New Requirement for Advance Type 86 Data to Address Targeting 'Time Challenge' for CBP

Released amid scrutiny in Congress and elsewhere about whether CBP is adequately screening small packages (see 2401110073), the notice shortens the deadline for filing type 86 entries from 15 days after arrival – the same as the deadline for formal entries – to “upon or prior to arrival” of the shipment. It also includes additional information on the “consequences of misconduct” by test participants, as well as the waiver of some customs regulations under the pilot.

“The traditional entry timeframe, allowing filing up to 15 days after arrival of the cargo, has proven to be inconsistent with the expedited process envisioned for the ACE Entry Type 86 Test,” CBP said in the notice. “As a result, CBP is amending the test to require that the entry type 86 must be filed prior to or upon arrival of the cargo.” The changes take effect Feb. 15.

CBP “wants the data in advance of arrival so they can do their targeting before the goods arrive in the U.S.,” Amy Magnus of A.N. Deringer told us in an email. With small package volumes “so very high,” along with the risk associated with them, advance targeting will allow CBP to “quickly identify those packages which seem suspicious to them and grab them upon arrival.”

CBP likely wants “to get in front of the huge volume they’re faced with determining admissibility and smuggling attempts,” Magnus said.

CBP cited those “enforcement challenges surrounding low-value shipments” in the notice. “CBP’s enforcement efforts for merchandise entered using entry type 86 have brought to light violations such as entry by parties without the right to make entry, incorrect manifesting of cargo, misclassification, misdelivery (e.g., delivery of goods prior to release from CBP custody), undervaluation, and incorrectly executed powers of attorney,” it said, echoing concerns raised by agency officials over the past year (see 2304170052).

Requiring the data prior to arrival is likely to address a “time challenge” associated with recent changes to CBP’s targeting processes, Cindy Allen of Trade Force Multiplier said in an interview. While the agency had previously relied on automated assessments, recent changes have allowed CBP to become more focused and flexible by allowing targeting by individual offices and officers, she said. But given the volume of freight coming in through type 86, CBP needs more time to look at what is coming in for targeting, Allen said.

CBP needed to give its officers more time to take action on a shipment, given the agency’s move toward automated release in ACE for shipments on which the agency doesn’t take action, Allen said.

Beyond the change to deadline for type 86 filings, the notice also expanded on CBP’s authority to require that type 86 entries be re-filed as formal entries. It said that when CBP requires a type 86 entry be resubmitted as formal, “the requirement to file entry within 15 days of the date of arrival for the merchandise is not waived and will not be satisfied by the rejected entry type 86 filing.” That includes meeting normal deadlines for the entry, entry summary and satisfying bond requirements, the notice said.

“Failure to timely file the requisite entry summary will result in an immediate demand for liquidated damages in the entire amount of the bond in the case of a single entry bond, or an equivalent amount if a continuous bond was filed,” CBP said.

The agency also added language on top of that in its original 2019 notice on the type 86 pilot (see 1908120019) that expands on consequences for misconduct under the test. It says, “may suspend or remove a filer from further participation in the ACE Entry Type 86 Test based on a determination that that filer’s participation in the test poses an unacceptable compliance risk.”

According to Allen, conspicuously absent from the new type 86 notice are any additional data requirements. “We’ve heard so much about they need more information,” but the notice doesn’t require any, despite over four years of agency experience running the type 86 pilot and the Section 321 data pilot that is now set to culminate in a rulemaking that will create a unified de minimis process (see 2312270040).