CBP Issues Second Version of its FAQ on Mandatory Advance Electronic Information Requirements for Inbound Air Cargo

This July 19, 2004 version contains a new introductory paragraph and reflects the revision of five questions (2, 4, 7, 24, and 33) and the addition of three new questions (8, 11, and 14).

This is Part I of a multi-part series on this July 19, 2004 FAQ, and focuses on new FAQ 8 regarding enforced compliance procedures for air carriers that have failed to become Air Automated Manifest System (AMS) participants before the required compliance date. See future issues of ITT for additional summaries.

FAQ 8 - Enforced Compliance Procedures

CBP has added a new FAQ 8 that details the compliance actions it will undertake for those air carriers that are required to participate in Air AMS but fail to do so before the required compliance date.

CBP states that beginning on August 13, 2004 for the Eastern U.S., October 13, 2004 for Central U.S., and December 13, 2004 for Western U.S., CBP will establish enforced compliance procedures in each port for any aircraft that arrives in the U.S. and is required to transmit information through Air AMS, but has not yet established Air AMS communications for that port with CBP.

According to CBP, these enforced compliance procedures will be implemented in four phases, with the schedule for each of these phases as follows:

Phase 1

New landing rights will not be granted. CBP states that during Phase 1, it will not grant new landing rights for a carrier to land at a landing rights airport or permission to land at an international airport, if the carrier has not yet established an Air AMS user record at that port.

Certain procedures must be followed before unlading cargo, penalties will not be issued. CBP also states that during Phase 1, it will establish the below-listed procedures for entrance and unlading for those carriers that previously had landing rights or permission to land but are not yet Air AMS participants. CBP notes that although no penalties will be issued in Phase 1, the below-listed procedures will allow CBP to conduct a full and complete review of the manifest information before any cargo may be unladen from an arriving aircraft.

For carriers that are not Air AMS participants, CBP states that it will no longer honor any term permit or special license to unlade that may already be on file with CBP, per 19 CFR 122.38(c). CBP indicates that this does not mean that it will deny an aircraft from landing if that air carrier is not in compliance with the regulations.

In the first phase of enforcement, a carrier that is not an Air AMS participant must complete the following process before unlading any cargo from the aircraft:

(CBP notes that if any unlading occurs prior to the completion of the process, it will issue a penalty for violation of 19 USC 1453 - penalty equal to the value of the merchandise for unlading without a special permit or license.)

Upon arrival of each flight, the carrier must present a paper copy of the manifest on the existing CBP Form 7509 (Air Cargo Manifest) with copies of the attached air waybills, in addition to all other required documentation for arrival reporting and entrance purposes. The carrier must also prepare and submit CBP Form 3171 (Application-Permit-Special License Unlading-Lading-Overtime Services) for each flight since any previously filed term versions of the document will no longer be valid. CBP further states that ports should designate an inspector to act as a rover on the airfield to ensure that air carriers are not unloading their aircraft without a valid CBP Form 3171, and those air carriers that are in violation of this requirement should be issued penalties for unlading without a permit.

Upon receipt of the above-mentioned documentation, CBP states that it will conduct a paper review of the manifest information. Upon completion of this review, the CBP officer will sign the CBP Form 3171 to allow the unlading of the merchandise from the aircraft. According to CBP, it will conduct manifest reviews for as long as it takes to determine the threat, and notes that it will not expedite the review process upon request by the air carrier. CBP also advises that the air carrier is required to submit the cargo manifest no later than four hours prior to arrival or no later than wheels-up/time of departure for designated locations.

Phase 2 - Penalties will be issued, cargo may be unladen after Phase 1 procedures completed. In Phase 2, CBP states that it will issue a penalty under 19 USC 1436 (b)/19 CFR 122.48a for failure to file the air waybill information electronically. The penalty is $5,000 for the first violation and $10,000 for subsequent violations.

In addition to issuing a penalty, CBP indicates that it will only allow the unlading of cargo for carriers that are not Air AMS participants when the procedures outlined in Phase 1 have been completed.

Phase 3 - Cargo may not be unladen even if Phase 1 procedures are completed. In Phase 3, CBP states that it will no longer grant permission to unlade cargo for carriers that are not Air AMS participants even if the carrier follows the procedures outlined in Phase 1. Cargo may not be unladen at the first U.S. port of arrival or at any subsequent U.S. port, and CBP will still require that the carrier present a paper copy of the CBP Form 7509 in the required timeframes. The cargo will remain aboard the aircraft while CBP conducts its manifest review, which it will conduct before granting permission for the aircraft to depart. Such permission to depart is granted either by signing the permit to proceed if the aircraft is continuing to another U.S. port or signing the outbound General Declaration (CBP 7507) if the aircraft is traveling to a foreign port.

In addition to disallowing the unlading of cargo, CBP states that it will also issue a penalty as outlined in Phase 2.

Phase 4 - CBP to inform carrier that future violations may subject it to seizure/forfeiture, etc. For any aircraft that arrives where the carrier is not an Air AMS participant, CBP states that it will continue to disallow the unlading of cargo and issue a penalty as outlined in Phase 3.

In addition, CBP will inform the carrier that future violations may subject it to the provisions of 19 USC 1436(b) which states that any conveyance used in connection with violations of manifest requirements may be subject to seizure and forfeiture. CBP adds that any such decision to seize an aircraft must be made with concurrence from CBP headquarters.

See ITT's Online Archives or 03/04/04 news, 04030405, for BP summary of CBP's revised compliance schedule, including a list of states assigned to each of the compliance dates.

(See ITT's Online Archives or 04/27/04 news, 04042705, for Part IX of BP's series of summaries on the April 1, 2004 version of this FAQ, with links to Parts I-VIII.)

CBP's 2^nd version of air cargo FAQ (dated 07/19/04) available at http://www.cbp.gov/linkhandler/cgov/import/communications_to_industry/advance_info/air_faq_cargo.ctt/air_faq_cargo.doc