Much Still to be Decided for ACAS Enforcement Rules as Some Concerns Emerge
As CBP moves toward developing enforcement rules for Air Cargo Advance Screening (ACAS), the agency is considering several new penalty and bonding regimes, said agency and industry stakeholders. There's some concern that too strict requirements could exclude some important players from the program, though there have not been any decisions made as to the specifics of the compliance regime, said people involved in the process. ACAS, now in a pilot program, allows carriers to submit cargo data to CBP in advance of actual shipment.
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It’s still undecided how CBP will implement and enforce future regulations, said Regina Park, of CBP’s Office of Field Operations. “There’s a lot of information that we are digesting now,” she said while speaking July 23 during a Airforwarders Association Webinar. “We want to make sure we incentivize the submission of this information, but we also have an obligation to ensure we are enforcing the regulations that we write.” CBP said in April it would extend the pilot as it began work on formalizing ACAS as a regulatory program (see 13040235). The agency has said it hopes to issue a notice of proposed rulemaking by the end of the year (see 13061820). Park said CBP is still hopeful it can stick to that timeframe, barring an trip-ups within the interagency review process.
The new ACAS rules will also mean foreign indirect air carriers that want to send ACAS data will be able to do so, said Park. But, like in other CBP programs, anyone that files such information will likely have to be a bonded entity, she said. The requirements for that remain unclear because CBP does not have authority over them and we “can’t require anyone to do anything if they are a foreign entity,” she said.
As for bonding requirements, there are a couple options being considered, said Park. For instance, they are looking as what is required for Importer Security Filing (ISF), as well as amending “some of our existing bonding requirements for Air [Automated Manifest Systems] and apply that to ACAS," she said. CBP is now working with some of its bond experts to see what makes sense, she said.
The bonding requirements in particular are one potential point of contention as CBP works with the Advisory Committee on Commercial Operations (COAC) to develop the ACAS rules, said an industry executive. An expansion of the number of supply chain parties participating within ACAS -- from carriers to freight forwarders -- will be important to improve the security component of the program, the executive said. There's some worry that the compliance and bonding regime of Air AMS would drive too many freight forwarders away from it, especially since "these are parties that have never interacted with customs before so they are already skittish," the executive said. Still, the industry in general understands that there is a need for a compliance regime, which means enforcement, said the executive.
While firm decisions are yet to be made as to specific penalties and bonding requirements, there’s some concerns among airforwarders, said Brandon Fried, executive director of the Airforwarders Association. The use of strict penalties for inaccurate data could be one problematic feature, said Fried during an interview. So far, the emphasis has been on the submission of “rough” data submitted “very early on in the process,” he said. As a result, much of that data can be subject to change and corrections, he said. There's a hope that CBP won't penalize for smaller mistakes and will instead focus on more egregious problems, Fried said during the Webinar.