CBP's Final Rule on the Advance Electronic Presentation of Cargo Information (Part XXI - CBP Responds to Comments, Etc.)

This is Part XXI of a multi-part series of summaries of this final rule, and highlights some of CBP's responses to comments on the proposed rule regarding outbound cargo, CBP's regulatory impact analysis, etc. as follows:

AES Commodity Redesign. Under the planned redesign of the Automated Export System (AES) to be developed by mid-2004, air carriers would be able to send transportation data directly to CBP. According to CBP, two commenters sought guidance on how the CBP electronic data interchange would be interfaced with the airlines' systems.

CBP responds that the system enhancement projected for completion in mid-2004 is the AES Commodity Redesign which will improve the ability of the AES to process automated Shipper's Export Declaration (SED) information. These enhancements will not enable AES to accept electronic manifest information directly from air, rail, or truck carriers, nor will the new regulations require the exporting carriers to submit such manifest data via the AES. CBP notes that the vessel manifest module in AES will remain optional.

Outbound high-risk cargo targeted for inspection/examination. According to CBP, commenters asked how CBP would notify the carrier of high-risk cargo that was targeted for inspection/examination, and recommended that a predetermined time should be set following which a carrier could confidently assume that no further hold status would be issued for the cargo.

CBP responds that the AES commodity module is not capable of sending electronic hold messages to carriers, so the current methods of communication by fax and/or phone will need to continue. CBP states that it cannot set a time frame after which a carrier could assume no further holds. Given the current design and functionality of the system, commodity records are transmitted to AES on a transaction-by-transaction basis rather than as part of a manifest, where the end of the transmission is marked. Thus, not knowing which AES commodity transaction is the last for a particular conveyance makes it impossible for CBP to provide an absolute, finite time after which no further holds will occur.

Outbound cargo reporting for motor carriers. In response to a comment stating that proposed outbound cargo reporting provisions should be changed so that motor carriers would not have to transmit specific data elements to AES, CBP states that carriers are not responsible for transmitting the information required by Section 343(a) of the Trade Act of 2002, as amended.

According to CBP, 19 CFR 192.14(c)(4), as proposed and as appearing in this final rule, details carrier responsibility which is largely limited to collecting AES proof of filing citations (Internal Transaction Number (ITN)), Option 4 exemptions, and regular reporting exemptions (see 15 CFR 30.50-30.58). Likewise, the transmission of all automated SED commodity data (which already includes data relating to the transportation of the cargo) by the U.S. Principal Party in Interest (USPPI)/Agent is covered in 19 CFR 192.14(c)(1) (Currently collected commodity data) and (c)(2) (Transportation data).

Reporting the port of exportation. According to one comment, the USPPI should provide only the intended port of exportation because the actual port of exportation might not be known to the USPPI.

In response, CBP states that the USPPI or its authorized agent must report the port of exportation as known when the USPPI or its agent tenders the cargo to the outbound carrier. Should the carrier export the cargo from a different port, and the carrier so informs the USPPI or agent, the port of exportation must be corrected by the filer in AES. CBP notes that proposed 19 CFR 192.14(c)(2)(vi) is revised in this final rule to clarify this issue.

Final rule determined to be significant regulatory action, Regulatory Impact Analysis conducted. In response to comments on the economic analysis, CBP states that after further analysis of the proposed rule, it agrees that the final rule is a significant regulatory action under Executive Order (EO) 12866, and that the cost of the final rule will exceed $100 million. Accordingly, CBP indicates that it has conducted a regulatory impact analysis (RIA) of the final rule, which is available at http://www.cbp.gov/ImageCache/cgov/content/import/communications_5fto_5ftrade/public_5fmeetings/ria_5felectronic_5ffiling_2epdf/v1/ria_5felectronic_5ffiling.pdf (dated November 13, 2003).

CBP states that its economic analysis for the final rule has estimated the cost to all affected sectors unless it was determined that the costs would be insignificant or that the costs would be passed to a different sector (e.g., from brokers to importers).

Additional analyses. See final rule for analyses under the Regulatory Flexibility Act, the Paperwork Reduction Act, EO 12988, EO 13132, and the Unfunded Mandates Reform Act of 1995, as well as under the above-mentioned EO 12866.

Final rule issued by CBP under authority of DHS. CBP states that this final rule falls solely within the jurisdiction of the Department of Homeland Security (DHS); therefore, CBP states that it is being issued by CBP under the authority of DHS.

(See ITT's Online Archives or 01/15/04 news, 04011515, for Part XXof this series. See ITT's Online Archives or 12/09/03 news, 03120915, for Part II, which includes a list of CBP contacts.)

CBP final rule (CBP Dec. 03-32), FR Pub 12/05/03, available at http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2003/pdf/03-29798.pdf