To deal with ongoing security threats in aviation, Customs & Border Protection amended its regulations regarding the submission of advance Air Cargo Data. Effective June 12, 2018, all inbound carriers have to implement a mandatory Air Cargo Advance Screening (ACAS) program that is compliant with CBP regulations for all aircraft coming into the United States with commercial cargo on board. Under the ACAS program, all inbound carriers or other eligible parties have to submit ACAS data electronically to the CBP as early as is possible but this must be before the cargo is loaded onto the aircraft. The ACAS program enhances the security of passengers and the aircraft on flights bound for the US, thus making it easier for the CBP to carry out a targeted risk assessment on cargo before the airplane leaves for the US.
Background and Purpose
The Department of Homeland Security (DHS) was established in 2002 to prevent terrorist attacks on American soil following the September 11 attacks. However, the terrorist threat to carriers entering the United States persists and presents a meaningful risk given the perceived human and fiscal consequences of a successful attack. As such, the DHS established the Customs and Border Protection Agency (CBP) and the Transport Security Administration (TSA) to oversee and secure inbound air cargo. Through the two bodies, the DHS has established a coordinated and comprehensive policy that covers all cargo entering, transiting or leaving the US.
Current Regulatory Requirements
Under the current regulations, CBP is charged with ensuring high-risk cargo does not enter the United States through its borders. On the other hand, the TSA is responsible for ensuring that no high-risk cargo exits the United States on inbound carriers.
- CBP Regulatory Requirements (AMS Air or ACE Air eManifest)
Under the 2002 Trade Act, the CBP has the authority to make and implement regulations for the compulsory transmission of AMS Air cargo data to CBP. This data needs to be transmitted by carriers to the CBP via an approved electronic data interchange system (EDI) before the cargo departs, enters or transits through the US via any medium of commercial transport. Depending on the location from which an aircraft departs for the US, the cargo information will have to be transmitted to the CBP before the plane departs or no more than four hours before arrival.
Data required to be transmitted to the CBP include:
- Air Waybill numbers
- Flight #
- Consignee address and name
- International Civil Aviation Organization (ICAO)/IATA Carrier code
- Shipper name and address
- Description of the cargo
- Airport of origin
- Airport of arrival
- Total Weight
- The total quantity determined on the basis of the smallest packing unit
- Scheduled date of arrival
2. TSA Requirements
The TSA is charged with regulating and ensuring the security of air cargo bound for the US. This mandate involves screening of all cargo on passenger aircraft headed to the United States. All inbound cargo is checked to a level commensurate to that of checked passenger baggage. In fulfilling its mandate the TSA has the authority to establish and implement security requirements for foreign carriers for all flights heading to the US including foreign carriers at non-American departure points.
Pilot and Mandatory Implementation of ACAS
In 2010, the CBP collaborated with the TSA to launch the pilot ACAS program that was to collect information on the feasibility of the collection of data on all inbound air cargo. It was also intended to test the technological capacity and reliability and accuracy of data transmitted and the operational logistics when checks resulted in referrals. Participants in the pilot included freight forwarders, express consignment air courier companies, cargo carriers, and passenger carriers.
Once the ACAS pilot was completed, the ACAS Program became mandatory on June 12th, 2018. Managed by CBP, it has the mandate of ensuring the obligatory submission of particular advance air cargo data by all inbound air carriers and/or other eligible filers.
Using data compiled from the pilot, the ACAS program consulted with industry participants in making regulations. As such, the regulations adhere to the parameters of the Trade Act in ensuring there is a balance between security and cargo safety versus the flow of commerce. The regulations also take into account the interactions between stakeholders and standard business practices. Thus they ensure that there is a minimal negative impact on operations, the movement of legitimate goods and the air cargo business model.
Eligible ACAS Filers
The inbound air carrier is the primary eligible ACAS filer and is required to file the data with the CBP if no other party files. According to CBP regulations, parties other than the air carrier may file the data since in some instances they may get their hands on accurate data sooner. This is also consistent with the Trade Act regulations that require the CBP to balance the need to have minimal impact on cargo security, safety and the flow of commerce and to get the data from parties that are more likely to have direct knowledge of the cargo.
Other parties that are eligible to file ACAS data include:
- Foreign indirect carriers – including freight forwarders
- Express Consignment Carrier Facility (ECCF)
- Air Carrier identified by its IATA code
- Automated Broker Interface (ABI) filer
- Deconsolidator/Container Freight Station (CFS)
Requirements for Eligibility as ACAS Filers
Under the Trade Act, all entities that elect to be ACAS filers need to meet the following requirements:
- Establish an Electronic Data Interchange (EDI) communications protocol to be used in transmitting the ACAS data.
- Have a 24 hours a day seven days a week contact system that includes email address and telephone number that the CBP may use for communication and notification including response protocols such as Do Not Load (DNL) instructions.
- File with the CBP originator code issued by CBP
- Possess all the necessary bonds as set out in the provisions of the Trade Act.
Mandatory ACAS Data
The following are the mandatory data that has to be submitted with each ACAS filing
- Shipper name and address – The foreign manufacturer, supplier, or vendor’s name and address though this cannot be the identity of the consolidator, freight forwarder or carrier.
- Cargo Description – Detailed description of cargo that may also include the 6 digit Harmonized Tariff Schedule number. It cannot be any generic description such as “general cargo” or “freight of all kinds.”
- Consignee name and address – The address and name of the party to whom the delivery of the cargo will be made.
- Quantity – Based on the smallest packing unit.
- Weight – May be expressed in kilograms or pounds.
- Air Waybill number
Optional ACAS Data
The Trade Act also allows eligible filers to designate secondary interested parties or stakeholders in the importation or transit of goods through the US. Such parties when designated as “Second Notify Party” will get status messages when the primary filer does. The inclusion of such data may help to respond to referrals such as DNL instructions as additional stakeholders will get automated data and direct communications in real-time.
Other optional data that may be filed include internet protocol addresses for consignee and/or shipper, email addresses, and telephone numbers. The TSA and/or CBP may also ask the filer to provide other data such as routing information or flight numbers in the instance of ACAS referrals.
Responsibilities of ACAS Filers
The filer of ACAS data has certain responsibilities that if not fulfilled could result in liquidated damages or assessment penalties from CBP. The responsibilities which apply to inbound air carriers and other eligible filers include:
- Responsibility To Provide Timely and Accurate Data – Inbound air carriers or/and other eligible ACAS filers are liable for the accuracy and timeliness of the data they transmit to CBP. The data needs to be true and accurate according to ordinary commercial practices though it can also satisfy the condition if the filer can prove they reasonably believed it to be true at the time of filing.
- Responsibility To Resolve ACAS Referrals – There are two types of referrals that may be sent to the filer once the CBP assesses the risk of cargo from the ACAS data submitted.
- Referral for Information
In the instance of a referral for information, the filer needs to provide requested data to the CBP to resolve the referral. It is usually the responsibility of the last person to transmit the ACAS data to respond and address the referral.
- Referral for Screening
When an inbound carrier or ACAS filer gets a referral for screening, they will be required to respond and provide information on how the cargo was screened. It is the responsibility of the filer to ensure the cargo is screened according to accepted enhanced or TSA approved screening methods so as to resolve the referral for screening. The responsibility for screening referrals generally lies with the inbound air carrier since they are the last party to handle the cargo before the aircraft leaves for the US.
- Responsibility To Address DNL Instructions – Once the DNL is issued to the ACAS filer, it is their responsibility to communicate and notify the party in possession of the cargo not to load the cargo onto the aircraft. It is then the responsibility of the party in possession to adhere to the directions and protocols of the TSA and CBP regarding the DNL.
Since all filers of ACAS data have specific responsibilities, there are consequences for failing to adhere to the requirements set by the CBP. This failure usually results in an assessment for penalties and/or liquidated damages. Enforcement of such assessments is usually done through bond provisions and as such all ACAS filers and freight forwarders are required to obtain a bond if they decide to file ACAS data with the CBP.