On June 12, 2018, US Customs and Border Protection (CBP) published in the Federal Register an interim final rule [Docket No. USCBP-2018-0019; CBP Dec. 18-05] amending the CBP regulations pertaining to the submission of advance air cargo data to implement a mandatory Air Cargo Advance Screening (ACAS) program for any inbound aircraft required to make entry under the CBP regulations that will have commercial cargo aboard. The ACAS program requires the inbound carrier or other eligible party to electronically transmit specified advance cargo data (ACAS data) to CBP for air cargo transported onboard US-bound aircraft as early as practicable, but no later than prior to loading of the cargo onto the aircraft. The ACAS program enhances the security of the aircraft and passengers on US-bound flights by enabling CBP to perform targeted risk assessments on the air cargo prior to the aircraft’s departure for the United States. These risk assessments will identify and prevent high-risk air cargo from being loaded on the aircraft that could pose a risk to the aircraft during flight.
The interim rule adds a new section, 19 C.F.R. 122.48b, to the CBP regulations to implement a mandatory ACAS program. CBP’s objective for the ACAS program is to obtain the most accurate data at the earliest time possible with as little impact to the flow of commerce as possible. The new ACAS requirements apply to any inbound aircraft required to make entry under 19 C.F.R. 122.41 that will have commercial cargo aboard. These are the same aircraft that are subject to the current 19 C.F.R. 122.48a requirements. Under the amendments, an inbound air carrier and/or other eligible ACAS filer must transmit specified air cargo data (hereafter referred to as “ACAS data”) to CBP earlier in the supply chain so that CBP, can perform the necessary risk assessments prior to the aircraft’s departure for the United States. The ACAS data must be transmitted as early as practicable, but no later than prior to loading of the cargo onto the aircraft.
Under the new time frame, CBP will have sufficient time before the aircraft departs to analyze the data, identify if the cargo has a nexus to terrorism, and, with TSA, take the necessary action to thwart a potential terrorist attack or other threat. Just like the ACAS pilot, the ACAS program will allow CBP to issue referrals and/or Do-Not-Load (DNL) instructions. Specifically, under the ACAS program, CBP will issue ACAS referrals when clarifying information and/or enhanced screening of high-risk cargo is needed to mitigate any risk. Referrals for screening will be issued pursuant to CBP authorities and resolved using TSA-approved or accepted security programs. Under the new regulations, CBP will be able to take appropriate enforcement action against ACAS filers who do not comply with the ACAS requirements. Upon issuance of changes to security program requirements under 49 C.F.R. parts 1544 and 1546, the TSA will enforce implementation of enhanced screening methods in response to an ACAS referral.
The new 19 C.F.R. 122.48b specifies the general ACAS requirements, the eligible filers, the ACAS data, the time frame for providing the data to CBP, and the responsibilities of the filers, and explains the process regarding ACAS referrals and DNL instructions. The ACAS data is a subset of the data currently collected under 19 C.F.R. 12 122.48a and is generally the same data that is currently collected in the ACAS pilot. However, the new regulation adds a new conditional data element, the master air waybill number, which is not required in the ACAS pilot. This data element will provide the location of the high-risk cargo and will allow CBP to associate the cargo with an ACAS submission. CBP is also amending 19 C.F.R. 122.48a to reference the ACAS requirements and to incorporate a few additional changes. Specifically, CBP is amending 19 C.F.R. 122.48a to revise the definition of one of the data elements (consignee name and address) to provide a more accurate and complete definition, and to add a new data element requirement, the flight departure message (FDM), to enable CBP to determine the timeliness of ACAS submissions. CBP is also amending the applicable bond provisions in 19 C.F.R. part 113 to incorporate the ACAS requirements.
The rule is effective immediately but comments on all aspects of the interim final rule as well as the economic, environmental, or federalism effects that might result from the interim final rule may be filed until August 13, 2018.