[Federal Register Volume 76, Number 92 (Thursday, May 12, 2011)]
[Rules and Regulations]
[Pages 27606-27609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11248]
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DEPARTMENT OF HOMELAND SECURITY
Customs and Border Protection
19 CFR Part 4
[CBP Dec. 11-10]
Technical Corrections To Remove Obsolete References to Non-
Automated Carriers From Electronic Cargo Manifest Regulations and to
Update Terminology
AGENCY: Customs and Border Protection, Department of Homeland Security.
ACTION: Final rule.
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SUMMARY: This document amends the U.S. Customs and Border Protection
(CBP) regulations concerning the
[[Page 27607]]
mandatory electronic transmission of inward foreign manifests for
vessels transporting bulk and certain break bulk cargo to the United
States to make several technical corrections, including removing
obsolete language that refers to vessel carriers who do not transmit
cargo declaration information electronically (non-automated carriers).
When CBP amended its regulations to implement section 343(a) of the
Trade Act of 2002 to require carriers to transmit advance cargo
information electronically, CBP inadvertently neglected to remove
language in the cargo manifest regulations that referred to non-
automated bulk and break bulk vessel carriers. This document also makes
technical changes to related provisions to clarify the process for
electronically transmitting cargo declarations to CBP and to clarify
and update terminology.
DATES: Effective Date: May 12, 2011.
FOR FURTHER INFORMATION CONTACT: George McCray, Chief, Cargo Security,
Carriers, and Immigration Branch, Regulations & Rulings, Office of
International Trade: (202) 325-0082; Leslie Bianchi, Commercial Vessel
Program Manager, Manifest and Conveyance Branch, Office of Field
Operations: (202) 344-2575.
SUPPLEMENTARY INFORMATION:
Background
Applicable Law
Under 19 U.S.C. 1431, vessel carriers are required to submit to CBP
information concerning cargo they are transporting to the United
States. Under 19 U.S.C. 1431(d), CBP is authorized to specify the form
for, and the information required in, the vessel manifest, as well as
the manner of production for, and the delivery of or electronic
transmittal of, the vessel manifest. In the aftermath of the terrorist
attacks of September 11, 2001, Congress passed the Trade Act of 2002
(Pub. L. 107-210, 116 Stat. 933, enacted on August 6, 2002; 19 U.S.C.
2071 note), which, as amended by section 108 of the Maritime
Transportation Security Act of 2002 (Pub. L. 107-295, 116 Stat. 2064,
enacted on November 25, 2002), requires, in section 343(a), that CBP
(then, the U.S. Customs Service) promulgate regulations to collect
cargo information from any mode of commercial carrier (sea, air, rail,
or truck) through a CBP-approved electronic data interchange system.
The CBP-approved electronic data interchange (transmission) system is
the Automated Manifest System (AMS). The information required is that
which is determined to be reasonably necessary to enable CBP to
identify high-risk shipments so as to ensure cargo safety and security
and prevent smuggling pursuant to the laws that are enforced and
administered by CBP.
Existing Regulatory Requirements Under Previous Rulemakings
On October 31, 2002, CBP (then, the U.S. Customs Service) published
a final rule (2002 final rule) in the Federal Register (67 FR 66318)
amending 19 CFR 4.7 pertaining to vessel manifests to require the
advance filing of cargo information, electronically or manually, no
later than 24 hours prior to the cargo's lading onboard the vessel at
the foreign port (the ``24-hours before lading'' filing requirement).
The 2002 final rule exempted from the ``24-hours before lading'' filing
requirement carriers of bulk cargo and certain carriers of break bulk
cargo whose applications for the exemption are approved by CBP
(sometimes referred to as CBP-approved break bulk carriers).\1\ The
2002 final rule required bulk and CBP-approved break bulk carriers who
transmit cargo declaration information electronically (automated
carriers) to make these transmissions 24 hours before the vessel's
arrival in the United States (at the U.S. port) and non-automated bulk
and CBP-approved break bulk carriers to present cargo declarations upon
the vessel's arrival at the U.S. port.\2\ The 2002 final rule was based
primarily on CBP's long-established general authority under 19 U.S.C.
1431 to prescribe rules concerning information required, and the manner
of providing that information, relative to imported cargo.\3\
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\1\ Under the CBP regulations, bulk cargo is defined 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 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 articles that require mechanical
handling such as bricks, pig iron, lumber, steel beams, and the like
(19 CFR 4.7(b)(4)(i)). Break bulk cargo is defined in the
regulations as cargo that is not containerized but which is
otherwise packaged or bundled (19 CFR 4.7(b)(4)(ii)). Break bulk
cargo is exempted from the 24-hours before lading filing requirement
of 19 CFR 4.7(b)(2) upon approval by CBP under 19 CFR 4.7(b)(4)(ii).
\2\ The current regulation provides that these carriers must
``present their cargo declarations'' to Customs (now CBP) either 24
hours prior to arrival (electronically) or upon arrival (manually),
as appropriate.
\3\ In the preamble of the 2002 final rule, CBP noted section
343(a) of the Trade Act of 2002, then recently passed into law, and
stated that it co-exists with 19 U.S.C. 1431 within the body of
customs law and that a subsequent rulemaking would specifically
address the section 343(a) provisions.
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On December 5, 2003, CBP published a final rule (2003 final rule)
in the Federal Register (68 FR 68140) further amending 19 CFR 4.7 to
implement section 343(a) of the Trade Act of 2002 which requires CBP to
collect, in advance of arrival in or departure from the United States,
cargo information from any mode of commercial carrier (sea, air, rail,
or truck) through the CBP-approved electronic data interchange system.
The 2003 final rule retained the general timing requirements for the
transmission of the cargo information (generally 24 hours prior to
lading at the foreign port), including the exemption from this
requirement for bulk and CBP-approved break bulk carriers.
Explanation of Amendments
Technical Correction to Remove Obsolete Language Pertaining to Non-
Automated Bulk and Break Bulk Carriers
When CBP amended its regulations in 2003 to implement section
343(a) of the Trade Act of 2002, CBP intended to require all carriers
to transmit cargo information to CBP electronically. However, CBP
neglected to remove language in 19 CFR 4.7(b)(4) referring to non-
automated bulk and break bulk vessel carriers. Thus, contrary to the
Trade Act of 2002 and the intent of the 2003 final rule, the current
regulation still provides that these bulk and break bulk carriers may
be non-automated.\4\
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\4\ The preamble to the 2003 final rule indicates CBP's
intention that the mandatory electronic transmission requirement
applies to bulk and CBP-approved break bulk carriers. In the
discussion of comments section of that rule, CBP states that bulk
and authorized break bulk carriers will be subject to the electronic
transmission requirement under the rule (68 FR 68145).
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In order to conform the regulation to the statute's mandatory
electronic transmission requirement for all carriers, this technical
correction removes the obsolete reference to non-automated carriers
from 19 CFR 4.7(b)(4). This change will have no practical effect since
there are no longer any non-automated carriers. All carriers, including
bulk and break bulk carriers, have been filing cargo information
electronically since at least 2004.
Technical Corrections to Clarify Electronic Procedures for Bulk and
CBP-Approved Break Bulk Cargo and to Update Texts
This technical correction document also makes several other changes
to the regulations related to the electronic transmission of vessel
cargo information to clarify the process and to update terminology.
First, various changes reflecting that ``Customs'' is now known as
``CBP'' are made throughout the affected provisions. Second, CBP is
[[Page 27608]]
adding the word ``electronic'' in the heading for 19 CFR 4.7. Third,
CBP is adding language to 19 CFR 4.7(b)(2) to make clear that any
change to a new electronic data interchange system approved by CBP to
replace the AMS system for transmitting cargo information under this
section will be announced in the Federal Register. This addition is
made in anticipation of the eventual change from AMS to the Automated
Commercial Environment (ACE) system or to any other CBP-approved system
that might follow for this purpose in the future.
Fourth, several provisions in 19 CFR part 4 improperly use the term
``cargo manifest,'' ``manifest,'' or something similar to refer to the
``cargo declaration.'' The cargo declaration is only one of several
documents that comprise the manifest (see 19 CFR 4.7a). To alleviate
confusion, and because ``cargo declaration'' (CBP Form 1302) is the
correct term, CBP is substituting ``cargo declaration'' or something
similar where appropriate. These changes are made in 19 CFR
4.7(b)(3)(i), (b)(4)(ii)(A), 4.7(e), 4.7a(c)(2)(iii), 4.7a(c)(4),
4.7a(f), and 4.30(n) (as further explained below).
Fifth, a few provisions in 19 CFR part 4 reference the general
cargo declaration transmission time requirement of 19 CFR 4.7(b)(2)
without also referencing the alternative transmission time requirement
for exempted bulk and CBP-approved break bulk carriers in 19 CFR
4.7(b)(4). This is corrected in 19 CFR 4.7a(c)(4)(xv) and 4.8(b).
Sixth, in 19 CFR 4.7(b)(4)(i), CBP is removing the first sentence
as it is redundant text. The sentence generally repeats what is stated
in the first sentence of current 19 CFR 4.7(b)(4)--that carriers of
bulk cargo are exempted with respect to that cargo from the 24 hours
before lading filing requirement of 19 CFR 4.7(b)(2).
Seventh, CBP is revising 19 CFR 4.30(n), pertaining to CBP's
withholding or delaying the issuance of a permit to unlade due to the
failure to transmit required cargo information. This provision is
outdated because it provides the option of presenting the cargo
information in paper form. In the revised paragraph (n), CBP also is
adding references to 19 CFR 4.7(b)(4) to make it clear that CBP may
withhold or delay the issuance of a permit to unlade, or deny
preliminary entry, for failure to transmit required cargo information,
whether the information is due within the time frame specified in 19
CFR 4.7(b)(2) or (b)(4).
Inapplicability of Notice and Delayed Effective Date Requirements
Because the technical corrections set forth in this document merely
conform the regulatory text to existing law, clarify the text of
existing regulations, and update terminology, CBP finds that good cause
exists for dispensing with notice and public procedure as unnecessary
under 5 U.S.C. 553(b)(B). For this same reason, pursuant to 5 U.S.C.
553(d)(3), CBP finds that good cause exists for dispensing with the
requirement for a delayed effective date.
Regulatory Analyses
Regulatory Flexibility Act
Because this document is not subject to the notice and public
procedure requirements of 5 U.S.C. 553, it is not subject to the
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Executive Order 12866
The amendments made in this document do not meet the criteria for a
``significant regulatory action'' as specified in Executive Order
12866.
Signing Authority
The signing authority for the amendments of this final rule falls
under 19 CFR 0.2(a). Accordingly, this document is signed by the
Secretary of Homeland Security (or his/her delegate).
List of Subjects in 19 CFR part 4
Customs duties and inspection, Freight, Maritime carriers,
Reporting and recordkeeping requirements, Vessels.
Amendments to the Regulations
For the reasons set forth in the preamble, part 4 of title 19, Code
of Federal Regulations (19 CFR part 4) is amended as follows:
PART 4--VESSELS IN FOREIGN AND DOMESTIC TRADES
0
1. The general authority citation for part 4 and specific authority
citations for Sec. 4.7, 4.8, and 4.30 continue to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1431,1433,1434,1624,
2071 note; 46 U.S.C. 501, 60105.
* * * * *
Section 4.7 also issued under 19 U.S.C. 1581(a);
* * * * *
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;
* * * * *
0
2. Section 4.7 is amended by:
0
a. Revising the heading;
0
b. In paragraph (a), removing the words ``Customs Form'' wherever they
appear and adding in their place the words ``CBP Form'' and removing
the words ``Customs and Immigration Form'' wherever they appear and
adding in their place the words ``CBP Form'';
0
c. In paragraph (b)(1), removing the words ``Customs officer'' and
adding in their place the words ``CBP officer'';
0
d. In paragraph (b)(2), removing the words ``Customs Form'' and adding
in their place the words ``CBP Form'', removing the reference to
``Sec. 4.30(n)(1)'' and adding in its place ``Sec. 4.30(n)'', and
removing the last sentence and adding in its place two new sentences;
0
e. Revising paragraph (b)(3)(i);
0
f. Revising the introductory text in paragraph (b)(4);
0
g. In paragraph (b)(4)(i), removing the first sentence;
0
h. In paragraph (b)(4)(ii)(A), in the first sentence, removing the
words ``U.S. Customs Service'' and adding in their place the words
``U.S. Customs and Border Protection''; in the second sentence,
removing the words ``advance manifest requirement'' and adding in their
place the words ``advance cargo declaration requirement''; and, in the
third sentence, removing the word ``Customs'' and adding in its place
``CBP''
0
i. In paragraphs (b)(4)(ii)(B) and (C), removing the word ``Customs''
wherever it appears and adding in its place ``CBP'';
0
j. In paragraph (d)(1)(ii), removing the words ``Customs Form 226''
wherever they appear and adding in their place the words ``CBP Form
226''; and
0
k. In paragraph (e), in the second sentence, removing the words ``cargo
manifest information to Customs'' and adding in their place the words
``cargo declaration information to CBP'' and removing the words
``manifest or data to Customs'' and adding in their place the words
``cargo declaration or data to CBP''.
The revisions read as follows:
Sec. 4.7 Inward foreign manifest; production on demand; contents and
form; advance electronic filing of cargo declaration.
* * * * *
(b) * * *
(2) * * * The electronic cargo declaration information must be
transmitted through the CBP Automated Manifest System (AMS) or any
electronic data interchange system approved by CBP to replace the AMS
system for this purpose. Any such system change will be announced by
notice in the Federal Register.
(3)(i) Where a non-vessel operating common carrier (NVOCC), as
defined in
[[Page 27609]]
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 declaration information directly to CBP
through the vessel AMS system (or other system approved by CBP for this
purpose). The information must be received 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), as provided in paragraph (b)(2) of this
section, or in accordance with paragraph (b)(4) of this section
applicable to exempted bulk and break bulk cargo. In the alternative,
the NVOCC must fully disclose and present the required cargo
declaration information for the related cargo to the vessel carrier
which is required to present this information to CBP, in accordance
with this section, via the vessel AMS system (or other CBP-approved
system).
* * * * *
(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 only to
the bulk or break bulk cargo being transported, from the requirement
set forth in paragraph (b)(2) of this section that an electronic cargo
declaration be received by CBP 24 hours before such cargo is laden
aboard the vessel at the foreign port. With respect to exempted
carriers of bulk or break bulk cargo operating voyages to the United
States, CBP must receive the electronic cargo declaration covering the
bulk or break bulk cargo they are transporting 24 hours prior to the
vessel's arrival in the United States (see Sec. 4.30(n)). However, for
any containerized or non-qualifying break bulk cargo these exempted
carriers will be transporting, CBP must receive the electronic cargo
declaration 24 hours in advance of loading.
* * * * *
Sec. 4.7a [Amended]
0
3. Section 4.7a is amended by:
0
a. In paragraph (a), removing the words ``Customs Form'' and adding in
their place the words ``CBP Form'';
0
b. In paragraph (b), removing the words ``Customs Form'' wherever they
appear and adding in their place the words ``CBP Form'' and removing
the words ``Customs and Immigration Form I-418'' and adding in their
place the words ``CBP Form I-418'', and, in the certification language,
removing the word ``Customs'' and adding in its place ``CBP'';
0
c. In paragraph (c)(1), removing from the first parenthetical in the
first sentence the words ``Customs Form 1302 or a Customs-approved
electronic equivalent'' and adding in their place the words ``CBP Form
1302 submitted in accordance with paragraph (b)(2) or (b)(4) of this
section'';
0
d. In paragraph (c)(2)(ii), removing the words ``Customs Form''
wherever they appear and adding in their place the words ``CBP Form'';
0
e. In paragraph (c)(2)(iii), removing the word ``Customs'' wherever it
appears and adding in its place ``CBP'' and, in the next to last
sentence, removing the words ``discrepancies between manifests and
entries'' and adding in their place the words ``discrepancies between
cargo declarations and entries'';
0
f. In paragraph (c)(3) introductory text, removing the word ``Customs''
and adding in its place ``CBP'';
0
g. In paragraph (c)(4) introductory text, removing the words ``cargo
manifest information'' and adding in their place the words ``cargo
declaration information'' and removing the words ``, either on Customs
Form 1302, or on a separate sheet or Customs-approved electronic
equivalent,'';
0
h. In paragraph (c)(4)(xv) introductory text, in the second
parenthetical, which is within the first parenthetical, after the
reference to Sec. 4.7(b)(2), adding ``or Sec. 4.7(b)(4)'' and, in
paragraph (c)(4)(xv)(B), removing the words ``Customs Form (CF) 3171
and adding in their place the words ``CBP Form 3171'';
0
i. In paragraph (d), removing the words ``the Immigration and
Naturalization Service, United States Department of Justice'' and
adding in their place the words ``applicable Department of Homeland
Security (DHS) regulations administered by CBP'';
0
j. In paragraph (e)(1), removing the words ``the Immigration and
Naturalization Service, United States Department of Justice'' and
adding in their place the words ``applicable DHS regulations
administered by CBP'' and, in the certification language, removing the
word ``Customs'' wherever it appears and adding in its place ``CBP'';
and
0
k. In paragraph (f), second sentence, removing the words ``cargo
manifest information to Customs'' and adding in their place the words
``cargo declaration information to CBP''.
Sec. 4.8 [Amended]
0
4. Section 4.8 is amended by:
0
a. In paragraph (a), removing the words ``the Customs Service'' and
adding in their place the words ``Customs and Border Protection
(CBP)''; and
0
b. In paragraph (b), removing the word ``Customs'' wherever it appears
and adding in its place ``CBP''; in the second sentence, removing
``(CF)''; removing the words ``in the manner provided in Sec.
4.7(b)(2)'' and the words ``in the manner provided in Sec. 4.7(b)''
and adding in both places the words ``in the manner provided in Sec.
4.7(b)(2) or (4)''; and, in the fourth and fifth sentences, removing
``CF'' and adding in its place the words ``CBP Form''.
0
5. In Sec. 4.30, paragraph (n) is revised to read as follows:
Sec. 4.30 Permits and special licenses for unlading and lading.
* * * * *
(n) CBP will not issue a permit to unlade before it has received
the cargo declaration information pursuant to Sec. 4.7(b)(2) or (4) of
this part. In cases in which CBP does not receive complete cargo
declaration information from the carrier or a NVOCC in the manner,
format, and time frame required by Sec. 4.7(b)(2) or (4), as
appropriate, CBP may delay issuance of the permit to unlade the entire
vessel until all required information is received. CBP may also decline
to issue a permit to unlade the specific cargo for which a cargo
declaration is not received in a timely manner under Sec. 4.7(b)(2) or
(4). Further, where a carrier does not transmit a cargo declaration in
the manner required by Sec. 4.7(b)(2) or (4), preliminary entry
pursuant to Sec. 4.8(b) will be denied.
Dated: May 4, 2011.
Alan D. Bersin,
Commissioner, U.S. Customs and Border Protection.
[FR Doc. 2011-11248 Filed 5-11-11; 8:45 am]
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