CBP Again Updates FAQ on ACE e-Manifest (Covers Mandatory e-Manifest: Truck and Entry/Release Options)

U.S. Customs and Border Protection (CBP) has posted to its Web site another revised (February 2007) version of its Automated Commercial Environment (ACE) "Frequently Asked Questions (FAQ) on e-Manifest" (electronic manifest).

(CBP is in the process of making ACE e-Manifest: Truck mandatory for advance cargo information purposes at land border ports that have tested ACE. The first group - land border ports in Washington and Arizona as well as certain land border ports in North Dakota, were mandatory for such purposes effective January 25, 2007. The second group - all land border ports in California, Texas, and New Mexico, will be mandatory for such purposes effective April 19, 2007. (See ITT's Online Archives or 01/19/07 and 01/24/07 news, 07011905 and 07012415 for earlier BP summaries.

See ITT's Online Archives or 01/26/07 news, 07012605 for BP summary of first updated version of FAQ. See ITT's Online Archives or 11/06/06 news, 06110615, for BP summary of original FAQ.)

FAQ Provides Information on ACE Mandatory e-Manifest and Entry/Release, Etc.

This document consists of questions and answers regarding the ACE mandatory e-Manifest and entry/release. FAQs that appear to be revised include (partial list):

How does the use of e-Manifest impact PAPS? According to CBP, it will continue to use PAPS as a mechanism for the submission of entry data in conjunction with a carrier's ACE e-Manifest.

CBP recommends PAPS continue to be used in all cases where it is currently being used for filing entries, even when filing an e-Manifest. Use of PAPS means the entry is filed via the Automated Broker Interface (ABI) prior to the arrival of the truck.

Note that if a carrier satisfies the Advanced Cargo Notification requirements of the Trade Act of 2002 by submitting an e-Manifest, he/she will not be able to cross the border until the entry has been filed. An e-Manifest eliminates the need for a carrier to present a PAPS barcode to the CBP Officer.

CBP also states that the earlier an entry is filed; the better it is for everyone. Advance submissions give both the carrier and the broker time to confirm that the entry data filed by the broker (through PAPS) matches the manifest data filed by the carrier (through an e-Manifest). The e-Manifest data will need to be associated with the corresponding entry data, which is accomplished by reporting the Shipment Control Number (SCN) to the entry filer. The e-Manifest provides for automated submission of trip, conveyance, crew, equipment, and shipment data. Some release processes that do not use PAPS as the release process today have been automated in e-Manifest: Trucks such as Section 321, Goods Astray, General Note 3e¹, in-bond requests and the declaration of Instruments of International Traffic.

As far as CBP enforcement is concerned, in the e-Manifest environment, the PAPS entry is the responsibility of the broker/importer of record, and the carrier is solely responsible for the manifest. Therefore, if the entry is not on file, the broker could be liable for broker compliance penalties if this happens on a frequent basis. Lack of an e-Manifest will ultimately result in a denial to proceed, which means the truck could be turned around at the border, unable to cross until compliance with the policy is achieved.

Does the phasing in of the mandatory e-Manifest policy mean carriers will have to use two systems until ACE deployment is complete if they are crossing at ACE and non-ACE ports? CBP states that it depends on the situation. There are three possible types of scenarios during the transition period:

1. At a port that has mandated the use of e-Manifests (for advance cargo information purposes): A carrier must transmit, at least one hour prior to the arrival of the truck (30 minutes if FAST qualified), an e-Manifest to comply with the advance cargo rule. In addition, arrangements must be made, as before, for the release of the cargo being carried.

These releases can be obtained by previously used methods such as a pre-filed entry through PAPS. In-bond requests can be made via the e-Manifest. Carrier declarations supported by special provisions of the regulations, such as Section 321, General Note 3e¹ or Goods Astray Rule, while not requiring an e-Manifest may be declared by the carrier via e-Manifest. Most other informal entry processes such as CF-3311 (Free US Goods Returned) or CF-7523 (Free of Duty) may be reported on an e-Manifest, but do not require the use of e-Manifest.

Merchandise which can be informally entered on CF-368 or CF-368A (Cash collection or receipt), empty trucks, trailers and cabs and shipments consisting solely of Instruments of International Traffic (IIT) eligible for release under 19 CFR 10.41 (a) also do not require the use of an e-Manifest. e-Manifests will be required for cargo that is released via Customs Form CF-3299 (Unaccompanied Articles). These paper processes can be identified in the e-Manifest declaration as the designated release type. These CBP forms and appropriate supporting documentation must be available upon request.

1. At a port that has deployed ACE but has not mandated the filing of e-Manifests (for advance cargo information purposes): It will be the carrier's option to comply with the advance cargo rule by either filing an e-Manifest or following the previously prescribed methods, namely PAPS or QP/WP. Previously documented exceptions will continue to exist, such as cargo moving in-transit from point to point in the United States, and certain informal entries.
2. At ports where ACE is not yet deployed: Carriers will continue to use the same systems and paper manifests they are using now until the transition to ACE is made.

How will the mandatory e-Manifest be enforced? CBP states that as implementation of the mandatory policy begins at each group of ports, CBP intends to exercise enforcement discretion through the use of informed compliance notices given to carriers who arrive without submitting or attempting to file an e-Manifest. This discretionary period will last for a limited time and will be followed by enforcement action against carriers who fail to participate.

Enforcement action will include a denial of permission to proceed into the U.S. and/or monetary penalties of up to $10,000 for violation of the Trade Act of 2002. For egregious violations, a monetary penalty ($5,000 for the first offense and $10,000 for subsequent offenses) may be issued to the driver in care of the carrier under 19 USC 1436. Egregious violators are defined as those carriers that make no attempt to comply with the requirements.

CBP intends, for a short period of time during this first enforcement phase, to continue to exercise limited enforcement discretion for those carriers who are attempting to file e-Manifests. Subsequently, CBP will begin to fully enforce the mandatory e-Manifest regulations for all parties, subject to the requirements, who fail to file an e-Manifest.

(In an earlier notice, CBP stated that for the first group of ports, Phase 1 will be an informed compliance period of at least 60 days; Phase 2 will follow and last 30 days and will deny a permit to proceed if the e-Manifest for advance cargo notification purposes isn't submitted or attempted; Phase 3 will deny the permit to proceed if such an e-Manifest isn't successfully transmitted. Also during Phase 3, for egregious violations, a monetary penalty ($5,000 for the first offense and $10,000 for subsequent offenses) may be issued to the driver in care of the carrier under 19 USC 1436. Moreover, other enforcement phases could follow. See ITT's Online Archives or 01/12/07 news, 07011205, for full BP summary.)

¹CBP sources state that exclusions from General Note 1 are listed in General Note 3e

(see the revised FAQ for additional updated FAQs. )

Updated CBP ACE Frequently Asked Questions: e- Manifest (Feb 2007), available at http://www.cbp.gov/linkhandler/cgov/toolbox/about/modernization/carrier_info/electronic_truck_manifest_info/emanifest_faq.ctt/emanifest_faq_2.pdf