27380

Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

DEPARTMENT OF HOMELAND
SECURITY
U.S. Customs and Border Protection
19 CFR Parts 12, 113, 122, 141, 178,
and 192[Docket No. USCBP–2018–0019; CBP Dec.
18–05]
RIN 1651–AB04

Air Cargo Advance Screening (ACAS)AGENCY: U.S. Customs and Border

Protection, DHS.
ACTION: Interim final rule; request forcomments.

sradovich on DSK3GMQ082PROD with RULES2

SUMMARY: To address ongoing aviation

security threats, U.S. Customs andBorder Protection (CBP) is amending its
regulations pertaining to the submissionof advance air cargo data to implementa mandatory Air Cargo AdvanceScreening (ACAS) program for any
inbound aircraft required to make entry
under the CBP regulations that will havecommercial cargo aboard. The ACAS
program requires the inbound carrier orother eligible party to electronicallytransmit specified advance cargo data
(ACAS data) to CBP for air cargotransported onboard U.S.-bound aircraft
as early as practicable, but no later thanprior to loading of the cargo onto theaircraft. The ACAS program enhances
the security of the aircraft andpassengers on U.S.-bound flights byenabling CBP to perform targeted risk
assessments on the air cargo prior to theaircraft’s departure for the UnitedStates. These risk assessments will
identify and prevent high-risk air cargofrom being loaded on the aircraft that
could pose a risk to the aircraft during
flight.
DATES:
Effective date: This interim final ruleis effective June 12, 2018.
Comment date: Comments must be
received by August 13, 2018.
ADDRESSES: Please submit any
comments, identified by docket number[USCBP–2018–0019], by one of thefollowing methods:• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Border Security Regulations
Branch, Office of Trade, U.S. Customs
and Border Protection, 90 K Street NE,
10th Floor, Washington, DC 20229–
1177.
Instructions: All submissions received
must include the agency name anddocket number for this rulemaking. Allcomments received will be posted
without change to http://

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

www.regulations.gov, including any
personal information provided.
Docket: For access to the docket toread background documents orcomments received, go to http://
www.regulations.gov. Submittedcomments may also be inspected during
regular business days between the hoursof 9:00 a.m. and 4:30 p.m. at the Officeof Trade, U.S. Customs and Border
Protection, 90 K Street NE, 10th Floor,
Washington, DC. Arrangements toinspect submitted comments should bemade in advance by calling Mr. Joseph
Clark at (202) 325–0118.
FOR FURTHER INFORMATION CONTACT:
Craig Clark, Cargo and Conveyance
Security, Office of Field Operations,
U.S. Customs and Border Protection, by
telephone at 202–344–3052 and email atcraig.clark@cbp.dhs.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
III. Background and Purpose
A. Current Regulatory Requirements
1. CBP Regulatory Requirements
2. TSA Requirements
B. Air Cargo Security Risks
C. ACAS Pilot
IV. Mandatory ACAS Program
A. New 19 CFR 122.48b, Air Cargo
Advance Screening (ACAS)
B. Eligible ACAS Filers
C. Time Frame for Filing ACAS Data
D. ACAS Data
1. ACAS Data Definitions
2. Mandatory ACAS Data
3. Conditional ACAS Data: Master Air
Waybill Number
4. Optional ACAS Data
E. Filing and Updating the ACAS Data
F. ACAS Referrals
G. Do-Not-Load (DNL) Instructions
H. Responsibilities of ACAS Filers
1. Responsibility To Provide Accurate andTimely Data
2. Responsibility To Resolve ACAS
Referrals
3. Responsibility To Address Do-Not-Load(DNL) Instructions
I. Amendments to Bond Conditions
J. Amendments to 19 CFR 122.48a
1. Flight Departure Message (FDM)
2. Other Amendments to 19 CFR 122.48a
K. Flexible Enforcement
V. Statutory and Regulatory Reviews
A. Adminstrative Procedure Act
B. Executive Orders 12866, 13563, and
13771
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Privacy
F. Paperwork Reduction Act
VI. Signing Authority
List of Subjects
Regulatory Amendments

I. Public Participation
Interested persons are invited toparticipate in this rulemaking by

PO 00000

Frm 00002

Fmt 4701

Sfmt 4700

submitting written data, views, orarguments on all aspects of this interim
final rule. The Department of Homeland
Security (DHS) and CBP also invite
comments that relate to the economic,
environmental, or federalism effects thatmight result from this interim final rule.
Comments that will provide the mostassistance to CBP will reference a
specific portion of the interim final rule,
explain the reason for any
recommended change, and include data,
information, or authority that support
such recommended change.
II. Executive Summary
Terrorist attacks on international
aviation, particularly while the aircraft
is in flight, are a very real threat. In thepast few years, terrorists have madeseveral significant attempts to attack
commercial aircraft. These attempts
include the Christmas Day 2009 attempt
to bring down a U.S.-bound passenger
plane via the use of plastic explosives
hidden in a terrorist’s underwear, theexplosion aboard Russian Metrojet
Flight 9268 above Egypt’s Sinai
Peninsula in October 2015, and theattempted onboard suicide attack on acommercial aircraft in February 2016
after takeoff in Mogadishu, Somalia.
These incidents underscore thepersistent threat to commercial aviationand emphasize the importance of
aviation security.
The Department of Homeland
Security (DHS) was established, in part,to prevent such attacks, and to ensure
aviation safety and security. It isessential that DHS constantly adapt its
policies and regulations and use sharedintelligence to address these terrorist
threats since terrorists continue to seekout and develop innovative ways tothwart security measures. Global
terrorist organizations such as Al Qaeda
and the Islamic State of Iraq and theLevant (ISIL), as well as their offshoots
and associates, remain committed totargeting international commercial
airline operations in order to maximize
the effects of their terror campaigns.
They aim to exploit any security
vulnerability.
In October 2010, a new aviation
security vulnerability was exposed.
Terrorists placed concealed explosive
devices in cargo onboard two aircraftdestined to the United States. The
explosive devices were expected to
explode mid-air over the continental
United States, which could have caused
catastrophic damage to the aircraft, thepassengers, crew, and persons andproperty on the ground. In materials
published by a terrorist organization
shortly after the October 2010 incident,
it was noted that due to the increased

E:\FR\FM\12JNR2.SGM

12JNR2

sradovich on DSK3GMQ082PROD with RULES2

Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations
passenger screening implemented after
the Christmas Day 2009 attempt, theterrorist organization decided to employ
explosive devices sent via air cargo.
While the 2010 potential terrorist attack
was thwarted by multiple foreign
governments working together to share
intelligence and intercept the shipments
before they detonated, the explosive
devices were flown aboard several
flights before they were discovered.
Recently, Australian authorities
thwarted a plot to place an Improvised
Explosive Device (IED) on an Etihad
Airways flight, using components that
had been shipped to Australia by an
Islamic State in Syria (ISIS) commander
via air cargo. Additionally, DHS has
received specific, classified intelligencethat certain terrorist organizations seek
to exploit vulnerabilities ininternational air cargo security to cause
damage to infrastructure, injury, or lossof life in the United States or onboard
aircraft. DHS must ensure that terrorists
cannot exploit vulnerabilities in air
cargo supply chain security to introduce
dangerous cargo that could cause
catastrophic effect to the aircraft.
In order to deter and disrupt terrorist
threats to U.S.-bound aircraft via air
cargo, DHS must ensure that high-risk
cargo is identified prior to the aircraft’s
departure for the United States. Within
DHS, two components, U.S. Customs
and Border Protection (CBP) and theTransportation Security Administration(TSA), have responsibilities for securing
inbound air cargo bound for the UnitedStates. CBP and TSA employ a layered
security approach to secure inbound air
cargo, including using various risk
assessment methods to identify highrisk cargo and to mitigate any risks
posed.
For the reasons discussed below, DHS
believes that the current regulatory
requirements should be enhanced toaddress the ongoing threats to in-flightaviation security, particularly
concerning air cargo. DHS is making
regulatory changes to ensure that DHS
has the necessary tools to address thesethreats and ensure the safety of U.S.bound flights.
TSA regulations require carriers toapply security measures, including
screening, to all cargo inbound to theUnited States from the last point of
departure. See 49 CFR parts 1544 and1546. Through TSA’s regulatory
framework, TSA issues security
programs for carriers to adopt at lastpoints of departure for cargo inbound to
the United States. These security
programs require aircraft operators andforeign air carriers to determine theappropriate level of screening (baseline
versus enhanced) to apply to each cargo

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

shipment in accordance with risk-based
criteria contained within their TSA
security program. TSA regulations
require the carrier to perform enhanced
air cargo screening on cargo deemed
high-risk prior to the cargo departing for
the United States.1 TSA has authority to
impose penalties for violations of theseregulations pursuant to 49 U.S.C. 144(d)and 49 CFR part 1503.
CBP performs an additional risk
assessment to identify inbound cargothat may pose a security risk using
advance air cargo data and intelligence
related to specific air cargo. Under
current CBP regulations, an inbound air
carrier or other eligible party must
transmit specified advance air cargodata to CBP for any inbound aircraft
required to make entry under 19 CFR
122.41 that will have commercial cargoaboard.2 See 19 CFR 122.48a. In mostcases, advance data pertaining to air
cargo must be transmitted to CBP fourhours prior to arrival of the aircraft in
the United States. For specified shortflights, the advance data must betransmitted to CBP no later than thetime of departure of the aircraft.3 Upon
receipt of the advance air cargo data,
CBP analyzes the data using its
Automated Targeting System (ATS) andother relevant intelligence at each U.S.
port of entry to identify potential
threats. Upon the arrival of the cargo at
the U.S. port of entry, CBP inspects all
air cargo identified as high-risk toensure that dangerous cargo does notenter the United States.
Under the current CBP regulatory
time frames for transmitting air cargodata, CBP may not be able to identify
high-risk cargo such as unauthorized
weapons, explosives, chemical and/or
biological weapons, WMDs, or otherdestructive substances or items in the
cargo until it is already en route to theUnited States. This is because the 19
CFR 122.48a time frames do not provide
CBP adequate time to perform targetedrisk assessments on the air cargo before
1 The screening methods are contained within the
carrier’s respective security program. The specificsecurity measures are Sensitive Security
Information, the public disclosure of which isprohibited by law to the extent that such disclosure
would be detrimental to transportation security. See
49 U.S.C. 114(r), 49 CFR part 1520.
2 19 CFR 122.41 requires that all aircraft coming
into the United States from a foreign area must
make entry, subject to specified exceptions.
3 See 19 CFR 122.48a(b) which provides that CBP
must electronically receive the required advance air
cargo data no later than the time of departure of theaircraft for the United States from any foreign port
or place in North America, including locations in
Mexico, Central America, South America (fromnorth of the Equator only), the Caribbean, andBermuda; or no later than four hours prior to thearrival of the aircraft in the United States for aircraft
departing for the United States from any otherforeign area.

PO 00000

Frm 00003

Fmt 4701

Sfmt 4700

27381

the aircraft departs for the United States.
Terrorists have already exploited thissecurity vulnerability by placing
explosive devices aboard aircraftdestined to the United States.
Explosives and/or weapons contained in
air cargo could potentially be detonatedduring flight. Such a terrorist attack
could result in destruction of theaircraft, serious injuries or death topassengers and crew, and potential
ground-level victims or targets.
To address this situation, CBP and
TSA determined that, in order to best
identify high-risk air cargo, it isessential to perform a risk assessment
earlier in the air cargo supply chain,prior to the aircraft’s departure. Thisrisk assessment must be based on realtime data and intelligence available todetermine if the cargo posed a risk to
the aircraft in flight. CBP and TSA
concluded that such a risk assessment
should be performed at a centralized
location and with input from both CBP
and TSA, rather than at individual U.S.
ports of entry. As a result, CBP and TSA
formed a joint CBP–TSA targeting
operation in a centralized location toallow collaboration between the DHS
components. The joint CBP–TSA
targeting operation utilizes CBP’s ATS
and other available intelligence as a risktargeting tool to leverage data andinformation already collected in order tosecure international inbound air cargo.
This allows CBP and TSA to address
specific threat information in real time.
In addition, CBP, in collaboration
with TSA and the air cargo industry,
began operating a voluntary Air Cargo
Advance Screening (ACAS) pilot in
December 2010 to collect certain
advance air cargo data earlier in the
supply chain. Pilot participants
voluntarily provide CBP with a subset of
the 19 CFR 122.48a data, (referred tohereafter as the ‘‘ACAS pilot data’’) as
early as practicable prior to loading thecargo onto the aircraft. This allows
sufficient time for targeting before thedeparture of the aircraft. Based on the
ACAS pilot data, when CBP determinesthat cargo is high-risk, that cargo will
require screening pursuant to TSAapproved screening methods for highrisk cargo.4
The ACAS pilot has been successful
in enabling CBP to identify a substantial
amount of high-risk cargo. Significantly,
CBP has identified a substantial numberof air cargo shipments that havepotential ties to terrorism and, therefore,
may represent a threat. When this high4 The ACAS pilot utilizes TSA authority torequire enhanced screening for air cargo identified
as high-risk pursuant to TSA-approved screening
methods.

E:\FR\FM\12JNR2.SGM

12JNR2

27382Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

risk cargo is identified, enhanced cargo
screening is performed pursuant toTSA-approved or accepted security
programs.
During the ACAS pilot, air cargo that
may have only received baseline
screening per the carriers’ TSAapproved or accepted security programs
could be identified as high-risk through
ACAS, triggering enhanced screening
under the air carrier’s security programrequirements. Through joint agency
management and information sharing,
the ACAS pilot uses tactical and realtime data to enhance the security of the
air cargo supply chain. However,
because the pilot is voluntary, it does
not completely address the existing
security vulnerability.
To address the continuing security
threats, DHS is amending the CBP
regulations to add a new section, 19
CFR 122.48b, to implement a mandatory
ACAS program. CBP’s objective for the
ACAS program is to obtain the mostaccurate data at the earliest timepossible with as little impact to the flowof commerce as possible. The new
ACAS requirements apply to any
inbound aircraft required to make entry
under 19 CFR 122.41 that will havecommercial cargo aboard. These are thesame aircraft that are subject to thecurrent 19 CFR 122.48a requirements.
Under the amendments, an inbound air
carrier and/or other eligible ACAS filer 5
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 toloading 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 orother threat. Just like the ACAS pilot,
the ACAS program will allow CBP toissue referrals and/or Do-Not-Load(DNL) instructions. Specifically, underthe ACAS program, CBP will issue
ACAS referrals when clarifying
information and/or enhanced screeningof high-risk cargo is needed to mitigate
any risk. Referrals for screening will be
issued pursuant to CBP authorities andresolved using TSA-approved or
accepted security programs. The ACAS
program will enable CBP to issue DNL
instructions when a combination of
ACAS data and intelligence points to athreat or terrorist plot in progress. As
with the pilot, this rule andcorresponding TSA-approved or
accepted security program requirements
will enhance the ability to prevent air
cargo that may contain a potential
bomb, improvised explosive device, orother material that may pose an
immediate, lethal threat to the aircraft
and/or its vicinity from being loaded
aboard the aircraft and will allow law
enforcement authorities to coordinate
with necessary parties. Under the new
regulations, CBP will be able to takeappropriate enforcement action against
ACAS filers who do not comply with
the ACAS requirements. Upon issuanceof changes to security program
requirements under 49 CFR parts 1544
and 1546, TSA will enforce
implementation of enhanced screening
methods in response to an ACAS
referral.
The new 19 CFR 122.48b specifies thegeneral ACAS requirements, the eligible
filers, the ACAS data, the time frame forproviding the data to CBP, and the
responsibilities of the filers, andexplains the process regarding ACAS
referrals and DNL instructions. The
ACAS data is a subset of the data
currently collected under 19 CFR
122.48a and is generally the same datathat is currently collected in the ACAS
pilot. However, the new regulation adds
a new conditional data element, themaster air waybill number, which is not
required in the ACAS pilot. This data
element will provide the location of thehigh-risk cargo and will allow CBP toassociate the cargo with an ACAS
submission.
CBP is also amending 19 CFR 122.48a
to reference the ACAS requirements andto incorporate a few additional changes.
Specifically, CBP is amending 19 CFR
122.48a to revise the definition of oneof the data elements (consignee nameand address) to provide a more accurate
and complete definition, and to add a
new data element requirement, theflight departure message (FDM), toenable CBP to determine the timelinessof ACAS submissions. CBP is also
amending the applicable bondprovisions in 19 CFR part 113 toincorporate the ACAS requirements.
In order to provide the trade sufficient
time to adjust to the new requirements
and in consideration of the businessprocess changes that may be necessary
to achieve full compliance, CBP willshow restraint in enforcing the datasubmission requirements of this rule fortwelve months after the effective date.
While full enforcement will be phasedin over this twelve month period,
willful and egregious violators will be
subject to enforcement actions at all
times. In accordance with TSA
regulations, inbound air carriers will be
required to comply with their respective
TSA-approved or accepted security
program, including the changes being
implemented for purposes of the ACAS
program.
The chart below includes a summaryof the current 19 CFR 122.48a advanceair cargo data requirements, therequirements under the ACAS pilot, andthe regulatory changes that are being
promulgated by this rulemaking.

SUMMARY OF ACAS CHANGES TO CBP REQUIREMENTS

sradovich on DSK3GMQ082PROD with RULES2

Timing of Data Submission.

Current requirements(19 CFR 122.48a)

ACAS pilot

ACAS IFR(new 19 CFR 122.48b requirements inaddition to the current requirements in
19 CFR 122.48a)Time of departure or 4 hours prior to arrival
depending on port of departure.

At the earliest point practicable prior to loading of the cargo onto the aircraft.
No changes to the timing of 19 CFR 122.48a
requirements.

As early as practicable, but no later than prior
to loading of the cargo onto the aircraft.
No changes to the timing of 19 CFR 122.48a
requirements.

5 See Section IV.B. for more information about theparties that may voluntarily provide the ACAS data
and the eligibility requirements for these parties.

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

PO 00000

Frm 00004

Fmt 4701

Sfmt 4700

E:\FR\FM\12JNR2.SGM

12JNR2Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

27383

SUMMARY OF ACAS CHANGES TO CBP REQUIREMENTS—Continued

Data .........................

Eligible Filers ...........
Bond requirements ..

ACAS IFR(new 19 CFR 122.48b requirements inaddition to the current requirements in
19 CFR 122.48a)

Current requirements(19 CFR 122.48a)

ACAS pilot

17 data elements 6 ..........................................
Mandatory:• Air waybill number(s)—master andhouse, as applicable.
• Shipper name and address.
• Consignee name and address.
• Cargo description.
• Total quantity based on the smallest
external packing unit.
• Total weight of cargo.
• Trip/flight number.
• Carrier/ICAO code.
• Airport of arrival.
• Airport of origin.
• Scheduled date of arrival.
Conditional:• Consolidation identifier.
• Split shipment indicator.
• Permit to proceed information.
• Identifier of other party which is to submit additional air waybill information.
• In-bond information.
• Local transfer facility.
Inbound air carriers, other filers eligible under
19 CFR 122.48a 8.
All 19 CFR 122.48a filers are required tohave an appropriate bond.

6 data elements (subset of 19 CFR 122.48adata elements) transmitted at the lowest air
waybill level 7.
Mandatory:• Air waybill number.
• Shipper name and address.
• Consignee name and address.
• Cargo description.
• Total quantity based on the smallest
external packing unit.
• Total weight of cargo.

6 mandatory data elements (subset of 19
CFR 122.48a data elements and same as
ACAS pilot) at the lowest air waybill level,plus one conditional and one optional data
element.
Mandatory:• Air waybill number.
• Shipper name and address.
• Consignee name and address.
• Cargo description.
• Total quantity based on the smallest
external packing unit.
• Total weight of cargo.
Conditional:• Master air waybill number.
Optional:• Second notify party.
Addition of the Flight Departure Message(FDM) to the current 19 CFR 122.48a data
elements.

Inbound air carriers, other filers eligible under
19 CFR 122.48a, and freight forwarders.
Parties are not required to have a bond toparticipate in pilot.

Inbound air carriers, other filers eligible under
19 CFR 122.48a, and freight forwarders.
All ACAS filers are required to have an appropriate bond. Eligible filers include inbound air carriers, other eligible 19 CFR
122.48a filers,9 and freight forwarders.

SUMMARY OF ACAS IMPACT ON TSA REQUIREMENTS
Current requirements(49 CFR parts 1544
and 1546)

sradovich on DSK3GMQ082PROD with RULES2TSA Screening ......

Per TSA regulations, inboundair carriers are required tocomply with the baseline
and enhanced air cargo
screening protocols contained within their respective
TSA security programs 10.

ACAS pilot

ACAS IFR(new 19 CFR 122.48b)

Per TSA regulations, inbound air carriers are
required to comply with the baseline andenhanced screening methods contained
within their respective TSA security programs; under the ACAS pilot, enhanced
screening methods as outlined in the carrier’s security program apply to all ACAS referrals for screening.

Per TSA regulations, inbound air carriers are required tocomply with the screening methods contained within theirrespective TSA-approved or accepted security programs.
These security programs already include requirements toimplement enhanced screening procedures for certain
cargo, including cargo designated as elevated risk cargobecause it meets any of the criteria set forth in the security
programs. TSA will implement corresponding changes inthese programs requiring implementation of enhanced
screening methods for ACAS referrals.

III. Background and Purpose
The Homeland Security Act of 2002
established DHS to prevent terrorist

attacks within the United States and to
reduce the vulnerability of the UnitedStates to terrorism. See Public Law 107–

6 19 CFR 122.48a specifies, based on the type of
shipment, what data the inbound air carrier must
transmit to CBP and what data other eligible filers
may transmit to CBP. For non-consolidated
shipments, the inbound air carrier must transmit to
CBP the 17 data elements (11 mandatory, 6
conditional) applicable for the air waybill record.
For consolidated shipments, the inbound air carrier
must transmit to CBP the 17 data elements (11mandatory, 6 conditional) that are applicable to themaster air waybill, and the inbound air carrier must
transmit a subset of the data (7 mandatory, 1
conditional) for all associated house air waybills,
unless another eligible filer transmits this data to
CBP. For split shipments, the inbound air carrier
must submit an additional subset of this data (9mandatory, 3 conditional) for each house air
waybill.
7 The six ACAS data elements have been referred
to by the trade as ‘‘7+1’’ data by considering‘‘shipper name and address’’ and ‘‘consignee nameand address’’ to be four data elements instead of
two. As this data is included in 19 CFR 122.48a as

two data elements, CBP will continue to refer to‘‘six ACAS data elements’’ and not ‘‘7+1.’’
8 Other filers eligible under 19 CFR 122.48a
include Automated Broker Interface (ABI) filers(importers and brokers), Container Freight Stations/deconsolidators, Express Consignment Carrier
Facilities, and air carriers that arranged to have theinbound air carrier transport the cargo to the UnitedStates.
9 The inbound air carrier and other eligible 19
CFR 122.48a filers will already have a CBP bond to
file the 19 CFR 122.48a data and that bond will be
expanded under the ACAS program through noaction on their part. This is because CBP isamending the various CBP bonds to incorporate the
ACAS requirements as a condition of the bonds.
10 Note that TSA screening occurs prior to theaircraft’s departure for the United States. Under 19
CFR 122.48a, CBP usually identifies high-risk cargoon the basis of the submitted data when the aircraft
is in flight and CBP performs inspections of air
cargo identified as high-risk upon its arrival at aU.S. port of entry.

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

PO 00000

Frm 00005

Fmt 4701

Sfmt 4700

296, 116 Stat. 2142. Terrorist threats tothe aviation transportation system
continue to represent a meaningful risk
given the expressed intentions ofterrorists, their persistent attempts tothwart security and target aviation, andthe perceived fiscal and humanconsequences of a successful attack. In
response to these aviation threats, DHS
has created a comprehensive,
coordinated policy for securing air cargoentering, transiting within, anddeparting the United States.
Within DHS, two components, CBP
and TSA, have responsibilities forsecuring inbound air cargo bound for
the United States. Under the current
regulatory framework, TSA has
responsibility for ensuring the securityof the nation’s transportation of cargo by
air into the United States while CBP has
responsibility for securing the nation’sborders by preventing high-risk cargo

E:\FR\FM\12JNR2.SGM

12JNR2

27384Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

from entering the United States. CBP
and TSA’s current regulatory
requirements are described below.
A. Current Regulatory Requirements

sradovich on DSK3GMQ082PROD with RULES2

1. CBP Regulatory Requirements
Section 343(a) of the Trade Act of
2002, Public Law 107–210, 116 Stat. 981(August 6, 2002), as amended (TradeAct) (19 U.S.C. 2071 note), authorizes
CBP to promulgate regulations
providing for the mandatorytransmission of cargo information by
way of a CBP-approved electronic datainterchange (EDI) system before thecargo is brought into or departs theUnited States by any mode ofcommercial transportation. The requiredcargo information is that which isreasonably necessary to enable high-risk
cargo to be identified for purposes of
ensuring cargo safety and security
pursuant to the laws enforced andadministered by CBP.
On December 5, 2003, CBP publisheda final rule in the Federal Register (68FR 68140) to effectuate the provisions of
the Trade Act. Among otheramendments, a new § 122.48a (19 CFR
122.48a) was added to title 19 of the
CFR to implement advance reporting
requirements for cargo brought into theUnited States by air. As provided in 19
CFR 122.48a, for any inbound air carrier
required to make entry under 19 CFR
122.41 that will have commercial cargoaboard,11 CBP must electronicallyreceive certain data regarding that cargothrough a CBP-approved EDI system nolater than the time of departure of theaircraft for the United States (fromspecified locations) or four hours prior
to arrival in the United States for allother locations.
Under 19 CFR 122.48a, the following
advance air cargo data is required to betransmitted to CBP no later than thespecified time frames:(1) Air waybill number(s) (master andhouse, as applicable)(2) Trip/flight number(3) Carrier/ICAO (International Civil
Aviation Organization) code
(4) Airport of arrival(5) Airport of origin(6) Scheduled date of arrival(7) Total quantity based on the smallest
external packing unit
(8) Total weight(9) Precise cargo description(10) Shipper name and address(11) Consignee name and address(12) Consolidation identifier(conditional)
11 Under 19 CFR 122.41, subject to specified
exceptions, all aircraft coming into the UnitedStates from a foreign area must make entry.

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001(13) Split shipment indicator(conditional)(14) Permit to proceed information(conditional)(15) Identifier of other party which is tosubmit additional air waybill
information (conditional)(16) In-bond information (conditional)(17) Local transfer facility (conditional)
Paragraph (d) of 19 CFR 122.48a
specifies, based on the type of shipment,
what data the inbound carrier must
transmit to CBP and what data othereligible filers may elect to transmit to
CBP. There are different requirements
for consolidated and non-consolidated
shipments. A consolidated shipment
consists of a number of separate
shipments that have been received andconsolidated into one shipment by aparty such as a freight forwarder fordelivery as a single shipment to theinbound carrier. Each of the shipmentsin the consolidated shipment has its
own air waybill, referred to as the house
air waybill (HAWB). The HAWB
provides the information specific to theindividual shipment that CBP needs fortargeting purposes. The HAWB does notinclude the flight and routing
information for the consolidated
shipment. Generally speaking, a masterair waybill (MAWB) is an air waybillthat is generated by the inbound carrier
for a consolidated shipment. For
consolidated shipments, the inboundcarrier must transmit to CBP the above
cargo data that is applicable to the
MAWB, and the inbound carrier must
transmit a subset of the above data for
all associated HAWBs, unless anothereligible filer transmits this data to CBP.
For non-consolidated shipments, theinbound carrier must transmit to CBP
the above cargo data for the air waybill
record. For split shipments, i.e.,
shipments that have been divided into
two or more smaller shipments, either
sent together or separately, the inboundcarrier must transmit an additional
subset of this data for each HAWB.
The method and time frames forpresenting the data are specified in 19
CFR 122.48a(a) and (b). These
provisions specify that CBP must
electronically receive the above data
through a CBP-approved EDI system nolater than the time of the departure of
the aircraft for the United States fromany foreign port or place in North
America, including locations in Mexico,Central America, South America (fromnorth of the Equator only), theCaribbean, and Bermuda; or no later
than four hours prior to the arrival of
the aircraft in the United States foraircraft departing for the United Statesfrom any other foreign area.

PO 00000

Frm 00006

Fmt 4701

Sfmt 4700

CBP uses a risk assessment strategy totarget cargo that may pose a security
risk. Upon receipt of the advance air
cargo data in the specified time frames,
CBP analyzes the data at the U.S. portof entry where the cargo is scheduled toarrive utilizing ATS to identify potential
threats. Upon the arrival of the cargo at
the U.S. port of entry, CBP inspects all
air cargo identified as high-risk toensure that dangerous cargo does notenter the United States.
2. TSA Requirements
With respect to air cargo security,
TSA is charged, among other things,
with ensuring and regulating thesecurity of inbound air cargo, including
the screening of 100% of international
air cargo inbound to the United States
on passenger aircraft. This screening
mandate, established by the
Implementing Recommendations of the
9/11 Commission Act (9/11 Act) of
August 2007, requires that TSA ensure
all cargo transported onboard passenger
aircraft operating to, from, or within the
United States is physically screened at
a level commensurate with thescreening of passenger checked baggage.
To achieve this, TSA is authorized toissue security requirements for U.S. andforeign air carriers at non-U.S. locations
for flights inbound to the UnitedStates.12
TSA’s regulatory framework consistsof security programs that TSA issues
and the air carriers adopt to carry out
certain security measures, including
screening requirements for cargoinbound to the United States from nonU.S. locations. Details related to thesecurity programs are considered
Sensitive Security Information (SSI),13
12 TSA regulations are found in 49 CFR chapter
XII (parts 1500 through 1699). Parts 1544 and 1546
are specific to U.S. aircraft operators (i.e., domestic
or U.S. flagged air carriers) and foreign air carriers.
Sections 1544.205(f) and 1546.205(f) provide that
U.S. aircraft operators and foreign air carriers,
respectively, must ensure that cargo loaded onboard
an aircraft outside the U.S., destined to the U.S., isscreened in accordance with the requirements intheir security program. Sections 1544.101 and1546.101 require that certain U.S. aircraft operators,
and certain foreign air carriers landing or taking off
in the U.S., must adopt and implement a security
program in the form and with the content approvedor accepted by TSA pursuant to the provisions in§§ 1544.103 and 1546.103. In addition, when TSA
determines pursuant to § 1544.305 that additional
security measures are necessary, it will issue
Security Directives to U.S. aircraft operators. TSA
may also issue Emergency Amendments to thesecurity programs of U.S. aircraft operators andforeign air carriers as provided in §§ 1544.105(d)and 1546.105(d).
13 ‘‘Sensitive Security Information’’ or ‘‘SSI’’ isinformation obtained or developed in the conductof security activities, the disclosure of which would
constitute an unwarranted invasion of privacy,
reveal trade secrets or privileged or confidential
information, or be detrimental to the security of

E:\FR\FM\12JNR2.SGM

12JNR2

sradovich on DSK3GMQ082PROD with RULES2

Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations
and are made available to carriers asnecessary. Within this framework, TSA
has the flexibility to modify its air cargo
screening requirements as needed basedon changing security environments,
intelligence, and emergency situations
through Emergency Amendments/
Security Directives (EAs/SDs). Carriers
may also request amendments to theirrespective security programs in
response to changing market andindustry conditions.14 Additionally,
carriers may request TSA approval tofollow recognized National Cargo
Security Program (NCSP) Recognition
procedures in lieu of their TSA security
programs.
NCSP Recognition is a key componentof TSA’s effort to achieve 100%
screening of inbound cargo. NCSP
Recognition is TSA’s process thatrecognizes a partner country’s air cargo
supply chain security system as beingcommensurate with TSA’s domestic andinternational air cargo security
requirements. NCSP Recognition
reduces the burden on industry
resulting from applying essentially
duplicative measures under two
different security programs (i.e., TSA’sand the host country’s programs),
among other benefits. When approvedby TSA, air carriers are able to follow
the air cargo security measures of an
NCSP recognized country in lieu ofspecific measures required by theirsecurity program.
TSA regulations and security
programs require carriers to perform
screening procedures and security
measures on all cargo inbound to theUnited States. TSA requires aircraft
operators and foreign air carriers todetermine the appropriate level ofscreening (baseline versus enhanced) toapply to the cargo, in accordance withthe cargo acceptance methods and risk
determination criteria contained within
their TSA security programs. The
difference between baseline andenhanced screening is the level towhich the cargo must be screened andthe procedures by which the specificscreening technology must be applied as
outlined in the carrier’s security
program.
Baseline air cargo screening
requirements (standard screening)depend on multiple factors, outlined in
the carrier’s security program. Baseline
screening procedures for passenger air
carriers require that 100% of cargoloaded onboard the aircraft must be
screened by TSA-approved methods.
transportation. The protection of SSI is governed by
49 CFR part 1520.
14 Amendment procedures are in §§ 1544.105(b),(c), and (d) and 1546.105(b), (c), and (d).

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

These TSA-approved methods are set
forth in the carrier’s security program.
Baseline screening procedures for allcargo operations of inbound air cargo
are different from the baseline screening
procedures applied to air cargo inpassenger operations because of thediffering level of risk associated withall-cargo flights. The baseline screening
measures applied to cargo on an allcargo aircraft are dependent on thetypes of cargo, among other factors.
Enhanced security screening measures
are for higher risk cargo. Cargo that thecarrier determines is higher risk
pursuant to the risk determination
criteria in their security program mustbe screened via TSA-approved
enhanced screening methods as set forthin the carrier’s security program.
TSA periodically inspects carriers’
cargo facilities to ensure compliancewith the required measures of thecarriers’ security programs. If TSA
determines that violations of therequirements have occurred,appropriate measures will be taken andpenalties may be levied.
B. Air Cargo Security Risks
A terrorist attack on an internationalcommercial flight via its air cargo
continues to be a very real threat. DHS
has received specific, classified
intelligence that certain terrorist
organizations seek to exploit
vulnerabilities in international air cargo
security to cause damage toinfrastructure, injury, or loss of life in
the United States or onboard aircraft.
Enhancements to the current CBP
regulations and TSA security programs
will help address the in-flight risk andevolving threat posed by air cargo.
While TSA requires carriers to perform
air cargo screening in accordance with
their security program prior to the cargo
departing for the United States, ACAS
enables an analysis of data andintelligence pertaining to a particularcargo shipment. As a result, additional
high-risk cargo may be identified. Under
current CBP regulations, a 19 CFR
122.48a filer is not required to transmit
data to CBP until the aircraft departs for
the United States or four hours prior toarrival in the United States. While thisrequirement provides CBP with thenecessary data to target high-risk cargoprior to the aircraft’s arrival in the
United States, it does not allow
sufficient time for targeting prior to thecargo being loaded onto a U.S.-boundaircraft. Therefore, additional time totarget air cargo shipments would
increase the ability of CBP and TSA to
identify high-risk cargo that otherwise
might not be identified until it was
already en route to the United States.

PO 00000

Frm 00007

Fmt 4701

Sfmt 4700

27385

As explained in detail in the
Executive Summary, terrorists havealready exploited this security
vulnerability by placing explosive
devices aboard aircraft destined to theUnited States. After the October 2010
incident in which explosive devices
concealed in two shipments of HewlettPackard printers addressed for delivery
to Jewish organizations in Chicago,
Illinois were discovered in cargo
onboard aircraft destined to the UnitedStates, CBP and TSA determined thatthese evolving terrorist threats require amore systematic and targeted approach
to identify high-risk cargo. With theexisting security vulnerability,
unauthorized weapons; explosive
devices; WMDs; chemical, biological orradiological weapons; and/or otherdestructive items could be placed in air
cargo on an aircraft destined to theUnited States, and potentially, bedetonated in flight. The resulting
terrorist attack could cause destructionof the aircraft, loss of life or serious
injuries to passengers and crew,
additional casualties on the ground, anddisruptions to the airline industry.
Since terrorists continue to seek out
and develop innovative ways to thwart
security measures, it is essential that
CBP and TSA adapt their policies anduse shared intelligence to address theseevolving terrorist threats. To address theterrorist threat in 2010, CBP and TSA
determined that it was essential to
combine efforts to establish acoordinated policy to address aviation
security. After consulting industry
representatives and international
partners, they decided that a risk-based
assessment strategy utilizing real-timedata and intelligence to target high-risk
cargo earlier in the supply chain wasessential. Such a strategy would deter
terrorists from placing high-risk,
dangerous cargo on an aircraft, enable
CBP and TSA to detect explosives,
WMDs, chemical and/or biologicalweapons before they are loaded aboard
aircraft, and reduce the threat of aterrorist attack from occurring in-flight.
Specifically, CBP and TSA
determined that certain advance air
cargo data needs to be transmitted to
CBP at the earliest point practicable inthe supply chain, before the cargo isloaded onto the aircraft. This earlier
time frame would provide sufficient
time to target and identify high-risk
cargo so that the relevant parties cantake action as directed to mitigate therisk prior to the aircraft’s departure. It
was concluded that TSA’s screening
authority could be utilized to mitigate
these risks. Therefore, in 2010, CBP and
TSA established a joint CBP–TSA
targeting operation and launched an

E:\FR\FM\12JNR2.SGM

12JNR2

27386

Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

ACAS pilot to collect the necessary datafrom pilot participants earlier in theprocess. The ACAS pilot is discussed indetail in Section III.C.
The joint CBP–TSA targeting
operation utilizes CBP’s ATS and otheravailable intelligence as a dynamic risktargeting tool to leverage the data andinformation already collected in order tosecure inbound air cargo. This allows
CBP and TSA to address specific threat
information in real time and identify
any cargo that has a nexus to terrorism.
This cooperative targeting, in
combination with the existing CBP and
TSA air cargo risk assessment measures,increases the security of the global
supply chain. The CBP–TSA joint
targeting operation continues to operate
today and together with the ACAS pilot,
and now this rule, serves as animportant additional layer of security toaddress the new and emerging threats to
air cargo.

sradovich on DSK3GMQ082PROD with RULES2

C. ACAS Pilot
To collect advance air cargo data
earlier in the supply chain, CBP, in
collaboration with TSA and the air
cargo industry, established the ACAS
pilot in December 2010.15 The pilot was
created to explore the feasibility ofcollecting data on inbound air cargoprior to loading, to determine the timeframe under which participants could
provide reasonably reliable and accuratedata, and to test the technologicalaspects of transmitting the ACAS data
15 On October 24, 2012, CBP published a general
notice in the Federal Register (77 FR 65006)
announcing the formalization and expansion of the
ACAS pilot. Since then, CBP has published several
additional Federal Register notices. The email
address for the submission of applications andcomments was corrected in 77 FR 65395 (Oct. 26,
2012); the application period was reopened for 15
days in 77 FR 76064 (Dec. 26, 2012); and the dateof the close of the reopened application period wascorrected in 78 FR 315 (Jan. 3, 2013). On April 23,
2013, CBP published a notice in the Federal
Register (78 FR 23946) extending the ACAS pilot
period through October 26, 2013, and reopening theapplication period through May 23, 2013. On
October 23, 2013, CBP published a notice in theFederal Register (78 FR 63237) extending the ACAS
pilot program through July 26, 2014, and reopening
the application period to accept applications fromnew ACAS pilot participants through December 23,
2013. On July 28, 2014, CBP published a notice in
the Federal Register (79 FR 43766) extending the
ACAS pilot program through July 26, 2015, andreopening the application period to accept
applications from new ACAS pilot participants
through September 26, 2014. On July 27, 2015, CBP
published a notice in the Federal Register (80 FR
44360) extending the ACAS pilot program throughJuly 26, 2016, and reopening the application period
to accept applications from new ACAS pilot
participants through October 26, 2015. On July 22,
2016, CBP published a notice in the Federal
Register (81 FR 47812) extending the ACAS pilot
program through July 26, 2017. On July 24, 2017,
CBP published a notice in the Federal Register (82FR 34319) extending the ACAS pilot program
through July 26, 2018.

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

and the operational logistics of resolving
ACAS referrals.
Many different entities are
participating in the pilot including
express consignment air couriercompanies, passenger carriers, all-cargo
carriers, and freight forwarders. Pilot
participants volunteer to electronicallyprovide CBP with a specified subset of
19 CFR 122.48a data (ACAS pilot data)
as early as possible prior to loading of
the cargo onto an aircraft destined to theUnited States.
To determine what data would be
effective to target, identify, and mitigate
high-risk cargo prior to loading, CBPevaluated the advance air cargo datathat is currently transmitted under 19
CFR 122.48a. While the 19 CFR 122.48adata and the ACAS pilot data are usedin conjunction to ensure the safety andsecurity of air cargo throughout the
supply chain, they are collected at
different time frames for different risk
assessments. The 19 CFR 122.48a data isused to evaluate risk prior to arrival at
a U.S. port of entry to prevent high-risk
cargo from entering the United States.
ACAS pilot data is essential to ensurethat high-risk cargo that poses a risk to
the aircraft during flight is not loaded.
Accordingly, CBP evaluated each 19
CFR 122.48a data element to determine
whether the data would be effective inassessing the cargo’s risk prior toloading of the cargo onto the aircraft,
and whether the data was consistently
available and predictable early in the
lifecycle of the cargo in the global
supply chain. CBP also consulted with
the industry about what data would beavailable and predictable at an earlier
time frame. CBP concluded that some of
the 19 CFR 122.48a data, including the
mandatory flight and routing
information, was too unpredictable toeffectively target high-risk cargo underthe earlier time frame.
CBP determined that six of themandatory 19 CFR 122.48a data
elements, when viewed together, met its
criteria and would be included in the
ACAS pilot. This subset of 19 CFR
122.48a is the ACAS pilot data. The
ACAS pilot data elements are: Air
waybill number, total quantity based on
the smallest external packing unit, total
weight of cargo, cargo description,
shipper name and address, andconsignee name and address.16 These
data elements must be provided to CBP
at the lowest air waybill level (i.e.,
16 The six ACAS data elements have been referred
to by the trade as ‘‘7+1’’ data by considering‘‘shipper name and address’’ and ‘‘consignee nameand address’’ to be four data elements instead of
two. As this data is included in 19 CFR 122.48a as
two data elements, CBP will continue to refer to‘‘six ACAS data elements’’ and not ‘‘7+1.’’

PO 00000

Frm 00008

Fmt 4701

Sfmt 4700

house air waybill level for consolidated
shipments or regular air waybill levelfor non-consolidated shipments).
CBP determined that the data
described above would enable theagency to more effectively conduct
database searches aimed at identifying
possible discrepancies and high-risk
cargo. When taken together, the six data
elements would provide CBP withpertinent information about the cargo
and enable CBP to better evaluate thecargo’s threat level prior to loading.
While the ACAS pilot data only
consists of six elements, CBP
encourages participants to provide any
additional available data. Any
additional available data that isprovided enhances the accuracy of thetargeting.
Upon receipt of the ACAS pilot data,
the joint CBP–TSA targeting operation
utilizes CBP’s ATS and otherintelligence to analyze the ACAS data tobetter identify cargo that has a nexus toterrorism and poses a high security risk.
CBP issues an ACAS referral for any air
cargo identified as high-risk andspecifies what action the ACAS filer
needs to take to address the referral andmitigate the risk. There are two types ofreferrals that may be issued after a risk
assessment of the ACAS pilot data:
Referrals for information and referrals
for screening. The mitigation of thesereferrals depends on the directions
provided by CBP and/or TSA. A referral
for information is usually mitigatedwhen the ACAS filer provides clarifying
information related to the required
ACAS pilot data. Referrals for screening
are issued pursuant to CBP authorities
and resolved using TSA-approved or
accepted security programs.17 A referralfor screening is mitigated byconfirmation that enhanced screening
has been performed pursuant to theappropriate TSA-approved screening
methods contained in the carrier’s
security program.18 The inbound air
carrier is prohibited from loading cargo
17 TSA’s involvement in ACAS is authorizedunder 49 U.S.C. 114(f) and (m), and 44901(g), as
amended by the Implementing Recommendations of
the 9/11 Commission Act, Public Law 110–53, 121
Stat. 266 (Aug. 3, 2007), and under authority of theSecretary of Homeland Security, as delegated to theAssistant Secretary of Homeland Security for TSA,
under the Homeland Security Act of 2002, as
amended (6 U.S.C. 112(b)).
18 Under the ACAS pilot, industry participants
regulated by TSA have been and will continue tobe required to follow TSA’s screening protocols as
outlined in their respective security programs andapplicable SDs/EAs. This includes baseline
screening requirements for air cargo, as well as
enhanced security screening measures for higher
risk cargo. ACAS results may require that thecarriers conduct enhanced screening procedures oncertain cargo that otherwise would have received
only baseline screening.

E:\FR\FM\12JNR2.SGM

12JNR2

sradovich on DSK3GMQ082PROD with RULES2

Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations
onto the aircraft destined for the UnitedStates until all ACAS referrals areresolved on that cargo.
Based on the risk assessment, if CBP
and TSA determine that the cargo may
contain a potential bomb, improvised
explosive device, or other material thatmay pose an immediate, lethal threat tothe aircraft and/or its vicinity, CBP
issues a DNL instruction. Cargo
receiving a DNL instruction must not betransported. Such cargo requires
adherence to the appropriate protocols
and directions provided by theapplicable law enforcement authority.
The ACAS pilot has proven to be
extremely beneficial. Most importantly,
it has enabled CBP to identify numerous
instances of high-risk cargo prior to thecargo being loaded onto an aircraftdestined to the United States. Although
to date CBP has not had to issue a DNL
instruction, CBP has identified asignificant number of air cargo
shipments that have potential ties toterrorism and, therefore, may represent
a threat to aviation security. In each
instance, enhanced cargo screening
pursuant to the TSA-approved screening
methods was required to ensure that thecargo presented no risk to the safety andsecurity of the aircraft.
Another benefit of the ACAS pilot isthat an ACAS referral may require
enhanced screening on cargo that
otherwise would have received only
baseline screening pursuant to TSAapproved screening methods in the
carrier’s security program. The ACAS
pilot program is an additional layer of
security in DHS’s air cargo security
approach. An additional benefit of thepilot is that it has allowed the industry
to test the collection of the ACAS pilot
data in the earlier time frame and thetechnological capacity to collect andtransmit the data electronically.
Despite the benefits, the pilot hascertain limitations which stem from thefact that it is a voluntary program.
Because the pilot is voluntary, not all
inbound air carriers participate; thus,
there is a data collection gap. Also,
because the pilot is voluntary, not all
ACAS pilot data is transmitted in atimely manner and not all ACAS
referrals are resolved prior to departure.
This means that high-risk cargo may betransported aboard U.S.-bound aircraft,placing the aircraft, passengers and crewat risk. Finally, because the pilot isvoluntary, CBP cannot take enforcement
action against participants who fail totransmit ACAS data in a timely manner,
do not address an ACAS referral, orotherwise fail to comply with therequirements. While ACAS pilot
participants usually transmit ACAS data
in a timely manner, and take the

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

necessary action to comply with ACAS
referrals and other requirements,
voluntary compliance is not always
sufficient to ensure aviation security.
Due to these limitations, air cargo
continues to pose a security threat thatcan be exploited by terrorists. Therefore,
CBP is establishing a mandatory ACAS
program.
IV. Mandatory ACAS Program
To fulfill the Trade Act mandate toensure air cargo safety and security, CBP
is establishing a mandatory ACAS
program that will require thesubmission of certain advance air cargodata earlier than is required under 19
CFR 122.48a. This will enable CBP to
identify, target and mitigate high-risk
cargo before the cargo is transported
aboard an aircraft destined to the UnitedStates. CBP’s objective for the ACAS
program is to obtain the most accurate
data at the earliest time possible with aslittle impact to the flow of commerce aspossible. CBP believes that the ACAS
program, in conjunction with thecurrent CBP 19 CFR 122.48a regulations
and TSA’s updated security programs,
will significantly enhance air cargosafety and security as mandated by theTrade Act.
In order to implement ACAS as amandatory program, CBP must adhere to
the parameters applicable to thedevelopment of regulations under
section 343(a) of the Trade Act. Whileaviation security and securing the air
cargo supply chain are paramount, these
Trade Act parameters require CBP togive due consideration to the concernsof the industry and the flow ofcommerce. These parameters include,
among others, provisions requiringconsultation with the industry andconsideration of the differences incommercial practices and operational
practices among the different parties. In
addition, the parameters require that the
information collected pursuant to theregulations be used for ensuring cargosafety and security, preventing
smuggling, and commercial risk
assessment targeting, and require CBP tobalance the impact on the flow ofcommerce with the impact on cargosafety and security. The parameters also
require that the obligations imposed
must generally be upon the party most
likely to have direct knowledge of therequired information and if not, thenmandate that the obligations imposed
take into account ordinary commercial
practices for receiving data and what the
party transmitting the information
reasonably believes to be true. In
developing the ACAS regulations, CBP
considered all of the parameters. The

PO 00000

Frm 00009

Fmt 4701

Sfmt 4700

27387

adherence to these parameters is noted
throughout the document.
Throughout the development of the
ACAS pilot and this interim final rule,
CBP consulted extensively with the air
cargo industry about their businesspractices and how to best formulate the
ACAS program to take these businesspractices into consideration indeveloping a regulatory program that
addressed the security concerns. As aresult of these industry consultations,
CBP has been able to develop ACAS
regulations that, in accordance with theparameters of the Trade Act, balance theimpact on the flow of commerce with
the impact on cargo safety and security
and take into consideration existing
standard business practices andinteractions among stakeholders. This
allows CBP to target data earlier while
minimizing negative impacts on
operations, the air cargo businessmodel, and the movement of legitimate
goods.
In developing these regulations, CBP
also considered international efforts todevelop advance air cargo information
security programs. The ACAS programis part of a global effort to develop
advance cargo information programswith agreed-upon international
standards that collect and analyze theinformation prior to loading. CBP has
participated in the World Customs
Organization (WCO) Technical Experts
Group Meeting on Air Cargo Security,
the WCO/ICAO Joint Working Group on
Advance Cargo Information and theWCO SAFE 19 Working Groups meetings
to inform foreign governments and tradeassociations on the progress of the
ACAS pilot and to shape discussions on
establishing global customs guidelines
on air advance cargo information as wellon identifying areas for collaboration
between Customs and Aviation Security(AVSEC) authorities on air cargo
security. In June 2015, the mandatory
ACAS data established in this rule wasincorporated into the WCO SAFE
Framework of Standards.20 CBP believes
that the ACAS program is consistent
with these international programs.
In developing the program, CBP also
considered the results of the ACAS
pilot. While the ACAS pilot has been
operating successfully, CBP has noted a
few areas for improvement. The ACAS
program addresses these shortcomings.
They include minor changes to thedefinition of consignee name and
19 Acronym for Framework of Standards to Secureand Facilitate Global Trade (‘‘SAFE Framework ofStandards’’).
20 The shipper name and address (referred to as
the consignor per the WCO guidelines), consignee
name and address, cargo description, piece count,weight and the air waybill number.

E:\FR\FM\12JNR2.SGM

12JNR2

27388Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

address, adding the MAWB number asa conditional data element, requiring
the submission of the FDM, and adding
enforcement provisions. These issues
are discussed in more detail in Sections
IV.D., I., and J. below.
To implement the ACAS program,
CBP is adding a new section, 19 CFR
122.48b, titled Air Cargo AdvanceScreening (ACAS), and making certain
revisions to 19 CFR 122.48a.
Additionally, CBP is revising therelevant bond provisions in 19 CFR part
113 to incorporate the ACAS
requirements.

sradovich on DSK3GMQ082PROD with RULES2

A. New 19 CFR 122.48b, Air Cargo
Advance Screening (ACAS)
The new ACAS regulation provides
that, pursuant to section 343(a) of theTrade Act, for any inbound aircraft
required to make entry under 19 CFR
122.41 that will have commercial cargoaboard, CBP must electronically receivefrom the inbound air carrier and/or
another eligible ACAS filer the ACAS
data no later than the specified ACAS
time frame.21 The required ACAS data
must be transmitted to CBP through a
CBP-approved EDI as early aspracticable, but no later than prior toloading of the cargo on the aircraft. The
ACAS data will be used to determine
whether the cargo is high-risk and may
result in the issuance of an ACAS
referral or a DNL instruction. Any ACAS
referral must be resolved prior to
departure of the aircraft. Any cargo thatis issued a DNL instruction must not beloaded onto aircraft and requires
immediate adherence to the protocols
and directions from law enforcement
authorities. Below, we describe the newprogram including the eligible ACAS
filers, the ACAS data, the ACAS
referrals, DNL instructions, the bonds
required to file ACAS data, andavailable enforcement actions.
B. Eligible ACAS Filers
The new 19 CFR 122.48b(c) specifies
which parties are eligible to file ACAS
data. Eligible parties include theinbound air carrier and other parties as
specified below. The inbound air carrier
is required to file the ACAS data if noother eligible party elects to file. CBP isallowing parties other than the inboundair carrier to file because, in some cases,
these other parties will have access toaccurate ACAS data sooner. For
effective targeting to occur prior toloading, it is essential that the mostaccurate ACAS data be filed at theearliest point possible in the supply
21 As provided in 19 CFR 122.41, subject tospecified exceptions, all aircraft coming into theUnited States from a foreign area must make entry.

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

chain. This approach is consistent with
the Trade Act parameters that require
CBP to obtain data from the party most
likely to have direct knowledge of thedata and to balance the impact on theflow of commerce with the impact on
cargo safety and security.
In addition to the inbound air carrier,the other parties that may elect to file
the ACAS data are all the parties eligible
to elect to file advance air cargo data
under 19 CFR 122.48a(c), as well as
foreign indirect air carriers, a term
which encompasses freight forwarders.
Parties eligible to elect to file advanceair cargo data under 19 CFR 122.48a(c)include an Automated Broker Interface(ABI) filer (importer or its Customs
broker) as identified by its ABI filer
code; a Container Freight Station/
deconsolidator as identified by its
FIRMS (Facilities Information andResources Management System) code;
an Express Consignment Carrier Facility
as identified by its FIRMS code; or, an
air carrier as identified by its carrier
IATA (International Air Transport
Association) code, that arranged to havethe inbound air carrier transport thecargo to the United States.
Freight forwarders (also referred to as
foreign indirect air carriers) are
generally ineligible to directly file theadvance air cargo data required under
19 CFR 122.48a. CBP decided to allow
freight forwarders to participate in the
ACAS pilot because HAWB data is
generally available to the freight
forwarder earlier than it is available tothe inbound air carrier. CBP has
concluded that the inclusion of freight
forwarders in the ACAS pilot has
resulted in CBP’s receipt of the data
earlier in some cases. Therefore, CBP is
including freight forwarders as eligible
filers under 19 CFR 122.48b.
For purposes of ACAS, foreign
indirect air carrier (FIAC) is defined as
any person, not a citizen of the UnitedStates, that undertakes indirectly toengage in the air transportation ofproperty. This is consistent with thedefinitions in the regulations of the
Department of Transportation (14 CFR
297.3(d)) and the TSA (see 49 CFR
1540.5, defining ‘‘indirect air carrier’’).
This definition includes a foreign air
freight forwarder, that is, a FIAC that is
responsible for the transportation ofproperty from the point of receipt topoint of destination, and utilizes for thewhole or any part of such transportation
the services of a direct air carrier or its
agent, or of another foreign indirectcargo air carrier. Certain FIACs, such as
deconsolidators or ABI filers, mayalready be eligible to file ACAS data if
they separately qualify as an eligible
filer under 19 CFR 122.48a(c). FIACs

PO 00000

Frm 00010

Fmt 4701

Sfmt 4700

who are not eligible 19 CFR 122.48a
filers are still eligible to transmit ACAS
only filings.
Under the new 19 CFR 122.48b(c)(3),
all inbound air carriers and othereligible entities electing to be ACAS
filers must meet the following
prerequisites to file the ACAS data:• Establish the communication
protocol required by CBP for properlytransmitting an ACAS filing through a
CBP-approved EDI system.22 As set forthin the new 19 CFR 122.48b(a), the ACAS
data must be transmitted through sucha system.
• Provide 24 hours/7 days a week
contact information consisting of atelephone number and email address.
CBP will use the 24 hours/7 days a week
contact information to notify,
communicate, and carry out response
protocols for a DNL instruction, even if
an electronic status message is sent.
• Report all of the originator codesthat will be used to file ACAS data.
(Originator codes are unique to eachfiler to allow CBP to know who initiatedthe filing and to identify the return
address to provide status messages.) If,
at any time, an ACAS filer wishes toutilize additional originator codes to file
ACAS data, the originator codes must bereported to CBP prior to their use toensure that CBP can link the ACAS data
to the complete set of advance datatransmitted pursuant to 19 CFR 122.48a.
This will allow CBP to easily identify all
the ACAS and 19 CFR 122.48a filers forone shipment.
• Possess the appropriate bondcontaining all the necessary provisionsof 19 CFR 113.62, 113.63, or 113.64.
CBP is amending the regulations
covering certain bond conditions, as
described in Section IV.I., to incorporate
the ACAS requirements.
C. Time Frame for Filing ACAS Data
The new 19 CFR 122.48b(b) sets forth
the time frame for submission of the
ACAS data. As noted previously, theACAS filing requirements are applicable
to any inbound aircraft required to makeentry under 19 CFR 122.41 that will
have commercial cargo aboard. (Thesesame aircraft are subject to therequirements in 19 CFR 122.48a). For
such aircraft, the ACAS data must betransmitted as early as practicable, but
no later than prior to loading of the
cargo onto the aircraft.23 Based on the
22 Instructions are currently set forth at https://www.cbp.gov/trade/automated/interconnectionsecurity-agreement/instructions.
23 If an aircraft en route to the United States stops
at one or more foreign airports and cargo is loaded,
an ACAS filing would be required for the cargoloaded on each leg of the flight prior to loading ofthat cargo.

E:\FR\FM\12JNR2.SGM

12JNR2Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations
operation of the ACAS pilot, CBP
believes that the ACAS time frame
provides CBP sufficient time to performa risk assessment prior to loading of the
cargo aboard the aircraft without unduly
impacting the flow of commerce.
Although CBP has determined that it
is not commercially feasible to require
the submission of the ACAS data a
specified number of hours prior toloading of the cargo onto the aircraft,
CBP encourages filers to transmit therequired data as early as practicable.
The earlier the ACAS data is filed, thesooner CBP can perform its targetingand the more time the filer or other
responsible party will have to address
any ACAS referral or DNL instruction.
If the ACAS data is transmitted at thelast minute and CBP issues an ACAS
referral or DNL instruction, thescheduled departure of the flight could
be delayed.
D. ACAS Data
The ACAS data for the ACAS programis a subset of the 19 CFR 122.48a data.24
It differs slightly from the ACAS pilot
data. After an evaluation of the ACAS
pilot, CBP determined that some
improvements and additions to the data
were needed. The ACAS data for the
program is listed in the new 19 CFR
122.48b(d). As discussed below, some ofthe data is mandatory, one data element
is conditional and other data elements
are optional. ACAS data will only be
used to the extent consistent with theTrade Act.
1. ACAS Data Definitions
The definitions of the ACAS data
elements are set forth in 19 CFR
122.48a. The relevant definitions for
non-consolidated shipments are set
forth in 19 CFR 122.48a(d)(1) and therelevant definitions for consolidated
shipments are set forth in both 19 CFR
122.48a(d)(1) and (d)(2).

sradovich on DSK3GMQ082PROD with RULES2

2. Mandatory ACAS Data
The new 19 CFR 122.48b(d)(1) sets
forth the mandatory ACAS data requiredin all circumstances. The mandatory
24 19 CFR 122.48a specifies, based on the type of
shipment, what data the inbound air carrier must
transmit to CBP and what data other eligible filers
may transmit to CBP. For non-consolidated
shipments, the inbound air carrier must transmit to
CBP the 17 data elements (11 mandatory, 6
conditional) applicable for the air waybill record.
For consolidated shipments, the inbound air carrier
must transmit to CBP the 17 data elements (11mandatory, 6 conditional) that are applicable to the
MAWB, and the inbound air carrier must transmit
a subset of the data (7 mandatory, 1 conditional) for
all associated HAWBs, unless another eligible filertransmits this data to CBP. For split shipments, theinbound air carrier must submit an additional
subset of this data (9 mandatory, 3 conditional) for
each HAWB.

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

ACAS data elements are the same six
data elements as the ACAS pilot data.
They are: shipper name and address,
consignee name and address, cargo
description, total quantity based on thesmallest external packing unit, total
weight of cargo, and air waybill number.
As explained above in Section III.C.,
each of these six data elements provides
CBP with crucial information needed totarget and identify high-risk cargo before
it is loaded onto an aircraft destined to
the United States. CBP has determinedthat when taken together, these six data
elements, if provided within the ACAS
time frame, will enable CBP to perform
an effective risk assessment. Based on
the ACAS pilot, CBP believes that ACAS
filers will be able to provide this data
in a consistent, timely, and reasonably
accurate manner.
The ACAS data is required to betransmitted at the lowest air waybill
level (i.e., at the HAWB level if
applicable) by all ACAS filers. As
explained in detail in Section IV.J.2.,
CBP is making minor changes to thedefinition of consignee name andaddress in 19 CFR 122.48a(d) for clarity.
The mandatory ACAS data elements for
the ACAS program with the revised
definition are:(1) Shipper name and address. The
name and address of the foreign vendor,
supplier, manufacturer, or other similar
party is acceptable. The address of theforeign vendor, etc., must be a foreign
address. The identity of a carrier, freight
forwarder, or consolidator is not
acceptable. (This definition is in 19 CFR
122.48a(d)(1)(x) for non-consolidated
shipments and in 19 CFR
122.48a(d)(2)(vi) for consolidated
shipments.)(2) Consignee name and address. Thisis the name and address of the party towhom the cargo will be delivered
regardless of the location of the party;
this party need not be located at thearrival or destination port. (Thisdefinition is in revised 19 CFR
122.48a(d)(1)(xi) for non-consolidated
shipments and in revised 19 CFR
122.48a(d)(2)(vii) for consolidated
shipments.)(3) Cargo description. A precise cargo
description or the 6-digit Harmonized
Tariff Schedule (HTS) number must be
provided. Generic descriptions,specifically those such as ‘‘FAK’’(‘‘freight of all kinds’’), ‘‘general cargo,’’and ‘‘STC’’ (‘‘said to contain’’) are notacceptable. (This definition is in 19 CFR
122.48a(d)(1)(ix) for non-consolidated
shipments and in 19 CFR
122.48a(d)(2)(iii) for consolidated
shipments.)(4) Total quantity based on thesmallest external packing unit. For

PO 00000

Frm 00011

Fmt 4701

Sfmt 4700

27389

example, 2 pallets containing 50 pieces
each would be considered 100, not 2.
(This definition is in 19 CFR
122.48a(d)(1)(vii) for non-consolidated
shipments and in 19 CFR
122.48a(d)(2)(iv) for consolidated
shipments.)(5) Total weight of cargo. This may be
expressed in either pounds orkilograms. (This definition is in 19 CFR
122.48a(d)(1)(viii) for non-consolidated
shipments and in 19 CFR
122.48a(d)(2)(v) for consolidated
shipments.)(6) Air waybill number. The air
waybill number must be the same in the
ACAS filing and the 19 CFR 122.48a
filing. For non-consolidated shipments,
the air waybill number is theInternational Air Transport Association(IATA) standard 11-digit number, as
provided in 19 CFR 122.48a(d)(1)(i). For
consolidated shipments, the air waybill
number that is a mandatory data
element for ACAS purposes is the
HAWB number. As provided in 19 CFR
122.48a(d)(2)(i), the HAWB number may
be up to 12 alphanumeric characters(each alphanumeric character that isindicated on the HAWB must be
included in the electronic transmission;alpha characters may not be eliminated).
3. Conditional ACAS Data: Master Air
Waybill Number
In addition to the mandatory ACAS
data, CBP is adding the MAWB number
as a conditional ACAS data element. As
provided by 19 CFR 122.48a(d) and(d)(1)(i), the MAWB number is the IATA
standard 11-digit number. Although the
MAWB number is one of the required 19
CFR 122.48a data elements forconsolidated shipments, it is not an
ACAS pilot data element. Based on
CBP’s experience with the pilot, CBP is
including the MAWB number as an
ACAS data element in certain
situations. The new 19 CFR
122.48b(d)(2) lists those situations. The
inclusion of the MAWB number in the
ACAS data will address several issues
that have arisen during the pilot.
CBP has found that oftentimes thetransmitted ACAS pilot data by itself isinsufficient to fully analyze whether therequired ACAS data has beentransmitted for a particular flight. Thisis because the ACAS pilot data only
requires the data at the HAWB level. As
a result, it provides data about the cargo
and the relevant parties for a specificshipment but does not provide any data
about the flight and routing of thatshipment. Without that information, it
is difficult to link the ACAS data witha particular flight and to estimate thetime and airport of departure to theUnited States. This makes it difficult to

E:\FR\FM\12JNR2.SGM

12JNR2

27390Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

sradovich on DSK3GMQ082PROD with RULES2

locate the cargo for risk mitigation. The
MAWB data provides the necessary
information about the flight and routingof the shipment.
CBP also found that without theability to link the HAWB number to a
MAWB, the inbound air carrier might
not be able to verify whether an ACAS
assessment was performed for the cargo
before it is accepted and loaded.
CBP is requiring the MAWB numberin the following situations:(1) When the ACAS filer is a different
party from the party that will file the 19
CFR 122.48a data. The MAWB number
is required in this situation because CBPneeds a way to link the associated
HAWBs transmitted as part of the ACAS
data with the relevant MAWB provided
by the 19 CFR 122.48a filer. To allow for
earlier submission, an initial ACAS
filing may be transmitted without the
MAWB number, as long as the MAWB
number is transmitted by the ACAS fileror the inbound air carrier according to
the applicable ACAS time frame.
(2) When the ACAS filer transmits all
the 19 CFR 122.48a data in theapplicable ACAS time frame through asingle filing. Since the MAWB number
is required 19 CFR 122.48a data for
consolidated shipments, the ACAS filer
will be providing the MAWB number by
default in this single filing.
(3) When the inbound air carrier
would like to receive a status checkfrom CBP on the ACAS assessment ofspecific cargo. If the MAWB number istransmitted, either by the ACAS filer orthe inbound air carrier, CBP will be able
to provide this information to theinbound air carrier upon request. If the
MAWB number is not transmitted, CBP
has no means of linking the ACAS data
to a particular flight, as explained
above, and cannot accurately respond to
the query.
CBP believes that requiring the
MAWB number in these three situations
and encouraging it in other situations,best balances the need to collect thisimportant data without negatively
impacting trade operations.25
When the MAWB number is required,it must be provided for each leg of the
25 As mandated by the Trade Act, CBP consulted
with the industry regarding the feasibility ofincluding the MAWB number as ACAS data. Some
industry representatives indicated that providing
the MAWB number early in the supply chain was
not operationally feasible and would inhibit thetransmission of the ACAS data as early as possible
in the supply chain. Some express carriers statedthat their guaranteed on-time delivery service
required flexibility in their transportation routes
and that current business practices do not involve
assigning a MAWB number until the very lastminute prior to departure. As a result, CBP decided
to only require the MAWB number in certain
situations where it was needed and/or could bereasonably provided.

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

flight for any inbound aircraft required
to make entry under 19 CFR 122.41 thatwill have commercial cargo aboard.
4. Optional ACAS Data
The new 19 CFR 122.48b(d)(3) lists
optional data that may be provided by
ACAS filers. ACAS filers may choose to
designate a ‘‘Second Notify Party,’’which is any secondary stakeholder orinterested party in the importation of
goods to the United States, to receive
shipment status messages from CBP.
This party does not have to be theinbound air carrier or eligible ACAS
filer. Allowing ACAS filers the option ofelecting a ‘‘Second Notify Party’’enables other relevant stakeholders toreceive shipment status messages from
CBP. This functionality will increase theability to respond expeditiously to DNL
instructions by warning additional
stakeholders of such a situation throughdirect contact and automated data.
ACAS filers are also encouraged tofile additional information regarding
any of the ACAS data (e.g., telephone
number, email address, and/or internet
protocol address for shipper and/or
consignee) or any data listed in 19 CFR
122.48a that is not ACAS data. Thisadditional data will assist CBP in its risk
assessment and may allow for a faster
ACAS disposition.
CBP and/or TSA may also require
additional information such as flightnumbers and routing information toaddress ACAS referrals for screening.
This information will be requested in areferral message, when necessary.
E. Filing and Updating the ACAS Data
CBP’s objective for the ACAS programis to obtain the most accurate data at theearliest time possible with as little
impact to the flow of commerce aspossible. To achieve this objective, CBP
is allowing multiple parties to file the
ACAS data, allowing flexibility in how
the ACAS data is filed, and requiringthat the ACAS data be disclosed to thefiler by the parties in the supply chain
with the best knowledge of the data.
The eligible ACAS filers and theprerequisites to be an ACAS filer aredescribed above in Section IV.B. If noother eligible filer elects to file, theinbound air carrier must file the ACAS
data. Even if another eligible party does
elect to file the ACAS data, the inboundair carrier may also choose to file.
CBP allows flexibility in how the
ACAS data is filed. As explained abovein Section IV.D.3, an ACAS filer, who isalso a 19 CFR 122.48a eligible filer, maychoose to file the 19 CFR 122.48a filingin accordance with the ACAS timeframe. This would be a single filing andwould satisfy both the 19 CFR 122.48a

PO 00000

Frm 00012

Fmt 4701

Sfmt 4700

and the ACAS filing requirements.
Regardless of which party chooses tofile or how they choose to file, theACAS data must be transmitted to CBP
within the ACAS time frame.
To ensure that an ACAS filer has themost accurate ACAS data at the time ofsubmission, CBP requires certain
parties, with knowledge of the cargo, toprovide the ACAS filer with the ACAS
data.26 Specifically, the new 19 CFR
122.48b(c)(4) provides that when an
eligible ACAS filer, who arranges for
and/or delivers the cargo, does not electto file the ACAS data, that party mustfully disclose and present the inboundair carrier with the ACAS data. The
inbound air carrier must then present
this data electronically to CBP. The new
19 CFR 122.48b(c)(5) provides that anyother entity that is not an eligible ACAS
filer, but is in possession of ACAS data
must fully disclose and present the
ACAS data to either the inbound air
carrier or other eligible ACAS filer, as
applicable. The inbound air carrier orother eligible ACAS filer must thentransmit such data to CBP.
While CBP emphasizes the need for
the ACAS data as early as possible inthe supply chain, the ACAS filer is also
responsible for updating the ACAS data,
if any of the data changes or moreaccurate data becomes available.
Updates are required up until the timethe 19 CFR 122.48a filing is required.27
When the ACAS filing is transmitted
to CBP, the ACAS filer receives a status
message confirming the submission. If
the ACAS filer designates a Second
Notify Party, that party will also receive
the status notification (and any
subsequent status notifications).28 After
26 This is in accordance with the Trade Act
parameters. Section 343(a)(3)(B) provides that ingeneral, the requirement to provide particular
information shall be imposed on the party most
likely to have direct knowledge of that information.
It further provides that where requiring informationfrom the party with direct knowledge of that
information is not practicable, the regulations shalltake into account how, under ordinary commercial
practices, information is acquired by the party on
which the requirement is imposed, and whether
and how such party is able to verify the
information. It provides that where information is
not reasonably verifiable by the party on which a
requirement is imposed, the regulations shallpermit that party to transmit information on thebasis of what it reasonably believes to be true.
27 The 19 CFR 122.48a data must be transmitted
to CBP no later than the time of departure of theaircraft for the United States (from specified nearby
foreign locations) or four hours prior to arrival in
the United States for all other foreign locations. See
Section III.A.1. for additional information on the 19
CFR 122.48a time frames.
28 If the inbound air carrier is neither the ACAS
filer nor the Second Notify Party, the inbound air
carrier can still obtain the ACAS status of a
shipment if: (1) The ACAS filer submits the MAWB
number, whether in the original ACAS filing or
later. (This will allow the inbound air carrier to

E:\FR\FM\12JNR2.SGM

12JNR2Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations
the risk assessment of each cargo
shipment is performed, the ACAS filer
will receive either an ‘‘ACAS
assessment complete’’ clearance
message, an ACAS referral, or a DNL
instruction.
F. ACAS Referrals
After CBP conducts a risk assessmentof the ACAS filing, an ACAS referral
may be issued for cargo deemed highrisk or determined to have insufficientdata. An ACAS referral is a designation
attached to cargo to indicate that CBPand TSA need more accurate or more
complete information, and/or that the
information provided indicates a riskthat requires mitigation pursuant toTSA-approved enhanced screening
methods. CBP will send a shipment
status message to the ACAS filer about
the referral. The new 19 CFR
122.48b(e)(1) describes two types ofpotential ACAS referrals: referrals for
information and referrals for screening.
Referrals for information will be
issued if a risk assessment of the cargocannot be conducted due to nondescriptive, inaccurate, or insufficientdata. This can be due to typographicalerrors, vague cargo descriptions, and/or
unverifiable data. Referrals for screening
will be issued if the potential risk of the
cargo is deemed high enough to warrant
enhanced security screening. The
screening must be performed inaccordance with the appropriate TSAapproved screening methods containedin the carrier’s security program. For
more information about TSA’s screening
requirements, see Section III.A.2.
G. Do-Not-Load (DNL) Instructions

sradovich on DSK3GMQ082PROD with RULES2A DNL instruction will be issued if it
is determined, based on the risk
assessment and other intelligence, thatthe cargo may contain a potential bomb,
improvised explosive device, or othermaterial that may pose an immediate,
lethal threat to the aircraft, persons
aboard, and/or the vicinity. Because a
DNL instruction will be issued when it
appears that a terrorist plot is inprogress, all ACAS filers must provide
a telephone number and email addressthat is monitored 24 hours/7 days aweek. All ACAS filers must respond andfully cooperate when the entity isreached by phone and/or email when a
DNL instruction is issued.
query CBP for any HAWBs under that MAWB
number); or (2) The inbound air carrier submits amessage to CBP containing the MAWB number and
ACAS data from the HAWB that are exact matches
to the ACAS data submitted by the original ACAS
filer, allowing the inbound air carrier to receive the
ACAS status of the HAWB; or (3) The inbound air
carrier opts to resubmit the ACAS data previously
filed by the other ACAS filer.

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

27391

H. Responsibilities of ACAS Filers

a. Referral for Information

Filing the ACAS data comes withcertain responsibilities. Failure to fulfill
these responsibilities could result in
CBP issuing liquidated damages and/or
assessing penalties. The inbound air
carrier and/or the other eligible ACAS
filer have the responsibility to provide
accurate data to CBP in the ACAS filingand to update that data if necessary, totransmit the data within the ACAS timeframe to CBP, to resolve ACAS referrals
prior to departure of the aircraft and torespond to a DNL instruction in an
expedited manner.

For referrals for information, the party
who filed the ACAS data must resolve
the referral by providing CBP with therequested clarifying data. This
responsibility is imposed on the party
who filed the ACAS data because they
are in the best position to correct any
data inconsistencies or errors. The last
party to file the ACAS data must
address the referral. For instance, when
the inbound air carrier retransmits an
original ACAS filer’s data and a referral
for information is issued after thisretransmission, the inbound air carrier
is responsible for taking the necessary
action to address the referral.

1. Responsibility To Provide Accurate
and Timely Data
CBP needs accurate and timely data toperform effective targeting. To ensure
this, the inbound air carrier and/or othereligible ACAS filer is liable for thetimeliness and accuracy of the data thatthey transmit. Accurate data is the best
data available at the time of filing. The
same considerations will apply here as
for the current Trade Act requirements.
As stated in the new 19 CFR
122.48b(c)(6), CBP will take into
consideration how, in accordance withordinary commercial practices, theACAS filer acquired such data, andwhether and how the filer is able toverify this data. Where the ACAS filer
is not reasonably able to verify suchinformation, CBP will permit the filer toelectronically present the data on thebasis of what that filer reasonably
believes to be true. This is in accordancewith the Trade Act parameters that
require CBP to take these factors into
account when promulgating regulations.
2. Responsibility To Resolve ACAS
Referrals
The new 19 CFR 122.48b(e)(2)specifies the requirements for resolving
ACAS referrals. This section describes
the responsibilities of the inbound air
carrier and/or other eligible ACAS filer
to take the necessary action to respondto and address any outstanding ACAS
referrals no later than prior to departureof the aircraft.
Each of the two types of ACAS
referrals results in different
responsibilities for the ACAS filer and/or inbound air carrier. The responsible
party must address any ACAS referrals
within the specified time frame. The
new 19 CFR 122.48b(e)(3) specifies thatthe inbound air carrier is prohibitedfrom transporting cargo on an aircraftdestined to the United States until any
and all referrals issued for that cargo
have been resolved and CBP has
provided an ‘‘ACAS assessment
complete’’ clearance message.

PO 00000

Frm 00013

Fmt 4701

Sfmt 4700

b. Referral for Screening
All in-bound cargo must be screenedin accordance with the TSA-approvedor accepted enhanced screening
methods contained in the carrier’s
security program. If operating under anapproved amendment to the security
program, the measures specified in thatamendment will apply whether that bea NCSP amendment or otheramendment. TSA will amend security
program requirements to be consistent
with ACAS. Upon receipt of a referralfor screening, the ACAS filer and/or
inbound air carrier is required torespond with information on how thecargo was screened in accordance with
TSA-approved or accepted enhanced
screening methods.
The ACAS filer can perform thenecessary screening provided it is aparty recognized by TSA to perform
screening. If the filer chooses not to
perform the screening or is not a party
recognized by TSA to perform
screening, the ACAS filer must notify
the inbound air carrier of the referral for
screening. Once the inbound air carrier
is notified of the unresolved referral for
screening, the inbound air carrier must
perform the enhanced screening
required, and/or provide the necessary
information to TSA and/or CBP toresolve the referral for screening. The
ultimate responsibility to resolve any
outstanding referral for screening isplaced on the inbound air carrier
because that is the party with physicalpossession of the cargo prior to
departure of the aircraft.
3. Responsibility To Address DNL
Instructions
The new 19 CFR 122.48b(f) specifies
the requirements for a DNL instruction.
A DNL instruction cannot be mitigatedor resolved because of its urgency andthe grave circumstances under which it
is issued. A DNL instruction will be
issued if it is determined that the cargo

E:\FR\FM\12JNR2.SGM

12JNR2

27392Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

may contain a potential bomb,
improvised explosive device, or othermaterial that may pose an immediate,
lethal threat to the aircraft and/or its
vicinity. Accordingly, if a DNL isissued, the cargo must not be loaded
onto the aircraft. The ACAS filer would
be contacted by CBP and TSA using the
24/7 contact information provided, even
if an electronic status message is sent,
to notify, communicate, and carry out
the necessary response protocols. The
party in physical possession of the cargoat the time the DNL instruction is issued
must adhere to the appropriate CBP and
TSA protocols and the directions
provided by the applicable law
enforcement authority.

sradovich on DSK3GMQ082PROD with RULES2

I. Amendments To Bond Conditions
As described above, all ACAS filers
have certain responsibilities under the
ACAS program including the timely
submission of ACAS data, andaddressing ACAS referrals and DNL
instructions prior to departure, among
others. Under the ACAS program,
failure to adhere to the ACAS
requirements may result in CBPassessing liquidated damages and/or
penalties. To ensure a proper
enforcement mechanism exists, CBP isamending the relevant bond provisions
to incorporate the ACAS requirements
and to require all ACAS filers to havea bond. Although 19 CFR 122.48a filers
are already required to have a bond,freight forwarders, currently
unregulated entities, will also be
required to obtain a bond if they electto file the ACAS data.
Accordingly, CBP is adding a new
condition to the relevant bondprovisions in 19 CFR 113.62 (basic
importation and entry bond) and in 19
CFR 113.63 (basic custodial bond) tocover the ACAS requirements.
Specifically, CBP is amending 19 CFR
113.62 and 113.63 to add a newparagraph that includes a bondcondition whereby the principal agrees
to comply with all ACAS requirements
set forth in 19 CFR 122.48a and 122.48b
including, but not limited to, providing
ACAS data to CBP in the manner andin the time period prescribed byregulation and taking the necessary
action to address ACAS referrals and
DNL instructions as prescribed byregulation.
The amendments further provide that
if the principal fails to comply with therequirements, the principal and surety(jointly and severally) agree to pay
liquidated damages of $5,000 for eachviolation. CBP may also assess penalties
for violation of the new ACAS
regulations where CBP deems that such

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

penalties are appropriate, e.g., pursuant
to 19 U.S.C. 1436.
The amendments also add a new
condition to those provisions in 19 CFR
113.64 required to be included in aninternational carrier bond. Specifically,
CBP is amending 19 CFR 113.64 to add
a new paragraph to include conditions
whereby the principal, be it the inboundair carrier or other party providing
ACAS data, agrees to comply with the
ACAS requirements set forth in 19 CFR
122.48a and 122.48b including, but notlimited to, providing ACAS data to CBP
in the manner and in the time period
prescribed by regulation and taking thenecessary action to address ACAS
referrals and DNL instructions asprescribed by regulation.
This new paragraph further provides
that if the principal fails to comply withthe requirements, the principal andsurety (jointly and severally) agree to
pay liquidated damages of $5,000 foreach violation, to a maximum of$100,000 per conveyance arrival. CBPmay also assess penalties for violation of
the new ACAS regulations whereappropriate, e.g., pursuant to 19 U.S.C.
1436. The regulations also amend 19
CFR 113.64 to provide that, if a party
who elects to file ACAS data incurs apenalty (or duty, tax or other charge),
the principal and surety (jointly andseverally) agree to pay the sum upon
demand by CBP. CBP notes that theregulations in 19 CFR 113.64 alreadyprovide that the principal and surety
agree to pay the sum upon demand by
CBP when other parties, including anaircraft, owner of an aircraft, or person
in charge of an aircraft, incur a penalty(or duty, tax or other charge).
Due to the addition of the new ACAS
paragraphs in 19 CFR 113.62, 113.63,
and 113.64, some of the otherparagraphs in those sections are
redesignated. Specifically, 19 CFR
113.62(l) and (m) are redesignated as 19
CFR 113.62(m) and (n); 19 CFR
113.63(h) and (i) are redesignated as 19
CFR 113.63(i) and (j), and 19 CFR
113.64(i) through (l) are redesignated as
19 CFR 113.64(j) through (m).
Conforming changes are also made to 19
CFR 12.3, 141.113 and 192.
J. Amendments to 19 CFR 122.48a
As discussed throughout thisdocument, several revisions to 19 CFR
122.48a are required to properly
implement the ACAS program. This isbecause the ACAS regulation cites toprovisions in 19 CFR 122.48a including
the definitions of the ACAS data and theparties that are eligible to file the ACAS
data. Additionally, as described below
in Section IV.J.1., a new 19 CFR 122.48a

PO 00000

Frm 00014

Fmt 4701

Sfmt 4700

data element, the FDM, is necessary to
enforce the ACAS program.
1. Flight Departure Message (FDM)
The FDM is an electronic message
sent by the inbound air carrier to CBPwhen a flight leaves a foreign airport
and is en route to the United States.
Although neither the 19 CFR 122.48a
regulations nor the ACAS pilot
currently requires the submission of theFDM, some inbound air carriers
voluntarily provide it.
CBP is requiring the FDM as amandatory 19 CFR 122.48a data
element. The inbound air carrier isrequired to transmit the FDM to CBP foreach leg of a flight en route to theUnited States within the specified timeframes for transmitting 19 CFR 122.48adata. CBP welcomes comments on thetiming of the FDM submission.
The FDM is necessary for the proper
enforcement of the ACAS program. It
will provide CBP with the liftoff date
and time from each foreign airport for aflight en route to the United States. This
will allow CBP to easily assess whether
an ACAS filing has been transmitted
within the ACAS time frame andwhether ACAS referrals and/or DNL
instructions were addressed prior to theaircraft’s departure. As a result, this will
provide CBP with the informationneeded to determine whether an ACAS
filer has complied with the ACAS
requirements and responsibilities andwhether to impose liquidated damages
and/or assess penalties.
Specifically, CBP is adding a newparagraph 19 CFR 122.48a(d)(1)(xviii)
that lists the FDM as a mandatory 19
CFR 122.48a data element. It further
provides that the FDM includes theliftoff date and liftoff time using theGreenwich Mean Time (GMT)/Universal
Time, Coordinated (UTC) at the time ofdeparture from each foreign airport. It
further provides that if an aircraft enroute to the United States stops andcargo is loaded onboard at one or more
foreign airports, the FDM must be
provided for each departure.
2. Other Amendments to 19 CFR
122.48a
CBP is making several other revisions
to 19 CFR 122.48a. These include
revisions to 19 CFR 122.48a(a), (c), and(d). Specifically, in 19 CFR 122.48a(a),detailing general requirements, CBP is
adding a sentence stating that the subset
of data elements known as ACAS datais also subject to the requirements andtime frame described in 19 CFR 122.48b.
Also, in 19 CFR 122.48a(a), CBP ismaking a minor change to the language
regarding the scope of the advance datarequirement. The current text states that

E:\FR\FM\12JNR2.SGM

12JNR2Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

sradovich on DSK3GMQ082PROD with RULES2

for any inbound aircraft required toenter under § 122.41 that will havecommercial cargo aboard, CBP mustreceive advance air cargo data. CBP ischanging ‘‘required to enter under§ 122.41’’ to ‘‘required to make entry
under § 122.41’’ for clarity.
In 19 CFR 122.48a(c), in order to moreaccurately reflect the obligations of theparties, CBP is making a minor change
in the text. The current text states that
where the inbound carrier receives
advance cargo information from certain
nonparticipating parties, the inboundcarrier, on behalf of the party, must
present this information electronicallyto CBP. CBP is of the view that theclause ‘‘on behalf of the party’’improperly implies that the carrier isacting as the agent for the
nonparticipating party and is therefore
removing this clause.
Additionally, in 19 CFR 122.48a(d),CBP is also adding the notation of an‘‘A’’ next to any listed data element thatis also an ACAS data element. This
notated data is required during both the
ACAS filing and the 19 CFR 122.48a
filing.
As discussed in Section IV.D., basedon the operation of the ACAS pilot, CBP
is amending the definition of consignee
in order to have more information forrisk assessment purposes. The current
definition asks for the name and addressof the party to whom the cargo will bedelivered, and makes an exception for‘‘FROB’’ (Foreign Cargo Remaining On
Board). In the case of consolidated
shipments, the current definition asks
specifically for the address of the party
to whom the cargo will be delivered in
the United States. Due to the FROB
exception and the United States address
limitation, CBP may not know theultimate destination of some cargotransiting the United States. The
amendment removes the FROB
exception and United States address
limitation, and requires the name andaddress of the consignee regardless of
the location of the party. This will allow
for better targeting because it provides
more complete information about where
the cargo is going.
K. Flexible Enforcement
In order to provide the trade sufficient
time to adjust to the new requirements
and in consideration of the businessprocess changes that may be necessary
to achieve full compliance, CBP willshow restraint in enforcing the datasubmission requirements of the rule,taking into account difficulties that
inbound air carriers and other eligible
ACAS filers, particularly those that did
not participate in the ACAS pilot, may
face in complying with the rule, so long

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

as inbound air carriers and other eligible
ACAS filers are making significant
progress toward compliance and aremaking a good faith effort to comply
with the rule to the extent of theircurrent ability. This CBP policy will lastfor twelve months after the effective
date. While full enforcement will bephased in over this twelve month
period, willful and egregious violators
will be subject to enforcement actions at
all times. CBP welcomes comments on
this enforcement policy.
V. Statutory and Regulatory Reviews
A. Administrative Procedure Act
The Administrative Procedure Act(APA) generally requires agencies topublish a notice of proposed rulemaking
in the Federal Register (5 U.S.C. 553(b))
and provide interested persons theopportunity to submit comments (5U.S.C. 553(c)). However, the APA
provides an exception to theserequirements ‘‘when the agency for goodcause finds (and incorporates thefinding and a brief statement of reasons
therefor in the rules issued) that noticeand public comment thereon are
impracticable, unnecessary, or contrary
to the public interest.’’ 5 U.S.C.
553(b)(B). The implementation of thisrule as an interim final rule, with
provisions for post-promulgation publiccomments, is based on this good cause
exception. As explained below, delaying
the implementation of this ACAS rule
pending the completion of notice andcomment procedures would be contrary
to the public interest.
DHS has determined that the potential
exploitation by terrorists of existing
inbound air cargo security arrangements
exposes the United States to asignificant new and emerging terrorist
threat that would be effectively
mitigated by the new ACAS rule. The
intelligence community continues toacknowledge credible threats in the air
environment, including the continued
desire by terrorists to exploit the global
air cargo supply chain. Moreover, DHS
has received specific, classified
intelligence that certain terrorist
organizations seek to exploit
vulnerabilities in international air cargo
security to cause damage toinfrastructure, injury, or loss of life in
the United States or onboard aircraft.
This ACAS rule mitigates theseidentified risks by providing CBP with
the necessary data and additional timeto perform necessary targeted risk
assessments of air cargo before theaircraft departs for the United States.
The rule strengthens DHS’ ability toidentify attempts by global terrorist
organizations to exploit vulnerabilities

PO 00000

Frm 00015

Fmt 4701

Sfmt 4700

27393

in the air cargo as a means ofconducting an attack. Delaying this rule
to undertake notice and comment
rulemaking would leave the UnitedStates unnecessarily vulnerable to a
specific terrorist threat during theinterval between the publication of the
proposed and final rules and would becontrary to the public interest.
Therefore, prompt implementation ofthis new ACAS rule is critical to reduce
the terrorism risk to the United States
and thereby protect the public safety.
DHS has engaged in extensive
consultation with stakeholders and has
worked closely with the air cargoindustry to address operational andlogistical issues in the context of avoluntary pilot program in advance of
this rulemaking, and has determinedthat this rule effectively addresses
existing risks and emerging threats.
For the reasons stated above, DHS has
determined that this rule is not subject
to a 30-day delayed effective daterequirement pursuant to 5 U.S.C. 553(d).
Delaying this for 30 days after
publication would leave the UnitedStates unnecessarily vulnerable to a
specific terrorist threat and would becontrary to the public interest.
Therefore, this rule is effective upon
publication.
Accordingly, DHS finds that it would
be contrary to the public interest to
delay the implementation of this rule toprovide for prior public notice andcomment and delayed effective dateprocedures. As such, DHS finds that
under the good cause exception, thisrule is exempt from the notice andcomment and delayed effective daterequirements of the APA. DHS isproviding the public with theopportunity to comment without
delaying implementation of this rule.
DHS will respond to the comments
received when it issues a final rule.
B. Executive Orders 12866, 13563, and
13771
Executive Orders 12866 (‘‘Regulatory
Planning and Review’’) and 13563(‘‘Improving Regulation and Regulatory
Review’’) direct agencies to assess thecosts and benefits of available regulatory
alternatives and, if regulation isnecessary, to select regulatory
approaches that maximize net benefits(including potential economic,
environmental, public health and safety
effects, distributive impacts, andequity). Executive Order 13563
emphasizes the importance ofquantifying both costs and benefits, ofreducing costs, of harmonizing rules,
and of promoting flexibility. Executive
Order 13771 (‘‘Reducing Regulation andControlling Regulatory Costs’’) directs

E:\FR\FM\12JNR2.SGM

12JNR2

27394Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

agencies to reduce regulation andcontrol regulatory costs and provides
that ‘‘for every one new regulation
issued, at least two prior regulations be
identified for elimination, and that thecost of planned regulations be prudently
managed and controlled through abudgeting process.’’
As this rule has an impact of over$100 million in the first year, this rule
is a significant regulatory action under
section 3(f) of Executive Order 12866.
Accordingly, OMB has reviewed thisrule. Although this rule is a significant
regulatory action, it is a regulation
where a cost benefit analysis
demonstrates that the primary, direct
benefit is national security and the rulequalifies for a ‘‘good cause’’ exception
under 5 U.S.C. 553(b)(B). The rule isthus exempt from the requirements of
Executive Order 13771. See OMB’s
Memorandum titled ‘‘Guidance
Implementing Executive Order 13771,
Titled ‘Reducing Regulation andControlling Regulatory Costs’ ’’ (April 5,2017). A regulatory impact analysis,
entitled Regulatory Assessment andInitial Regulatory Flexibility Analysis
for the Interim Final Rule: Air Cargo
Advance Screening (ACAS) Rule, hasbeen included in the docket of thisrulemaking (docket number [USCBP–
2018–0019]). The following presents asummary of the aforementioned
regulatory impact analysis.

sradovich on DSK3GMQ082PROD with RULES2

1. Need and Purpose of the Rule
CBP has identified a notable threat to
global security in the air environment—
the potential for terrorists to use theinternational air cargo system to placehigh-risk cargo, such as unauthorized
weapons, explosives, or chemical and/or biological weapons, on a UnitedStates-bound aircraft with the intent ofbringing down the aircraft. In recent
years, there have been several terrorist
actions that highlighted this threat. In
one notable incident in October 2010,
concealed explosive devices that wereintended to detonate during flight overthe continental United States werediscovered in cargo on board two
aircraft destined to the United States.
The exposure of international air cargo
to such a threat requires a security
strategy to detect, identify, and deter
this threat at the earliest point in theinternational supply chain, before the

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

cargo departs on an aircraft destined to
the United States.
The ACAS rule represents animportant component of the U.S.
Department of Homeland Security(DHS’s) evolving layered strategy forsecuring the cargo supply chain fromterrorist-related activities. The rule isdesigned to extend security measuresout beyond the physical borders of theUnited States so that domestic ports andborders are not the first line of defense,with the objective of having better andmore detailed information about all
cargo prior to loading. The principal
security benefit of the new rule will bea targeted risk assessment using realtime data and intelligence to make amore precise identification of high-risk
shipments at an earlier time in the
supply chain, prior the aircraft’s
departure. This information will allow
for better targeting of cargo withpotential ties to terrorist activity,
reducing the risk of in-flight terrorist
attacks intended to cause extensive
casualties and inflict catastrophic
damage to aircraft and other private
property, and allowing sufficient time totake the necessary action to thwart a
potential terrorist attack.
2. Synopsis
In December 2010, CBP and TSA
launched the Air Cargo AdvanceScreening (ACAS) pilot program.
Participants in this pilot programtransmit a subset of the 19 CFR 122.48adata as early as possible prior to loadingof the cargo onto an aircraft destined to
the United States. CBP and pilot
participants believe this pilot program
has proven successful by not only
mitigating risks to the United States, butalso minimizing costs to the private
sector. As such, CBP is transitioning the
ACAS pilot program into a permanent,
mandatory program with only minimalchanges from the pilot program.
To give the reader a fullunderstanding of the impacts of ACAS
so they can consider the effect of the
ACAS program as a whole, our analysis
separately considers the impacts of
ACAS during the pilot period (2011–2017), the regulatory period (2018–2027), and the combined period. For
each time period, the baseline scenario
is defined as the ‘‘world without
ACAS.’’ During the pilot period (2011–

PO 00000

Frm 00016

Fmt 4701

Sfmt 4700

2017), the baseline includes non-ACASrelated costs incurred by industry and
CBP in the absence of the pilot program.
During the first ten years the interim
final rule is likely to be in effect (2018–2027), the baseline similarly includes
costs incurred by industry and CBP in
the absence of any ACAS
implementation (pilot program orinterim final rule). For an accounting of
the costs of the entire ACAS time
period, including the pilot period andthe regulatory period, see Table 3.
During the pilot period, CBP estimatesthat CBP and 38 pilot participants
incurred costs totaling between $112.8
million and $122.7 million (in 2016
dollars) over the 6 years depending on
the discount rate used (3 and 7 percent,respectively). CBP estimates that therule will affect an estimated 215 entities
and have an approximate total present
value cost ranging from $245.7 million
and $297.9 million (in 2016 dollars)
over the 10-year period of analysis,
depending on the discount rate used(seven and three percent, respectively).
As shown below in Table 1, theestimated annualized costs of ACAS
range from $25.2 million to $26.1
million (in 2016 dollars) depending on
the discount rate used. The costestimates include both the one-time,
upfront costs and recurring costs of theactivities undertaken by the affected
entities to comply with the rule, both in
the pilot and the post-pilot periods.
Due to data limitations, CBP is unable
to monetize the benefits of the rule.
Instead, CBP has conducted a ‘‘breakeven’’ analysis, which shows how often
a terrorist event must be avoided due tothe rule for the benefits to equal or
exceed the costs of the ACAS program.
Table 1, below, shows the results of the
break-even analysis under lower andhigher consequence estimates ofterrorist events. For the low costconsequence estimate, CBP estimatesthat ACAS must result in the avoidanceof a terrorist attack event about every 7.7
to 8.0 months for the benefits of ACAS
to equal the costs. For the higher costconsequence estimate, CBP estimatesthat the rule must result in the
avoidance of a terrorist attack event
about every 90.4 to 94 years for the
benefits of ACAS to equal the costs.

E:\FR\FM\12JNR2.SGM

12JNR2Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

27395

TABLE 1—SUMMARY OF FINDINGS
Present
value costs
2011–2027(2016 dollars)(million)

Discount rate

Three Percent ..................

$410.8Seven Percent ..................

Benefits of the regulation equal its costs if: 1

Annualized
costs 2011–
2027(2016 dollars)(million)
$26.1

368.4

25.2

Economic consequences ofterrorist attack 2

Number of
events thatmust be avoided
in 17 years 3

Lower Estimate ...................

26.6

Higher Estimate ..................

0.2

Lower Estimate ...................

25.6

Higher Estimate ..................

0.2

Critical event avoidance
rate 4One event every 7.7
months.
One event every 90.4
years.
One event every 8.0
months.
One event every 94.0
years.

Notes:
1 Reflects the range of averted cost estimates associated with attack scenarios in TSA’s TSSRA model involving the detonation of an explosive
device on board a commercial passenger or one or multiple cargo aircraft destined to the United States that result in the destruction of the aircraft.
2 Results assume regulation reduces risk of a single type of attack only. The rule will likely reduce the risk of multiple numbers and types of attacks simultaneously.
3 Indicates the number of terrorist attack events that would have to be avoided in a single year for the avoided consequences of a successful
terrorist attack to equal the costs of the rule.
4 Indicates the frequency at which the event would need to be averted for the avoided consequences of a successful terrorist attack to equal
the costs of the rule.
Table Source: Adapted from Exhibit ES–6 of the full regulatory impact analysis included in the docket of this rulemaking, entitled Regulatory
Assessment and Initial Regulatory Flexibility Analysis for the Interim Final Rule: Air Cargo Advance Screening (ACAS) Rule.

Although the annualized costs of thisrule are estimated to be less than $100
million dollars, the estimated first year
costs are estimated to be approximately$104.1 million dollars. As such, the rule
is considered an economicallysignificant rulemaking, and, in
accordance with OMB Circular A–4 andExecutive Order 12866, CBP has
provided accounting statements inTables 2 and 3 reporting the estimatedcosts and benefits of the rule. Table 2

includes the costs and benefits for the
post-pilot period (2018–2027) and Table
3 includes the costs and benefits acrossthe entire ACAS period (2011–2027).

TABLE 2—A–4 ACCOUNTING STATEMENT: COST OF THE RULE, 2018–2027[$2016]
3% Discount rate

7% Discount rate

U.S. Costs
Annualized monetized costs ..............................
Annualized quantified, but non-monetized costs
Qualitative (non-quantified) costs ......................

$36.0 million .....................................................
None .................................................................
Costs associated with issuing a ‘‘do not load,’’which would jointly result from ACAS information and information obtained from intelligence agencies and the governments ofother countries.

$37.4 million.
None.
Costs associated with issuing a ‘‘do not load,’’which would jointly result from ACAS information and information obtained from intelligence agencies and the governments ofother countries.

U.S. Benefits
Annualized monetized benefits ..........................
Annualized quantified, but non-monetized benefits.
Qualitative (non-quantified) benefits ..................

None .................................................................
None .................................................................

None.
None.

Increased security through the targeting andmitigation of threats posed by air cargoprior to loading onboard aircraft destined to
the United States.

Increased security through the targeting andmitigation of threats posed by air cargoprior to loading onboard aircraft destined to
the United States.

TABLE 3—A–4 ACCOUNTING STATEMENT: COST OF THE ACAS PROGRAM (PILOT AND REGULATORY PERIOD), 2011–2027
sradovich on DSK3GMQ082PROD with RULES2[$2016]
3% Discount rate

7% Discount rate

U.S. Costs
Annualized monetized costs ..............................
Annualized quantified, but non-monetized costs

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001$26.1 million .....................................................
None .................................................................

PO 00000

Frm 00017

Fmt 4701

Sfmt 4700$25.2 million.
None.

E:\FR\FM\12JNR2.SGM

12JNR2

27396

Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

TABLE 3—A–4 ACCOUNTING STATEMENT: COST OF THE ACAS PROGRAM (PILOT AND REGULATORY PERIOD), 2011–2027—Continued[$2016]

Qualitative (non-quantified) costs ......................

3% Discount rate

7% Discount rate

Costs associated with issuing a ‘‘do not load,’’which would jointly result from ACAS information and information obtained from intelligence agencies and the governments ofother countries.

Costs associated with issuing a ‘‘do not load,’’which would jointly result from ACAS information and information obtained from intelligence agencies and the governments ofother countries.

U.S. Benefits
Annualized monetized benefits ..........................
Annualized quantified, but non-monetized benefits.
Qualitative (non-quantified) benefits ..................

None .................................................................
None .................................................................

None.
None.

Increased security through the targeting andmitigation of threats posed by air cargoprior to loading onboard aircraft destined to
the United States.

Increased security through the targeting andmitigation of threats posed by air cargoprior to loading onboard aircraft destined to
the United States.

3. Backgroundsector. CBP is, therefore, formalizing thepilot and making the ACAS program
mandatory for any inbound aircraft
required to make entry under 19 CFR
122.41 that will have commercial cargoaboard. CBP has, however, identified
minor changes to the ACAS programthat will increase the efficiency oftargeting and mitigation of risks to air
cargo destined to the United States.
Specifically, CBP is making thefollowing modifications from the pilot:(1) Minor modifications to the definitionof the consignee name and address data

element required under the pilot (seeTable 4 for a description of each data
element under the rule); (2) requiring
the master air waybill (MAWB) numberin certain circumstances (see Table 4 fora more detailed explanation); (3)requiring inbound air carriers to provide
the flight departure message (FDM)
under the 19 CFR 122.48a timeframes; 29 and (4) requiring the filer toobtain a bond. CBP is amending thebond conditions to include anagreement to comply with ACAS
requirements.

In December 2010, CBP and TSA
launched the Air Cargo AdvanceScreening (ACAS) pilot program.
Participants in this pilot programtransmit a subset of air manifest data
elements (19 CFR 122.48a), as early as
possible prior to loading of the cargo
onto an aircraft destined to the UnitedStates. CBP believes this pilot program
has proven successful by not only
mitigating risks to the United States, butalso minimizing costs to the private

TABLE 4—ACAS DATA ELEMENTS
Data element

Description(1) Shipper name and address.

The name and address of the foreign vendor, supplier, manufacturer, or other similar party is acceptable. The address of the foreign vendor, etc., must be a foreign address. The identity of a carrier, freight forwarder orconsolidator is not acceptable.
The name and address of the party to whom the cargo will be delivered regardless of the location of the party; thisparty need not be located at the arrival or destination port.
A precise cargo description or the 6-digit Harmonized Tariff Schedule (HTS) number. Generic descriptions, specifically those such as ‘‘FAK’’ (‘‘freight of all kinds’’), ‘‘general cargo,’’ and ‘‘STC’’ (‘‘said to contain’’) are not acceptable.
For example, 2 pallets containing 50 pieces each would be considered as 100, not 2.

(2) Consignee name andaddress.
(3) Cargo description ......

(4) Total quantity basedon the smallest external packing unit.
(5) Total weight of cargo(6) Air waybill number .....

sradovich on DSK3GMQ082PROD with RULES2(7) Master air waybill
number.

Weight of cargo expressed in either pounds or kilograms.
For non-consolidated shipments, the air waybill number is the International Air Transport Association (IATA) standard
11-digit number, as provided in 19 CFR 122.48a(d)(1)(i). For consolidated shipments, the air waybill number is the
HAWB number. As provided in 19 CFR 122.48a(d)(2)(i), the HAWB number may be up to 12 alphanumeric characters (each alphanumeric character that is indicated on the HAWB must be included in the electronic transmission; alpha characters may not be eliminated). The air waybill number must be the same in the ACAS and 19
CFR 122.48a filings.
As provided in 19 CFR 122.48a(d)(1)(i), the MAWB number is the IATA standard 11-digit number.

29 In addition to the ACAS data elements
described above, the regulations also require
inbound carriers to transmit a flight departure
message (FDM) to CBP upon departure or fourhours prior to arrival in the United States (i.e., on
the same timeframe as the 19 CFR 122.48a data).

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

The FDM is used for ACAS enforcement (i.e., todetermine whether the ACAS filing was submitted
on time), rather than targeting, and thus is notconsidered an ACAS data element. This
information is already routinely provided bycarriers on this timeframe and thus is not

PO 00000

Frm 00018

Fmt 4701

Sfmt 4700

considered further in this analysis (Personalcommunication with Program Manager, Cargo andConveyance Security Directorate, CBP, May 16,
2016.)

E:\FR\FM\12JNR2.SGM

12JNR2

27397Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations
TABLE 4—ACAS DATA ELEMENTS—Continued
Data element

Description(8) Second notify party(optional).

The MAWB number is required under the following circumstances:• The ACAS filer is also transmitting all the data elements required for the 19 CFR 122.48a filing under the
ACAS time frame (i.e., in a single filing).1• The inbound carrier wants the ability to receive status checks from CBP on the ACAS assessment of a specific shipment (e.g., for which the ACAS data were transmitted by another party such as a freight forwarder).2• The ACAS filer is a different party from the party that will file the 19 CFR 122.48a data for the cargo.3
This optional data element allows other relevant stakeholders to receive shipment status messages from CBP. The
filing of this data element is likely to be rare.4

Notes:
1 Based on interviews with the trade, simultaneous submission of the ACAS data and the 19 CFR 122.48a filing is unlikely (see discussion in
Chapter 3 of the full regulatory impact analysis).
2 In the latter two cases, the MAWB number does not need to be transmitted with the initial ACAS transmission and can be supplied later aslong as it is under the ACAS time frame. For example, a freight forwarder can later transmit a carrier-issued MAWB number linking the MAWB
and HAWB numbers, which then allows the carrier to receive status checks from CBP by referencing the MAWB number only. In addition to a
freight forwarder updating an initial ACAS filing, an inbound carrier can be notified of the ACAS assessment of a shipment by transmitting the entire ACAS filing with MAWB and HAWB information. We note that based on our discussions with ACAS pilot participants, inbound carriers areunlikely to rely solely on an ACAS filing by a freight forwarder; rather, they will make their own ACAS transmission even if the data have previously been transmitted by a freight forwarder (see discussion in Chapter 3 of the full regulatory impact analysis).
3 The MAWB number is generally not required for express consignment shipments since most, if not all, express carriers or operators transmit
both ACAS and 19 CFR 122.48a filings for shipments transported on their own aircraft or tendered to other carriers (see discussion in Chapter 3of the full regulatory impact analysis).
4 Based on discussions with ACAS pilot participants.
Table Source: Adapted from Exhibit 1–1 of the full regulatory impact analysis included in the docket of this rulemaking, entitled Regulatory Assessment and Initial Regulatory Flexibility Analysis for the Interim Final Rule: Air Cargo Advance Screening (ACAS) Rule.

4. Baseline
To give the reader a fullunderstanding of the impacts of ACAS
so they can consider the effect of the
ACAS program as a whole, our analysis
separately considers the impacts of
ACAS during the pilot period (2011–2017), the regulatory period (2018–2027), and the combined period. For
each time period, the baseline scenario

is defined as the ‘‘world without
ACAS.’’ During the pilot period (2011–2017), the baseline includes non-ACASrelated costs incurred by industry and
CBP in the absence of the pilot program.
During the first ten years the interim
final rule is likely to be in effect (2018–2027), the baseline similarly includes
costs incurred by industry and CBP in
the absence of any ACAS
implementation (pilot program orinterim final rule). For an accounting of
the costs of the entire ACAS time
period, including the pilot period andthe regulatory period, see Table 3.
To estimate the number of businesses
affected by the pilot program we use
historic data pilot participation. Table 5shows 2015 ACAS participation byentity type. As shown, in 2015, 32 pilot
participants combined to file over 80
million ACAS filings.

TABLE 5—ESTIMATED NUMBER OF ENTITIES OR FILERS AND SHIPMENTS AFFECTED BY THE PILOT, BY ENTITY TYPE
[Calendar year 2015]
Total numberof ACASfilings

Numberof entities 1

Entity type

Averagenumber of ACAS
filings per
entityPassenger Carriers ..........................................................................................................
Cargo Carriers .................................................................................................................
Express Carriers ..............................................................................................................
Freight Forwarders ..........................................................................................................

11
4
5
12

2,518,699
643,693
76,395,500
1,438,884

228,973
160,923
15,279,100
119,907

Total ..........................................................................................................................

32

80,996,776

2,531,149

sradovich on DSK3GMQ082PROD with RULES2

Notes:
1 The number of entities includes both operational and data quality analysis pilot participants. It excludes one pilot participant that became inactive in 2016, and two participants whose entity types and operational status were unknown. CBP’s 2013–2015 ACAS pilot program data listed
a total of 35 entities; however, as of October 2016 CBP reports 32 operational and data quality participants.
Numbers may not sum due to rounding.
Table Source: Exhibit 3–4 of the full regulatory impact analysis included in the docket of this rulemaking, entitled Regulatory Assessment andInitial Regulatory Flexibility Analysis for the Interim Final Rule: Air Cargo Advance Screening (ACAS) Rule.

To estimate the number of filers who
would be affected by ACAS in the postpilot period, we use the data on 19 CFR
122.48a filings for any inbound aircraft
required to make entry under 19 CFR
122.41 that will have commercial cargoaboard. As the ACAS filing is a subsetof the 19 CFR 122.48a data, these dataserve as a good representation of the

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

number of entities that would be
affected by the rule. As shown in Table
6 below, using 2015 19 CFR 122.48a
data, CBP has identified 293 19 CFR
122.48a data filers that have filed

PO 00000

approximately 93.6 million air
waybills.30
30 A small number of freight forwarders haveparticipated in the ACAS pilot and may continue
to make ACAS filings voluntarily when the rule ispromulgated. Interviews with the trade, however,suggest that most freight forwarders who are notalready participating are unlikely to begin
participating in the future. For a more detailed

Continued

Frm 00019

Fmt 4701

Sfmt 4700

E:\FR\FM\12JNR2.SGM

12JNR2

27398Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

TABLE 6—ESTIMATED NUMBER OF ENTITIES OR FILERS AND SHIPMENTS POTENTIALLY AFFECTED BY THE RULE, BY ENTITY
TYPE[Calendar year 2015]
Number of
air waybills, inmillions 2

Number ofentities 1

Entity type

Number of
shipments, inmillions 3

Passenger Carriers ..........................................................................................................
Cargo Carriers .................................................................................................................
Express Carriers ..............................................................................................................
Freight Forwarders 4 ........................................................................................................
Unknown 5 ........................................................................................................................

129
56
22
83
3

7.87
2.26
79.2
4.30
0.00

4.23
1.74
79.0
4.29
0.00

Total 6 ........................................................................................................................

293

93.6

89.2

Notes:
1 Number of entities represents the number of unique filers identified in the ACE data after aggregating filer names and associated originator
codes.
2 The number of air waybills may include master, house, and split air waybills filed under ACE, and is indicative of an entity’s total volume ofmanifest transactions, rather than shipments.
3 Number of shipments based on the number of HAWBs filed under ACE.
4 Freight Forwarders included in this table are permitted to file the 19 CFR 122.48a data due to their additional classification by CBP as
deconsolidators and broker/deconsolidators (71 entities with 4.03 million shipments). They also include those classified as brokers (12 entities
with 0.27 million shipments).
5 The 2013 ACE data includes three filers for which the name and entity type could not be identified. These three filers had a combined number of only 73 air waybills and 17 HAWBs in 2013.
6 Numbers may not sum due to rounding.
Source: IEc analysis of ACE data provided by CBP’s OFO on May 5, June 4, June 23, and July 3, 2014.
Table Source: Exhibit 2–2 of the full regulatory impact analysis included in the docket of this rulemaking, entitled Regulatory Assessment andInitial Regulatory Flexibility Analysis for the Interim Final Rule: Air Cargo Advance Screening (ACAS) Rule.

Please see chapter 2 of the full
regulatory impact analysis included in
the docket of this rulemaking foradditional information on the baseline
analysis.
5. Costs
During interviews with pilot program
participants, key activities necessary forpilot participation were identified. As
discussed in the full regulatory impact
analysis, we developed a methodology
for estimating associated pilot program
costs, which are sunk costs for the

purpose of deciding whether tocontinue the ACAS program in the
future and are thus reported separatelyfrom costs in the 10-year period ofanalysis for the post-pilot period. These
costs are useful when evaluating theeffectiveness of the ACAS program as awhole, including the pilot and the postpilot periods. Our methodology lookedat the following activities: (1)Developing information andcommunication systems required totransmit the ACAS data elements as
early as practicable; (2) training staff

and providing outreach to trade partners
on the ACAS requirements; (3)developing and implementing businessprotocols and operations to respond toand resolve ACAS referrals and address
DNL instructions issued by CBP andestablishing and providing 24 × 7 pointof contact capabilities; and (4)responding to and resolving ACAS
referrals issued by CBP (i.e., identify,
locate, and/or screen cargo) andproviding requested data to CBP. Below,
Table 7 presents the estimated costs of
the ACAS pilot participants.

TABLE 7—TOTAL ESTIMATED COSTS OF THE ACAS PILOT PROGRAM FOR INDUSTRY BY ACAS-RELATED ACTIVITY($2016, MILLIONS), 2013 TO 2017
Upfront, one-time costs

sradovich on DSK3GMQ082PROD with RULES2

Year

IT
systems

Training/
outreach

Recurring costs

Protocols/
operations

ITsystems

Referral
response

Total

2013 .................................................................................
2014 .................................................................................
2015 .................................................................................
2016 .................................................................................
2017 .................................................................................

$3.4
0.0
0.0
0.0
0.0

$2.0
0.0
0.0
0.0
0.0

$7.6
0.0
0.0
0.0
0.0

$3.8
3.8
3.8
3.8
3.8

$0.7
0.7
0.2
0.2
0.2

$17.5
4.5
4.0
4.0
4.0

Total (undiscounted) .................................................

3.4

2.0

7.6

18.9

2.0

34.0

Total Present Value (3% Discount Rate) .................

3.7

2.2

8.3

19.5

2.1

35.9

Total Present Value (7% Discount Rate) .................

4.2

2.5

9.3

20.3

2.3

38.6

Note: Numbers may not sum due to rounding.
Table Source: Exhibit ES–3 of the full regulatory impact analysis included in the docket of this rulemaking, entitled Regulatory Assessment andInitial Regulatory Flexibility Analysis for the Interim Final Rule: Air Cargo Advance Screening (ACAS) Rule.

discussion, please see Chapter 3 of the full
regulatory impact analysis included in the docket

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

of this rulemaking (docket number [USCBP–2018–0019]).

PO 00000

Frm 00020

Fmt 4701

Sfmt 4700

E:\FR\FM\12JNR2.SGM

12JNR2

27399Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations
Given that the requirements of therule are similar to those of the pilot
program, the methodology developed toassess pilot program costs is used toestimate the incremental costs of therule for both pilot program participants
and non-participants over a 10-year
post-pilot period of analysis (2018–2027). The most significant costs are the
one-time, upfront and recurring costs
associated with developing andimplementing the necessary protocols
and operations to respond to and takethe necessary action to address ACAS
referrals. Total costs to industry are

greatest for the passenger carriers,
followed by cargo carriers, express
carriers, and freight forwarders. The
costs are greatest for passenger carriers,
as a group, because they account for
more than half of all regulated entities,
and they tend not to be already fully
operational under the ACAS pilot. In
future years, express carriers and large
freight forwarders are likely toexperience higher costs on a per entity
basis due to a higher transaction volume(i.e., greater number of ACAS filings).
As shown in Table 8, CBP estimatesthat over a 10-year post-pilot period ofanalysis, the rule will approximately
cost between a total present value of$245.7 million and $297.9 million (in2016 dollars) assuming discount rates ofseven and three percent, respectively.
Annualized, it is estimated that this rule
will cost between $36.0 million and$37.4 million (in 2016 dollars)
depending on the discount rate used.
The cost estimates include both the onetime, upfront costs and recurring costsof the activities undertaken by theaffected entities to comply with the rule.

TABLE 8—TOTAL ESTIMATED COSTS OF THE ACAS RULE BY ENTITY TYPE ($2016, MILLIONS), 2018–2027
Numberof entities

Entity typeThree percent discount rate

Seven percent discount rate

Total present
value costs

Total present
value costs

Annualized
costs

Annualized
costs

Passenger Carrier ................................................................
Cargo Carrier .......................................................................
Express Carrier ....................................................................
Freight Forwarder ................................................................
Government .........................................................................

129
56
22
8
N/A

$91.4
38.4
34.0
13.8
120.3

$11.0
4.6
4.1
1.7
14.5

$78.3
32.9
28.2
11.0
95.3

$11.9
5.0
4.3
1.7
14.5

Total ..............................................................................

215

297.9

36.0

245.7

37.4

Table Source: Exhibit 3–27 of the full regulatory impact analysis included in the docket of this rulemaking, entitled Regulatory Assessment andInitial Regulatory Flexibility Analysis for the Interim Final Rule: Air Cargo Advance Screening (ACAS) Rule.

Please see chapter 3 of the full
regulatory impact analysis included in
the docket of this rulemaking foradditional information on the cost
analysis.

sradovich on DSK3GMQ082PROD with RULES2

6. Benefits
The purpose and intended benefit ofthis rule is that it would help prevent
unauthorized weapons, explosives,
chemical and/or biological weapons,
weapons of mass destruction (WMDs)
and other dangerous items from being
loaded onto aircraft destined to theUnited States. As mentioned above,
several incidents over the last several
years have demonstrated the continued
focus of terrorist actors to exploit
vulnerabilities within the global supply
chain. In order to continue to meet thisthreat, CBP and TSA must combine
capabilities and scopes of authority to
implement a comprehensive and tacticalrisk assessment capability. CBP needs
certain information earlier in theprocess so that it can work with TSA to
identify high-risk cargo before it isloaded onto an aircraft. The ACAS
program is intended to satisfy this need.
The results of the ACAS pilot program
demonstrate that CBP is receiving
actionable information in time toprevent dangerous cargo from being
loaded onto an aircraft. Since theinception of the ACAS pilot program,
CBP has identified a significant number

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

of air cargo shipments that havepotential ties to terrorism and, therefore,
may represent a threat to the safety andsecurity of the aircraft. In each instance,
CBP issued ACAS referrals and theinbound air carrier or other eligible
ACAS filer performed or confirmed theprior performance of enhanced cargo
screening pursuant to TSA-approved
methods.31
Ideally, the quantification andmonetization of the benefits of thisregulation would involve estimating thecurrent baseline level of risk of a
successful terrorist attack, absent thisregulation, and the incremental
reduction in risk resulting from
implementation of the regulation. We
would then multiply the change by an
estimate of the value individuals placeon such a risk reduction to produce amonetary estimate of benefits. However,existing data limitations prevent us fromquantifying the incremental risk
reduction attributable to this rule. As aresult, we performed a ‘‘break-even’’
analysis to inform decision-makers of
the frequency at which an attack would
31 If TSA’s existing protocols identified a need forenhanced screening prior to the issuance of an
ACAS referral, enhanced screening may havealready been performed to satisfy the TSA
requirements prior to the referral. In that case, theentity responsible for responding to the ACAS
referral would resolve the referral for screening byconfirming that enhanced screening had been
performed.

PO 00000

Frm 00021

Fmt 4701

Sfmt 4700

need to be averted for the avoided
consequences of a successful terrorist
attack to equal the costs of the rule (alsoreferred to as the critical event
avoidance rate).
In the break-even analysis, we
identified possible terrorist attack
scenarios that may be prevented by theregulation. These scenarios andcorresponding consequence data are
identified using TSA’s Transportation
Sector Security Risk Assessment(TSSRA) 4.0 model. TSSRA 4.0 is a
Sensitive Security Information (SSI) 32
report that was produced in response to
DHS Appropriations legislation (Pub. L.
110–396/Division D and Pub. L. 111–83), which requires DHS through TSA to
conduct a comprehensive risk
assessment. CBP reviewed TSSRA
scenarios that involve the detonation ofan explosive device onboard
commercial aircraft destined to UnitedStates. The consequences include
deaths, nonfatal injuries, property loss,
and rescue and clean-up costs. The
break-even analysis compares theannualized costs of the regulation to the
avoided direct costs of each event to32 ‘‘Sensitive Security Information’’ or ‘‘SSI’’ isinformation obtained or developed in the conductof security activities, the disclosure of which would
constitute an unwarranted invasion of privacy,
reveal trade secrets or privileged or confidential
information, or be detrimental to the security oftransportation. The protection of SSI is governed by
49 CFR part 1520.

E:\FR\FM\12JNR2.SGM

12JNR2

27400Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

estimate the number of events thatwould have to be avoided in a single
year for the avoided consequences of a
successful terrorist attack to equal thecosts of the rule. The break-even results
are also described in terms of risk
reduction required, for example, a 0.25
reduction in the probability of an event
occurring in a single year implies that
one additional event must be avoided ina four-year period.
To allow the reader to evaluate thebenefits of ACAS against both the postpilot costs of the rule and the ACAS
program as a whole, we include two

break even analyses. Table 9, below,
indicates what would need to occur forthe post-pilot costs of the rule to equal
the avoided consequences of a
successful terrorist attack, assuming therule only reduces the risk of a single
type of attack. For the lower
consequence estimate, CBP estimates
the regulation must result in the
avoidance of a terrorist attack event
about every 5.4 to 5.6 months for the
avoided consequences of a successful
terrorist attack to equal the costs of therule. For the higher consequence
estimate, CBP estimates that theregulation must result in the avoidanceof a terrorist attack event in a time
period of about every 63.1 years to 65.7
years for the avoided consequences of a
successful terrorist attack to equal thecosts of the rule. These estimates reflect
property loss, nonfatal injuries, andfatalities assumed in the TSSRA model.
The value of avoided fatalities
substantially increases the consequence
estimates relative to the value of theother consequences such as nonfatal
injury and property loss. Table 10shows the same information for theentire ACAS period (2011–2027).

TABLE 9—SUMMARY OF FINDINGS
Benefits of the regulation equal its costs if: 1
Annualized costs
2018–2027(2016 million
dollars)

Discount rate

Three Percent .............................

$36.0

Seven Percent ............................

37.4

Economicconsequences ofterrorist attack 2

Number of
events that must
be avoided
in ten years 3

Lower Estimate .............................
Higher Estimate ............................
Lower Estimate .............................
Higher Estimate ............................

21.5
0.2
22.4
0.2

Critical event avoidance rate 4

One event every 5.6 months.
One event every 65.7 years.
One event every 5.4 months.
One event every 63.1 years.

Notes:
1 Reflects the range of averted cost estimates associated with attack scenarios in TSA’s TSSRA model involving the detonation of an explosive
device on board a commercial passenger or one or multiple cargo aircraft destined to the United States where the aircraft is destroyed.
2 Results assume regulation reduces risk of a single type of attack only. The rule will likely reduce the risk of multiple numbers and types of attacks simultaneously.
3 Indicates the number of terrorist attack events that would have to be avoided in a single year for the avoided consequences of a successful
terrorist attack to equal the costs of the rule.
4 Indicates the frequency at which the event would need to be averted for the avoided consequences of a successful terrorist attack to equal
the costs of the rule.
Results rounded to two significant digits.
Table Source: Adapted from Exhibit 4–1 of the full regulatory impact analysis included in the docket of this rulemaking, entitled Regulatory Assessment and Initial Regulatory Flexibility Analysis for the Interim Final Rule: Air Cargo Advance Screening (ACAS) Rule.

TABLE 10—SUMMARY OF FINDINGS
Benefits of the regulation equal its costs if: 1
Annualized costs
2011–2027(2016 dollars)Discount rate

Three Percent .............................

$26.1

Seven Percent ............................

25.1

Economicconsequences ofterrorist attack 2

Number of
events that must
be avoided
in 17 years 3

Lower Estimate .............................
Higher Estimate ............................
Lower Estimate .............................
Higher Estimate ............................

26.6
0.2
25.6
0.2

Critical event avoidance rate 4

One event every 7.7 months.
One event every 90.4 years.
One event every 8.0 months.
One event every 94.0 years.

sradovich on DSK3GMQ082PROD with RULES2

Notes:
1 Reflects the range of averted cost estimates associated with attack scenarios in TSA’s TSSRA model involving the detonation of an explosive
device on board a commercial passenger or one or multiple cargo aircraft destined to the United States where the aircraft is destroyed.
2 Results assume regulation reduces risk of a single type of attack only. The rule will likely reduce the risk of multiple numbers and types of attacks simultaneously.
3 Indicates the number of terrorist attack events that would have to be avoided in a single year for the avoided consequences of a successful
terrorist attack to equal the costs of the rule.
4 Indicates the frequency at which the event would need to be averted for the avoided consequences of a successful terrorist attack to equal
the costs of the rule.
Results rounded to two significant digits.
Table Source: Adapted from Exhibit 4–2 of the full regulatory impact analysis included in the docket of this rulemaking, entitled Regulatory Assessment and Initial Regulatory Flexibility Analysis for the Interim Final Rule: Air Cargo Advance Screening (ACAS) Rule.

Please see chapter 4 of the full
regulatory impact analysis included in
the docket of this rulemaking foradditional information on the breakeven analysis.

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

7. Alternatives
In accordance with Executive Order
12866, the following three alternatives
have been considered:(1) Alternative 1 (the chosenalternative): Six mandatory ACAS data

PO 00000

Frm 00022

Fmt 4701

Sfmt 4700

elements and, as applicable, one
conditional data element (the MAWB
number) required no later than prior toloading of the cargo onto any inboundaircraft required to make entry under 19

E:\FR\FM\12JNR2.SGM

12JNR2

sradovich on DSK3GMQ082PROD with RULES2

Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations
CFR 122.41 that will have commercial
cargo aboard;(2) Alternative 2: Six mandatory
ACAS data elements and, as applicable,
one conditional data element (theMAWB number), required no later than
two hours prior to the estimated time ofdeparture of any inbound aircraft
required to make entry under 19 CFR
122.41 that will have commercial cargoaboard; and(3) Alternative 3: Same as Alternative
1, however, the one conditional ACAS
data element, the MAWB number, is not
required for any shipment.
These three alternatives represent
adjusting the required timing for ACAS
transmittal and excluding a particular
ACAS data element, namely the MAWB
number. In comparison to Alternative 1(the preferred alternative), Alternative 2
advances (makes earlier) the required
time frame for ACAS transmission,
which would provide CBP more time to
conduct its risk assessment and mitigate
any identified risk prior to aircraft
departure. In comparison to Alternative
1, Alternative 3 excludes the MAWB
number data element for any shipment.
In general, CBP needs to receive the
MAWB number so that it can provide
the location of the high-risk cargo andwill allow CBP to associate the cargowith an ACAS submission. Some
inbound carriers also prefer that theforwarder-issued HAWB and carrierissued MAWB numbers be linked sothat they can verify that an ACAS
assessment for a particular shipment
they accepted from an ACAS-filingfreight forwarder has been completed.
However, some freight forwarders
expressed issues with providing the
MAWB number in time for the ACAS
filings because they may not be
finalized until just prior to aircraft
departure. By evaluating these threealternatives, CBP is seeking the mostfavorable balance between security
outcomes and impacts to airtransportation. Based on this analysis ofalternatives, CBP has determined that
Alternative 1 provides the mostfavorable balance between security
outcomes and impacts to airtransportation.
Please see chapter 5 of the full
regulatory impact analysis included in
the docket of this rulemaking foradditional information on thealternatives analysis.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5U.S.C. 601 et seq.) requires federal
agencies to examine the impact a rulewould have on small entities. A small

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

entity may be a small business (defined
as any independently owned andoperated business not dominant in its
field that qualifies as a small businessper the Small Business Act); a small notfor-profit organization; or a small
governmental jurisdiction (locality withfewer than 50,000 people). Because thisrule is being issued as an interim final
rule under the good cause exception (5U.S.C. 553(b)(B)), as set forth above, aregulatory flexibility analysis is not
required under the Regulatory
Flexibility Act (5 U.S.C. 601–612).
Nonetheless, in the docket of thisrulemaking (docket number [USCBP–
2018–0019]), CBP has included aregulatory impact analysis entitled
Regulatory Assessment and Initial
Regulatory Flexibility Analysis for theInterim Final Rule: Air Cargo AdvanceScreening (ACAS) Rule. This document
contains a threshold analysis that
estimates the impacts of the rule on
small entities.
The threshold analysis identified thatout of 215 total affected entities, 86 are
U.S. entities and 61 U.S. entities of the
86 U.S. entities affected by this rule may
be small businesses. These small
entities are in 4 distinct industries andgenerally represent 50 percent or moreof their respective industries. As such,
CBP believes that a substantial numberof small entities may be affected by thisrule. The threshold analysis also
identified that the percentage of firstyear costs relative to the average annual
revenue of the small entities potentiallyaffected by this rule range from a low of
0.4 percent to a high of 1.3 percent. CBP
believes that impacts identified in thethreshold analysis may be considered asignificant economic impact.
CBP has prepared the following initial
regulatory flexibility analysis. Please see
chapter 5 of the full regulatory impact
analysis included in the docket of thisrulemaking for additional informationon the threshold analysis.
1. A description of the reasons why
action by the agency is being
considered.
In October 2010, concealed explosive
devices were discovered in cargo
onboard two aircraft destined to theUnited States. This incident provides
evidence of the potential for terrorists to
use the international air cargo system toplace high-risk cargo such as
unauthorized weapons, explosives,
chemical and/or biological weapons,
WMDs, or other destructive substancesor items in the cargo of a United Statesbound aircraft with the intent ofbringing down the aircraft. The
exposure from international air cargo

PO 00000

Frm 00023

Fmt 4701

Sfmt 4700

27401

requires a security strategy to detect,
identify, and deter this threat at theearliest point in the international supply
chain, before the cargo departs for theUnited States.
2. A succinct statement of theobjectives of, and legal basis for, therule.
Current CBP regulations require air
carriers to electronically transmit air
manifest data in advance of their cargo’s
arrival in the United States (codified in
19 CFR 122.48a). These 19 CFR 122.48adata are required to be provided to CBPno later than the time of aircraft
departure for the United States (fromforeign ports in all of North America,
including Mexico, Central America, theCaribbean, and Bermuda as well asSouth America north of the equator), orno later than four hours prior to aircraft
arrival in the United States (from foreign
ports located everywhere else). CBP
determined, however, that it isnecessary to receive a subset of the122.48a data prior to loading of the
cargo aboard the aircraft in order tomore effectively complete its risktargeting and identification, andmitigate any identified risk, prior toaircraft departure.
The rule, which was developed by
CBP in coordination with the trade,including consultation with theCommercial Customs Operations
Advisory Committee (COAC), represents
an important component of DHS’s
evolving layered strategy for securing
the cargo supply chain from terroristrelated activities. The rule is designed to
identify high-risk air cargo, such as
unauthorized weapons, explosives,
chemical and/or biological weapons,
WMDs, or other destructive substancesor items prior to the aircraft’s departure
for the United States through a targeted
intelligence-based risk assessment. The
principal security benefit of the newrule will be more precise identificationand mitigation of at-risk shipments prior
to the departure of the U.S.-boundaircraft. This information will allow for
better targeting and will increase thesafety of the aircraft during flight.
3. A description of, and, where
feasible, an estimate of the number ofsmall entities to which the rule will
apply.
As discussed earlier in this section,
the rule applies to 129 passenger
carriers, 56 cargo carriers, 22 air express
couriers, and 8 freight forwarders. Of
these, 86 entities are U.S.-owned
companies. Among the U.S.-owned
companies, 61 meet SBA’s definition ofa small entity (See Table 11).

E:\FR\FM\12JNR2.SGM

12JNR2

27402Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations
TABLE 11—ESTIMATED NUMBER OF POTENTIALLY AFFECTED U.S. ENTITIES THAT ARE SMALL
Number of
U.S. entities
that meet
SBA’S definition of a small
entity 3

Total number
of affected
U.S. entities

Scheduled Passenger Air Transportation (481111).
Scheduled Freight Air Transportation(481112).
Freight Transportation Arrangement(488510).
Air Courier and Express Delivery
Services (492110).

129

30

1,500 employees ..............................

18

60

56

31

1,500 employees ..............................

27

87

8

7

3

43

22

18

$15 million in average annual receipts.
1,500 employees ..............................

13

72

Total ...........................................

215

86

N/A ...................................................

61

71

Affected industry(NAICS code)

SBA smallbusiness size
standard 2

Proportionof U.S.
entities thatare small(%)

Total number
of affected
entities 1

Notes:
1 Some of the 215 entities are foreign-owned companies.
2 ‘‘Table of Small Business Size Standards’’, U.S. Small Business Administration, accessed at http://www.sba.gov/sites/default/files/Size_Standards_Table.pdf on October 3, 2016.
3 If no data were available, we assume the entity is small. This may overstate the number of small entities. None of the small entities identified
were non-profit organizations.
Table Source: Exhibit 5–2 of the full regulatory impact analysis included in the docket of this rulemaking, entitled Regulatory Assessment andInitial Regulatory Flexibility Analysis for the Interim Final Rule: Air Cargo Advance Screening (ACAS) Rule.

4. A description of the projectedreporting, record-keeping and othercompliance requirements of the rule,
including an estimate of the classes ofsmall entities that will be subject to therequirement and the type of professional
skills necessary for preparation of thereport or record.
The rule requires the transmission of
six mandatory ACAS data elements to
CBP as early as practicable, but no later
than prior to loading of the cargo onto
any inbound aircraft required to makeentry under 19 CFR 122.41 that will
have commercial cargo aboard. The six
ACAS data elements include: (1)Shipper name and address; (2)consignee name and address; (3) cargo
description; (4) total quantity based on
the smallest external packing unit; (5)total weight of cargo; and (6) air waybill
number. The rule also requires the
ACAS filer to transmit a MAWB number
under certain conditions, as describedin Chapter 1 of the full regulatory
impact analysis.33 Filers will include
passenger airlines (NAICS 481111),
cargo-only airlines (NAICS 481112),
freight forwarders (NAICS 488510), andair courier and express delivery services(NAICS 492110).
Generally, regulated entities will meetthis requirement using existing
information and communication

systems; however, these systems, alongwith certain business processes, may
require modification. In addition, someentities may purchase new systems or
adopt new processes. In either case, newtraining will be required for existing
staff (generally logistics professionals
and support staff). In addition, entities
will need to designate a 24/7 point ofcontact to respond to DNL instructions
issued by CBP. Costs that may be
incurred by these small entities in thefirst year of the rule are summarized inTable 12. For a detailed discussion of
the derivation of the cost estimates, see
Chapter 3 of the full regulatory impact
analysis.

TABLE 12—FIRST YEAR COSTS OF THE INTERIM FINAL RULE RELATIVE TO AVERAGE ANNUAL SMALL ENTITY REVENUES
Number ofsmall U.S.
entities

Affected industry(NAICS code)

sradovich on DSK3GMQ082PROD with RULES2

Scheduled Passenger Air Transportation (481111) ........................
Scheduled Freight Air Transportation (481112) ..............................
Freight Transportation Arrangement (488510) ................................
Air Courier and Express Delivery Services (492110) ......................

Cost per small
entity for firstyear of rule($2016) 1

Average annual
revenues ofsmall entities($2016) 2

Percentage offirst–year
costs relative toaverage annual
revenues 3 4(%)$420,000
420,000
17,400
325,000$35,387,000
120,408,000
3,503,000
48,845,000

1.2
0.3
0.5
0.7

18
27
3
13

Notes:
1 We assume that many small passenger and cargo carriers (as defined by SBA) incur costs identical to carriers transmitting 100 or more
AWBs per year, while some may submit less and incur fewer costs. We assume small freight forwarders (as defined by SBA) transmit between
1,000 and 100,000 AWBs per year. We also assume small express carriers (as defined by SBA) transmit fewer than 15,000 AWBs per year.
2 Represents the average of the annual revenues of the entities that are small and for which we were able to obtain revenue data from Hoover’s (26 small entities).
3 We also calculate these percentages using the average annual cost (based on analysis and data presented in Chapter 3) instead of first-year
costs, finding percentages of 0.2 percent for passenger carriers, 0.1 percent for cargo carriers, 0.5 percent for freight forwarders, and 0.1 percent
for air express couriers.
33 In addition to the ACAS data elements
described above, the regulations also require
inbound carriers to transmit a flight departure
message (FDM) to CBP upon departure or four

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

hours prior to arrival in the United States (i.e., on
the same timeframe as the 19 CFR 122.48a data).
This information is already routinely provided bycarriers on this timeframe and thus is not

PO 00000

Frm 00024

Fmt 4701

Sfmt 4700

considered further in this analysis (Personalcommunication with Program Manager, Cargo andConveyance Security Directorate, CBP, May 16,
2016.)

E:\FR\FM\12JNR2.SGM

12JNR2Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

27403

4 As a sensitivity analysis, we also report the first-year cost impacts for small passenger and cargo carriers using the lower AWB volumes reported in Chapter 3. Assuming small passenger and cargo carriers transmit fewer than 100 AWBs annually, the average costs equal 0.6 percent
and 0.2 percent of revenues, respectively.
5 Costs are rounded to the nearest thousand. Totals may not calculate due to rounding.
Table Source: Exhibit 5–4 of the full regulatory impact analysis included in the docket of this, entitled Regulatory Assessment and Initial Regulatory Flexibility Analysis for the Interim Final Rule: Air Cargo Advance Screening (ACAS) Rule.

5. An identification, to the extent
practicable, of all relevant Federal rules
which may duplicate, overlap or conflictwith the rule.
The data elements required to betransmitted in this rule are, largely,already required under existing Federal
rules (i.e., 19 CFR 122.48a). The main
impact of this rule is to advance (makeearlier) the time frame at which a subsetof the existing 19 CFR 122.48a data
elements for air cargo are required. Refer
to Chapter 1 of the full regulatory
impact analysis for further detail.
6. An establishment of any significant
alternatives to the rule that accomplish
the stated objectives of applicablestatutes and that minimize any
significant economic impact of the ruleon small entities.
CBP does not identify any significant
alternatives to the rule that specificallyaddress small entities. Due to thesecurity nature of the regulation, CBP isunable to provide an alternative
regulatory framework for small entities
that would not jeopardize the security of
the United States. Excluding small
entities would undermine the rule andincrease in-flight security risks foraircraft operated by small entities. We
evaluate two alternatives in our
analysis, in addition to the chosenalternative; however as discussed in
Chapter 3 of the full regulatory impact
analysis, these alternatives affect all
regulated entities.

sradovich on DSK3GMQ082PROD with RULES2

D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA) requires
agencies to assess the effects of theirregulatory actions on State, local, andtribal governments and the private
sector. The regulation is exempt fromthese requirements under 2 U.S.C. 1503
(Exclusions) which states that the
UMRA ‘‘shall not apply to any provision
in a bill, joint resolution, amendment,
motion, or conference report before
Congress and any provision in a
proposed or final Federal regulation’’that ‘‘is necessary for the national
security or the ratification or
implementation of international treaty
obligations.’’
E. Privacy
CBP will ensure that all Privacy Act
requirements and policies are adhered
to in the implementation of this rule,and will issue or update any necessary

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

Privacy Impact Assessment and/or
Privacy Act System of Records notice tofully outline processes that will ensurecompliance with Privacy Act
protections.
F. Paperwork Reduction Act
An agency may not conduct, and aperson is not required to respond to, acollection of information unless thecollection of information displays avalid control number assigned by OMB.
The collection of information regarding
electronic information for air cargorequired in advance of arrival under 19
CFR 122.48a was previously reviewed
and approved by OMB in accordancewith the requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507)
under OMB Control Number 1651–0001.
When CBP began the ACAS pilot,
however, CBP did not publish thecollection of information specific to thepilot for notice and comment under the
Paperwork Reduction Act because there
is no new burden associated with
ACAS, just a change in when the data
is submitted. Any additional cost to file
the ACAS subset of the 19 CFR 122.48a
filing on the ACAS time frame was not
captured under the OMB Control
Number mentioned above. CBP requests
comment on what, if any, additionalburden ACAS represents. CBP notes thatwhen this rule is implemented, carriers
will have the option to file the full 19
CFR 122.48a filing withn the ACAS timeframe to satisfy both requirements in asingle filing. Many carriers are able tosubmit their 19 CFR 122.48a
information well in advance of the flightand this would allow them to only fileonce, if they choose to do so. This
document adds an additional data
element, the flight departure message, to
19 CFR 122.48a and this collection. Thisdata element is readily accessible forthose filers for whom it is required and
it is already routinely provided. The
collection of information for ACAS
under 19 CFR 122.48b is comprised ofa subset of information already collectedpursuant to 19 CFR 122.48a under thisapproval, but information for ACAS will
be now be collected earlier. Filers willneed to modify their systems in order toprovide these data earlier in an
automated manner, but as the only new
required data element (the flightdeparture message) is already routinely
provided on a voluntary basis and isreadily available, CBP does not estimate

PO 00000

Frm 00025

Fmt 4701

Sfmt 4700

any change in the burden hours as aresult of this rule.
The resulting estimated burden
associated with the electronic
information for air cargo required inadvance of arrival under this rule is asfollows:
Estimated Number of Respondents:
215.
Estimated Number of Total Annual
Responses: 1,466,400.
Estimated Time per Response: 15
minutes.
Estimated Total Annual Burden
Hours: 366,600.
Comments concerning the accuracy ofthis cost estimate and suggestions for
reducing this burden should be directedto the Office of Management andBudget, Attention: Desk Officer for the
Department of Homeland Security,
Office of Information and Regulatory
Affairs, at DHSDeskOfficer@
omb.eop.gov. A copy should also be sent
to Regulations and Rulings, Office ofTrade, U.S. Customs and Border
Protection, Attention: Border Security
Regulations Branch, 90 K Street NE,
10th Floor, Washington, DC 20229 or byemail at CBP_PRA@cbp.dhs.gov.
The list of approved informationcollections contained in 19 CFR part
178 is revised to add an appropriate
reference to section 122.48b to reflect
the approved information collection.
VI. Signing Authority
The signing authority for thisdocument falls under 19 CFR 0.2(a).
Accordingly, this document is signed by
the Secretary of Homeland Security.
List of Subjects
19 CFR Part 12
Customs duties and inspection,
Reporting and recordkeeping
requirements.
19 CFR Part 113
Common carriers, Customs duties andinspection, Exports, Freight,
Laboratories, Reporting andrecordkeeping requirements, Surety
bonds.
19 CFR Part 122
Administrative practice andprocedure, Air carriers, Aircraft,
Airports, Alcohol and alcoholic
beverages, Cigars and cigarettes,
Customs duties and inspection, Drugtraffic control, Freight, Penalties,

E:\FR\FM\12JNR2.SGM

12JNR2

27404Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations§ 113.62 Basic importation and entry bondconditions.

Reporting and recordkeeping
requirements, Security measures.

*

19 CFR Part 141
Customs duties and inspection,
Reporting and recordkeeping
requirements.
19 CFR Part 178
Reporting and recordkeeping
requirements.
19 CFR Part 192
Aircraft, Exports, Motor vehicles,
Penalties, Reporting and recordkeeping
requirements, Vessels.
Regulatory Amendments
For the reasons set forth above, CBP
amends parts 12, 113, 122, 141, 178, and192 of title 19 of the Code of Federal
Regulations (19 CFR parts 12, 113, 122,
141, 178, and 192) as follows:
PART 12—SPECIAL CLASSES OF
MERCHANDISE§ 113.63■ 1. The general authority citation for

Authority: 5 U.S.C. 301; 19 U.S.C. 66,
1202 (General Note 3(i), Harmonized Tariff
Schedule of the United States (HTSUS)),
1624.

*

*

*

*

Section 12.3 also issued under 7 U.S.C.
135h, 21 U.S.C. 381;**

§ 12.3***[Amended]■ 2. Amend § 12.3(b)(2) and (c) byremoving the references to‘‘§ 113.62(m)(1)’’ and adding in theirplace ‘‘§ 113.62(n)(1)’’.
PART 113—CBP BONDS■ 3. The general authority citation forpart 113 continues to read as follows:
Authority: 19 U.S.C. 66, 1623, 1624.

*

*

*

*

*

■ 4. Amend § 113.62 as follows:■ a. Redesignate paragraphs (l) and (m)as paragraphs (m) and (n);■ b. Add a new paragraph (l);sradovich on DSK3GMQ082PROD with RULES2■ c. In redesignated paragraph (n)(1),

remove the word ‘‘or’’ after the text‘‘(k)(2)’’ and after the text ‘‘(l)’’, add ‘‘,or (m)’’;■ d. In redesignated paragraph (n)(4),
remove the reference to ‘‘paragraph(m)(1)’’ and add in its place ‘‘paragraph(n)(1)’’; and■ e. In redesignated paragraph (n)(5),remove the reference to ‘‘paragraph (l)’’and add in its place ‘‘paragraph (m)’’.
The addition reads as follows:

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

Basic custodial bond conditions.

*part 12 and specific authority citationfor § 12.3 continue to read as follows:

*

*
*
*
*
(l) Agreement to comply with Air
Cargo Advance Screening (ACAS)
requirements. The principal agrees tocomply with all ACAS requirements set
forth in §§ 122.48a and 122.48b of thischapter including, but not limited to,providing ACAS data to U.S. Customs
and Border Protection in the mannerand in the time period prescribed byregulation and taking the necessary
action to address ACAS referrals and
Do-Not-Load (DNL) instructions asprescribed by regulation. If the principal
defaults with regard to these obligations,the principal and surety (jointly andseverally) agree to pay liquidated
damages of $5,000 for each violation.
*
*
*
*
*
■ 5. Amend § 113.63 by redesignating
paragraphs (h) and (i) as paragraphs (i)and (j) and adding a new paragraph (h)to read as follows:****(h) Agreement to comply with Air
Cargo Advance Screening (ACAS)
requirements. The principal agrees tocomply with all ACAS requirements set
forth in §§ 122.48a and 122.48b of thischapter including, but not limited to,providing ACAS data to U.S. Customs
and Border Protection in the mannerand in the time period prescribed byregulation and taking the necessary
action to address ACAS referrals and
Do-Not-Load (DNL) instructions asprescribed by regulation. If the principal
defaults with regard to these obligations,the principal and surety (jointly andseverally) agree to pay liquidated
damages of $5,000 for each violation.
*
*
*
*
*
■ 6. Amend § 113.64 as follows:■ a. In paragraph (a), add ‘‘or§ 122.48b(c)(2)’’ after the words ‘‘asspecified in § 122.48a(c)(1)(ii)–(c)(1)(iv)’’;■ b. Redesignate paragraphs (i) through(l) as paragraphs (j) through (m); and■ c. Add a new paragraph (i) to read as
follows:§ 113.64 International carrier bondconditions.

*

*
*
*
*
(i) Agreement to comply with Air
Cargo Advance Screening (ACAS)
requirements. (1) The inbound air
carrier agrees to comply with all ACAS
requirements set forth in §§ 122.48a and122.48b of this chapter including, but
not limited to, providing ACAS data to
U.S. Customs and Border Protection(CBP) in the manner and in the time

PO 00000

Frm 00026

Fmt 4701

Sfmt 4700

period prescribed by regulation andtaking the necessary action to address
ACAS referrals and Do-Not-Load (DNL)
instructions as prescribed by regulation.
If the inbound air carrier, as principal,
defaults with regard to these obligations,the principal and surety (jointly andseverally) agree to pay liquidated
damages of $5,000 for each violation, toa maximum of $100,000 per conveyancearrival.
(2) If a party specified in§ 122.48b(c)(2) of this chapter provides
the ACAS data to CBP, that party, as
principal under this bond, agrees tocomply with all ACAS requirements set
forth in §§ 122.48a and 122.48b of thischapter including, but not limited to,providing ACAS data to CBP in themanner and in the time period
prescribed by regulation and taking thenecessary action to address ACAS
referrals and Do-Not-Load (DNL)
instructions as prescribed by regulation.
If the principal defaults with regard tothese obligations, the principal andsurety (jointly and severally) agree to
pay liquidated damages of $5,000 foreach violation, to a maximum of$100,000 per conveyance arrival.
*
*
*
*
*
PART 122—AIR COMMERCEREGULATIONS■ 7. The general authority citation forpart 122 continues to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66,
1431, 1433, 1436, 1448, 1459, 1590, 1594,
1623, 1624, 1644, 1644a, 2071 note.

*

*

*

*

*

■ 8. Amend § 122.48a as follows:■ a. Revise the introductory text ofparagraph (a);■ b. In paragraph (c)(3), remove thephrase ‘‘, on behalf of the party,’’;■ c. In paragraph (d)(1) introductory

text, add the phrase ‘‘; and an ‘‘A’’ next
to any listed data element indicates thatthe data element is an ACAS data
element that is also subject to therequirements and time frame specified
in § 122.48b’’ before the closing
parenthesis;■ d. In paragraphs (d)(1)(i) and(d)(1)(vii)–(x), add the text ‘‘(A)’’ after
the text ‘‘(M)’’;■ e. Revise paragraph (d)(1)(xi);■ f. In paragraph (d)(1)(xvi), remove theword ‘‘and’’ after the last semicolon;■ g. In paragraph (d)(1)(xvii), remove
the period and add in its place the text‘‘; and’’;■ h. Add paragraph (d)(1)(xviii);■ i. In paragraph (d)(2) introductory
text, add the phrase ‘‘; and an ‘‘A’’ next
to any listed data element indicates thatthe data element is an ACAS data

E:\FR\FM\12JNR2.SGM

12JNR2Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations
element that is also subject to therequirements and time frame specified
in § 122.48b’’ before the closing
parenthesis;■ j. In paragraphs (d)(2)(i) and(d)(2)(iii)–(vi), add the text ‘‘(A)’’ after
the text ‘‘(M)’’; and■ k. Revise paragraph (d)(2)(vii).
The revisions and additions read as
follows:

sradovich on DSK3GMQ082PROD with RULES2§ 122.48a Electronic information for air
cargo required in advance of arrival.

(a) General requirement. Pursuant tosection 343(a), Trade Act of 2002, as
amended (19 U.S.C. 2071 note), for any
inbound aircraft required to make entry
under § 122.41, that will havecommercial cargo aboard, U.S. Customs
and Border Protection (CBP) must
electronically receive from the inboundair carrier and, if applicable, anapproved party as specified inparagraph (c)(1) of this section, certain
information concerning the inboundcargo, as enumerated, respectively, inparagraphs (d)(1) and (d)(2) of thissection. CBP must receive suchinformation according to the timeframes prescribed in paragraph (b) of
this section. However, a subset of thesedata elements known as ACAS data andidentified in paragraph (d) of thissection, is also subject to therequirements and time frame describedin § 122.48b. The advance electronictransmission of the required cargo
information to CBP must be effected
through a CBP-approved electronic datainterchange system.
*
*
*
*
*
(d) * * *(1) * * *(xi) Consignee name and address (M)(A) (for consolidated shipments, theidentity of the container station (see 19
CFR 19.40–19.49), express consignment
or other carrier is sufficient for the
master air waybill record; for nonconsolidated shipments, the name andaddress of the party to whom the cargo
will be delivered is required regardlessof the location of the party; this party
need not be located at the arrival ordestination port);
*
*
*
*
*
(xviii) Flight departure message (M)(this data element includes the liftoff
date and liftoff time using theGreenwich Mean Time (GMT)/Universal
Time, Coordinated (UTC) at the time ofdeparture from each foreign airport enroute to the United States; if an aircraften route to the United States stops at
one or more foreign airports and cargo
is loaded on board, the flight departure
message must be provided for eachdeparture).
(2) * * *VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001(vii) Consignee name and address (M)(A) (the name and address of the party
to whom the cargo will be delivered isrequired regardless of the location of theparty; this party need not be located at
the arrival or destination port); and
*
*
*
*
*
■ 9. Add § 122.48b to read as follows:§ 122.48b(ACAS).

Air Cargo Advance Screening(a) General requirement. Pursuant tosection 343(a), Trade Act of 2002, as
amended (19 U.S.C. 2071 note), in
addition to the advance filing
requirements pursuant to § 122.48a, for
any inbound aircraft required to makeentry under § 122.41, that will havecommercial cargo aboard, U.S. Customs
and Border Protection (CBP) must
electronically receive from the inboundair carrier and/or another eligible ACAS
filer, as specified in paragraph (c) of thissection, certain information concerning
the inbound cargo, as enumerated inparagraph (d) of this section. CBP mustreceive such information, known as
ACAS data, no later than the time frameprescribed in paragraph (b) of thissection. The transmission of therequired ACAS data to CBP (ACAS
filing) must be effected through a CBPapproved electronic data interchangesystem. Any ACAS referrals must be
resolved in accordance with theprovisions and time frame prescribed inparagraph (e) of this section. Any DoNot-Load (DNL) instruction must be
addressed in accordance with theprovisions prescribed in paragraph (f) of
this section.
(b) Time frame for presenting data. (1)Initial filing. The ACAS data must be
submitted as early as practicable, but nolater than prior to loading of the cargo
onto the aircraft.
(2) Update of ACAS filing. The party
who submitted the initial ACAS filingpursuant to paragraph (a) of this section
must update the initial filing if, after thefiling is submitted, any of the submitted
data changes or more accurate data
becomes available. Updates are required
up until the time frame specified in§ 122.48a(b) for submitting advance
information under § 122.48a(a).
(c) Parties filing ACAS data—(1)Inbound air carrier. If no other eligible
party elects to file the ACAS data, theinbound air carrier must file the ACAS
data. If another eligible party does electto file ACAS data, the inbound air
carrier may also choose to file the ACAS
data.
(2) Other filers. The following entities
can elect to be ACAS filers, provided
they also meet the ACAS filer
requirements in paragraph (c)(3) of thissection:PO 00000

Frm 00027

Fmt 4701

Sfmt 4700

27405(i) All parties eligible to elect to fileadvance electronic cargo data listed in§ 122.48a(c); and(ii) Foreign Indirect Air Carriers. For
purposes of this section, ‘‘foreign
indirect air carrier’’ (FIAC) is defined as
any person, not a citizen of the UnitedStates, who undertakes indirectly toengage in the air transportation ofproperty. A FIAC may volunteer to be
an ACAS filer and accept responsibility
for the submission of accurate andtimely ACAS filings, as well as fortaking the necessary action to address
any referrals and Do-Not-Load (DNL)
instructions when applicable.
(3) ACAS filer requirements. All
inbound air carriers and other entities
electing to be ACAS filers must:(i) Establish the communication
protocol required by CBP for properlytransmitting an ACAS filing through a
CBP-approved electronic datainterchange system;(ii) Possess the appropriate bondcontaining all the necessary provisionsof § 113.62, § 113.63, or § 113.64 of thischapter;(iii) Report all of the originator codesthat will be used to file ACAS data. If
at any time, ACAS filers wish to utilize
additional originator codes to file ACAS
data, the originator code must bereported to CBP prior to its use; and(iv) Provide 24 hours/7 days a week
contact information consisting of atelephone number and email address.
CBP will use the 24 hours/7 days a week
contact information to notify,
communicate, and carry out response
protocols for Do-Not-Load (DNL)
instructions, even if an electronic
message is sent.
(4) Nonparticipation by other party. If
a party specified in paragraph (c)(2) ofthis section does not participate in an
ACAS filing, the party that arranges for
and/or delivers the cargo to the inboundair carrier must fully disclose andpresent to the inbound air carrier therequired cargo data listed in paragraph(d) of this section; and the inbound air
carrier must present this data
electronically to CBP under paragraph(a) of this section.
(5) Required information inpossession of third party. Any otherentity in possession of required ACAS
data that is not the inbound air carrier
or a party described in paragraph (c)(2)of this section must fully disclose andpresent the required data for theinbound air cargo to either the inboundair carrier or other eligible ACAS filer,
as applicable, which must present suchdata to CBP.
(6) Party receiving information
believed to be accurate. Where the party
electronically presenting the cargo data

E:\FR\FM\12JNR2.SGM

12JNR2

sradovich on DSK3GMQ082PROD with RULES2

27406

Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations

required in paragraph (d) of this section
receives any of this data from anotherparty, CBP will take into consideration
how, in accordance with ordinary
commercial practices, the presenting
party acquired such information, andwhether and how the presenting party isable to verify this information. Where
the presenting party is not reasonably
able to verify such information, CBP
will permit the party to electronicallypresent the data on the basis of whatthat party reasonably believes to be true.
(d) ACAS data elements. Some of the
ACAS data elements are mandatory in
all circumstances, one is conditional
and is required only in certain
circumstances, and others are optional.
The definitions of the mandatory andconditional ACAS data elements are set
forth in § 122.48a.
(1) Mandatory data elements. The
following data elements are required tobe submitted at the lowest air waybill
level (i.e., at the house air waybill level
if applicable) by all ACAS filers:(i) Shipper name and address;(ii) Consignee name and address;(iii) Cargo description;(iv) Total quantity based on thesmallest external packing unit;(v) Total weight of cargo; and(vi) Air waybill number. The air
waybill number must be the same in thefiling required by this section and thefiling required by § 122.48a.
(2) Conditional data element: Masterair waybill number. The master air
waybill (MAWB) number for each leg ofthe flight is a conditional data element.
The MAWB number is a required data
element in the following circumstances;otherwise, the submission of the MAWB
number is optional, but encouraged:(i) When the ACAS filer is a different
party than the party that will file theadvance electronic air cargo datarequired by § 122.48a. To allow for
earlier submission of the ACAS filing,
the initial ACAS filing may besubmitted without the MAWB number,as long as the MAWB number is later
submitted by the ACAS filer or theinbound air carrier according to theapplicable ACAS time frame for datasubmission in paragraph (b) of thissection; or(ii) When the ACAS filer istransmitting all the data elements
required by § 122.48a according to theapplicable ACAS time frame for datasubmission; or(iii) When the inbound air carrier
would like to receive from CBP a checkon the ACAS status of a specificshipment. If the MAWB number issubmitted, either by the ACAS filer orthe inbound air carrier, CBP will

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

provide this information to the inboundair carrier upon request.
(3) Optional data elements—(i)Second Notify Party. The ACAS filer
may choose to designate a Second
Notify Party to receive shipment status
messages from CBP.
(ii) Any additional data elements
listed in § 122.48a or any additional
information regarding ACAS data
elements (e.g., telephone number, email
address, and/or internet protocol
address for shipper and/or consignee)
may be provided and are encouraged.
(e) ACAS referrals—(1) Potentialreferrals. There are two types of referralsthat may be issued by CBP after a risk
assessment of an ACAS submission:(i) Referral for information. A referral
for information will be issued if a risk
assessment of the cargo cannot be
conducted due to non-descriptive,
inaccurate, or insufficient data. This canbe due to typographical errors, vague
cargo descriptions, and/or unverifiable
information; and(ii) Referral for screening. A referralfor screening will be issued if thepotential risk of the cargo is deemedhigh enough to warrant enhanced
screening. A referral for screening must
be resolved according to TSA-approved
enhanced screening methods.
(2) ACAS referral resolution. All
ACAS filers and/or inbound air carriers,
as applicable, must respond to and takethe necessary action to address allreferrals as provided in paragraphs(e)(2)(i)–(ii) of this section, no later thanprior to departure of the aircraft. The
appropriate protocols and time frame fortaking the necessary action to addressthese referrals must be followed as
directed. The parties responsible fortaking the necessary action to address
ACAS referrals are as follows:(i) Referral for information. The ACAS
filer is responsible for taking thenecessary action to address a referral for
information. The last party to file the
ACAS data is responsible for suchaction. For instance, the inbound air
carrier is responsible for taking thenecessary action to address a referral for
information if the inbound air carrier
retransmits an original ACAS filer’s data
and the referral is issued after thisretransmission.
(ii) Referral for screening. As provided
in paragraph (e)(1)(ii) of this section, areferral for screening must be resolved
according to TSA-approved enhanced
screening methods. If the ACAS filer isa party recognized by TSA to perform
screening, the ACAS filer may addressa referral for screening directly; if the
ACAS filer is a party other than theinbound air carrier and chooses not toaddress the referral for screening or is

PO 00000

Frm 00028

Fmt 4701

Sfmt 4700

not a party recognized by TSA to
perform screening, the ACAS filer must
notify the inbound air carrier of thereferral for screening. The inbound air
carrier is responsible for taking thenecessary action to address a referral for
screening, unless another ACAS filer
recognized by TSA to perform screening
has taken such action.
(3) Prohibition on transporting cargowith unresolved ACAS referrals. The
inbound air carrier may not transportcargo on an aircraft destined to theUnited States until any and all referrals
issued pursuant to paragraph (e)(1) of
this section with respect to such cargo
have been resolved.
(f) Do-Not-Load (DNL) instructions. (1)
A Do-Not-Load (DNL) instruction will
be issued if it is determined that thecargo may contain a potential bomb,
improvised explosive device, or othermaterial that may pose an immediate,
lethal threat to the aircraft and its
vicinity.
(2) As provided in paragraph (c)(3)(iv)of this section, all ACAS filers must
provide a telephone number and email
address that is monitored 24 hours/7
days a week in case a Do-Not-Load(DNL) instruction is issued. All ACAS
filers and/or inbound air carriers, asapplicable, must respond and fully
cooperate when the entity is reached byphone and/or email when a Do-NotLoad (DNL) instruction is issued. The
party with physical possession of the
cargo will be required to carry out the
Do-Not-Load (DNL) protocols and the
directions provided by law enforcement
authorities.
(3) The inbound air carrier may nottransport cargo with a Do-Not-Load(DNL) instruction.
PART 141—ENTRY OF MERCHANDISE■ 10. The general authority citation forpart 141 and specific authority citationfor § 141.113 continue to read as
follows:
Authority: 19 U.S.C. 66, 1448, 1484, 1498,
1624.

*

*

*

*

*

Section 141.113 also issued under 19
U.S.C. 1499, 1623.
§ 141.113[Amended]■ 11. Amend § 141.113(b) by removing

the reference to ‘‘§ 113.62(m)(1)’’ andadding in its place ‘‘§ 113.62(n)(1)’’.
PART 178—APPROVAL OF
INFORMATION COLLECTIONREQUIREMENTS■ 12. The authority citation for part 178

continues to read as follows:

E:\FR\FM\12JNR2.SGM

12JNR2Federal Register / Vol. 83, No. 113 / Tuesday, June 12, 2018 / Rules and Regulations
Authority: 5 U.S.C. 301; 19 U.S.C. 1624;
44 U.S.C. 3501 et seq.
§ 178.2

PART 192—EXPORT CONTROL

continues to read as follows:■ 13. Amend § 178.2 by removing‘‘§ 122.48a’’ and adding in its place‘‘§§ 122.48a, 122.48b’’.

[Amended]■ 15. Amend § 192.14(c)(4)(ii) by■ 14. The authority citation for part 192[Amended]§ 192.14

27407

Authority: 19 U.S.C. 66, 1624, 1646c.
Subpart A also issued under 19 U.S.C. 1627a,
1646a, 1646b; subpart B also issued under 13
U.S.C. 303; 19 U.S.C. 2071 note; 46 U.S.C. 91.

removing the reference to‘‘§ 113.64(k)(2)’’ and adding in its place‘‘§ 113.64(m)(2)’’.
Dated: June 4, 2018.
Kirstjen M. Nielsen,
Secretary.
[FR Doc. 2018–12315 Filed 6–11–18; 8:45 am]

sradovich on DSK3GMQ082PROD with RULES2BILLING CODE 9111–14–P

VerDate Sep<11>2014

16:41 Jun 11, 2018

Jkt 244001

PO 00000

Frm 00029

Fmt 4701

Sfmt 9990

E:\FR\FM\12JNR2.SGM

12JNR2