How to avoid future ACAS monkey business

I once had a neighbor who, when confronted with a challenge outside of his control, would always say, “Not my circus, not my monkeys” – a fun and cryptic way to describe a situation that was not his problem. This idiom came to mind as some forwarders expressed a similar sentiment in response to the recently distributed Air Cargo Advanced Screening (ACAS) Interim Final Rule. Indeed, the responsibility of adhering to the requirement, in most cases, falls on foreign partners. However, if not adequately secured, their monkeys could be headed here soon and jump into our laps.

After waiting for almost eight years, the U.S. Department of Homeland Security (DHS) finally implemented its ACAS program at the beginning of summer. The program, conceived in response to the 2010 attempted bombings of passenger flights out of Yemen, requires the inbound carrier or any eligible party, including willing forwarders to electronically submit specified shipment data on U.S.-bound aircraft as early as practicable, but before the cargo gets loaded at the last point of departure. The security of the plane and its passengers is enhanced by enabling U.S. Customs and Border Protection (CBP) to perform targeted risk assessments on the cargo before leaving for the United States.

The ACAS initiative has supported a voluntary pilot program for some years with airlines, integrated carriers and a few forwarders as primary participants. The Airforwarders Association endorsed the plan as another useful layer of air cargo security. Millions of shipments received targeting throughout the test program, resulting in many valuable lessons learned. These lessons served a valuable role in helping CBP and TSA create operational efficiencies in their targeting approach and alarm resolution protocols, especially with cargo that might present a potential terrorist threat.

Unlike the imposition of most regulations, DHS chose to implement ACAS using an Interim Final Rule process wherein the agency found it had reasonable cause to issue a final regulation without first publishing a proposed rule. This type of directive becomes effective immediately upon publication and features a comment period during which stakeholders are asked to submit their feedback for consideration. The recent 27-page Federal Register notice featured the ACAS interim rule that, overall, retained a reasonable degree of the fundamental concepts learned in the pilot program but also a few areas of concern.

One of the areas of concern is a new bonding requirement for forwarder ACAS data transmissions. The requirement could likely dissuade forwarder participation in the program and reduce the potential aviation security benefit of ACAS by delaying the transfer of data for risk assessment on shipments flying on passenger airlines, except a small number of bonded forwarders. While we understand that access to government-owned computers should receive safeguarding, this concern must be weighed against the initial ACAS premise of encouraging the forwarder, the party most likely to have direct knowledge of the required information, to participate and file the ACAS information as early as possible. As a consequence, a large number of shipments could unnecessarily fail to receive inclusion from those that are eligible for submission at a very early point in the transit process.

Other forwarder concerns in the ACAS regulation include possible data errors committed in duplicate filings between forwarder and carrier, filing procedures for co-loaded shipments, and notification around additional screening protocols for cargo deemed to be high-risk as a result of the targeting process. These issues, along with several others, are within comments recently submitted to CBP by the forwarding industry.

Regardless of the outcome of the final version, many U.S.-based forwarders seem to be falling into the trap of shrugging off the ACAS requirement as “not their problem,” but that of the overseas forwarder. The ACAS rule, once finalized, will serve as a model for the pending pre-departure export manifest filing that CBP is contemplating and will undoubtedly become the model for predeparture data collection in other countries around the world. Rest assured that, in the absence of taking the time to acquaint foreign counterparts of the ACAS requirement and their necessity in filing shipment information as early as possible, consignments could meet delays as flights get missed while forwarders wait for the airline to perform the filing chore on their behalf. Since American forwarder customers request most import shipments into the U.S., late inbound shipments delayed due to the missing the ACAS filing requirement overseas could soon become “their problem” as customers will likely demand answers for the reasons behind the tardiness of the goods.

As with any new government-mandated program, compliance will likely drive costs higher as stakeholders deal with a possible increase in technology and workforce demands to comply with ACAS. How those costs will get covered with higher rates, new fees or reduced profits remains a question for the industry to answer.

Meanwhile, however, U.S.-based forwarders should face ACAS today, to avoid a circus full of monkeys tomorrow.