CBP's Final Rule on the Advance Electronic Presentation of Cargo Information (Part XIX - CBP Responds to Comments)

This is Part XIX of a multi-part series of summaries of this final rule, and highlights some of CBP's responses to comments on the proposed rule concerning outbound cargo for all transportation modes, as follows:

Department of Defense exports. According to CBP, the Department of Defense (DoD) wanted to be excepted from the requirement to obtain an Internal Transaction Number (ITN) for export shipments, preferring instead to continue using the External Transaction Number (XTN) for this purpose, which was said to be necessary to achieve an interface between DoD shipper systems and the Automated Export System (AES).

CBP responds that it will review the ITN requirement for non-licensed DoD shipments. However, CBP emphasizes that for those DoD shipments which are subject to the State Department's International Traffic in Arms Regulations (ITAR), the requirement of an ITN, to be reported within the advance time frames stipulated by the State Department, will be mandatory. CBP indicates that proposed 19 CFR 192.14(b)(2) (Applicability of time frames) is amended in this final rule to add a specific cross reference to the State Department's ITAR Regulations (22 CFR Parts 120-130) that contain the advance notification provisions for exports of items on the U.S. Munitions List.

Format specifications & electronic requirements for ITN/XTN, Option 4, etc. In response to a comment suggesting that specifications of the format and electronic transmission requirements for the ITN should be provided, especially for airlines, CBP states that many carriers already annotate the XTN/ITN, Option 4 statement, or other exemption on the manifest. According to CBP, carriers should refer to Foreign Trade Statistics Regulations (FTSR) Letter 168, Amendment 2, for the proper formats, which may be obtained from the Bureau of Census (Census).

Time of freight acceptance by carrier. According to CBP, a comment states that since carriers could not accept cargo from the shipper/exporter until an electronic filing number or exemption code had been annotated on the export documentation at the time of freight acceptance, it would then follow that freight acceptance times would have to be restricted to 2 hours out from the flight.

CBP responds that carriers should currently not be accepting cargo without a paper Shipper's Export Declaration (SED), XTN/ITN, Option 4 or reporting exemption statement (15 CFR 30.50-30.58). Hence, the carrier's responsibility under this final rule should not perceptibly change from the proper procedure it should be following at present. CBP notes that it is actually the U.S. Principal Party in Interest (USPPI) or its agent who will have to plan ahead and accomplish transmission and acceptance of the data earlier, so that the ITN will be available when the cargo is tendered to the exporting carrier.

Procedures for export shipments. A commenter states that the ITN requirement should be revised to allow export shipments to proceed once the USPPI/Agent has received the ITN/AES confirmation message, and the same policy should apply for export shipments that qualified for exemptions to the pre-departure electronic filing requirements.

CBP responds that if the USPPI/Agent is already waiting for the ITN message to be returned, the step of noting it on the export documents would be a fairly minor exercise.

In addition, CBP states that export exemptions follow a standard format and are listed in 15 CFR 30.50-30.58 and FTSR Letter 168, Amendment 2. The ITN is provided via a return message from AES. Carriers are required to obtain, and therefore, USPPIs or their agents must provide to the carrier, an AES proof of filing citation, low-risk exporter citation (currently the Option 4 citation), or an exemption statement under current Census regulations. CBP notes that this procedure will remain the same under Section 343(a) of the Trade Act of 2002, as amended.

Driver access to the ITN. In response to a comment stating that it was not clear how a driver, who was out picking up freight on various shippers' loading docks, would have access to the ITN, CBP states that the USPPI/Agent should have the ITN already annotated on the export documentation that would be presented to the driver. All the driver would have to do is simply verify that the shipping documents include an ITN, Option 4, or other exemption statement.

Return of ITN via email. According to comments, the AESDirect system could only return the ITN via email, which would not be timely enough for express business. In addition, some commenters believed that since the AES redesign was not scheduled for completion until mid-2004, and AESDirect sent the ITN via email, the ITN should not be required. One commenter requested that the XTN be used instead.

CBP responds that it wants to especially emphasize that the annotation of the ITN number on any export documentation will not be mandated or enforced until the implementation of the redesign of the AES Commodity Module, which, as noted, is not anticipated to be completed until mid-2004. According to CBP, the redesign of the AES Commodity Module will make the ITN stable when records are updated.

CBP states that, after consulting with Census, it has informally estimated that its AESDirect system returns the ITN via email within 5-15 minutes. While this response period may have some impact on business practices, CBP states that it should prove to be a return time that is, on balance, reasonably prompt and commercially acceptable.

Documentation for outbound waterborne cargo. A comment stated that under the proposed regulations, the exporter could present either the ITN number, the Option 4 filing number, or an exemption statement. According to CBP, it was asked whether this would also comply with the statute concerning the documentation of outbound waterborne cargo (19 USC 1431a). According to the comment, CBP should clarify that under Option 4 filing and for exporters that were otherwise exempt from pre-departure filing, there would also be no requirement to provide separate shipping documents to the vessel carrier under 19 USC 1431a.

CBP responds that issues relating to Section 343(b) of the Trade Act of 2002, as amended (codified at 19 USC 1431a), fall outside the scope of this rulemaking. As made clear in the proposed rule, Section 343(b), requiring proper documentation for all cargo to be exported by vessel, will be the subject of a separate publication in the Federal Register. To the extent legally and operationally permissible, however, CBP states that the administrative implementation of the requirements of Section 343(b) will be synchronized and dovetailed with these regulations under Section 343(a).

Carrier does not need to know whether AES filer was the USPPI or its agent. In response to a comment asking how the carrier would know whether the AES filer was the USPPI or its agent, CBP states that all the carriers need to do is ensure that the proper AES proof of filing citation (including the ITN), the low-risk exporter citation, or an exemption statement is on the shipping documents that they receive with the cargo. The carrier is not required to check the validity of the ITN or the identity of the party presenting it.

(See ITT's Online Archives or 01/12/04 news, 04011215, for Part XVIII of this series. See ITT's Online Archives or 12/09/03 news, 03120915, for Part II, which includes a list of CBP contacts.)

CBP final rule (CBP Dec. 03-32), FR Pub 12/05/03, available at http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2003/pdf/03-29798.pdf