[Federal Register Volume 67, Number 211 (Thursday, October 31, 2002)]
[Rules and Regulations]
[Pages 66318-66333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27661]
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DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Parts 4, 113 and 178
[T.D. 02-62]
RIN 1515-AD11
Presentation of Vessel Cargo Declaration to Customs Before Cargo
Is Laden Aboard Vessel at Foreign Port for Transport to the United
States
AGENCY: Customs Service, Department of the Treasury.
ACTION: Final rule.
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SUMMARY: This document amends the Customs Regulations to require the
advance and accurate presentation of certain manifest information prior
to lading at the foreign port and to encourage the presentation of this
information electronically. The document also allows a non-vessel
operating common carrier (NVOCC) having an International Carrier Bond
to electronically present cargo manifest information to Customs. This
information is required in advance and is urgently needed in order to
enable Customs to evaluate the risk of smuggling weapons of mass
destruction through the use of oceangoing cargo containers before goods
are loaded on vessels for importation into the United States, while, at
the same time, enabling Customs to facilitate the prompt release of
legitimate cargo following its arrival in the United States. Failure to
provide the required information in the time period prescribed may
result in the delay of a permit to unlade and/or the assessment of
civil monetary penalties or claims for liquidated damages.
EFFECTIVE DATE: December 2, 2002.
FOR FURTHER INFORMATION CONTACT:
For Legal matters: Larry L. Burton, Office of Regulations and
Rulings, (202-572-8724).
For National Targeting Center issues: David Tipton, (202-927-0108).
[[Page 66319]]
For Container Security Initiatives: Adam Wysocki, (202-927-0724).
For Trade Compliance issues: Kimberly Nott, (202-927-0042).
SUPPLEMENTARY INFORMATION:
Background
The Customs laws impose certain requirements upon vessels that will
arrive in the United States to discharge their cargo. In particular,
vessels destined for the United States must comply with 19 U.S.C. 1431,
which requires that every vessel bound for the United States and
required to make entry under 19 U.S.C. 1434 have a manifest that meets
the requirements that are prescribed by regulation. To this end, under
19 U.S.C. 1431(d), Customs may by regulation specify the form for, and
the information and data that must be contained in, the vessel
manifest, as well as the manner of production for, and the delivery or
electronic transmittal of, the vessel manifest.
Currently, Sec. 4.7, Customs Regulations (19 CFR 4.7), requires:
That the master of every vessel arriving in the United States and
required to make entry have on board the vessel a manifest in
accordance with 19 U.S.C. 1431 and Sec. 4.7; and that an original and
one copy of the manifest must be ready for production upon demand and
must be delivered to the first Customs officer who demands the
manifest. Sections 4.7(a) and 4.7a, Customs Regulations (19 CFR 4.7(a)
and 4.7a), set forth the documentary and informational requirements
that constitute the vessel manifest.
Pursuant to Sec. 4.7(a), the cargo declaration (Customs Form 1302
or its electronic equivalent) is one of the documents that comprises a
vessel manifest. The cargo declaration must list all the inward foreign
cargo on board the vessel regardless of the intended U.S. port of
discharge of the cargo (Sec. 4.7a(c)(1)).
Furthermore, 19 U.S.C. 1448 provides, in pertinent part, that no
merchandise may be unladen from a vessel which is required to make
entry under section 1434 until Customs has issued a permit for its
unlading. In addition, under section 1448, Customs possesses a
reasonable measure of regulatory discretion as to whether, and under
what circumstances and conditions, to issue a permit to unlade incoming
cargo from a vessel arriving in the United States. Section 4.30,
Customs Regulations (19 CFR 4.30), lists the requirements and
conditions under which Customs may issue a permit to unlade foreign
merchandise from a vessel arriving in the United States.
In addition, 19 U.S.C. 1436(a)(1) and (a)(4) provide that it is
unlawful to fail to comply with sections 1431, 1433 or 1434 or any
regulation prescribed under any of those statutory authorities.
Moreover, 19 U.S.C. 1436(a)(2) states that it is unlawful to present or
transmit, electronically or otherwise, any forged, altered or false
document, paper, data or manifest to the Customs Service under 19
U.S.C. 1431, 1433(d) or 1434. Under section 1436(b), the master of a
vessel who commits any such violation is liable for a civil penalty of
$5,000 for the first violation and $10,000 for each subsequent
violation and any conveyance used in connection with any such violation
is subject to seizure and forfeiture.
Proposed Rulemaking; Advance Presentation of Vessel Cargo Manifest to
Customs; Required Information
By a document published in the Federal Register (67 FR 51519) on
August 8, 2002, Customs proposed to amend Sec. 4.7 to provide that,
pursuant to 19 U.S.C. 1431(d), for any vessel subject to entry under 19
U.S.C. 1434 upon its arrival in the United States, Customs must receive
the vessel's cargo manifest (declaration) from the carrier 24 hours
before the related cargo is laden aboard the vessel at the foreign
port. The proposed rule also enumerated the specific informational
elements that would need to be included in the submitted cargo
manifest.
Necessity for Advance Presentation of Vessel Cargo Manifest to Customs
As explained in the preamble of the Notice of Proposed Rulemaking
(67 FR at 51520), the United States Customs Service recently launched
the Container Security Initiative (``CSI''). CSI will secure an
indispensable, but vulnerable link in the chain of global trade:
Containerized shipping. Approximately 90% of world cargo moves by
container; 200 million cargo containers are transported between the
world's seaports each year, constituting the most critical component of
global trade. Nearly half of all incoming trade to the United States
(by value) arrives by ship, and most of that is in sea containers.
Annually, nearly 6 million cargo containers are offloaded at U.S.
seaports.
There is, however, virtually no security for this critical global
trading system. And the consequences of a terrorist incident using a
container would be profound. As experts like Dr. Stephen E. Flynn,
Senior Fellow, Council on Foreign Relations, have pointed out
repeatedly, if terrorists used a sea container to conceal a weapon of
mass destruction--a nuclear device, for example--and detonated it on
arrival at a port, the impact on global trade and the global economy
would be immediate and devastating. All nations would be affected
because there would be no mechanism for identifying weapons of mass
destruction before they reached our shores and before they posed a
threat to the global economy.
AI Qaeda and other terrorist organizations pose an immediate and
substantial threat. And the threat is not just to harm and kill
American citizens, it is a threat to damage and destroy the U.S. and
the world economy.
To address the threat terrorists pose to containerized shipping,
Customs developed CSI. Under CSI, U.S. Customs is working with other
governments to identify high-risk cargo containers and pre-screen those
containers at the foreign ports before they are shipped to the U.S. CSI
has four core elements:
(1) Identify ``high-risk'' containers. In connection with its
domestic targeting efforts, Customs has already established criteria
and automated targeting tools for identifying ``high risk'' shipments.
Indeed, every one of the shipments that arrives in the United States by
sea container is currently assessed for risk using these tools and
advance manifest data. If this data were provided earlier, Customs
could use these same tools to detect high risk shipments before they
were carried to the United States. Accordingly, to enhance domestic
targeting and to enable overseas targeting and screening of containers,
Customs has proposed a rule requiring accurate and detailed information
to be transmitted before shipments are laden on vessels destined for
the United States.
(2) Pre-screen containers before they are shipped. As discussed
above, to protect the United States and global trade from the risks
posed by international terrorists, security screening should be done at
the port of departure rather than the port of arrival.
(3) Use technology to screen high-risk containers. Technology
enables screening to be done rapidly without slowing down the movement
of trade. This technology includes large-scale x-ray and gamma machines
and radiation detection devices.
(4) Use more secure containers to ensure the integrity of
containers screened overseas.
CSI thus offers real protection, on a day-to-day basis, for the
primary system of international trade--a system on which all economies
depend. Given the security afforded by CSI, the investments made by
ports and
[[Page 66320]]
members of the trade to implement CSI represent relatively inexpensive
forms of insurance against the terrorist threat. In the event of an
attack using a cargo container, the CSI network of ports will be able
to remain operational because those ports will already have an
effective security system in place--one that will deter and prevent
terrorists from using it. Without such a network, the damage to global
trade caused by a terrorist attack involving international shipping
would be staggering.
In addition to protecting global trade, CSI should facilitate the
flow of that trade. When a container has been pre-screened and sealed
under CSI, U.S. Customs will not, absent additional information
affecting its risk analysis, need to inspect it for security purposes
when it reaches the U.S. Moreover, this system could reduce the
processing time for certain shipments because the screening at a CSI
port will in most cases take place during ``down time.'' Most
containers sit on a terminal for an average of several days prior to
lading. This window of ``down time'' will be used to screen containers
for security purposes. On arrival at the U.S. seaport, the CSI-screened
container should be released immediately by U.S. Customs, which could
shave hours, if not days, off of the shipping cycle. In this manner,
CSI should increase the speed and predictability for the movement of
cargo containers shipped to the U.S.
For these reasons, CSI is a critical component of the President's
Homeland Security Strategy. It has also been endorsed by the G-8 as
well as the World Customs Organization.
As a result of this broad support, CSI has been expanding rapidly.
When Customs launched CSI this past January, the first step was to
implement CSI as quickly as possible in Canada and the top 20 ports (by
volume) that ship to the United States. When fully implemented in these
locations, CSI will substantially increase the security of the United
States and the global trading system because the top 20 ports alone
account for nearly 70% of all the containers shipped to U.S. seaports.
To date, Canada, the Netherlands, Belgium, France, Germany, Singapore,
Hong Kong, and Japan have agreed to implement CSI. These countries
represent 11 of the top 20 ports. Customs anticipates that several
other nations will agree to implement CSI in the near term, and that
CSI will expand beyond the top 20 ports during the next year.
CSI is already operational in Canada and the Netherlands. It will
be implemented at several additional ports within the next 90 days.
Given this explosive growth, it is critical that the information
necessary to implement CSI fully be provided to Customs in the near
term. For this reason, Customs proposed this rulemaking on August 8,
2002 and, following the comment period, is issuing this final rule
today.
Non-Vessel Operating Common Carriers (NVOCCs)
Under the proposed rule, the conditions of the International
Carrier Bond (19 CFR 113.64) were proposed to be amended to recognize
the status of a Non-Vessel Operating Common Carrier (NVOCC) as a
manifesting party and to obligate any NVOCC having such a bond and
electing to provide cargo manifest information to Customs
electronically under Sec. 4.7 and 4.7a to accurately transmit such
information to Customs 24 or more hours before the related cargo is
laden aboard the vessel at the foreign port. Breach of these
obligations would result in liquidated damages against the NVOCC. For
purposes of the proposed rule, a non-vessel operating common carrier
(NVOCC) as a common carrier that does not operate the vessels by which
the ocean transportation is provided, would be considered a shipper in
its relationship with an ocean common carrier.
Penalties or Liquidated Damages for False or Untimely Filing of
Manifest Data
If the master of a vessel failed to present or transmit accurate
manifest data in the required time period or presented or transmitted
any false, forged or altered document, paper, manifest or data to
Customs, the proposed regulations specified that monetary penalties
could be assessed under the provisions of 19 U.S.C. 1436(b). Likewise,
if an NVOCC having an International Carrier Bond elected to transmit
such data electronically to Customs and failed to do so in the required
time period or transmitted any false, forged or altered document,
paper, manifest or data to Customs, the NVOCC could be liable for the
payment of liquidated damages for breach of the conditions of the
International Carrier Bond, in addition to any other applicable
penalties.
Issuance of Permit To Unlade Cargo
The proposed rule also provided that if the carrier did not present
cargo declaration information to Customs prior to the lading of the
cargo aboard the vessel at the foreign port, Customs could, in addition
to assessment of civil monetary penalties, delay issuance of a permit
to unlade the entire vessel or a portion thereof until all required
information was received.
Preliminary Entry
Finally, it was proposed that Sec. 4.8 be amended to make clear
that the granting of preliminary entry by Customs would be conditioned
upon the electronic submission of the Cargo Declaration (Customs Form
(CF) 1302), as well as the provision to Customs either electronically
or in paper form of all other forms required by Sec. 4.7.
Discussion of Comments
A total of 78 commenters responded to the notice of proposed
rulemaking. Nearly all of the commenters recognized the need to act
immediately to protect the global trading systems, and in particular to
protect the most important element in the movement of international
trade--containerized cargo. They also recognized the urgency and
seriousness of the threat posed by terrorist organizations and the
smuggling of weapons of mass destruction, including radiological and
nuclear materials. They complimented the Customs Service on newly
created programs such as the Customs-Trade Partnership Against
Terrorism (C-TPAT) and the Container Security Initiative (CSI), which
are designed to address this threat.
Most commenters questioned how the regulation would be implemented.
They raised operational issues regarding the movement of containers,
the security of containers and the interfaces between the U.S. Customs
Service and the trade. They also noted that the regulation would
require changes to existing business practices that could take several
months to fully implement.
While the aim of this regulation is to better secure containerized
cargo from the threat of terrorism, it is important to note that
carriers, shippers, importers and others should realize significant
benefits from its implementation. Most notably, once a cargo container
is pre-screened in a foreign port, in the absence of additional
information affecting Customs risk analysis, Customs will rarely need
to again screen the container or inspect its contents for security
purposes upon arrival in the United States. This offers greater
predictability for freight forwarders and importers to arrange for
transportation upon discharge of the cargo. This and other benefits,
however, will only be fully realized after the Customs Service is able
to pre-screen containers overseas, using the accurate and complete
information required by this regulation.
We have carefully considered all of the comments, and as a result,
we have
[[Page 66321]]
modified the proposed regulation in many respects. For example, many
commenters questioned the need to include bulk shipments under the
proposed regulation. After considering these comments, we have modified
the proposed regulation to exempt bulk shipments from its requirements.
Others requested greater assurances of confidentiality. In response, we
will be taking steps appropriately to protect business sensitive
information.
In addition, we have considered the comments about the need for
additional time to implement the reporting requirements because of
potential changes in business practices. Balancing these comments
against the pressing need to protect the national security of the
United States and to protect the safe and secure movement of
international trade, we have decided to not initiate any enforcement
actions such as assessing penalties for non-fraudulent violations of
this regulation for 60 days after the regulation goes into effect.
There is an overriding national security need, however, to move as
quickly as possible to protect the United States and the global trading
system from terrorism, especially the profound threat of nuclear
terrorism.
Though enforcement actions for non-fraudulent violations of this
regulation will not be initiated for 60 days after the regulation goes
into effect, the U.S. Customs Service is prepared to receive automated
manifest information immediately, which would allow Customs to offer
facilitation benefits to those customers of carriers and NVOCCs that
utilize CSI ports.
We have made a good faith effort to make changes to the rule where
appropriate at this time, but we recognize that not all of the
modifications suggested by commenters relate to changes in the
regulation itself, and that not all potential implementation issues
could be foreseen. In the interest of maintaining an open dialogue with
affected parties, and consistent with the long-standing Customs
practice of working with the trade, Treasury is inviting the Advisory
Committee on the Commercial Operations of the U.S. Customs Service
(COAC) to convene a special subcommittee to advise the U.S. Customs
Service on operational issues arising out of the implementation of this
regulation.
A complete description of the various issues raised by the
commenters, together with Customs response to these issues, is set
forth below.
19 U.S.C. 1431 as Authority for Regulations Notwithstanding Trade Act
of 2002
Comment: Twenty-one commenters questioned the validity of the
proposed advance cargo manifest regulations under 19 U.S.C. 1431 in
light of section 343(a) of the Trade Act of 2002 (Public Law 107-210;
116. Stat. 933), that was enacted on August 6, 2002. Section 343(a)
concerns the mandatory filing with Customs of advanced electronic
information for cargo being imported into or exported from the United
States by vessel, vehicle or aircraft. These commenters contend that
the proposed advance cargo manifest regulations are in direct
contradiction with the requirements imposed under section 343(a)(3) of
the Trade Act of 2002. The underlying premise essentially asserted in
this context is that Congress, in enacting section 343 of the Trade
Act, effectively repealed any authority that Customs might have had to
request advance manifest information under 19 U.S.C. 1431.
Customs Response: Customs has concluded that both 19 U.S.C. 1431
and section 343(a) of the Trade Act of 2002 co-exist within the Customs
laws and the enactment of section 343(a) of the Trade Act did not and
was not intended by Congress to implicitly repeal Customs authority to
collect manifest information under section 1431. Briefly stated,
therefore, Customs retains the authority under section 1431(b) and (d)
to require the advance presentation of vessel cargo manifest
information in accordance with the regulations being issued today.
In addition, Customs will issue regulations, in accordance with
section 343(a) of the Trade Act of 2002, that will require the advance
electronic transmission of information on cargo destined for
importation into the United States by vessel, vehicle or aircraft. In
this regard, Customs will reconcile those regulations that are issued
under the authority of section 343(a) with the regulations that are
being issued today under the authority under 19 U.S.C. 1431.
Bulk and Break Bulk Cargo
Comment: Several commenters inquired as to whether the 24 hour rule
would apply to bulk and break bulk cargo. Many commenters requested
that only certain data elements be required for such manifest
submissions. Others commented that the Coast Guard 96 hour report of
arrival requirements should be used for bulk and break bulk carriers
for manifest submission to U.S. Customs in the United States.
Customs Response: Customs has determined that the proposed rule
will be amended in this final rule to provide that bulk cargo as
defined in the rule will be exempt from the 24 hour rule; and, further,
that break bulk cargo may be exempted from the 24 hour rule on a case
by case basis. Companies that are exempted from the 24 hour rule must
submit their cargo declaration information to U.S. Customs 24 hours
prior to arrival in the U.S. if they are participants in the vessel AMS
program or upon arrival if they are non-automated carriers. In response
to the comment that the Coast Guard 96 hour report of arrival
requirements should be used, the Coast Guard has merely proposed that
requirement at this time. While Customs agrees with the idea, this
cannot be implemented until the Coast Guard requirement is adopted.
First, regarding bulk cargo, Customs defines such cargo as
homogeneous cargo stowed in bulk, that is to say, loose in the hold and
not enclosed in any container such as boxes, bales, bags, casks, and so
on. It is also called bulk freight. Reference to a maritime dictionary
reveals bulk cargo to be composed of (1) free flowing articles such as
oil, grain, coal, ore, and so on, which can be pumped or run through a
chute or handled by dumping; (2) articles that require mechanical
handling such as bricks, pig iron, lumber, steel beams and so on.
Second, Customs also recognizes that there are concerns that
carriers have with other types of cargo known as break bulk. Break bulk
is cargo that is not containerized, but which is otherwise packaged or
bundled. This type of cargo may raise the same types of concealment and
smuggling concerns as containerized cargo. Consequently, as indicated
above, a carrier of break bulk cargo may apply for an exemption from
the 24 hour rule; Customs will evaluate each application on a case by
case basis.
To apply for an exemption, the carrier must submit a written
request for exemption to the U.S. Customs Service, National Targeting
Center, 1300 Pennsylvania Ave., NW., Washington, DC 20229. Until an
application for an exemption is granted, the carrier must comply with
the 24 hour advance manifest requirement. The written request for
exemption must clearly set forth information such that Customs may
assess whether any security concerns exist, such as: The carrier's IRS
number; the source, identity and means of the packaging or bundling of
the commodities being shipped; the ports of call, both foreign and
domestic; the number of vessels the carrier uses to transport break
bulk cargo, along with
[[Page 66322]]
the names of these vessels and their International Maritime
Organization numbers; and the list of the carrier's importers and
shippers, identifying any who are members of C-TPAT (The Customs-Trade
Partnership Against Terrorism).
If Customs, by written response, provides an exemption to a break
bulk carrier, the exemption is only applicable under the circumstances
clearly set forth in the application for exemption. If circumstances
set forth in the approved application change, it will be necessary to
submit a new application.
Customs may rescind an exemption granted to a carrier at any time.
As noted above, companies receiving exemptions must submit their
cargo declaration information to U.S. Customs 24 hours prior to arrival
in the U.S. if they are participants in the vessel AMS program or upon
arrival if they are non-automated carriers.
Non Vessel Operating Common Carriers Eligible to Participate
Comment: In the August 8, 2002, proposed rule, Customs stated that
Non Vessel Operating Common Carriers (NVOCC) licensed by the Federal
Maritime Commission (FMC) would be eligible to become bonded with
Customs and to electronically transmit manifest information directly to
Customs. Several commenters pointed out that a separate category of
NVOCC is not licensed by the FMC, but rather is registered with the
agency. This latter group, unless identified by Customs as eligible to
participate, would be unable to transmit information directly to
Customs prior to foreign lading. It is requested that Customs allow
registered NVOCCs to participate. In addition, one commenter advocated
that shippers' associations, like NVOCCs, should be authorized to
present the required manifest information electronically to Customs.
Customs Response: Customs agrees that to the extent that members of
the NVOCC community registered with the FMC become bonded with Customs,
they should be included in the electronic filing program. Customs in
this final rule has amended the proposed regulatory language in this
regard to reflect this change. However, shippers' associations may not
participate in the electronic filing program. Such associations of
shippers are membership-only groups that are not currently regulated
under U.S. law, and they are not licensed or registered with the FMC.
Confidentiality of Manifest Information
Comment: A number of commenters addressed the issue of the
confidentiality of certain manifest information. The views expressed
really concerned two different aspects of the need for
confidentiality--that involving business and competitive advantage and
that involving the matter of cargo security.
One group, consisting primarily of the Non Vessel Operating Common
Carrier (NVOCC) community, expressed concerns that the information
which would be supplied to Customs under the proposed new procedures
would be subject to release for publication. It was stated that such
release would reveal confidential business information which could
result in harm to the NVOCC community. It was suggested that NVOCC
filers should be permitted to make biennial confidentiality
certifications to Customs on behalf of the importers or consignees,
pursuant to statute, which allows only the importers or consignees to
submit biennial certifications for confidentiality of certain manifest
information. It was also suggested that Customs should consider an
NVOCC to be an ``attorney in fact'' for certification filing purposes
since our regulations currently allowed an attorney of an importer or
consignee to submit a certification on behalf of that importer or
consignee.
The second confidentiality concern expressed by commenters involved
the matter of the security of the cargo itself. It was suggested that
if Customs released certain manifest information shortly after its
receipt, information identifying cargoes could be published even before
vessels departed foreign ports bound for the United States.
Customs Response: Customs recognizes the confidentiality concerns
stated by these commenters. The premature disclosure of information
about incoming cargo, particularly sensitive shipments, such as
chemicals and the like, could not only undermine business
relationships; it could also enable terrorist or criminal
organizations, having advance information about incoming cargo, to
attempt the theft or destruction of such cargo prior to or upon its
arrival in the United States.
Accordingly, in response to these matters, Customs intends to
address these concerns to the extent allowable under existing law. To
this end, 19 U.S.C. 1431(c) limits the parties eligible to make a
necessary confidentiality certification to include only importers and
consignees. While our regulations currently allow an attorney of an
importer or consignee to file a client's certification, Customs simply
cannot designate an NVOCC to be an ``attorney in fact'' for
certification filing purposes. Proposed amendments to Part 103 of the
Customs Regulations (19 CFR part 103) would be necessary. Given this
fact, Customs will be issuing a separate Federal Register Notice of
Proposed Rulemaking in the near future to expand upon those parties who
may file a biennial certification on behalf of the importer or
consignee. An immediately available option, however, is for NVOCC
manifest information filers to request appropriate importers and
consignees in the United States to file certifications with Customs on
their own behalf, thus protecting the same range of information which
is sought to be protected here.
With regard to the concern that release of advance information
prematurely can raise new security concerns, Customs will not be
releasing information from cargo declarations until the complete
manifest is filed with Customs. The statutory provision under
consideration, 19 U.S.C. 1431(c), provides for the release for public
disclosure of information, when contained in a vessel manifest. The
statute does not specify when the information must be released to the
public pursuant to 19 U.S.C. 1431(c). (Section 4.7 of the Customs
Regulations (19 CFR 4.7) specifically identifies those documents
comprising a vessel ``manifest''; such documents comprising the vessel
manifest include the Vessel Entrance or Clearance Statement (CF-1300);
Cargo Declaration (CF-1302); Ship's Stores Declaration (CF-1303);
Crew's Effects Declaration (CF-1304, or optional INS Form, I-418); Crew
List and I-418; and, Passenger List with I-418.)
The August 8, 2002, document published in the Federal Register, by
proposing to require advance filing of Cargo Declaration information,
specifies that only a portion of a vessel's manifest, the CF 1302
information, must be presented or transmitted prior to foreign lading.
This requirement goes only to certain data which is made part of the
larger manifest requirement. The manifest itself is filed with Customs
at the time of vessel entry in any of the various ports of the United
States. No information can be said to be contained in a ``vessel
manifest'' as provided in section 1431, until the complete manifest is
made available to Customs. Therefore, the release of information from
manifests must await their filing of the entire and complete manifest
with Customs at the time of formal entry of vessels in the United
States.
Bonds for Non Vessel Operating Common Carriers (NVOCCs)
Comment: One commenter stated that the proposal to amend provisions
of the
[[Page 66323]]
Customs International Carrier Bond as presently set forth in Sec.
113.64 (19 CFR 113.64) would be inappropriate since an NVOCC did not
actually transport merchandise. Concern was also expressed that an
NVOCC could be held accountable by Customs for delivery of cargo to an
incorrect port of unlading by a carrier. Likewise, there was concern
that an NVOCC could incur manifest violation penalties in instances
where data was relayed to Customs by the NVOCC at least 24 hours in
advance of scheduled vessel sailing time, but the vessel then loaded
and departed earlier than scheduled.
Customs Response: It is the current practice that vessel agents in
the United States carry continuous International Carrier Bond coverage
(19 CFR 113.1). They, likewise, do not transport cargoes. They are
bonded in order that Customs may be assured that the revenue is
protected and that prompt satisfaction of any liabilities incurred in
the course of their dealings with Customs may occur. Likewise, the
NVOCC community will be dealing with Customs and will be required to
provide the same level of assurance with respect to the correctness of
the information they submit. Provided the NVOCC adequately demonstrates
that cargo declaration information was timely submitted to Customs and
the carrier then loaded the containers prematurely, the NVOCC will not
be liable.
Comment: A commenter inquired as to how Customs would set bond
amounts for NVOCC activities, and whether guidance to the ports would
be forthcoming. The concern was that guidelines be made proportional to
any claims for liquidated damages assessed against these parties.
Customs Response: Customs port directors retain discretion for
setting bond amounts in their respective jurisdictions. Customs
Headquarters does intend to issue policy guidance on bond coverage
specific to NVOCC activity. As in the past, such guidance will
establish a minimum bond amount to be required. Using their discretion
under our regulations, port directors are authorized to set higher
amounts based upon their experience in the ports of entry.
The guidelines provided to ports will not include guidance
regarding proportionality of liquidated damages claims. Such claims
are, as always, dependent upon the factual circumstances involved in
any particular transaction relating to the breach of the bond
conditions.
Permits To Unlade in United States Ports
Comment: A few commenters addressed the issue of Customs granting
permits to unlade merchandise in ports of the United States. The
concern was that an entire vessel could be denied permission to unlade
in circumstances where only a portion of the cargo was non-compliant
with the rule on 24 hour advance notification to Customs. Port
Authorities also expressed concern over potential port congestion.
Customs Response: The statute governing the issuance of permits to
unlade merchandise in the United States, 19 U.S.C. 1448, expressly
provides that no merchandise shall be unladen from any vessel until
entry has been made and a permit for the unlading of the same has been
issued by the Customs Service. To the extent that Customs has
identified a portion of arriving cargo which has not been laden in
accordance with the requirements of the regulations, Customs has the
authority to process that portion differently from the remainder.
Customs will allow unloading of that portion of the cargo that has been
laden in accordance with the regulations, unless circumstances require
otherwise.
Liability Concerns and Legal Responsibilities
Comment: Several commenters raised questions about various
liability issues specifically relating to which party was legally
responsible under penalty of law for submitting accurate manifest
information to Customs; for any errors and omissions that were
contained in submitted manifests; and for the failure to file manifests
timely. Additionally, it was asked who would be responsible when
manifested freight was left behind and was not delivered to the port
for which it was manifested; or when diversions from or changes to the
original port of call resulted in freight being delivered to a port
other than the one for which the freight was manifested.
Customs Response: Customs may initiate penalty actions against any
party responsible for providing the required information. For example,
if a non-vessel operating common carrier (NVOCC) elects to participate
in the vessel Automated Manifest System (AMS) and transmits its
information directly to Customs, the NVOCC is the responsible party and
will be held liable for any manifest information found to be untimely
presented and/or containing errors or omissions. This would also be the
case if the NVOCC manifested cargo and the cargo is left behind. Timely
communication between the vessel carrier and the NVOCC is required in
order for the NVOCC to amend its manifest information to accurately
list the cargo that is on board the vessel. Likewise, effective
communication between the vessel carrier and the NVOCC is essential for
changes to the ports of call and diversions of the vessel.
If an NVOCC is a participant in the vessel AMS program, the NVOCC
will be treated as a carrier for Customs purposes. Vessel operators who
currently slot charter to other vessel AMS carriers will utilize the
same procedures for notification that the slot charterer has used in
providing its manifest to Customs. A slot charterer is a carrier
leasing space on a vessel owned or operated by another carrier on a
space available basis. The vessel operator is only responsible for
ensuring that the NVOCC's Standard Carrier Alpha Code (SCAC), as
described in 19 CFR 4.7a(c)(2)(iii), is included on the Customs Form
(CF) 3171 that is presented to Customs. Failure to present the SCAC of
all NVOCCs and slot charterers on board the vessel will result in a
penalty against the vessel carrier under 19 U.S.C. 1436.
Comment: A number of commenters asked for confirmation that Customs
would not require containers to be off loaded for examination once
clearance to load had been given. It was asked who would be liable for
the costs incurred if Customs required unloading of a container at an
intermediate foreign port.
Customs Response: Customs will follow the current procedures for
the examination of containers. Customs does not anticipate that a
container already loaded in compliance with this rule would be required
to be unloaded for examination except in exigent circumstances. In
these rare instances, the carrier will be assessed the costs.
Automated Commercial Environment (ACE)
Comment: Several commenters questioned how the proposed rule would
link to the Automated Commercial Environment (ACE) program and whether
partial bill of lading information could be reported to Customs. It was
also requested that Customs enlarge the scope of those participants who
were eligible to provide manifest information to include brokers,
shippers and importers.
Customs Response: The current system that Customs utilizes for
electronic transmissions of vessel manifest data is the Vessel
Automated Manifest System (AMS) which is a
[[Page 66324]]
component of the Customs Automated Commercial System (ACS). This system
will not allow for brokers, importers or shippers to input manifest
information. Additionally, this system will not accept partial bill of
lading data to be transmitted by the carrier. The carrier will receive
a reject message on that bill of lading.
The ACE system is the new automated system being designed by
Customs and it is in the developmental stages, consequently a precise
answer as to how this will be handled under ACE is not available now.
Working groups consisting of representatives from several Government
agencies and the trade community have been continually meeting to
ensure all issues and concerns are discussed and presented properly.
The Trade Support Network (TSN) is one of these working groups and the
appropriate subcommittee of the TSN will examine how the ACE program
will meet the objectives of this rulemaking. Interested parties can get
additional information as to the development of the ACE program at
www.customs.gov. Users should select the Customs Modernization icon on
the website, then type the letters ``TSN'' into the search box.
Maintaining a Paper Manifest on Board the Vessel
Comment: Several commenters referred to the need for vessel
carriers to maintain an original/copy of the manifest on board the
vessel.
Customs Response: The requirement to carry the paper manifest on
board the vessel was waived during a Vessel Paperless Manifest Test.
The test procedures will be amended by the effective date of this rule
to state that vessel carriers must submit their cargo declaration
information to Customs 24 hours prior to lading at a foreign port. The
participants in the Vessel Paperless Manifest Test will not be required
to maintain a paper copy of the manifest on board the vessel; however,
one must be provided upon request. All carriers not participating in
the test must maintain a paper copy of the complete manifest on board
the vessel.
Comment: Several commenters inquired whether carriers would be
required to submit a final manifest prior to arrival in order to be
permitted to unlade or whether the individual manifest reports
submitted in advance would suffice.
Customs Response: The distinction between a manifest and a cargo
declaration must be appreciated. The cargo declaration is one of
several documents which, when taken together, constitute a vessel
manifest. In this rulemaking, by requiring the submission of cargo
declaration information 24 hours prior to lading, Customs is
eliminating the requirement for vessel carriers to submit an additional
cargo declaration upon arrival in the United States. However, the
remaining documents comprising the vessel manifest must be available
for presentation upon entry of the vessel.
Requirements for U.S. Virgin Islands
Comment: Various commenters sought clarification as to whether
vessels operating from the U.S. Virgin Islands to the United States
were included in the proposal. It was pointed out that shipments from
the continental United States to Puerto Rico, Hawaii or Alaska would
not be subject to the proposed advance manifest regulations.
Customs Response: Vessels destined to Puerto Rico, Hawaii, and
Alaska from the continental United States are considered to be
operating between points in the Customs Territory. The U.S. Virgin
Islands is located outside the Customs Territory and therefore vessels
departing from there to the U.S. are subject to the 24 hour advanced
manifest rule.
Military Cargo
Comment: A number of commenters asked if the proposed rule applied
to military cargo or other government shipments.
Customs Response: Carriers of military cargo and other U.S.
Government shipments are required to comply with the advance manifest
regulations.
Clarification of Data Elements
Comment: Several commenters requested clarification of the data
elements required to be included on the cargo manifest.
Customs Response: Customs has revised the regulations to include
additional explanation and descriptive information, where appropriate,
for those data elements that must be contained in the vessel's cargo
manifest.
Comment: Several commenters stated that requiring a precise
description of the cargo would result in ``dummy'' information being
presented to Customs and that certain data elements were not known
until after the lading of containers. Additionally, if shippers were to
attempt precise cargo descriptions, the result would be numerous
corrections having to be made to the manifest as the vessel approached
the United States.
Customs Response: The so called ``dummy'' cargo descriptions are
exactly what Customs cannot accept because they undermine our efforts
to target threats to national security. Therefore, Customs is now
requiring accurate cargo descriptions. Generic descriptions,
specifically those such as ``FAK'' (``freight of all kinds''),
``general cargo,'' and ``STC'' (``said to contain'') are not
acceptable. Moreover, general characterizations such as ``chemicals''
or ``foodstuffs'' will be considered overbroad.
Comment: Several commenters requested clarification on whether the
proposed rule required the consignee name to be listed, or if it
required the consignee name only if one were already provided when
cargo was presented for shipment. Clarification was specifically
requested on: Whether the owner or owner's representative meant the
cargo owner; if there were a consignee, whether the shipper could
decline to disclose the consignee by naming the cargo owner; and,
whether the owner was to be listed only if there were no consignee
indicated.
Customs Response: The only time a consignee name would not be
recorded is in the case of ``to order'' shipments where the merchandise
is sold in transit. Many ``to order'' entities are listed as the
consignee. A ``to order'' consignee is not the true consignee, but
rather only an interested party, such as a bank, which is securing
payment. Either the party holding title to the goods (the owner) or
that party's representative has the real interest in a shipment.
Accordingly, the owner or owner's representative is the party that must
be listed in place of the consignee in the case of ``to order''
shipments. If the consignee's name is available, however, the shipper
must disclose this information.
Comment: A number of commenters requested that Customs clarify
which seal number had to be provided: The seal of the shipper, the seal
of the shipping line, or the Customs seal. Other commenters requested
clarification on whether all loaded containers had to have an affixed
seal.
Customs Response: For all sealed containers, the number that must
be identified is the seal number of the last person/company to load the
container. Participants in C-TPAT (The Customs-Trade Partnership
Against Terrorism) must affix seals to all loaded containers.
Comment: Some commenters asserted that it was impossible to report
the ``actual boarded quantities'' as required by proposed Sec.
4.7a(c)(4)(x) 24 hours before the cargo was ``actually'' boarded.
Customs Response: Customs recognizes the validity of the comments.
Accordingly, we are removing this data element from the final rule.
This matter
[[Page 66325]]
will be addressed in a separate Federal Register Notice of Proposed
Rulemaking concerning Manifest Discrepancy Report filing.
Co-Loading
Comment: Commenters questioned whether the proposed rulemaking
would put an end to ``co-loading.'' Co-loading would occur when several
NVOCC firms combined their cargo for movement under one NVOCC's master
bill of lading, and each NVOCC had its own sub-set of house bills of
lading and related manifests. Specifically, the scenario was presented
where an automated NVOCC co-loaded with a non-automated NVOCC and the
non-automated NVOCC presented the container to the vessel carrier. The
question posed in this context was whether the manifest information
would remain confidential and not be provided to the vessel carrier. In
addition, clarification was requested as to whether the shipper,
consignee, and cargo description information from all NVOCC house bills
of lading (Master NVOCC and co-loading NVOCC) had to be included in the
advance cargo manifest filing.
Customs Response: The rulemaking will not put an end to co-loading.
If an automated NVOCC co-loads with a non-automated NVOCC and the non-
automated NVOCC presents the container to the vessel carrier, the
automated NVOCC is required to present its own bill of lading for that
shipment directly to Customs via vessel AMS. The non-automated NVOCC
must fully disclose and present the required manifest information for
the related cargo to the vessel carrier for presentation to Customs via
vessel AMS. Automated NVOCCs will not be authorized to submit paper
manifests to the vessel carrier. The automated NVOCC who is co-loading
should be aware, however, that its shipment could be held for
examination based on Customs not receiving timely manifest information
in the United States.
If the situation is reversed and the non-automated NVOCC co-loads
with the automated NVOCC with the automated NVOCC presenting the
container to the vessel carrier, the automated NVOCC is required to
transmit all bills of lading in the container via vessel AMS. Non-
automated NVOCCs that have shipments as part of a co-loaded container
must fully disclose and present the required manifest information for
their cargo to the automated NVOCC who would be required to present
this information to Customs via vessel AMS. Each individual shipment
must be input into the vessel AMS program with each individual shipper
and consignee being identified along with the cargo description. Bills
of lading stating the non-automated NVOCC to be either the shipper or
consignee or setting forth the cargo description as ``consolidation''
is not authorized.
Non-automated NVOCCs thus have two options to submit manifest
information to Customs. The options are: (1) Submit manifest
information, in paper, directly to the vessel carrier who is required
to input all bills of lading from the non-automated NVOCC into the
vessel AMS program; or (2) Become a participant in the vessel AMS
program and submit manifest information to U.S. Customs either directly
or through an automated Service Provider, Port Authority, or Vessel
Agent. Only under the second option will the manifest information of a
non-automated NVOCC remain confidential (not be disclosed to the vessel
carrier). In any case, regardless of the option chosen, the non-
automated NVOCC is required to abide by the 24 hour advance manifest
rule.
As stated in 19 CFR 4.7a, NVOCCs that receive cargo in sealed
containers from the shipper can rely on the shipper's declaration. This
section provides specific language to be used with ``shippers load and
count.'' However, in vessel AMS the shipper must be identified, not the
NVOCC.
Vessel AMS Procedures
Comment: Several commenters indicated that vessel AMS needed to be
programmed to allow for the ocean carrier to update certain data
elements even if the ocean carrier had not initiated the data
transmission. In addition, requests were made to allow for a single
transmission of individual bills of lading to Customs.
Customs Response: The AMS program does not allow parties to change,
add or delete manifest information on a transaction they have not
initiated. Ocean carriers, NVOCCs and slot charterers need to
communicate and provide lading information to the responsible parties
in order to eliminate the possibilities that either cargo is laden on
board without being properly manifested, or without appropriate changes
being made to the bills of lading. The vessel AMS program was not
designed to allow for the transmission of individual bills of lading,
and such transmissions must be sent by batch. This matter is under
review for inclusion in the ACE program.
Comment: Several commenters requested clarification of the
procedures upon vessel arrival in the first U.S. port relating to
manifest filing, and time frames for submitting to Customs a permit to
unlade on Customs Form (CF) 3171.
Customs Response: Vessel carriers must submit their CF 3171s 48
hours prior to arrival in the United States. Except for participants in
the vessel paperless manifest test, vessel carriers, NVOCCs and slot
charterers are required to submit manifests for empty containers on
board to U.S. Customs 24 hours prior to arrival in the United States.
Comment: Some commenters requested clarification on the process by
which vessel carriers and NVOCCs, who were not automated, would present
their paper manifests to Customs for both CSI and non-CSI ports.
Clarification was also requested on the process for submitting manifest
information to Customs during computer down times and when unsuccessful
transmissions occurred.
Customs Response: In presenting paper cargo declaration information
to Customs at a CSI port, the authorized representative for the vessel
carrier is required to submit directly to U.S. Customs officials at a
designated site for that CSI port. The exact procedures for this
process will vary from country to country based on various agreements
signed under the CSI program. Each CSI location will determine the
process based on these agreements. The U.S. Customs Service will
provide detailed information to the trade community upon completion of
signed agreements in each of the CSI locations.
For those vessel carriers presenting paper cargo declaration
information to Customs at non-CSI ports, the companies are responsible
for ensuring that their cargo declaration information is provided to
Customs in the United States 24 hours prior to lading at the foreign
port. Facsimiles and non-AMS electronic messages sent directly to
Customs are not authorized. Non-automated vessel carriers may either
enlist the automated services of a Vessel Agent, Service Provider,
local Port Authority, or a business partner in the U.S. The domestic
party in receipt would deliver the cargo declaration information
directly to Customs. Paper cargo declaration information must be
presented to each intended U.S. port of arrival 24 hours prior to
lading at a foreign port. However, due to the fact that the non-
automated vessel carrier has elected to submit paper cargo declaration
information directly to Customs in the United States, the non-automated
carrier is responsible for ensuring that complete cargo
[[Page 66326]]
declaration information for each port of call in the United States (via
the paper procedure outlined in the paragraph below) is submitted to
each Customs location for review 24 hours prior to lading at the
foreign port. Failure to do so could result in penalties or denial of
unlading privileges.
In presenting cargo declaration information to Customs, a non-
automated vessel carrier may utilize an automated domestic Vessel
Agent, Service Provider, or Port Authority; or the non-automated
carrier may utilize either an automated or non-automated business
partner. Where the carrier utilizes an automated party to present cargo
declaration information electronically to Customs, notification of
holds will be conducted via the vessel AMS program. However, if a non-
automated vessel carrier chooses to submit its information via a
domestic representative using paper, Customs will notify the local U.S.
representative of any holds. This notification will be indicated on a
document that the local representative may pick up at the Customs port
offices. It will be the local U.S. representative's responsibility
either to provide necessary information to the ocean carrier or to
provide a copy of relevant documentation to the foreign entity who in
turn must provide a copy to the ocean carrier. Port directors in local
ports will provide the details on the location for submitting paper
cargo declaration information and the location and time that the
notification document can be obtained.
In presenting cargo declaration information to Customs, non-
automated NVOCCs may utilize an automated Service Provider, Vessel
Agent, or Port Authority; however, a non-automated NVOCC may not
utilize a non-automated business partner. U.S. Customs will not accept
paper cargo declaration information from any automated party, which has
originated from a non-automated NVOCC.
With reference to unsuccessful transmissions through the vessel AMS
program, Customs conducts testing programs with the participants prior
to their going on-line to ensure that their computers are both sending
and receiving accurate messages. Customs will not allow a company to go
on-line if they have not successfully completed this testing program.
The down time issues that have been raised are outlined in current
Customs Directive 3240-075, Vessel Automated Manifest System, that is
available to the trade community. Current acceptable down time is 2
hours; however, it is within the port director's discretion to allow
more than the recommended 2 hours if circumstances warrant. Carriers
whose systems are down for extended periods of time should notify their
assigned client representative and refer to the procedures outlined in
the directive on how to submit paper cargo declaration information to
Customs.
Comment: Various commenters asked that Customs authorize exemptions
for submission of any data elements which were viewed as being out of
the control of an NVOCC.
Customs Response: The vessel AMS program will not accept an absence
of data elements. If all required information is not entered, the
vessel AMS program will send a rejection message to the transmitting
party. We note that there are slot charterers who are automated and who
have been consistently operating without any difficulty. Vessel
carriers, NVOCCs and slot charterers must have procedures in place so
that if containers have been manifested by an NVOCC or a slot charterer
and subsequently are not laden, the vessel carrier must notify the
NVOCC or slot charterer in order that they may amend their manifests to
show corrected information.
Comment: Some commenters inquired as to how Customs would know when
goods had been laden since the lading process was one that occurred
over a period of time.
Customs Response: Customs considered requiring an additional data
element for carriers to indicate the estimated time of lading. It was
determined that such a requirement would be an additional burden to the
carriers, and potentially unnecessary. Carriers understand the
logistics of their business, and Customs will rely on them to provide
the required information 24 hours prior to lading. Indeed, they have
every incentive to do so--in addition to penalties, any carrier that
begins the lading process without providing manifest information 24
hours before will be required to remove any containers that are
identified for examination and which have already been laden.
Comment: Several commenters asked about the procedures needed to
identify the initial manifest transmission to Customs and when
amendment transmissions were made to the manifest.
Customs Response: The vessel AMS program has a transaction screen
that allows the inspector to view all postings against each bill of
lading. This means that each time a bill of lading is changed, added or
deleted, Customs receives these transactions.
Comment: A few commenters requested clarification on how the ocean
carrier would determine if an automated NVOCC had submitted manifest
information directly to Customs.
Customs Response: Vessel AMS has a field identified as the Second
Notify Party. The Second Notify Party lets the vessel carrier know when
a bill is on file, and gives the vessel carrier the hold messages as
well as all associated releases. Although this has not been a mandatory
field in the past, Customs will now require this field to be completed
by all automated NVOCCs and slot charterers.
Comment: It was asserted that if a hold notification were not sent
to the carrier at the port of loading but rather to an NVOCC located in
a different time zone from the carrier, it would affect being able to
respond rapidly to requests from Customs. It was observed that
different time zones could cause confusion as to when the 24 hour
period had expired.
Customs Response: Carriers and NVOCCs will have to establish lines
of communication for such circumstances. Customs will send
notifications of a bill of lading on file to the party that provided
the information to Customs in vessel AMS. The bill on file with Customs
has a date and time stamp in vessel AMS, using Eastern Standard Time.
Additionally, utilization of the Second Notify Party function in vessel
AMS will allow for provision of additional information to the vessel
carrier when an automated NVOCC or slot charterer receives hold
messages on containers.
Load/No Load Messages to the Carriers
Comment: Several commenters requested that carriers be given
confirmation for every container or shipment that Customs approved for
lading. Some commenters inquired as to whether an absence of
notification to carriers by Customs would serve as an authorization for
lading. Other commenters requested that carriers be allowed to begin
lading after a specified period of time, but prior to the expiration of
the 24 hour period.
Customs Response: Customs agrees in principle with the notion of
providing electronic confirmation messages to carriers which would
authorize the lading of containers. However, the necessary programming
cannot be accomplished before the regulations are implemented. Research
will be undertaken to determine whether this capability in the vessel
AMS program is feasible.
Until the completion of work in vessel AMS allowing confirmation
messages, Customs will not allow lading prior to expiration of the 24
hour period and
[[Page 66327]]
will utilize the current operating procedures under which filers
receive hold messages only.
Business Practice Issues
Comment: Numerous commenters questioned the viability of obtaining
detailed manifest information 24 hours prior to loading of cargo on
board a vessel. In this respect, some commenters expressed concern over
the impact of the requirement on the efficiency of their commercial
operations, while other commenters focused more on the financial impact
of the 24 hour requirement on their operations.
A major concern was that movement of cargo would be disrupted and/
or delayed due to the detailed level of manifest information required
because the information may not readily be available before cargo is
loaded onto a vessel. It was feared that the new requirements could
cause cargo to miss sailing dates and remain at docks which did not
have adequate security or space available to store containers.
The issue concerning financial impact involved changing business
practices such as: Routing of vessels, work practices, personnel
increases, automation costs including the cost of acquiring a bond, and
the leasing of storage facilities.
Customs Response: With regard to the concern that the proposed rule
may adversely affect the efficiency of international shipping
operations, Customs recognizes this legitimate concern and has taken at
least three steps to address it in the development of the CSI and this
rulemaking. First, it is important to note that it is the information
about the contents of a shipping container, not the container itself,
that must be presented to Customs 24 hours prior to lading at a foreign
seaport. Under this rule, so long as the required information is
provided to Customs 24 hours in advance of lading, the container itself
may be brought to the seaport at a later time. Second, the development
of this rule and the CSI have been designed to take advantage of the
existing shipping cycle. In most foreign seaports, containers destined
for the United States are often stored at terminals for several hours
or several days before lading. This provides ample opportunity for
Customs and its foreign CSI partners to identify and screen potentially
high-risk containers within the normal shipping cycle and without
causing any unnecessary delays. Third, as noted above, by screening
potentially high-risk containers at foreign seaports during the normal
shipping cycle, Customs should be able to significantly expedite the
movement of containers upon arrival in the United States. This should
not only reduce delays associated with targeting and screening
containers upon arrival in the United States, it should also add
greater predictability to the movement of containers through domestic
seaports.
Customs recognizes that some changes to business practices may be
required in order to transmit the manifest data required under this
rule. For example, although much, if not all, of the data required by
Customs is available prior to lading because it is derived from
information in the possession of carriers and NVOCCs or contained in
the commercial documents generated prior to lading, Customs recognizes
that businesses may not currently be configured to collect and transmit
such information in compliance with the rule. This is one of the
reasons that Customs has elected to phase-in enforcement of the rule
over a 60 day period after the regulation goes into effect--to strike
an appropriate balance between the needs of business and the need of
the government to address the immediate threat that international
terrorist organizations pose to the United States and the global
economy.
Customs also recognizes that not all potential changes to supply
chain or business practices can be anticipated in the promulgation of a
proposed rule or in the comments it generates. Accordingly, Customs
will carefully monitor the implementation of the rule and, as noted
above, Treasury is inviting COAC to create a subcommittee to advise
Customs on operational concerns arising from the implementation.
Comment: It was contended that requiring cargo manifest information
to be submitted to Customs 24 hours before lading the cargo aboard the
vessel at a foreign port would run counter to the ``just in time''
inventory practices in wide use today.
Customs Response: Customs is requiring transmissions of cargo
declaration information 24 hours in advance. Customs is not requiring
that the cargo be ready for inspection or that the cargo be at the
dock. However, Customs recognizes that this final rule could cause
vessel carriers to change the current practice of sometimes adding last
minute loads to vessels, but only if such loads were not manifested 24
hours prior to their lading.
Nonetheless, as noted above, most cargo destined for the United
States sits at the foreign port for several hours to several days
before lading. This regulation will have no effect on that practice.
Comment: Numerous commenters requested generally that procedures
required under the proposed rule be clarified. Many of these commenters
addressed issues involving private contractual agreements between trade
partners. Other matters where it was stated that further clarification
was needed dealt with process and manifesting requirements of carriers,
NVOCCs, involved ports, transshipment, and feeder vessels.
Customs Response: To the extent that trade partners may enter into
private contractual agreements, Customs would have no involvement.
Required information will include the data elements mentioned in the
rulemaking along with the information that is required on the cargo
declaration (CF 1302). These requirements apply at all foreign ports
where an inward foreign vessel carrier lades cargo destined to the
U.S., including FROB (Foreign Cargo Remaining On Board) which is not
going to be unladen in the United States. The term ``inward foreign
carrier'' applies to all vessels coming from foreign locations to the
U.S. A vessel that transships cargo between foreign locations or a
vessel that does not call on a U.S. port is not required to submit
manifest information under this rulemaking.
The inward foreign vessel carrier that calls on many foreign ports
before the U.S. will not have to re-transmit cargo declaration
information already provided from previous foreign ports. Multiple
original manifest transmissions can be submitted for the same carrier,
vessel or voyage so long as AMS vessel arrival has not occurred.
Carriers will only be required to transmit new cargo declaration
information for each port of lading. Any NVOCCs and slot charterers,
who are authorized to transmit manifest data in vessel AMS, will be
subject to the same requirements as the vessel carrier to provide
manifest information on cargo destined to the U.S., including FROB, as
defined later in this document, at each foreign port of lading.
Lead Time
Comment: Several commenters asked about the time frame that would
be given to implement the proposed rulemaking. There were two suggested
time frames for implementing the advance manifest regulations that were
mentioned repetitively by the commenters: one requested a lead time of
six months, and the other requested one year to implement a phased-in
approach.
Customs Response: This rulemaking responds to an urgent national
security
[[Page 66328]]
issue and must be implemented promptly. Customs must begin receiving
advanced cargo declaration information to strengthen CSI and to reduce
the risk of smuggling weapons of mass destruction and other contraband
into the United States. As previously mentioned, however, in
recognition of industry concerns, Customs has determined to delay full
enforcement for a period of 60 days following the effective date of the
new requirements. This, when taken together with the 30-day post
publication period generally provided, will allow a total of 90 days
from publication date to full enforcement.
Proposed Rule Will Result in Loss of U.S. Ports Business to Canadian
Ports
Comment: A number of the commenters were concerned that they would
lose business to Canadian ports due to the new regulations. They feared
that cargo would initially go to Canada and then come to the U.S. via
truck/rail to circumvent the regulations.
Customs Response: Customs has targeting personnel stationed at
seaports in Canada and cooperation with Canadian authorities has been
excellent. If either Customs administration suspected that goods were
being routed in an attempt to evade scrutiny, those goods would be
likely to be treated as high risk.
Requirements for ``FROB'' CARGO and NVOCCs
Comment: Several commenters questioned whether the new regulations
would apply to FROB cargo (Foreign Cargo Remaining On Board). They also
stated that carriers could refuse U.S. bound cargo once faced with the
new requirements.
Customs Response: The definition of ``FROB'' cargo is cargo that is
loaded in a foreign port and which is to be unloaded in another foreign
port with an intervening vessel stop in one or more ports in the United
States. Customs considers ``FROB'' cargo a security concern because
although the cargo does not have a final destination in the U.S., the
cargo is transiting the U.S. Currently, carriers must correctly report
FROB cargo upon arrival in the United States. Under the new
regulations, FROB cargo must be reported 24 hours in advance of
loading.
Request That Carrier Be Exempt From Rule if Participant in C-TPAT
Comment: Several commenters that were participants in C-TPAT (the
Customs-Trade Partnership Against Terrorism) requested that they either
be exempted from the advance manifest regulations or that they be
allowed to present cargo manifest information at some point before the
vessel arrived in the United States, rather than before the vessel
departed from the foreign country. It was further requested that there
be maintained a ``known shipper list'' which could enable Customs to
expedite cargo clearance. These commenters also sought the ability to
make changes to manifest information without time constraints being
imposed.
Customs Response: While C-TPAT participants will not be excluded
from the advance reporting requirements, their participation will be
taken into account during the targeting process.
A Denial/Delay in Granting Permit To Unlade Will Cause Port Congestion
Comment: A number of commenters, specifically Port Authorities,
were concerned that if permits to unlade were denied the result could
be congestion at U.S. ports.
Customs Response: Permits may be granted to unlade properly
manifested merchandise on a vessel but denied for the remainder of the
cargo for which manifest information has not been accurately and/or
timely received by Customs. Thus, depending on the circumstances, only
that portion of the cargo for which advance information is not provided
may not be unladen. Moreover, if the advance information is not timely
provided, the subject cargo should not be laden on the vessel.
Therefore, there is no reason to conclude that this final rule will
cause congestion at U.S. ports.
Time for Presenting Manifest Should Be When Vessel Departs or Later
Comment: Several commenters stated that the ability to submit their
manifest at time of foreign departure or later would be more feasible.
Customs Response: The purpose of this rulemaking is to allow
sufficient time for U.S. Customs to review and target cargo that may
pose a threat to the U.S., specifically weapons of mass destruction,
including nuclear and radiological materials and weapons, and to deny
that cargo from being loaded on board vessels before they depart for
the U.S. Having to interdict such cargo once it reaches our shores
would simply be too late. Customs believes that the 24 hour period
specified in the advance cargo declaration regulations is essential to
achieving this goal.
Need for Risk Analysis Regarding Implementation of 24 Hour Rule
Comment: Some commenters suggested that Customs conduct a risk
analysis before implementing the 24 hour rule.
Customs Response: As noted above, Customs has analyzed the risks
that international terrorists pose to the United States and the global
trading system. These risks are profound. This analysis led to the
development of CSI and the promulgation of this 24 hour advance cargo
declaration rule.
The 24 Hour Requirement Is Too Long for Short Voyages/Hauls
Comment: Several commenters indicated that 24 hours was too much
time to ask for information in advance for voyages that were less than
24 hours in length.
Customs Response: Customs will not exempt short hauls from the
regulation. Cargoes placed aboard vessels on short voyages pose the
same potential risks as those laded aboard vessels on longer voyages.
Customs recognizes that compliance with the regulations may require
certain changes in business practices, as previously discussed, but
these changes are necessary to protect the United States and global
shipping.
Handling of Empty Containers Aboard Vessels
Comment: Several commenters asked whether the advance manifest
regulations required that empty containers be manifested and whether,
if so, information would have to be submitted to Customs 24 hours in
advance. Additionally, it was stated in this connection that empty
containers were used to complete stowage plans and were loaded at the
last minute, depending on available space. It was stated that carriers
would be faced with additional costs for the storage of empty
containers if they did not make the voyage.
Customs Response: Carriers will not be required to submit
information on empty containers 24 hours in advance of lading. For
vessel AMS participants, information on empty containers must be
submitted on a single bill of lading which lists all container numbers.
For those carriers that present paper cargo declarations, empty
containers must be listed on a single paper bill of lading with all
container numbers listed. Submission of the empty container manifest
information, whether paper or automated, will be due to U.S. Customs at
least 24 hours prior to arrival in the United States, with the
exception of those participants in the current vessel paperless
manifest test, who must continue to file manifest information for empty
containers 48 hours prior to arrival in the United States.
[[Page 66329]]
Correction of Manifest Information
Comment: Several commenters raised the question of whether they
would be permitted to update information which was provided to Customs
prior to lading while they were enroute to the United States.
Customs Response: The main goals of the advance cargo declaration
information program are (1) to receive accurate information (2) prior
to lading in a foreign port. Only in this way can Customs use all of
its targeting tools to identify potentially high risk shipments and
prevent them from being placed aboard vessels in the first place.
Accurate information is essential if Customs is going to be successful
in preventing terrorists from using sea carriers to transport
instruments of terrorism to the United States. We recognize, however,
that updated or different information may be provided to carriers after
lading. As this information would assist in our efforts to assess the
risks associated with those shipments, we would expect to be provided
with such information, and will ensure that there are mechanisms to do
so. It must be understood, however, that an acceptance of certain
changes in information after foreign lading will not justify any
initial submission which is not, to the best information and belief of
the filer, true and complete at the time of submission. Indeed, Customs
will not tolerate such practices.
Customs recognizes that to accommodate manifest updates and
changes, amendments will be necessary to our regulations governing the
filing of Manifest Discrepancy Reports. Such changes will be the
subject of a separate Federal Register publication as soon as possible.
Comment: Several commenters inquired about manifest discrepancy
reports. It was asked whether carriers would be able to rely on the
shippers' declaration regarding the contents of sealed containers. In
addition, confirmation was requested that carriers would not be subject
to penalties for incorrect manifest information provided by shippers.
Customs Response: As indicated in the prior response, Customs will
be providing new rules for manifest discrepancy reports. A Notice of
Proposed Rulemaking covering that matter will be published in the
Federal Register. Until such time, carriers must continue to follow the
current regulations concerning manifest discrepancy reports. This
includes the guidelines for carriers using the shipper's declaration on
sealed containers. Customs will not allow the manifest discrepancy
report to be utilized in lieu of the provision of accurate and complete
manifest information under the 24 hour rule.
Regulatory Flexibility Act; Executive Order 12866
Comment: Three commenters contended that the proposed advance
manifest regulations would have a significant economic impact on a
substantial number of small businesses, specifically non-vessel
operating common carriers (NVOCCs), under the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601 et seq.), and thus should be subject to the
preparation of a regulatory flexibility analysis as provided under the
RFA. Two of these commenters also asserted in this context that the
proposed rule constituted a ``significant regulatory action'' under
E.O. 12866.
Customs Response: Customs is requiring advance manifest information
in order to improve security at our nation's seaports and to more
effectively enforce against all types of smuggling through our nation's
borders. The information that Customs is collecting pursuant to this
rulemaking is a necessary part of accomplishing these goals. Because
the information being requested is information to which the master of
the vessel should already have access, there is no indication that
providing the additional information on the Customs Form (CF) 1302 to
Customs 24 hours in advance of lading at the foreign port would result
in a significant economic impact on a substantial number of small
businesses.
Moreover, Customs has given the option to any small businesses
involved in providing this information of providing the advance
manifest information in paper form, rather than electronically, for
those businesses that are not yet automated. Likewise, for those
businesses that are automated, the advanced electronic filing would
ultimately reduce filing costs because of the ability to submit the
information electronically directly to Customs. Further, Customs has
allowed for a delay of implementation of the new regulations in order
to allow time for businesses to adjust to the new filing requirements.
Finally, none of the commenters has submitted evidence to Customs
demonstrating the way in which these regulations would have a
significant economic impact on small businesses. As such, Customs
stands by its initial certification that a regulatory flexibility
analysis pursuant to the Regulatory Flexibility Act is not applicable
here.
Additionally, whether the Regulatory Flexibility Act applies to
certain entities in a rulemaking turns on whether such entities are the
``targets'' of the rulemaking. To this end, the advance cargo manifest
regulations that are the subject of this rulemaking are based upon 19
U.S.C. 1431. In pertinent part, 19 U.S.C. 1431(b) requires the master
of a vessel (that is, the vessel carrier) to provide vessel cargo
manifest information to Customs. It is thus the vessel carriers
themselves to which these regulations are directed, and carriers are
ultimately responsible under these regulations for providing mandatory
cargo manifest information to Customs.
There is no requirement that NVOCCs participate in these advance
manifest regulations; rather, Customs is merely affording NVOCCs the
option under these regulations to provide cargo manifest data directly
to Customs on behalf of the vessel carrier in order to protect what the
NVOCC believes to be confidential business information. If NVOCCs do
not wish to participate in the filing of advance cargo manifest
information with Customs, the NVOCCs may properly elect to provide such
information to the vessel carriers directly, for it is the vessel
carriers, as emphasized above, that are obligated under these
regulations to furnish this information to Customs. At most, therefore,
the NVOCCs referenced in this rule are only indirectly affected by the
subject regulations due to the nature of their business relationship
with the vessel carriers.
In sum, no specific evidence was submitted by commenters
establishing that there are a substantial number of small entities that
are ``targets'' of the rulemaking.
Because Customs recognizes there will be costs involved in
businesses changing their practices to comply with these national
security-driven regulations, Customs will phase-in full implementation
of this advance manifest rule over a period of 90 days. Specifically,
these regulations will not be effective until 30 days after the date of
publication of this final rule in the Federal Register. In addition,
Customs will not initiate any enforcement actions such as assessing
penalties for non-fraudulent violations of these regulations until 60
days after the effective date of this final rule. This phased-in
implementation regime should reduce and minimize costs involved in
complying with the new regulations.
Accordingly, the certification set forth in the proposed rule
relating to the inapplicability of the Regulatory Flexibility Act in
this case is revised in
[[Page 66330]]
this final rule to reflect the foregoing considerations.
Also, we do not believe that this national security-related rule
constitutes a ``significant regulatory action'' under E.O. 12866.
Paperwork Burden
Comment: Several commenters stated that the accuracy of the
agency's estimate of the information collection burden published in the
proposed rule was vastly understated. It was stated that the numbers
did not take into consideration the added time and paperwork, even in
an automated environment, that will be required by the need for earlier
information as supply chain documentation requirements will need to be
overhauled.
Customs Response: Customs agrees with the commenters that the
estimate of the information collection burden published in the notice
of proposed rulemaking is understated and, accordingly, is upwardly
adjusting the estimate of the burden.
Customs notes that the adjustment it is making to the estimated
burden hours is not entirely due to the requirement to provide manifest
information 24 hours prior to lading. Based upon the comments, Customs
reviewed the previously approved information collection burden for
preparing the vessel manifest and concluded that those numbers needed
an upward adjustment. Accordingly, the upward adjustment stated in this
document reflects both an adjustment due to this rule and an adjustment
to the numbers that existed for the previous long-standing manifesting
requirement.
Regarding any increase in burden due to overhaul of supply chain
documentation requirements, Customs agrees that the number of hours
spent collecting information may initially be high while business
practices are adjusting. Eventually, however, Customs expects that the
burden will decrease as the supply chain gets used to the new way of
doing business.
Adoption of Proposal
In view of the foregoing, and following careful consideration of
the comments received and further review of the matter, Customs has
concluded that the proposed regulations with the modifications
discussed above should be adopted as a final rule.
Regulatory Flexibility Act and Executive Order 12866
As stated in Customs response above, Customs is requiring advance
manifest information in order to improve security at our nation's
seaports and to more effectively enforce against all types of smuggling
through our nation's borders. The information that Customs is
collecting pursuant to this rulemaking is a necessary part of
accomplishing these goals. Because the information being requested is
information to which the master of the vessel should already have
access, there is no indication that providing the additional
information on the Customs Form (CF) 1302 to Customs 24 hours in
advance of lading at the foreign port would result in a significant
economic impact on a substantial number of small businesses.
Moreover, Customs has given the option to any small businesses
involved in providing this information of providing the advance
manifest information in paper form, rather than electronically, for
those businesses that are not yet automated. Likewise, for those
businesses that are automated, the advanced electronic filing would
ultimately reduce filing costs because of the ability to submit the
information electronically directly to Customs. Further, Customs has
allowed for a delay of implementation of the new regulations in order
to allow time for businesses to adjust to the new filing requirements.
Finally, none of the commenters has submitted evidence to Customs
demonstrating the way in which these regulations would have a
significant economic impact on small businesses. As such, Customs
stands by its initial certification that a regulatory flexibility
analysis pursuant to the Regulatory Flexibility Act is not applicable
here.
The advance presentation to Customs of vessel manifest information
for cargo destined for the United States as prescribed in this final
rule is intended to expedite the release of incoming cargo while, at
the same time, ensuring maritime safety and protecting national
security. To this end, it is the vessel carriers themselves, which are
mostly very large concerns, to which these regulations are targeted and
that are ultimately responsible under these regulations for providing
mandatory cargo manifest information to Customs.
By contrast, regarding non-vessel operating common carriers
(NVOCCs), many of which are asserted to be small businesses, there is
no requirement whatever that these entities participate in these
advance manifest regulations; rather, Customs is merely affording
NVOCCs the option under these regulations of providing cargo manifest
data directly to Customs on behalf of the vessel carrier in order to
protect what the NVOCC believes to be confidential business
information. At best, therefore, the NVOCCs referenced in this rule are
only indirectly affected by the subject regulations due to the nature
of their business relationship with the vessel carriers. Hence, if
NVOCCs do not wish to participate in the filing of advance cargo
manifest information with Customs, the NVOCCs may properly elect to
provide such information to the vessel carriers directly, for it is the
vessel carriers, as emphasized above, that are obligated under these
regulations to furnish this information to Customs.
Given the above reasons, pursuant to the provisions of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), it is certified that
these final regulations do not have a significant economic impact on a
substantial number of small entities. Accordingly, these amendments are
not subject to the regulatory analysis or other requirements of 5
U.S.C. 603 and 604. Nor do they meet the criteria for a ``significant
regulatory action'' as specified in E.O. 12866.
Paperwork Reduction Act
The collection of information in this final rule document was
submitted for review and has been approved by the Office of Management
and Budget (OMB) in accordance with the requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1515-
0001 (Transportation Manifest (Cargo Declaration)). An agency may not
conduct, and a person is not required to respond to, a collection of
information unless the collection of information displays a valid
control number assigned by OMB.
The collection of information in this final rule document is
contained in Sec. 4.7a(c)(4). This information is required and will be
used to deter smuggling by determining the security conditions under
which cargo was maintained prior to and following its delivery for
lading aboard a vessel for shipment to the United States. The likely
respondents and/or recordkeepers are business or other for-profit
institutions. The estimated average annual burden associated with this
information collection is 49.8 hours per respondent or recordkeeper.
Comments on the accuracy of this burden estimate and suggestions
for reducing this burden should be sent to the Office of Management and
Budget, Attention: Desk Officer of the Department of the Treasury,
Office of Information and Regulatory Affairs, Washington, DC 20503. A
copy should also be sent to the Regulations Branch, Office of
Regulations and Rulings, U.S.
[[Page 66331]]
Customs Service, 1300 Pennsylvania Avenue, NW., Washington, DC 20229.
Part 178, Customs Regulations (19 CFR part 178), containing the
list of approved information collections, is revised to reflect this
additional information collection.
List of Subjects
19 CFR Part 4
Administrative practice and procedure, Arrival, Cargo vessels,
Customs duties and inspection, Declarations, Entry, Freight, Harbors,
Hazardous substances, Imports, Inspection, Landing, Maritime carriers,
Merchandise, Reporting and recordkeeping requirements, Shipping,
Vessels.
19 CFR Part 113
Bonds, Customs duties and inspection, Exports, Foreign commerce and
trade statistics, Freight, Imports, Reporting and recordkeeping
requirements.
19 CFR Part 178
Administrative practice and procedure, Collections of information,
Imports, Paperwork requirements, Reporting and recordkeeping
requirements.
Amendments to the Regulations
Parts 4, 113 and 178, Customs Regulations (19 CFR parts 4, 113 and
178), are amended as set forth below:
PART 4--VESSELS IN FOREIGN AND DOMESTIC TRADES
1. The general authority citation for part 4 and the relevant
specific authority citations continue to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624;
46 U.S.C. App. 3, 91;
* * * * *
Section 4.7 also issued under 19 U.S.C. 1581(a); 46 U.S.C. App.
883a, 883b;
Section 4.7a also issued under 19 U.S.C. 1498, 1584;
Section 4.8 also issued under 19 U.S.C. 1448, 1486;
* * * * *
Section 4.30 also issued under 19 U.S.C. 288, 1446, 1448, 1450-
1454, 1490;
* * * * *
2. Section 4.7 is amended by revising its section heading; by
redesignating the existing text of paragraph (b) as paragraph (b)(1)
and revising the first sentence of newly redesignated paragraph (b)(1);
and by adding new paragraphs (b)(2), (b)(3), (b)(4) and (e) to read as
follows:
Sec. 4.7 Inward foreign manifest; production on demand; contents and
form; advance filing of cargo declaration.
* * * * *
(b)(1) In addition to any Cargo Declaration that has been filed in
advance as prescribed in paragraph (b)(2) of this section, the original
and one copy of the manifest must be ready for production on demand. *
* *
(2) For any vessel subject to paragraph (a) of this section, except
for any vessel exclusively carrying bulk or break bulk cargo as
prescribed in paragraph (b)(4) of this section, Customs must receive
from the carrier the vessel's Cargo Declaration, Customs Form 1302, or
a Customs-approved electronic equivalent, 24 hours before such cargo is
laden aboard the vessel at the foreign port (see Sec. 4.30(n)(1)).
Participants in the Vessel Automated Manifest System (AMS) are required
to provide the vessel's cargo declaration electronically.
(3)(i) Where a non-vessel operating common carrier (NVOCC), as
defined in paragraph (b)(3)(ii) of this section, delivers cargo to the
vessel carrier for lading aboard the vessel at the foreign port, the
NVOCC, if licensed by or registered with the Federal Maritime
Commission and in possession of an International Carrier Bond
containing the provisions of Sec. 113.64 of this chapter, may
electronically transmit the corresponding required cargo manifest
information directly to Customs through the Vessel Automated Manifest
System (AMS) 24 or more hours before the related cargo is laden aboard
the vessel at the foreign port (see Sec. 113.64(c) of this chapter);
in the alternative, the NVOCC must fully disclose and present the
required manifest information for the related cargo to the vessel
carrier which, if automated, is required to present this information to
Customs via the vessel AMS system.
(ii) A non-vessel operating common carrier (NVOCC) means a common
carrier that does not operate the vessels by which the ocean
transportation is provided, and is a shipper in its relationship with
an ocean common carrier. The term ``non-vessel operating common
carrier'' does not include freight forwarders as defined in part 112 of
this chapter.
(4) Carriers of bulk cargo as specified in paragraph (b)(4)(i) of
this section and carriers of break bulk cargo to the extent provided in
paragraph (b)(4)(ii) of this section are exempt with respect to that
cargo from the requirement set forth in paragraph (b)(2) of this
section that a cargo declaration be filed with Customs 24 hours before
such cargo is laden aboard the vessel at the foreign port. Any carriers
of bulk or break bulk cargo that are exempted from the filing
requirement of paragraph (b)(2) of this section must present their
cargo declarations to Customs 24 hours prior to arrival in the U.S. if
they are participants in the vessel AMS program, or upon arrival if
they are non-automated carriers. These carriers must still report 24
hours in advance of loading any containerized or non-qualifying break
bulk cargo they will be transporting.
(i) A carrier is exempt from the filing requirement of paragraph
(b)(2) of this section with respect to the bulk cargo it is
transporting. Bulk cargo is defined for purposes of this section as
homogeneous cargo that is stowed loose in the hold and is not enclosed
in any container such as a box, bale, bag, cask, or the like. Such
cargo is also described as bulk freight. Specifically, bulk cargo is
composed of either:
(A) Free flowing articles such as oil, grain, coal, ore, and the
like, which can be pumped or run through a chute or handled by dumping;
or
(B) Articles that require mechanical handling such as bricks, pig
iron, lumber, steel beams, and the like.
(ii) A carrier of break bulk cargo may apply for an exemption from
the filing requirement of paragraph (b)(2) of this section with respect
to the break bulk cargo it will be transporting. For purposes of this
section, break bulk cargo is cargo that is not containerized, but which
is otherwise packaged or bundled.
(A) To apply for an exemption, the carrier must submit a written
request for exemption to the U.S. Customs Service, National Targeting
Center, 1300 Pennsylvania Ave., NW., Washington, DC 20229. Until an
application for an exemption is granted, the carrier must comply with
the 24 hour advance manifest requirement set out in paragraph (b)(2) of
this section. The written request for exemption must clearly set forth
information such that Customs may assess whether any security concerns
exist, such as: The carrier's IRS number; the source, identity and
means of the packaging or bundling of the commodities being shipped;
the ports of call, both foreign and domestic; the number of vessels the
carrier uses to transport break bulk cargo, along with the names of
these vessels and their International Maritime Organization numbers;
and the list of the carrier's importers and shippers, identifying any
who are members of C-TPAT (The Customs-Trade Partnership Against
Terrorism).
(B) Customs will evaluate each application for an exemption on a
case by case basis. If Customs, by written
[[Page 66332]]
response, provides an exemption to a break bulk carrier, the exemption
is only applicable under the circumstances clearly set forth in the
application for exemption. If circumstances set forth in the approved
application change, it will be necessary to submit a new application.
(C) Customs may rescind an exemption granted to a carrier at any
time.
* * * * *
(e) Failure to provide manifest information; penalties/liquidated
damages. Any master who fails to provide manifest information as
required by this section, or who presents or transmits electronically
any document required by this section that is forged, altered or false,
or who fails to present or transmit the information required by this
section in a timely manner, may be liable for civil penalties as
provided under 19 U.S.C. 1436, in addition to penalties applicable
under other provisions of law. In addition, if any non-vessel operating
common carrier (NVOCC) as defined in paragraph (b)(3)(ii) of this
section elects to transmit cargo manifest information to Customs
electronically and fails to do so in the manner and in the time period
required by paragraph (b)(3)(i) of this section, or electronically
transmits any false, forged or altered document, paper, manifest or
data to Customs, such NVOCC may be liable for the payment of liquidated
damages as provided in Sec. 113.64(c) of this chapter, in addition to
any other penalties applicable under other provisions of law.
3. Section Sec. 4.7a is amended by revising the first sentence of
paragraph (c)(1), and by adding new paragraphs (c)(4) and (f) to read
as follows:
Sec. 4.7a Inward manifest; information required; alternative forms.
* * * * *
(c) Cargo Declaration. (1) The Cargo Declaration (Customs Form 1302
or a Customs-approved electronic equivalent) must list all the inward
foreign cargo on board the vessel regardless of the U.S. port of
discharge, and must separately list any other foreign cargo remaining
on board (``FROB''). For the purposes of this part, ``FROB'' means
cargo which is laden in a foreign port, is intended for discharge in a
foreign port, and remains aboard a vessel during either direct or
indirect stops at one or more intervening United States ports. * * *
* * * * *
(4) In addition to the cargo manifest information required in
paragraphs (c)(1)-(c)(3) of this section, for all inward foreign cargo,
the Cargo Declaration, either on Customs Form 1302, or on a separate
sheet or Customs-approved electronic equivalent, must state the
following:
(i) The last foreign port before the vessel departs for the United
States;
(ii) The carrier SCAC code (the unique Standard Carrier Alpha Code
assigned for each carrier; see paragraph (c)(2)(iii) of this section);
(iii) The carrier-assigned voyage number;
(iv) The date the vessel is scheduled to arrive at the first U.S.
port in Customs territory;
(v) The numbers and quantities from the carrier's ocean bills of
lading, either master or house, as applicable (this means that the
carrier must transmit the quantity of the lowest external packaging
unit; containers and pallets are not acceptable manifested quantities;
for example, a container containing 10 pallets with 200 cartons should
be manifested as 200 cartons);
(vi) The first foreign port where the carrier takes possession of
the cargo destined to the United States;
(vii) A precise description (or the Harmonized Tariff Schedule
(HTS) numbers to the 6-digit level under which the cargo is classified
if that information is received from the shipper) and weight of the
cargo or, for a sealed container, the shipper's declared description
and weight of the cargo. Generic descriptions, specifically those such
as ``FAK'' (``freight of all kinds''), ``general cargo'', and ``STC''
(``said to contain'') are not acceptable;
(viii) The shipper's complete name and address, or identification
number, from all bills of lading. (The identification number will be a
unique number assigned by U.S. Customs upon the implementation of the
Automated Commercial Environment);
(ix) The complete name and address of the consignee or the owner or
owner's representative, or identification number, from all bills of
lading. (The identification number will be a unique number assigned by
U.S. Customs upon implementation of the Automated Commercial
Environment);
(x) The vessel name, country of documentation, and official vessel
number. (The vessel number is the International Maritime Organization
number assigned to the vessel);
(xi) The foreign port where the cargo is laden on board;
(xii) Internationally recognized hazardous material code when such
materials are being shipped;
(xiii) Container numbers (for containerized shipments); and
(xiv) The seal numbers for all seals affixed to containers.
* * * * *
(f) Failure to provide manifest information; penalties/liquidated
damages. Any master who fails to provide manifest information as
required by this section, or who presents or transmits electronically
any document required by this section that is forged, altered or false,
may be liable for civil penalties as provided under 19 U.S.C. 1436, in
addition to penalties applicable under other provisions of law. In
addition, if any non-vessel operating common carrier (NVOCC) as defined
in Sec. 4.7(b)(3)(ii) elects to transmit cargo manifest information to
Customs electronically, and fails to do so as required by this section,
or transmits electronically any document required by this section that
is forged, altered or false, such NVOCC may be liable for liquidated
damages as provided in Sec. 113.64(c) of this chapter, in addition to
other penalties applicable under other provisions of law.
4. Section 4.8 is amended by revising the second and third
sentences of paragraph (b) to read as follows:
Sec. 4.8 Preliminary entry.
* * * * *
(b) Requirements and conditions. * * * The granting of preliminary
vessel entry by Customs at or subsequent to arrival of the vessel, is
conditioned upon the presentation to and acceptance by Customs of all
forms, electronically or otherwise, comprising a complete manifest as
provided in Sec. 4.7, except that the Cargo Declaration, Customs Form
(CF) 1302, must be presented to Customs electronically in the manner
provided in Sec. 4.7(b)(2). Vessels seeking preliminary entry in
advance of arrival must do so: By presenting to Customs the electronic
equivalent of a complete Customs Form 1302 (Cargo Declaration), in the
manner provided in Sec. 4.7(b), showing all cargo on board the vessel;
and by presenting Customs Form 3171 electronically no less than 48
hours prior to vessel arrival. * * *
* * * * *
5. Section 4.30 is amended by adding a new paragraph (n) to read as
follows:
Sec. 4.30 Permits and special licenses for unlading and lading.
* * * * *
(n)(1) Customs will not issue a permit to unlade before it has
received the cargo declaration information pursuant to Sec. 4.7(b). In
cases in which Customs does not receive complete cargo manifest
information from the carrier or
[[Page 66333]]
from the NVOCC, in the manner and format required by Sec. 4.7(b), 24
hours prior to the lading of the cargo aboard the vessel at the foreign
port, Customs may delay issuance of a permit to unlade the entire
vessel until all required information is received. Customs may also
decline to issue a permit to unlade the specific cargo for which a
declaration is not received 24 hours before lading in a foreign port.
Furthermore, where the carrier does not present an advance cargo
manifest to Customs electronically, in the manner provided in Sec.
4.7(b)(2), preliminary entry pursuant to Sec. 4.8(b) will be denied.
(2) In addition, while the advance presentation of the cargo
manifest for any vessel subject to Sec. 4.7(b)(2) may be made in paper
form or by electronic transmission through a Customs-approved
electronic data interchange system, the submission of an electronic
manifest for the cargo in this regard, as opposed to a paper manifest,
will further facilitate the prompt issuance of a permit to unlade the
cargo.
PART 113--CUSTOMS BONDS
1. The general authority citation for part 113 continues to read as
follows:
Authority: 19 U.S.C. 66, 1623, 1624.
2. Section 113.64 is amended by revising the first sentence of
paragraph (a); and by redesignating paragraphs (c), (d), (e) and (f) as
paragraphs (d), (e), (f) and (g), respectively, and adding a new
paragraph (c) to read as follows:
Sec. 113.64 International carrier bond conditions.
(a) Agreement to Pay Penalties, Duties, Taxes, and Other Charges.
If any vessel, vehicle, or aircraft, or any master, owner, or person in
charge of a vessel, vehicle or aircraft, or any non-vessel operating
common carrier as defined in Sec. 4.7(b)(3)(ii) of this chapter incurs
a penalty, duty, tax or other charge provided by law or regulation, the
obligors (principal and surety, jointly and severally) agree to pay the
sum upon demand by Customs. * * *
* * * * *
(c) Non-vessel operating common carrier (NVOCC). If a non-vessel
operating common carrier (NVOCC) as defined in Sec. 4.7(b)(3)(ii) of
this chapter elects to provide vessel cargo manifest information to
Customs electronically, the NVOCC, as a principal under this bond, in
addition to compliance with the other provisions of this bond, also
agrees to provide such manifest information to Customs in the manner
and in the time period required by Sec. Sec. 4.7(b) and 4.7a(c) of
this chapter. If the NVOCC, as principal, defaults with regard to these
obligations, the principal and surety (jointly and severally) agree to
pay liquidated damages of $5,000 for each regulation violated.
* * * * *
PART 178--APPROVAL OF INFORMATION COLLECTION REQUIREMENTS
1. The authority citation for part 178 continues to read as
follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 1624; 44 U.S.C. 3501 et seq.
2. Section 178.2 is amended by adding a new listing in the table in
appropriate numerical order to read as follows:
------------------------------------------------------------------------
OMB control
19 CFR section Description No.
------------------------------------------------------------------------
* * * * *
Sec. 4.7a(c)(4).................. Transportation 1515-0001
manifest (cargo
declaration).
* * * * *
------------------------------------------------------------------------
Robert C. Bonner,
Commissioner of Customs.
Aproved: October 25, 2002.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 02-27661 Filed 10-30-02; 8:45 am]
BILLING CODE 4820-02-P