Forwarding industry lays out expectations for ACAS rulemaking
The U.S. Transportation Security Administration and Customs and Border Protection should resolve lingering issues resulting from an ongoing demonstration program for collecting advance shipment data to guide selective pre-departure inspections of U.S.-bound cargo before publishing a rulemaking requiring the electronic security filing, four trade associations representing freight forwarders said in separate letters to agency chiefs on Monday.
Customs officials have completed a draft rule based on lessons from the Air Cargo Advanced Screening Pilot (ACAS). The proposed regulation is being reviewed by the agency’s lawyers before being sent to the White House for review by other agencies and administration policy staff.
ACAS is a 3.5-year-old program that was co-created with express delivery companies after the Yemen package bomb incident and has since expanded to cover passenger and all-cargo segments of the airline industry. Under the pilot program, the carriers and freight forwarders voluntarily pre-file seven data elements about their consignments as early as possible prior to departure so CBP can run them through threat-assessment software and order any necessary inspections. Under current rules, shipment data is included in the automated manifest filed by the carrier with information about the aircraft and the flight. But the manifest is not filed until after departure in most cases, preventing security officials from detecting potential devices smuggled aboard to destroy a plane in mid-air. ACAS is designed to split out the consignment information, which is usually available much sooner, so it can undergo risk profiling.
CBP officials say they want to tailor the new rules to the differing business models of express carriers, freighter operators and logistics companies.
ACAS, however, is operating in an environment under which the TSA has authority for the security of aircraft and requires inspection of all cargo carried on passenger aircraft flying in and out of U.S. airports. The TSA’s inspection regime is frequently at odds with CBP’s risk-based targeting approach.
In their letters, the four groups (the Airforwarders Association, The International Air Cargo Association, the Express Delivery and Logistics Association, and the National Customs Brokers and Forwarders Association of America) questioned why ACAS has not yet tested rule sets setting lower inspection thresholds for trusted shippers to minimize the volume of shipments referred for an examination.
They recommended that any rulemaking be limited to the existing data elements filed from the last point of departure and that “go/stop” messages with regard to loading to an aircraft should not include instructions to resolve any security concerns because that falls within the TSA’s bailiwick. The industry group also urged CBP to continue the pilot; test multi-dimensional supply chains; test dual-filing scenarios where data is sent to CBP and the carrier; include a lengthy phase-in period before penalties are assessed for non-compliant data as was done with the Importer Security Filing on the ocean side; and involve more forwarders before promulgating a rule.
More than two dozen companies are believed to be cooperating with Customs on ACAS, but only seven large, multinational forwarders are involved despite efforts to recruit a large number of forwarders to participate in the program. Mid-size and small independent transportation management companies primarily based in the United States have largely stayed away for two reasons: much of their business involves outbound shipments, and they do not have offices overseas, relying instead on agents to arrange customer deliveries to the airlines. Industry officials say most of them will simply rely on the carrier to do the filing for them.
Once ACAS becomes mandatory, forwarders are expected to have the option of submitting the house air waybill data to CBP, filing to CBP and to the carrier, or transmitting as normal to the carrier and letting the carrier file the advance shipment data to CBP. Forwarders issue house air waybills for each customer spelling out what is being shipped and the terms of service. Forwarders typically tender consolidated shipments to airlines and will fold multiple house bills into a master air waybill for the carrier, which in turn uses master bill data to file its manifest to Customs.
“I cannot see a scenario where there a multitude of forwarder filers other than a select few,” Brandon Fried, executive director of the Airforwarders Association, said.
It only makes sense for air forwarders to file ACAS on their own if they have large consolidations running every night on the same route so they don’t run into delays waiting for the carrier to process all the filings or have to drop off cargo earlier to make departure, he explained.
Others say it’s a good idea for independent forwarders to join ACAS because it will prepare them for complying with similar air cargo security requirements being developed in other countries.
The forwarding industry also endorsed the February recommendation of the Department of Homeland Security’s Commercial Operations Advisory Committee that filers not be required to be part of trusted shipper programs such as the Customs-Trade Partnership Against Terrorism.
The trade organizations also raised concerns about whether other countries will have the same data standards and response protocols as the United States if a high-risk shipment is identified, and how procedures to resolve security questions about a consignment will be coordinated among various parties.
When a high-risk shipment is flagged under ACAS, CBP transmits a message instructing that the package be held for inspection by civil authorities, the carrier or forwarder. But cargo security programs vary by country, and some don’t permit forwarders to inspect cargo. Freight forwarders want to know whether the TSA will accept the foreign country’s methods for resolving a suspicious shipment, how the TSA will communicate inspection procedures to a forwarder in countries that don’t have established protocols since forwarders do not fall under the regulatory reach of TSA, and how carriers will be notified that screening has been completed by the forwarder or local authorities, according to copies of the letters obtained by American Shipper.
The trade associations also sought clarification on whether additional screening will be required if a shipment makes an intermediate stop at another foreign airport and how those instructions will be communicated.
On the outbound side, they urged TSA to try and make its inspection protocols consistent with those of other countries so that forwarders aren’t subject to extra work load and training to meet potentially stricter requirements in overseas airports.
“The marketplace that serves the air cargo supply chain is highly competitive, very complex, and extremely diverse. There are over 4,000 Indirect Air Carriers registered with TSA. These range in size from huge multi-national organizations with company operated offices around the world to small ‘mom and pops’ that rely on an extensive network of independent agents at overseas airports. The size and scope of their technology infrastructure and varies widely. When constructing a workable advance-screening model, governments must take care not to disturb the competitive balance that has been achieved among these diverse players in the marketplace,” the letters said.
“Therefore, any ACAS rule should maintain the level playing field for all filers. No requirement should create an unfair competitive business advantage for one filer over another, regardless of industry segment. This is not to say that all requirements must be the same (one size need not fit all). However, a thorough review of competitive repercussions must be applied to any proposed requirements, and a range of solutions provided to meet these diverse needs and capabilities.”