires that if the cargo has not yet been
sold or is shipped ``to order'', and there is no consignee information,
then the Notify Party field must include the identity of a responsible
party in the United States. Such a responsible party could include any
other commercial party that is listed in the bill of lading for
delivery or contact purposes.
Date and Time of Departure of Vessel From Foreign Port
Comment: With respect to proposed Sec. 4.7a(c)(4)(xv) and (xvi),
it was asserted that the information concerning the date and time that
the vessel departed for the United States as reflected in the vessel
log could not be provided 24 hours prior to foreign lading of the cargo
aboard the vessel.
Also, a question arose concerning whether these data elements
referred to the date and time of departure from the foreign port of
loading with respect to which the 24-hour declaration was made, or the
date and time of departure from the last foreign port before sailing to
the United States.
CBP Response: The date and time of departure should capture the
date and time that the vessel departs from the foreign port of loading
with respect to which the 24-hour cargo declaration is made (see Sec.
4.7(b)(2) in this final rule). However, CBP will not require the
information as to the date and time of vessel departure to be
transmitted 24 hours prior to the lading of the cargo at the foreign
port. Instead, the time frame for reporting these two data elements
will be either: (1) No later than 24 hours after departure from the
foreign port of lading, for those vessels that will arrive in the
United States more than 24 hours after sailing from that foreign port;
or (2) no later than the time of presentation of a permit to unlade
(Customs Form (CF) 3171, or electronic equivalent), for those vessels
that will arrive less than 24 hours after sailing from the foreign port
of lading. Proposed Sec. 4.7a(c)(4)(xv) and (xvi) are revised in this
final rule to include these additional provisions.
Also, the transmission of these date and time data elements may be
handled as an amendment to the vessel header, which will eliminate the
need for each bill of lading to be amended.
Vessel AMS Issues
Importer Participation in Vessel AMS
Comment: It was stated that the party most likely to have the
information needed for targeting was the U.S. importer, while the
incoming carrier would only be able to provide information which was
received from the charterer of the vessel.
CBP Response: CBP finds that allowing importers to participate in
advance electronic filing through Vessel AMS would at this time be
neither advisable nor practicable, given the current design and
functionality of the Vessel AMS system and the lack of consensus in the
trade community as to whether importers should furnish sea cargo data
to CBP.
Comment: A shipper should be allowed to file advance cargo data
through AMS.
CBP Response: Again, given the prevailing operation of the Vessel
AMS, CBP finds that allowing freight forwarders who are not NVOCCs, and
other parties identified as ``consolidators,'' even though they may be
NVOCCs (see 68 FR at 43577) to
[[Page 68147]]
participate in the Vessel AMS electronic data interchange system would
at this time be neither advisable nor practicable.
Comment: It was stated that the Shipper field in Vessel AMS could
not accommodate more than 3 or 4 lines of information. This could prove
inadequate in the case of consolidated shipments where there could be
multiple shippers.
CBP Response: This inability of the Shipper field in Vessel AMS to
capture multiple shipper data is academic inasmuch as CBP requires that
for each shipper/consignee relationship a separate bill of lading be
issued. This mandate for a separate house bill of lading for each
shipper/consignee relationship constitutes a critical component for
automated targeting purposes in identifying high-risk shipments.
Comment: With respect to proposed Sec. 4.7(b)(5), which provided
that carriers, and participating NVOCCs, would need to become automated
at all ports of entry where their cargo would initially arrive, it was
asked whether it would be the Vessel AMS computer mainframe's problem
to forward the carrier's transmission to the appropriate Customs port
of entry.
CBP Response: Ocean carriers and NVOCCs currently operational on
Vessel AMS, although not at all ports of entry, will now be required to
become operational at all such ports. Any carrier or NVOCC that
hereafter becomes automated on Vessel AMS will thereby be automated at
all ports. Since the automation of electronic filers through Vessel AMS
will per se encompass all ports of entry, proposed Sec. 4.7(b)(5) is
revised in this final rule by removing the phrase, ``where their cargo
will initially arrive''. However, carriers must indicate in their
respective electronic transmissions each port of arrival where their
incoming cargo will be discharged.
Comment: Non Vessel Operating Common Carriers (NVOCCs) should be
required to electronically present advance cargo information directly
to CBP.
CBP Response: The CBP disagrees. As discussed in the proposed rule
(68 FR at 43576-43577), certain segments of the trade in fact urged
that advance cargo information filing by NVOCCs be eliminated due to
operational problems with Vessel AMS, that resulted when NVOCCs, as
opposed to the incoming carriers, filed cargo data directly with CBP.
Nevertheless, in consideration of the competitive relationships that
exist in the international freight forwarding field, CBP continues to
believe that NVOCCs who wish to do so may become automated on Vessel
AMS, but that they should not be compelled to do so.
Comment: It was observed that a large number of NVOCCs operational
on Vessel AMS seemed to opt out of the system at various ports, for
apparently no authorized reason. Vessel carriers were said to be unable
to audit or police this.
CBP Response: Those NVOCCs who choose to become automated on Vessel
AMS must be automated in all ports. While NVOCCs do have the ability to
decertify in AMS, they would then be required to submit detailed
information to carriers for transmission to CBP for all ports of
discharge. If a question should arise as to whether or not an NVOCC is
automated, the vessel carrier may contact its CBP client representative
for verification.
Comment: It was asked whether there was a maximum reporting window
for transmitting cargo data in advance through Vessel AMS.
CBP Response: Vessel AMS has the capacity to retain electronic
transmission information up to a maximum of nine months prior to the
cargo's Estimated Date of Arrival (EDA).
Confidentiality
Comment: It was unclear whether the shipper specific information
would be publicly disclosed, and whether such information from both
master and house bills of lading would be involved. It was remarked
that disclosing this information would defeat the purpose of direct
filing by NVOCCs.
CBP Response: Information collected pursuant to 19 U.S.C. 1431,
including information from both master and house bills, is available
for public disclosure in accordance with section 1431(c). However,
under the authority of section 1431(c)(1)(A), information relating to
the identity of a foreign shipper to an importer or consignee in the
United States will not be disclosed if a claim for confidential
treatment for such information is made by using the procedure
prescribed in 19 CFR 103.31(d)(1).
Implementation Period for Rule
Comment: It was thought that 90 days was too short a period from
the date of publication of the final rule within which a non-automated
carrier would need to develop software and programming in Vessel AMS. A
period of 120 days was requested.
CBP Response: The CBP believes that 90 days is an adequate and
reasonable time frame within which to permit a non-automated vessel
carrier to become automated on Vessel AMS. The CBP will continue to
work with the trade to achieve compliance with these advance cargo
reporting provisions.
In selecting 90 days following publication as an implementation
period for mandatory vessel AMS participation, CBP sought to strike a
proper balance between the needs of the affected public in adjusting to
the new requirements, and meeting the needs of the United States in
implementing anti-terrorism measures without undue delay. Ninety days
strikes that balance.
Procedure for Amending Cargo Declarations
Comment: The proposed rule did not mention the procedures for
amending electronic cargo declarations following their transmission.
This would also apply for goods that were sold while in transit.
CBP Response: Complete and accurate information would need to be
presented to CBP for cargo to be laden aboard the vessel no later than
24 hours prior to lading the cargo aboard the vessel at the foreign
port. As for any changes in the cargo information already transmitted,
the procedures for amending the cargo declaration including discrepancy
reporting regarding vessels as well as all other modes will be the
subject of a separate rulemaking. Prior to the promulgation of new
rules concerning discrepancy reporting, the procedures for phased-in
compliance as explained above will be employed to address changes that
must be made to the transmitted cargo declaration. It should be
recognized that each time a bill of lading is amended, it may be
subject to increased targeting and at risk for examination.
Enforcement
Comment: Procedures should be outlined for cargo that arrived
without pre-notification or with incomplete information.
CBP Response: In all modes of transportation discussed in this
rulemaking, the carrier must notify CBP immediately upon arrival or as
soon as it realizes that it did not submit the proper information. The
carrier should then present or transmit the cargo declaration
information. Upon arrival in the U.S. port, the cargo declaration will
be placed on hold until CBP has had the opportunity to review the
documentation, and conduct any necessary examinations. Appropriate
penalties may also be issued. If CBP determines that this has become a
common occurrence for a carrier, this could eventually lead to denial
of a permit to unlade. Additionally, CBP will notify the United States
Coast
[[Page 68148]]
Guard of a vessel with unmanifested cargo that is scheduled to arrive.
If the arriving cargo is food, CBP and FDA are working closely together
to ensure they coordinate policies and procedures for dealing with
movement of the cargo.
Miscellaneous Matters
Comment: The view was expressed that the ocean carrier would be
reluctant to accept an NVOCC's shipment due to liability concerns, and/
or would react, to protect itself from CBP enforcement, by imposing
extraordinary and erroneous evidentiary or indemnity obligations on the
NVOCC.
CBP Response: The CBP is currently programming Vessel AMS to accept
additional bill of lading types that will allow NVOCCs to submit
commodity information to CBP that will protect proprietary information
from the carrier, and that will enable the vessel carrier to submit
master bills of lading to CBP pertaining to the transportation
information for the cargo.
Comment: In proposed Sec. 4.7(b)(1), it was stated that the
original and one copy of the manifest must be ready for production on
demand. It was asserted that the only original manifest carried on
board the vessel upon arrival would be the dangerous goods manifest.
CBP Response: Under Sec. 4.7(b)(1), there is no requirement that
the original vessel cargo declaration be carried aboard the vessel in
those cases where the cargo declaration has already been filed in
advance electronically. The CBP decided not to enforce the paper cargo
declaration (Customs Form (CF) 1302) rule for formal entrance if a
carrier or NVOCC has successfully automated. However, where the cargo
declaration has been filed in advance electronically, and a paper copy
is not aboard the vessel, the carrier will be afforded a reasonable
time within which to generate a paper cargo declaration, should a paper
copy be requested by CBP. The CBP will periodically assess this policy
to ensure that it is not having an adverse effect on operations.
Comment: The proposed rules, especially those related to ocean
imports, did not address the status of shippers' associations as
shippers and transportation intermediaries and apparently did not give
them the right to file the required manifest information directly to
CBP.
CBP Response: The CBP has determined that shippers associations are
not licensed or registered with the Federal Maritime Commission (FMC).
Moreover, such associations cannot be construed to be carriers of cargo
in the same sense as ocean carriers or NVOCCS. Therefore, shippers
associations will not be permitted to participate in Vessel AMS.
Air Cargo Destined to the United States
Time Frame Requirements for Transmitting Advance Cargo Data
Comment: Several commenters requested that the time frames in
proposed Sec. 122.48a(b) in which the electronic cargo information was
transmitted be reduced and that exceptions for certain points of origin
be included.
CBP Response: The CBP recognizes the business practices of the air
cargo industry and the necessity of adequate time to properly analyze
the electronic cargo information and to deploy inspectional resources
when required. These issues were carefully considered when establishing
the time frames specified in these regulations.
Specifically, CBP weighed the question of an appropriate time frame
for air from many angles. To better gauge industry requirements, CBP
conducted public meetings (one for each modality), and set up an email
address to facilitate the submission of comments by carriers,
importers, exporters, freight forwarders, customs brokers, other U.S.
Government agencies, foreign governments, as well as local, national
and international trade organizations, and private citizens, etc. It
should be noted that this elective comment period was in addition to
the formal comment period required for the Notice of Proposed Rule
Making. The CBP also met intensively with the Treasury Advisory
Committee on the Commercial Operations of the U.S. Customs Service
(COAC), which resulted in additional unified recommendations for each
modality. The CBP assessed internal operational considerations such as
the speed at which the various electronic data interchanges are able to
process information, the time required for CBP personnel to review the
output and determine the appropriate action, and the time needed to
deploy personnel to respond.
Comment: Further explanation was requested on whether the time
frames for flights from nearby foreign areas in proposed Sec.
122.48a(b)(1) included such flights to the territories of the United
States, such as Guam and Puerto Rico.
CBP Response: The time frame for nearby flights would include such
flights to Puerto Rico because it is part of the Customs territory of
the United States. However, flights to Guam are not included in the
advance cargo reporting requirements, as Guam is not part of the
Customs territory. The CBP finds that a distinction in the time frames
for advance filing based upon geographical considerations, as opposed
to the duration of the flight, is more administratively feasible.
Air Freight Forwarder Issues
Comment: It was asked whether CBP would permit foreign indirect air
carriers (non-U.S.-based freight forwarders that issue their house
bills of lading for air freight shipments) to qualify as one of the
authorized filers of information through the Air Automated Manifest
System (Air AMS).
CBP Response: Other than the incoming air carrier, parties eligible
to transmit inbound electronic air cargo information are enumerated in
Sec. 122.48a(c)(1) in this final rule. Any foreign indirect air
carrier that is not one of the parties specified in Sec. 122.48a(c)(1)
would have to fully disclose and present the required data for the
inbound air cargo to the incoming air carrier or other eligible
electronic filer, as applicable, which would then present such data to
CBP.
Comment: It was advocated that CBP require freight forwarders,
Customs brokers and consolidators to participate in Air AMS.
CBP Response: The CBP disagrees. Such parties may elect to provide
the data directly to CBP if they are one of the parties specified in
Sec. 122.48a(c)(1), or they may provide the data to the incoming air
carrier which will transmit such data directly to CBP.
Comment: Two commenters wanted to know whether it was CBP's
intention that freight forwarders filing advance cargo data obtain two
bonds--an international carrier bond and a custodial bond.
CBP Response: A freight forwarder filing advance air cargo data
would be required to have an international carrier's bond under Sec.
122.48a(c)(2). In addition, if the freight forwarder or any other
eligible party were responsible for supplying in-bond information and
for transporting cargo in-bond under the provisions of part 18 of the
Customs Regulations (19 CFR part 18), such party would also need a
Customs custodial bond.
The international carrier bond is required of carriers arriving
from foreign locations. That bond exists to guarantee performance with
regard to (among other things) conveyance arrival, entry and clearance,
cargo manifesting and disposition, and passenger and crew control. The
conditions of the international carrier bond appear at 19 CFR 113.64. A
custodial bond is required of any party that transports merchandise
domestically, either between ports of entry or within a single
[[Page 68149]]
port of entry, before that merchandise has been entered for consumption
with duties paid thereon and its admissibility into the commerce
determined. The custodial bond conditions appear at 19 CFR 113.63. The
custodian of the merchandise guarantees compliance with all regulations
governing the receipt, carriage, safekeeping and disposition of
merchandise transported or held.
Diversion/Fuel Stop Issues
Comment: It was asked whether the rule allowed for aircraft to stop
for fueling at a U.S. location prior to arriving at its final
destination. Four commenters requested that fuel stops be exempt from
reporting requirements from the U.S. port of arrival to the port of
destination.
CBP Response: Section 122.48a does not prohibit an aircraft from
including a fuel stop in its itinerary; however, that stop may be the
port of arrival in the United States for purposes of Sec. 122.48a(b).
Fuel stops will not be excluded from the advance reporting requirement
because it is vital to security to target at the first port of arrival
and, if necessary, to examine cargo at that location.
Comment: If an aircraft were diverted for reasons such as weather
or equipment problems, it was requested that this not be considered
part of the manifest reporting requirement if passengers and cargo were
not to be discharged there.
CBP Response: The CBP understands that aircraft may be diverted due
to weather and/or equipment problems. When this situation occurs, the
airline must notify CBP at the designated first port of arrival (the
diverted port) as soon as it realizes it is not going to initially
reach the original port of arrival. The carrier would then need to re-
transmit the electronic cargo information with corrections to reflect
the new (diverted) arrival port.
Air AMS Testing/Problems
Comment: Outstanding operational programming issues should be
completed prior to the implementation of the final rule.
CBP Response: The CBP is diligently working on an outstanding list
of operational issues and will continue to correct these issues. Under
Sec. 122.48a(e)(2), the implementation date for advance air cargo
reporting may be delayed if necessary modifications to the CBP-approved
electronic data interchange system are not yet in place.
Comment: Qualified air freight forwarders electing to participate
in advance electronic cargo reporting should be tested on the approved
data interchange system prior to the implementation of the final rule.
CBP Response: Appropriate testing will be given to all parties who
develop Air AMS communications with CBP. Those parties who elect to use
a service provider will be tested via the service provider.
Comment: Programming should be provided between the Automated
Broker Interface (ABI) and the Air AMS system so that data information
could be shared (alternate filers could be brokers and forwarders).
CBP Response: Cargo selectivity information provided through ABI is
distinct from the electronic cargo information required through Air AMS
under Sec. 122.48a. The data elements to satisfy compliance with this
regulation must be provided through Air AMS; Air AMS is accessible to
ABI filers.
Comment: The Air AMS system should be changed to preclude an inward
air carrier from refusing to authorize (nominate) another eligible
party as an agent who had elected to transmit consolidated cargo data
directly to CBP; and the system should be programmed to notify such
other party of its authorization (nomination) by the inward carrier.
CBP Response: The Air AMS system will independently accept
information from each of the parties that supply data to satisfy the
advance cargo reporting requirements of Sec. 122.48a. In other words,
the inward carrier will no longer need to authorize or nominate another
eligible party in order to enable that party to supply house air
waybill information to CBP. The identification of another eligible
filer in the agent (``AGT'') line will be merely for the purpose of
notifying CBP that this party will transmit the house air waybill
information, which may be effected either prior to or after the
carrier's transmission of the master air waybill record to CBP.
Comment: The Air AMS system should be changed to allow for the
transmission of a notification that air cargo data had been received or
that the air cargo manifest had been accepted with the date and time
specified. This feature was said to be currently available in Vessel
AMS.
CBP Response: The Air AMS transmits a Freight Error Report message
if an air waybill record does not pass certain data acceptance edits.
In addition, the Air AMS also provides a Freight Status Query feature
that allows an Air AMS participant to query the status of an air
waybill record. This feature is available to the Air AMS participant
that transmitted the original message and to Air AMS participants that
have been properly nominated by the carrier that transmits the master
air waybill data.
Comment: One commenter was of the opinion that airlines did not
want to be obligated to input house air waybill information on behalf
of an air freight forwarder.
CBP Response: Under Sec. 122.48a, unless another qualified party
elects to participate in the Air AMS system, the relevant house air
waybill information must be furnished to the incoming air carrier for
presentation to CBP.
Comment: It was asked how a carrier would provide any required
cargo data if the records were in the possession of a third party that
was not one of the parties identified in proposed Sec. 122.48a(c)(1).
CBP Response: Under Sec. 122.48a(c)(4), any third party entity in
possession of required data for inbound air cargo must fully disclose
and present such data to the carrier for presentation to CBP.
In-Bond Issues
Comment: Participants in Air AMS should be permitted to create
subsequent in-bond transactions to close out air manifests at both the
master air waybill and house air waybill levels.
CBP Response: This is included in the regulation (see Sec.
122.48a(a)(1) in this final rule). In-bond information may of course be
included at both the master and house air waybill levels (see Sec.
122.48a(d)(1)(xvi) and (d)(2)(viii) in this final rule).
Comment: It was thought that Air AMS could not handle in-bonds for
one consolidated express shipment.
CBP Response: The Air AMS system is capable of processing in-bond
information for all house air waybills under a consolidated master air
waybill.
Comment: The Air AMS programming should be altered to allow for
more than one in-bond warehouse per location.
CBP Response: Cargo covered by each master air waybill may be
transferred to any warehouse location with a unique FIRMS (Facilities
Information and Resources Management System) code within the limits of
a port of entry.
Comment: The scope and timing of the carrier's transmission of any
in-bond information should be clarified. Specifically, it was asked
whether it would be necessary to allow transmission of this information
after arrival of the cargo in the United States, and whether such
information would be used for the movement of the subject cargo from
the first port of arrival to the master bill destination location.
CBP Response: The data elements specified in Sec. 122.48a(d)(1),
including
[[Page 68150]]
any in-bond information in Sec. 122.48a(d)(1)(xvi), if applicable,
will be analyzed by CBP for the purposes of identifying high-risk
cargo. Such data elements must be supplied within the respective
advance time frames prescribed in Sec. 122.48a(b).
Comment: In-bond information (from a party other than the incoming
carrier) might not be known by origin or prior to its arrival in the
United States. It was asked whether information related to the
subsequent in-bond movement of the cargo could thereafter be
transmitted to CBP prior to the in-bond movement being authorized.
CBP Response: The CBP recognizes that the in-bond destination for
cargo covered by house air waybills may not be known prior to the
arrival of the aircraft in the United States. If such information is
provided outside of the required time frame prescribed in Sec.
122.48a(b), it will be treated as a change to the original information.
Comment: It was asked whether CAFES (Customs Automated Forms Entry
System) was compatible with Air AMS for use on in-bonds.
CBP Response: CAFES is not yet compatible with Air AMS for
merchandise arriving via air.
Truck/Air Issues
Comment: The use of Air AMS should be allowed for goods transiting
the border by truck in lieu of a truck manifest. It was advocated that
Customs brokers at the border should be required to transmit data
through Air AMS for cargo that originated as an air shipment and
arrived in a contiguous foreign country, notwithstanding that the cargo
would be crossing the border into the United States by truck.
CBP Response: The Air AMS system is the electronic cargo reporting
data interchange for merchandise arriving via an aircraft. Merchandise
arriving via another mode of transportation, including by truck, must
be reported in the manner specified for such mode. Thus, if the
merchandise crosses the U.S. border on a truck, such merchandise is not
considered to be an air shipment, notwithstanding that such cargo may
have arrived in the contiguous foreign country by air. As such, in the
event that merchandise, which was previously reported to arrive via an
aircraft, should change its mode of transportation prior to arrival in
the United States, the previously transmitted information must be
cancelled and then reported in the manner appropriate to the actual
mode of transportation employed in bringing the merchandise into the
United States.
Shipments by U.S. Postal Service; Letters and Documents Otherwise
Shipped
Comment: A number of commenters believed that the advance cargo
reporting rules should be applied to shipments through the United
States Postal Service (USPS).
CBP Response: Paragraph K of section 343(a)(3) of the Trade Act of
2002 (19 U.S.C. 2071 note, section (a)(3)(K)), compels consultation
with the Postmaster General in considering what type of electronic
cargo information requirements should be imposed upon carriers of mail
shipments through the USPS. The CBP still has this issue under
consideration. Should a determination be made to extend the advance
electronic cargo information mandate to USPS shipments, such postal
shipments would be the subject of a separate rulemaking procedure.
Current procedures regarding the processing of shipments for the USPS
will remain in effect.
Comment: Shipments of letters and documents, including the material
described in General Note 19(c), Harmonized Tariff Schedule of the
United States (HTSUS), that were transported by air otherwise than
through the USPS, should also be exempted from full advance cargo
reporting requirements.
CBP Response: The CBP has decided to make the requirements for
advance cargo information for letters and documents the subject of a
separate publication in the Federal Register. Proposed Sec.
122.48a(d)(3) concerning advance cargo information requirements for
letters and documents is thus removed from this final rule.
Liability Issues
Comment: Should the shipper provide inaccurate information in the
description, shipper or consignee fields, it was urged that the
incoming carrier or other electronic filer presenting such information
to CBP not be held liable.
CBP Response: Whether or not liability would be imposed on a
carrier in such circumstances would be governed by section
343(a)(3)(B), as amended, and Sec. 122.48a(c)(5) in this final rule.
Section 122.48a(c)(5) provides that CBP will take into consideration
how, in accord with ordinary commercial practices, the presenting party
acquired the information submitted and whether and how that party is
able to verify such information. Where the information is not
reasonably verifiable, the party will be permitted to present such
information based upon a reasonable belief as to its accuracy.
Comment: Three commenters wanted to know whether the carrier would
be liable for the submission of house air waybill information where
another party that elected to furnish this information to CBP did not
do so.
CBP Response: The carrier will indicate in the master air waybill
record if another party will be transmitting the house air waybill
data. If such other party fails to comply with the advance cargo
reporting provisions, this party, and not the incoming carrier, will be
held liable.
Comment: One commenter inquired as to who would be responsible for
submitting advance cargo data in the case of a chartered aircraft.
CBP Response: In the case of a time or voyage charter, the aircraft
owner/operator is the party required to transmit the information. In
the case of a bareboat charter, where the charterer in effect becomes
the owner of the aircraft (the owner pro hac vice), the bareboat
charterer would be responsible for reporting the cargo information to
CBP.
Comment: A question was presented as to what kind of penalty would
be imposed on airlines that failed to meet the advance time frame
submission.
CBP Response: An incoming air carrier failing to meet the advance
reporting time frame may be liable under 19 U.S.C. 1584 as well as
under other pertinent penalty provisions (see Sec. 122.161, Customs
Regulations; 19 CFR 122.161). Should another party electing to file
advance cargo information fail to do so, such party may be liable for
liquidated damages pursuant to its Customs bond.
Comment: It was asked who would be responsible for transmitting
cargo data to CBP where a number of freight forwarders co-loaded cargo.
CBP Response: Either the incoming carrier or one of the parties
qualified to do so under Sec. 122.48a(c)(1) will be responsible for
supplying the information for all house air waybills under a single
consolidated master air waybill.
Data Elements
Comment: A couple of commenters took exception to the requirement
that the flight number for the incoming aircraft be reported 4 hours
prior to arrival. The flight number could change. Also, it was unclear
how the indirect air carrier would know the exact flight number.
CBP Response: Only the incoming carrier is responsible for the
transmission of the flight number. The carrier should be aware of its
flight
[[Page 68151]]
number at the time of its required transmission.
Comment: It was stated that the proposed data elements designated
as conditional (``C'') were not currently captured and would require
significant modifications to the freight reservations, reporting and
tracking systems and that this would be at significant cost to the
carrier.
CBP Response: These data elements are essential to effective cargo
targeting. It is also observed that these data elements have previously
been received from other air carriers through Air AMS.
Comment: Three commenters inquired as to whether the carrier would
still have to provide house air waybill numbers, pieces, weight and
description on its paper air cargo manifest.
CBP Response: Under proposed Sec. 122.48(a), except as otherwise
provided, a paper air cargo manifest need not be filed for any aircraft
required to enter under Sec. 122.41. In addition, proposed Sec.
122.48(a) is further changed in this final rule to eliminate the
requirement that a cargo manifest be retained aboard any aircraft
required to enter under Sec. 122.41; however, a copy of the air cargo
manifest (Customs Form (CF) 7509) must otherwise be made available to
CBP upon demand.
Comment: It was asked how a company would obtain a unique
identifier (which would be transmitted by the carrier to indicate its
separate transmission of a portion of the required data elements).
CBP Response: A Container Freight Station (CFS) and an Express
Consignment Carrier Facility (ECCF) would be identified by its FIRMS
(Facilities Information and Resources Management System) code. An air
carrier would be identified by its IATA (International Air Transport
Association) code. All other parties would be assigned a unique
identifier by the Client Representative Branch of CBP's Office of
Information and Technology (OIT) upon commencement of certification
testing in Air AMS.
Comment: More information was requested as to the description that
would be required on the master air waybill in the case of shipments of
dangerous goods. It was noted that IATA requirements did not permit a
characterization of ``consolidation'' to be indicated as a description
on the master bill.
CBP Response: For the purposes of satisfying Sec. 122.48a only, a
cargo description of ``consolidation'' is sufficient at the master air
waybill level. However, carriers may elect to provide additional
information in the description field at the master bill level if they
choose to do so.
Comment: Two commenters believed that current Air AMS programming
did not allow for alpha-numeric characters of house air waybill numbers
to be transmitted as printed on the paper house air waybill. They
inquired as to how this would be handled.
CBP Response: Each party providing electronic cargo information
must support alphanumeric characters for house air waybill records when
alpha characters appear on the printed house air waybill. The CBP
recognizes that some current Air AMS participants will need to undergo
programming changes in order to support this feature.
Comment: One commenter noted that, quite often, the Importer of
Record and the ``deliver to'' party (the ultimate consignee) were not
the same party. The commenter wanted to know whether there would be a
problem if the consignee were located somewhere other than the arrival
and/or destination port.
CBP Response: The consignee need not be located at the arrival or
destination port. Paragraphs (d)(1)(xi) and (d)(2)(vii) of proposed
Sec. 122.48a are revised in this final rule to so indicate.
Comment: One commenter urged that CBP allow disclaimers such as
``said to contain'' or ``shipper's load and count''.
CBP Response: The characterization, ``Said to contain'', is not an
acceptable cargo description. The approved use of ``shipper's load and
count'' is outlined in Sec. 4.7a(c)(3)(ii), Customs Regulations (19
CFR 4.7a(c)(3)(ii)).
Comment: Three commenters did not agree with the requirement that
the smallest external packaging unit be stated; a simple pallet count
should be allowed.
CBP Response: The CBP disagrees. Such reporting is essential to
ensure that no additional packages have been introduced into palletized
cargo.
Comment: It was requested that the Automated Broker Interface (ABI)
be made mandatory for all forwarders and brokers to transmit house data
to CBP for air shipments.
CBP Response: The ABI is not the system by which electronic cargo
information is to be collected under the provisions of Sec. 122.48a.
Definitions
Comment: Under proposed Sec. 122.48a(b)(1), one commenter wanted
to know what was meant by the time of departure for the United States;
and in proposed Sec. 122.48a(b)(2), it was asked whether the time of
arrival in the United States would be the scheduled or the actual time
of arrival.
CBP Response: As expressly stated in Sec. 122.48a(b)(1), the
electronic cargo information must be received no later than the time of
departure of the aircraft from foreign, which is the time that the
wheels are up on the aircraft and it is en route directly to the United
States (the trigger time is the time of departure of the aircraft for
the United States). Proposed Sec. 122.48a(b)(1) is thus further
clarified in this final rule. And in Sec. 122.48a(b)(2), the
electronic cargo information must be received 4 hours prior to the
actual arrival of the aircraft in the United States.
Comment: One commenter stated that gray areas still persisted as to
the cargo covered by the regulation, and asked, in this respect,
whether company material or aircraft parts for use by the airline would
need to be reported.
CBP Response: As specified in the background discussion of the
proposed rule (see 68 FR at 43580), merchandise brought in by an air
carrier for its own use would be subject to the same advance cargo
information filing requirements that would apply to other incoming
cargo.
Comment: With reference to proposed Sec. 122.48a(d)(1)(xii), the
identity of the party who issued the ``consolidation identifier'' was
requested.
CBP Response: The consolidation identifier is transmitted by the
incoming air carrier to designate an air waybill record as a ``master''
air waybill.
Comment: In proposed Sec. 122.48a(d)(1)(xvii), one commenter
wanted to know what a ``local transfer facility'' was.
CBP Response: A local transfer facility is merely a Container
Freight Station as identified by its FIRMS code or the warehouse of
another air carrier as identified by its carrier code. Proposed Sec.
122.48a(d)(1)(xvii) is revised in this final rule to include this
additional explanatory material.
Air AMS Issues
Comment: It was asserted that mandatory participation in the Air
Automated Manifest System (Air AMS) could not be required due to the
fact that it was a voluntary program.
CBP Response: Section 343(a)(1) of the Trade Act of 2002, as
amended (19 U.S.C. 2071 note, section (a)(1)), gives CBP the authority
to require the advance reporting of cargo information through an
electronic data interchange system; and Air AMS is such a system.
Moreover, Air AMS was developed as a component of the National Customs
Automation Program (NCAP) (19 U.S.C. 1411(a)); and, in section 338 of
the Trade Act of 2002, Congress amended 19 U.S.C. 1411(b) to permit CBP
to
[[Page 68152]]
require the electronic submission of information that CBP is obliged to
collect.
Comment: One commenter asked when the Air AMS specifications and
testing protocol would be made available to the trade.
CBP Response: The CBP will post the Air AMS specifications and
testing protocols on its Web site as soon as possible. Such
specifications and testing protocols will set forth the programming and
operational details of the system.
Comment: Since a filer could be a party with a Container Freight
Station (CFS) location or a Facilities and Information Resources
Management System (FIRMS) code, two commenters inquired as to whether
this implied that the advance cargo transmission would have to be made
from a particular U.S. location.
CBP Response: The electronic cargo information may be sent from any
location, provided that the electronic filer is one of the parties
specified in Sec. 122.48a(c)(1).
Comment: It was declared that carriers currently participating in
Air AMS did not have uniform system requirements or uniform procedures
at all ports of entry. The CBP should compel uniformity in system
requirements and procedures at all ports.
CBP Response: The promulgation and implementation of these
regulations and the enforcement of their provisions will increase
uniformity of carrier participation in Air AMS. For instance,
currently, there are several methods to process cargo information and
they vary at each location. This is due to the lack of authority for
CBP to require automation of cargo information. This regulation will
provide that authority and therefore increase uniformity. The CBP
believes that all cargo declarations will be processed the same at each
location. However, variations may exist in the execution of the entry
not in the manifest. Each port is a little different and therefore some
variations will exist but not to the extent that is occurring on a
daily basis.
Implementation of Advance Air Cargo Data Filing Requirements
Comment: Seven commenters wanted more time to obtain access to
relevant Air AMS software and communications equipment in order to make
their computer interface with the system operational. The CBP was
requested to accommodate the interface schedules of the carriers in
this regard. Three other commenters wanted a general delayed effective
date of 180 days from the date the final rule was published. One
commenter recommended that the rule be delayed until all ports were
operational on the system and all necessary training had been
completed. Another commenter believed that CBP was not properly staffed
or trained in Air AMS to support its nationwide implementation. A
further commenter suggested that CBP implement a phased-in approach, by
carrier, origin and destination, and that a ``web portal'' be installed
for use by carriers and other authorized filers unable to interface
with the Air AMS system.
CBP Response: Section 343(a), as amended, was enacted on August 6,
2002, and clearly required that cargo data would need to be filed
electronically. To this end, in the public meeting that was held for
incoming air cargo on January 14, 2003, CBP stated that the accepted
electronic interface would be the Air AMS system. Therefore, air
carriers have had over one year to conduct proper research as to what
type of software and computer interface options are available and what
each has to offer. As such, CBP will only delay the general effective
date of Sec. 122.48a until March 4, 2004 for the specific reasons
described in Sec. 122.48a(e)(2).
Additionally, CBP has already identified all airports that require
training in Air AMS and whether those air carriers that call on those
airports are automated. By making use of this list and working with the
air carriers concerned, CBP will coordinate with carriers that are
ready to go online in airports that are not yet automated in order to
ensure that the inspectors are properly trained, and that the air
carrier has proper points of contact at that airport. However, CBP has
determined that a web portal feature is not feasible at this time.
Furthermore, it is vital that the training for inspectors coincide
as closely as possible with air carriers becoming automated in a port.
If CBP trains the inspectors and there are no automated air carriers
for several months, the training is not useful because the inspectors
will not be utilizing their new skills. Therefore, the training must
occur within a few weeks of an air carrier notifying CBP that it is
going to become automated in a specific port.
Toward this end, CBP is striving to improve the Air AMS training
that is available to the field inspectors. Currently, there are four
Air AMS training classes that are held at the Federal Law Enforcement
Training Center (FLETC) each year. In addition, CBP is developing a
computer-based training course that will be required for each inspector
at all airport locations.
System Irregularities; Paper Manifest Requirement
Comment: One commenter requested specific details regarding the
technical support for any problems that might be experienced during
data transmissions.
CBP Response: Requests for resolution of ordinary cargo
transmission problems should be coordinated with CBP personnel at each
port. In addition, each Air AMS participant has been/will be assigned a
CBP client representative who is available to assist with more
technical guidance.
Comment: Three commenters no longer wanted to keep a paper air
cargo manifest on board the aircraft since CBP was mandating electronic
cargo information. In addition, the requirement for keeping a paper
General Declaration on board should be deleted since all the
information was sent in advance of arrival through the Advance
Passenger Information System (APIS).
CBP Response: As already noted, a paper air cargo manifest (Customs
Form (CF) 7509) will no longer be required to be kept aboard the
aircraft, but must otherwise be available for production upon demand.
Proposed Sec. 122.48(a) is changed in this final rule to reflect this.
However, the General Declaration (CF 7507) will still be required as it
contains data elements not otherwise collected through APIS or Air AMS.
Comment: Five commenters asked how an air carrier would comply with
the advance cargo notification requirements without keeping a record of
every single house air waybill in addition to the archived copy of each
master air waybill.
CBP Response: Section 122.48a does not require the incoming air
carrier to transmit or maintain records for house air waybill data when
such data is transmitted by another electronic filer.
Comment: Seven commenters recommended that a CBP office be
established at all airports to respond to various irregularities.
CBP Response: Each airport concerned will have a designated point
of contact to address and resolve matters involving Air AMS.
In-Transit Issues
Comment: Four commenters suggested that in-transit cargo that
remained on board the aircraft should be excluded from the proposed
rule.
CBP Response: The CBP disagrees. Such cargo could pose a cargo
safety or security risk to the same extent as other cargo that arrives
in the United States.
[[Page 68153]]
Comment: It was believed that the proposed regulations did not
clearly address whether air cargo that merely transited, and would not
be discharged in, the United States was subject to compliance with the
advance reporting time frames.
CBP Response: In accordance with Sec. 122.48a(a)(1), cargo that
transits the United States, whether or not it is unladen from the
aircraft, is subject to the advance reporting requirements of the
regulation. Technical requirements to report such information
electronically will be specified in the Air AMS technical manual.
Comment: One commenter was concerned about who would be required to
report required cargo data for in-transit cargo.
CBP Response: Such information must be provided either by the
incoming air carrier or one of the other specified parties in Sec.
122.48a(c)(1).
Hand-Carried Baggage
Comment: Five commenters advocated that hand-carried merchandise
should be subject to the advance cargo reporting provisions.
CBP Response: Hand-carried merchandise is covered by the
requirements for passenger baggage and is not considered cargo subject
to advance reporting under Sec. 122.48a.
Landing Rights
Comment: Five commenters suggested that CBP specify in proposed
Sec. 122.14(d) that denial of landing rights would occur only if a
known security threat aboard a particular aircraft posed a higher
threat to safety and security than an emergency diversion to
alternative airports that could also refuse landing rights. Four other
commenters believed that CBP should not deny landing rights or
permission to unlade cargo based upon inaccurate information received
from other parties.
CBP Response: The provision to deny landing rights is generally
intended for those air carriers that fail, repeatedly and egregiously,
to furnish timely and accurate cargo information in advance. In such a
situation, CBP would have the authority to deny landing rights for that
air carrier in the future. Assuredly, this provision would not be
executed without careful deliberation and dialogue with the air carrier
as to its lack of compliance.
In addition, pursuant to section 343(a)(3)(B), as amended, and
Sec. 122.48a(c)(5), as already noted, if the carrier electronically
transmitting cargo information has received any of this information
from another party, CBP, in deciding issues of liability, will take
into account how, in accordance with ordinary commercial practices, the
carrier acquired the transmitted information and whether the carrier
was reasonably able to verify the information. Depending upon these
circumstances, CBP reserves the authority to deny landing rights or
permission to unlade if an air carrier fails to fulfill its
responsibilities under these regulations.
Corrections to Cargo Information
Comment: Five commenters wanted clarification as to the procedure
for making any changes to the cargo information already transmitted for
a flight.
CBP Response: Complete and accurate information would need to be
presented to CBP for cargo laden aboard the aircraft no later than the
applicable time specified in Sec. 122.48a(b). As for any changes in
the cargo information already transmitted for a flight, the procedures
for amending the cargo declaration including discrepancy reporting will
be the subject of a separate rulemaking.
Comment: Two commenters inquired about who would be responsible in
the case of a data discrepancy between a master air waybill and a house
air waybill.
CBP Response: The party that transmits the information would be
responsible for its correction. Communication between the air carrier
and any other electronic filer for the incoming cargo should be
maintained in order to avoid such discrepancies.
Comment: It was asked whether an electronic transmission to correct
inaccurate data could be initiated from the port of destination when
the initial electronic transmission occurred at the point of departure
for the United States.
CBP Response: Any party supplying information will be able to
correct such information, regardless of the station from which its
transmission electronically originated.
Cargo Transfer
Comment: A question arose as to whether the deconsolidator's
Facilities and Information Resources Management System (FIRMS) code or
the carrier's identifier would be needed for incoming cargo that would
be handled through a local transfer facility; and whether such
information could be transmitted after arrival of the cargo.
CBP Response: A FIRMS code is the necessary data element for cargo
that would be transferred to a deconsolidator or a Container Freight
Station (CFS) within the limits of the port. Should the cargo be
intended for transfer to another carrier's station within the port, the
code of that carrier is required. Proposed Sec. 122.48a(d)(1)(xvii),
as already mentioned, is revised in this final rule to include this
additional explanation. This information must be transmitted in advance
of arrival together with the other required data in Sec. 122.48a(d)(1)
and (d)(2).
Split Shipments
Comment: Because shipments that were split by the incoming carrier
would affect the transmission for that cargo by another electronic
filer, the rules for the handling of split shipments in Air AMS should
be further clarified.
CBP Response: When the incoming air carrier elects to split a
master air waybill into multiple arrivals, the carrier will be required
to transmit to CBP a number of additional data elements for each house
air waybill covered by the master air waybill record. Specifically, the
carrier will be required to transmit the house air waybill number,
certain transportation and arrival information, the manifested and
boarded quantities, and the manifested and boarded weights. As such,
the informational requirements for split shipments described in
proposed Sec. 122.48a(d)(1)(xiii) are revised and included in this
final rule as a new Sec. 122.48a(d)(3) (proposed Sec. 122.48a(d)(3)
dealing with the summary manifesting of letters and documents, as
previously noted, is deleted from this final rule and will be the
subject of a separate Federal Register publication). Also, further
technical specifications regarding the issue of split shipments will be
provided in the Air AMS technical guidelines.
Changes in Business Practices
Comment: One commenter stated that it was an undue hardship to
force companies onto Air AMS if another system were going to supersede
it later on, and that companies would be forced to undergo the expense
of conforming to new computer programming.
CBP Response: The CBP will rely, at least initially, upon the Air
AMS, with appropriate future modifications, as the principal vehicle to
achieve the goal of advance cargo data filing under section 343(a), as
amended, in order that these regulations may be implemented at the
earliest practicable time, as an urgent and critical national security
imperative. However, it is assured that any new system developed within
the framework of the Automated Commercial Environment (ACE) will be
compatible with these implementing regulations. For this reason, the
[[Page 68154]]
regulations refer generically to a CBP-approved electronic data
interchange system (rather than to Air AMS, specifically).
Comment: Companies would need to shift current workload that was
done at destination ports to the ports of departure, and those ports
were not properly staffed to handle the workload.
CBP Response: The CBP is fully aware that some changes in business
practices may be necessary. For example, it has been a common practice
for the industry to input cargo information while the aircraft is in-
transit to its destination. This practice will need to change to
require the information in a timely manner so as to meet the time
frames identified by this final rule. The CBP has attempted to balance
the concerns of the trade by affording a delayed effective date in the
implementation of the advance air cargo reporting regulations as
provided in Sec. 122.48a(e), while, at the same time, recognizing the
compelling national security need to move as deliberately as possible
to protect cross-border commerce from the threat posed to cargo safety
and security by international terrorism.
Comment: It was observed that for shipments with multiple
intermediate foreign stops before final departure for the United
States, freight forwarders needed the ability to transmit data elements
to CBP at the time of departure from the departure station/location.
CBP Response: Those parties authorized to transmit house air
waybill level information, as specified in Sec. 122.48a(c)(1), will be
able to do so prior to the transmission of the master air waybill
information by the incoming air carrier.
General/Miscellaneous Issues
Comment: When an incoming air carrier has transmitted data to CBP
for incoming cargo, one commenter inquired whether that carrier's
ground handling agent, or other party, holding the goods following
their arrival would also need to be automated in order to have access
to the electronic freight status notifications concerning the cargo.
CBP Response: Participants in Air AMS, including the incoming air
carrier, must be able to honor all electronic freight status
notifications transmitted by CBP. Whether the carrier elects to employ
a ground handling agent or not, the carrier is responsible for
maintaining control of the cargo pending CBP disposition.
Comment: A question was raised as to how the carrier was to be
advised that the house air waybill information had been transmitted to
CBP.
CBP Response: The CBP does not anticipate transmitting a message to
the carrier when the house air waybills are transmitted by another
party. However, the failure to transmit house air waybill information
for consolidated shipments, as prescribed in Sec. 122.48a(d)(2), would
preclude the release or transfer of any cargo covered by the
consolidation. Thus, communication between the incoming carrier and any
other electronic filer of house air waybill information, if applicable,
would be essential.
In this latter connection, the Air Automated Manifest System (AAMS)
has a feature known as the Freight Status Query (FSQ) message. The
party that transmitted the message or another AAMS participant that has
been authorized by the message originator may query the status of an
air waybill record in AAMS. This feature may be invoked on a
transactional basis to provide the AAMS participant with confirmation
that an air waybill is on file along with details about the record.
However, to provide an automatic confirmation receipt message for
every air waybill transmission would create substantial programming
costs for CBP and AAMS participants. It would also substantially
increase data storage and communications costs. The FSQ message
provides the same information but need only be invoked on a case-by-
case basis.
Comment: An issue was raised as to whether a party that was both an
Automated Broker Interface (ABI) filer as well as a Container Freight
Station/Deconsolidator and in possession of an international carrier
bond could transmit cargo data at ports where the consolidation cargo
remained under the custody of the air carrier.
CBP Response: A party authorized to transmit electronic cargo
information, as provided in Sec. 122.48a(c)(1) and (d)(2), will be
able to do, even if the cargo remains in the custody of the incoming
carrier.
Comment: One commenter wanted to know if there would be any
amendment of requirements pertaining to international carrier bonds.
CBP Response: The changes to the international carrier bond
requirements are set forth in Sec. 113.64(a) and (c) in this final
rule.
Comment: Additional explanation was sought concerning what
procedures an air carrier would need to follow if cargo were targeted
for inspection by CBP.
CBP Response: If it is found that a physical inspection of the
cargo is necessary, CBP will electronically notify the carrier or other
cargo custodian and make arrangements for its examination. In so doing,
CBP would work with the carrier to ascertain an appropriate location to
examine the potentially high-risk cargo.
Comment: Air cargo that would arrive in the United States on a
permit to proceed from the port of arrival should be allowed to move to
the port of unlading notwithstanding that a hold was placed on the air
waybill covering the cargo due to insufficient data.
CBP Response: If CBP determines that a physical inspection is
necessary or if additional information is required, the cargo will be
held at the port of first arrival pending resolution of the matter.
Comment: Concern was expressed that CBP ABI/AMS client
representatives would not be able to sufficiently handle the additional
workload under the new regulations. It was suggested that a study be
done to measure the current level of service to the trade and that such
a study should be shared with the trade.
CBP Response: The CBP does not believe that a study of client
representative workload is necessary to the implementation of this
rule. In the unlikely event that such a contingency should arise, Sec.
122.48a(e)(2), as previously observed, does provide that the effective
date of the rule may be further delayed if more time is needed to
complete the certification testing of new participants.
Rail Cargo Destined to the United States
Time Frame
Comment: Four commenters mentioned that cargo manifest information
transmitted to CBP through the Rail Automated Manifest System (Rail
AMS) could be made available two hours prior to arrival. However,
information on the train sheet, sometimes called a consist (consisting
of data such as the train's identification, locomotives' and cars'
numbers and initials and the train's schedule) was not part of the
advance cargo manifest data. This information would only be available
when the final trans-border train was assembled, and in many cases,
would only be available for transmission one hour prior to arrival at
the border. One other commenter also advocated that the time period be
reduced to one hour prior to arrival consistent with incoming truck
traffic.
CBP Response: The CBP remains of the opinion that the 2-hour period
for presenting rail cargo data prior to arrival effectively balances
the impact on rail cargo safety and security with the likely impact on
the flow of rail commerce into the United States. As such, this
[[Page 68155]]
time frame represents the minimum period during which CBP is confident
that essential targeting can still be accomplished, without a
concomitant undue disruption to rail business practices.
In addition, without proper consist information (which identifies
the incoming train, and gives its locomotives' and cars' numbers and
initials and the train's schedule), CBP would not have the complete
information essential for targeting on the incoming cargo in connection
with the particular train on which the cargo would arrive. The
availability of information on both the cargo and the arriving
conveyance as provided in the rail consist is vital in order to enable
CBP to do its targeting effectively in the time required.
Required Data; Carrier Responsibility
Comment: Four commenters wanted it made clear that a railroad was
required to provide the scheduled date and time of arrival to the best
of its knowledge, and that a railroad should not be penalized or held
responsible should that date and time prove inaccurate within some
reasonable time frame.
CBP Response: The railroad carrier must provide the scheduled date
and time of arrival to the best of its information, knowledge and
belief at the time that this information is filed. However, carriers
will be held responsible for failure to keep CBP informed of any
changes in this information as it becomes available.
Comment: Rail carriers should not be held responsible for the
accuracy of information supplied by others. The CBP should change the
language in proposed Sec. 123.91(c)(2) to state that where the rail
carrier electronically presenting the cargo information received any of
this information from another party, the rail carrier would not be held
responsible for the inaccuracy of any information supplied by that
other party.
CBP Response: The CBP disagrees. Section 123.91(c)(2) repeats, and
CBP is bound by, the statutory standard against which the potential
liability of a rail carrier would effectively be gauged in presenting
inaccurate cargo data to CBP that had been acquired from another party.
Comment: It was important that Rail AMS be able to manage multiple
shipment data. The CBP would need to coordinate implementation of this
aspect of the process with all elements of the supply chain and with
U.S. trading partners.
Specifically, the requirement that the rail carrier supply
information from the house bill of lading was problematic. In most
cases, railroads would only have the capability of receiving one bill
of lading and that bill would generally be a master bill of lading.
Also, if the railroad had a container holding several consolidated
shipments with individual house bills associated with each shipment,
even if the railroad had the capability of receiving the individual
house bills, information from such bills could not be transmitted to
CBP inasmuch as Rail AMS could only handle the transmission of one bill
of lading in association with the cargo manifest data for that one
shipment.
CBP Response: The CBP is currently reviewing Rail AMS programming
requirements to release the edit that only allows one bill of lading
per shipment, which will enable house bills of lading to be utilized in
the rail environment. In addition to possible programming changes, CBP
is reviewing the prospect of authorizing other parties to transmit
information via Rail AMS. This would further facilitate the submission
of the house bill of lading information that is required on all
shipments.
Should CBP decide to allow another electronic filer to voluntarily
present house bill information for a shipment through Rail AMS, a test
program notice to this effect would first be published in the Federal
Register pursuant to Sec. 101.9(b) and (b)(1), Customs Regulations (19
CFR 101.9(b) and (b)(1)), inviting public comments on any aspect of the
proposed test and informing interested members of the public of the
basis for selecting participants, the eligibility criteria for
participation in the test, and the effect of such participation on the
responsibilities of incoming rail carriers for the transmission of
required advance cargo data to CBP.
Comment: Proposed Sec. 123.91(d)(4) stated that carriers would
have to supply the numbers and quantities of the cargo laden, as
contained in the carrier's bill of lading, either master or house, as
applicable, which meant the quantity of the lowest external packaging
unit. This information was contained in the house bill, not the master
bill. For a container shipment, the railroads would only know the
quantity expressed on the master bill, which might not be at the level
of the lowest external packaging unit.
Similarly, proposed Sec. 123.91(d)(6) and (d)(7) would require
that the railroad carrier provide the complete name and address for the
shipper and consignee respectively. Again, however, the master bill of
lading possessed by the rail carrier could contain only the name of a
freight forwarder instead of the actual shipper and consignee; if so,
the rail carrier would not know the identity of the actual shipper and
consignee.
CBP Response: House bill of lading information is required under
this regulation; therefore, as already discussed, CBP is reviewing
programming changes to Rail AMS that would enable the system to accept
such information. Hence, when Rail AMS is programmed to capture house
bill of lading information, and when the rail industry has been given
additional time to make essential adjustments to its own programming
for the transmission of such house bill data through Rail AMS, all the
referenced data elements would, at such time, need to be presented to
CBP, which would include information for the shipper and consignee,
including the full name and address of each, as well as the numbers and
quantities (of the lowest external packaging unit) of the cargo laden
aboard the train. To this end, CBP will take these programming matters
into account in establishing the effective date(s) for implementing the
incoming rail cargo data regulation (see Sec. 123.91(e) in this final
rule).
Comment: One commenter suggested that it might be difficult or
impossible for the rail carrier to obtain the necessary cargo
information when the rail cargo had initially arrived in Canada or
Mexico by vessel or air carrier from another foreign country. In such a
case, unless the ocean or air carrier had first required the complete
disclosure of all information at the port of loading in the other
foreign country, and thereafter passed this information along to the
rail carrier, there would be no way that the required information would
be available to the railroad.
CBP Response: For cargo that is transferred in Canada or Mexico to
a rail carrier for shipment to the United States, whether such cargo
originated in Canada or Mexico or was first brought there by a vessel
or air carrier from another foreign country, the rail carrier, as
explained above, will be required to provide the requisite data
elements for such cargo to CBP.
Line Release
Comment: The CBP should retain Line Release not only for the
present as stated in the proposed rule, but for the long term, as it
was declared to be critical for cross-border rail traffic.
CBP Response: The CBP fully recognizes the importance of Line
Release for Rail AMS. In fact, CBP has recently made Line Release
available, for rail shipments only, to ports that ordinarily would not
have access to it,
[[Page 68156]]
as part of CBP's Rail AMS port automation efforts.
Automated Line Release in rail is what is known as the Border
Release Advanced Screening and Selectivity program (BRASS) in the Truck
environment. The difference is that the information is all electronic
and supplied in advance of arrival.
Implementation Date(s) for Rule
Comment: Further guidance was sought as to the implementation
date(s) for the proposed regulation.
CBP Response: Quite plainly, under Sec. 123.91(e), rail carriers
must commence the advance electronic transmission of required cargo
information 90 days from the date that CBP publishes a notice in the
Federal Register informing affected carriers that the data interchange
system is in place and operational at the port of entry where the train
would first arrive in the United States. As such, before the rule can
become operational at any port, including any port(s) where Rail AMS is
now operational, the initial publication of a Federal Register notice
naming such port(s) would be a mandatory prerequisite. At present,
there are 35 CBP ports that have rail crossings, 8 of which are not
rail AMS. The CBP will require all ports that handle rail cargo to
become automated.
Exemption for Cargo Transiting Contiguous Foreign Country
Comment: The proposed rule (Sec. 123.91(b)) would expressly exempt
from advance electronic information filing requirements domestic cargo
transported by train from one port to another in the United States by
way of a foreign country. However, the proposed rule did not deal with
whether such an exception applied when the shipment partly involved
transportation by sea or air.
CBP Response: Only a land-based conveyance, such as rail or truck,
would be involved with carrying goods on a continuous movement from one
port to another in the United States by way of a contiguous foreign
country, whether Canada or Mexico. This is the specific situation
addressed in Sec. 123.91(b); such a situation would simply not arise
in the vessel or air mode. Proposed Sec. Sec. 123.91(b) and
123.92(b)(1) (for trucks) are revised in this final rule to explicitly
reference Canada and Mexico in this respect.
Truck Cargo Destined to the United States
Implementation Issues
Comment: As was done in the 24-hour rule, one commenter wanted a
grace period between the implementation date of the final rule and its
enforcement date (no penalties assessed for non-fraudulent violations).
CBP Response: Similar to that which was done in the context of the
24-hour rule (67 FR 66318), as previously detailed, supra, CBP will
follow a phased-in enforcement/compliance program, after Sec. 123.92
becomes effective at a specific port of arrival. As such, during the
phased-in period, CBP would not customarily initiate enforcement
actions such as assessing penalties for non-fraudulent violations of
Sec. 123.92. And, under Sec. 123.92(e), the effective date for
advance data filing for incoming truck cargo is itself initially
delayed until 90 days from the date that CBP publishes a notice in the
Federal Register informing affected carriers at the given port that the
approved data interchange is operational there and that carriers must
commence the filing of the required data.
Comment: Two commenters sought to delay the implementation of
proposed Sec. 123.92 until carriers, brokers, and importers had direct
communication links electronically with CBP.
CBP Response: The CBP disagrees. The advance notification
requirement is largely intended to collect advance cargo information
via two outstanding methods--the Automated Broker Interface (ABI), or
the fully electronic version of the Free And Secure Trade (FAST)
System. Delaying the implementation of Sec. 123.92 until all parties
related to the reporting of the data for incoming cargo are fully
electronically interfaced with CBP, such as through FAST, or the
Automated Commercial Environment (ACE), once it is deployed, would be
incompatible with the expeditious implementation of section 343(a), as
amended, as a national security necessity.
Comment: It was suggested that CBP implement separate rules for
emergency importations.
CBP Response: Emergency situations will be handled on a case-by-
case basis, depending on the facts, in CBP's enforcement discretion.
Comment: It was recommended that an education enforcement
contingency plan be devised to avoid possible chaotic situations at the
border under the new rules.
CBP Response: Outreach and marketing efforts are currently being
undertaken to reach out to both foreign and domestic trade participants
to avoid such situations at the border.
Time Frame for Advance Filing
Comment: One commenter sought further explanation as to the actual
start time for advance notification requirements, i.e., at the time of
transmission, or at the time CBP received the transmission.
CBP Response: As expressly set forth in Sec. 123.92(a), CBP must
receive the cargo data no later than 30 minutes or 1 hour prior to the
carrier's arrival at a United States port of entry, or such lesser time
as authorized, based upon the CBP-approved system employed in
presenting the information. Also, this point was directly addressed in
the background of the proposed rule (see 68 FR at 43586).
Comment: Twelve commenters recommended an abbreviated advance
notification time line of 30 minutes for standard shipments and 15
minutes for Free And Secure Trade (FAST) shipments, specifically for
trucks loaded within a designated border zone, to support the ``Just-
in-Time'' (JIT) shipping industry.
CBP Response: This identical comment was broached in the proposed
rule (68 FR at 43586; Summary of Principal Comments, item ``1.''). At
that time, CBP concluded, and continues to firmly believe, that the 30-
minute or 1-hour advance time frame, in relation to the particular
automated system used, is the minimum period needed to perform a
targeting analysis for cargo selectivity, and, if found warranted, to
arrange for an inspection or examination of the cargo following its
arrival. The effect on JIT inventory practices, given these relatively
brief reporting periods, should be essentially nugatory.
Against this backdrop, it is submitted that BRASS (the Border
Release Advanced Screening and Selectivity program) and CAFES (the
Customs Automated Forms Entry System), where the filing period would be
less, will only be employed exclusively as interim, transitional
systems in the truck environment prior to the development and
deployment of fully electronic replacements for these systems in the
new truck manifest module scheduled for delivery under the Automated
Commercial Environment (ACE); the employment of BRASS and CAFES under
the circumstances is thus due in large measure to the conspicuous lack
of electronic information systems prevalent in the trucking industry,
especially along the Southern Border.
Comment: Six commenters asked that CBP implement the 15-minute
advance electronic notification period currently used under the FAST
voluntary test program.
CBP Response: The FAST program is designed to enhance security and
safety in processing commercial importations
[[Page 68157]]
along the Northern and Southern borders, while also enhancing the
economic prosperity of the U.S., Canada, and Mexico by aligning, to the
maximum extent possible, their customs commercial programs. While the
program will still, of course, function in this capacity, nevertheless,
with reference to its relationship with section 343(a), as amended,
FAST will also be used for purposes of ensuring cargo safety and
security and preventing smuggling. As such, and for the reasons set
forth above, CBP finds it advisable to extend the overall time frame
for FAST transactions to a full 30 minutes prior to arrival as an
additional security measure under the program.
Thus, shipments eligible for FAST must be reported at least 30
minutes before the arrival of the conveyance at the first port of
entry. FAST shipments may be reported through one of two release
mechanisms: Through the all-electronic transmission of conveyance,
driver and shipment information, formerly known as the National Customs
Automation Program (NCAP) prototype; or through the use of the Pre-
Arrival Processing System (PAPS) version of cargo selectivity. All
other truck shipments still not allowed release via BRASS, must utilize
PAPS and submit the data one hour before arrival of the truck. For an
additional extensive review of the FAST, PAPS, BR